Earl of Sutherland v. Earls of Errol and Marishall
Date: 3 January 1667 Case No. No 48.
Whether a retour, being the sentence of a court, altho' posterior to retours called for, ought to be sustained as a title to require production of the defender's rights?
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There being a decreet of Parliament ranking the Nobility, whereby the Earl of Sutherland was put after the Earls of Errol and Marishall; in which decreet there is a reservation to any to be heard before the Judge Ordinary, upon production of more ancient evidents; whereupon the Earl of Sutherland pursues reduction of the decreet of ranking, containing an improbation of all writs, patents, and other evidents granted to the defenders, or their predecessors, whereby they are constituted or designed Earls. They did produce the decreet of ranking, and the Earl of Errol's retour, whereupon the pursuer craved certification contra non producta, after all the terms were run.—The defenders alleged no certification, because they had produced sufficiently, by producing the decreet of ranking and their retours, and the pursuer had only produced his own retour, which was since the decreet of ranking; so that the decreet of ranking was sufficient to exclude all his titles produced.—It was answered, The retour being the sentence of a court, serving this Earl as heir to his fore-grandsir grandsir's grandsir's fore-grandsir's goodsir; who is designed Earl by King Alexander II. it was sufficient in initio litis; likeas he did formerly produce the original evidents, and which was now in the clerk's hands, and might have been seen by the defenders if they pleased.
The Lords found the retours not sufficient alone, and ordained the rest to be reproduced, and seen, by the defenders.
