Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Alexander Troup
v.
David Craighead

1682, December;and 1683, March.

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Margaret and Helen Wishearts, as heirs-portioners served to John Craighead, their cousin-german by the mother's side, having disponed to Alexander Troup, some tenements of land in Aberdeen; who pursued reduction of David Craighead's service of heir to the said John Craighead, his uncle by the father; David Craighead pursued likewise a reduction, against Troup, of his author's service: in which mutual reductions both parties pretended to the right of nearest of kin to the defunct. It was Alleged against the first retour, That the witnesses adduced for the contingency of blood were neither sworn nor subscribing, though they could write. Answered, Esto the depositions do not bear the witnesses to have been sworn, yet they were, de facto, sworn; and, though they had not been sworn, the inquest might have proceeded on their proper knowledge, being both judges and witnesses. The Lords ordained the parties to be heard upon the objections against the propinquity of blood hinc inde.—December 1682.

It was afterwards alleged for the first service, That the inquest having found the party served nearest agnate to the defunct, the same cannot be quarrelled, seeing that would infer perjury in the witnesses, and that the assizers were temere jurantes. Answered, That the witnesses adduced in the last service were more pregnant than these in the first; and the depositions in either service are to be considered as depositions made before answer. The Lords, before answer, ordained a probation to be led by commission to the commissary of Aberdeen, which of the two parties served was nearest agnate so the defunct; and afterwards, upon advising the depositions in the report, found the party last served to be the next agnate; and reduced the first service.—March 1683.

Page 148, No. 533.