Tenor of the Brieve. - Form of proceeding. - Reduction of Service. - Can a Service be stopped by an offer to prove a nearer Heir?
Hugh Macleod v. Archibald Stewart
Date: 9 February 1751 Case No. No. 14.
In order to reduce a service, it is sufficient to call the person in the right by progress, without calling the heir of the person served.
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John Macinlay, merchant in Glasgow, being served heir before the bailies of Glasgow to Dougal Macinlay, burgess of Rothsay, disponed thereupon certain tenements in Rothsay to Archibald Stewart of Cratrine, who was infeft in the same. It appears Dougal Macinlay's right has been personal, so as to be carried by a general service.
Hugh, son of Robert Macleod, house-painter in Maryland, pursued a reduction of the service and disposition; and the defender declining to take a day, the Lord Ordinary, 15th January, granted certification.
Pleaded in a reclaiming bill, All persons having interest are not called; the person served or his heir, ought to be called to support the service; formerly the inquest behoved to be called, 24th February, 1665, Mercer of Aldie against Rowan, No. 12. p. 14424.; and in improbations, the judge and clerk before whom the service proceeded, 17th February, 1624, Elphingston against the Earl of Mar. No 80. p. 2218.
The Lords hesitated, and delayed prceeding, till the petitioner should condescend on the heir of the person served; which if he could not do, they would refuse; and he having condescended, on a sister, they nevertheless refused.
