Scottish Court of Session Decisions

Subject_1 RETOUR.

Murray
v.
Sinclair and Meikle

Date: 10 February 1636
Case No. No 6.

Exceptions to a retour received without reduction.

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One named Murray, being served and retoured heir to umquhile———Murray, whereby he claimed right to certain bonds and obligations made to the defunct, to whom he was retoured heir, and pursuing the haver of the writs, for exhibition and delivery of the same writs, as belonging to him as heir, and having made another Murray assignee thereto, which assignee pursuing for the same; the defender alleged, That this retour could not furnish this action to the cedent himself, and consequently not to this assignee; because he referred to the cedent's own oath, that he was not attingent in no manner of degree of blood, by no kind of distance, to the defunct, to whom he was served heir, and referred also to the assignee's oath, that he knew the same to be true; and it being answered, That this ought not to be received so summarily, by way of exception against a retour past the Chancellory, which is a sentence past upon the oaths and consciences of 15 sworn assisers, but ought to be tried by a legal and ordinary way of action and process of error;—the Lords found the allegeance relevant, and received the same in this place, to be tried by the parties' own oath, which they found to be such a manner of trial, as the party served could not decline himself; and that there was no necessity, in respect thereof, to intent another process of reduction, or error, where the party himself was judge.

Act. ————. Alt. Gibson. Clerk, Hay. Durie, p. 793.