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M'Intosh v William M'Intosh. [1698] Mor 14431 (2 February 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Mor3314431-019.html Cite as:
[1698] Mor 14431
A general service unretoured is no ground of action.
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Halcraig reported M'Intosh, as assignee by M'Queen of Corrybrough, against Mr. William M'Intosh of Aberarder, for payment of 2000 merks contained in his father's bond, upon the passive titles, as representing him, and obtains a decreet before the sheriff of Inverness; whereof Aberarder raises suspension and reduction, on this reason, that your active title was null, being a general service for carrying the right of an heritable bond, and the same never retoured to the Chancery, which, though sufficient to instruct a passive title, yet was never sustained active, unless services within a regality, or before the year 1550, when the records were destroyed by the English. Answered, It cannot be denied but he is the nearest in blood to the creditor, and, if need be, it shall be retoured, and produced cum processu before sentence. Replied, The brief of mortancestry is, one of the retourable brieves, and it is an incomplete act till the retour, by which only it becomes a sentence; the service being only the report of a verdict on the commission directed to them; and Hope and all our lawyers are clear on this. See Stair, L. 3. T. 5. § 41. and L. 4. T. 3. § 4 & 8. The Lords found this such a nullity as opened the decreet, and turned it into a libel.
Fol. Dic. v. 2. p. 371. Fountainhall, v. 1. p. 819.
