Scottish Court of Session Decisions

Subject_1 CITATION.
Subject_2 SECT. XIX.

Citation in Reductions of Judicial Deeds.

Mitchels
v.
John Hutchison

Date: 24 July 1661
Case No. No 77.

In the reduction of a retour, necessary only to call the Judge, the clerk, and the inquest.

Click here to view a pdf copy of this documet : PDF Copy

Jean and Marion Mitchels having pursued John Hutchison, in anno 1659, for reduction of a decreet obtained by him against them, as heirs to their father, upon minority and lesion; and also, because their service, the only ground of the decreet, was reduced in anno 1656, wherein there was an act of litiscontestation now wakened; the defender alleged he got wrong in the said act; because, he having proponed a defence upon the pursuers behaving themselves as heirs, (no ways acknowledging their minority), he alleged they behoved to prove the reason, as well as the exception, seeing they were both consistent; yet the act ordained him to prove his defence of behaviour, but did not ordain them to prove their minority.——The Lords found this allegeance relevant.

It was further alleged, that the reduction of the pursuer's retour is not competent against this defender, to reduce his decreet; because the said reduction was long posterior to his decreet, and he was not cited to the reduction. The pursuers answered, they needed call none to the reduction of their retour, but the Judge, and clerk, and inquest; and though the defenders decreet was anterior, they did not know the same, having been obtained when they were within twelve years of age, and never charged thereupon, before the reduction of their retour, and so they never knew it, nor were obliged to know it.

The Lords repelled this defence, and sustained the reason of reduction, unless the same were elided by the said defence, of behaving as heir.

Fol. Dic. v. 1. p. 138. Stair, v. 1. p. 55.