Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. I.

To Whom this action competent.

Farquharson of Innercauld
v.
Earl of Aboyne

Date: 16 December 1709
Case No. No 65.

A pursuer of an improbation can reduce no rights but those flowing from his authors, with whom he is connected by progress.

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Farquharson of Innercauld pursues a reduction and improbation against the Earl of Aboyne, of his right to the lands of Grodies, and calls for production of all writs in his person concerning these lands. Alleged, I’ll take a term for no right, except those from whom you derive right and connect a progress; for quo jure can you compel me to produce rights flowing from persons whom you neither represent, nor shew any right derived from them. Answered, This doctrine would quite enervate the design of that excellent useful process of reduction and improbation, where certification passes against the writs not produced; which invention is peculiar to this kingdom, and forces the parties to bring all their rights and claims upon such lands into the field, that in a competition it may appear who has the best right to the property; and I may remove all impediments out of the way that can disturb my property or possession, from whatsoever person they flow, as Stair observes, lib 4. tit. 20. sect. 14. And to restrict the effect of certifications only to writs flowing from the same authors whom you represent or derive your right from, is to narrow, diminish, and abridge this useful process. Replied, Whatever inconvenience may be in this restriction, there is more danger and damage the other way; for, suppose a man adjudges lands from his debtor, and puts in baronies and tenantries whereto he never had any right, shall this entitle you to pursue an improbation against the heritors and possessors of these lands, and make them open and propale their charter chests to you, who show no right in your debtor's and author's person to these lands? Such a practice were of the utmost consequence to shake the security of the lieges; and therefore the Lords have ever restricted this general clause calling for production of the hail writs and evidents of the lands in question only to those granted by themselves, their authors and predecessors, whom they represent, and no further, as Hope observes, 20th Dec. 1622, Lord Cathcart against his Vassals, No 14. p. 6617.; Durie, 18th Dec. 1623, Monymusk against Forbes, voce Prescription; and Stair, 24th July 1673, Shaw against Watt, No 52. p. 6644. and many since, as Hay of Alderston, Dallas of St Martin's , Cathcart of Carbiston,* &c. Replied, The old decisions run somewhat in that strain, before improbations were fully understood or brought to a consistency; but the latter have not been so uniform, and Stair seems to think it an inconvenient custom.—The Lords would not recede from the current practice, and therefore sustained the defence, That the pursuer had no interest to reduce any writs or rights, but those flowing from his authors, or to whom he connected a progress; but wished some regulation thereof in time coming by an act of sederunt; but that will require mature deliberation, that by such general clauses the lieges may not be vexed, nor forced to debate with one who has no right from their author, but from a third party; and it were fit the inconveniencies on both sides were rectified and prevented.

Fol. Dic. v. 1. p. 444. Fountainhall, v. 1. p. 542.

* Examine General List of Names.