Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. I.

To Whom this action competent.

Hamilton
v.
Vassals of Bargany

Date: 14 July 1626
Case No. No 19.

An improbation by a purchaser of lands from one infeft, calling for production of personal bonds, granted by the author and his predecessors, was sustained with this restriction, that certification should be granted for non-production, in so far as the pursuer might be prejudiced by the bonds, in his right to the lands libelled.

In this case action was sustained production and improbation of all writs made by the pursuer's father, grandfather and great grandfather, &c. without necessity that the pursuer should be served by progress. See No 13. p. 6617.

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In an improbation pursued by Sir John Hamilton against certain vassals of Bargany, the Lords sustained this action of improbation, at the said Sir John's instance, as having right to the lands flowing from Kennedy of Bargany, his author, who was infeft therein, for production of all the writs libelled made to the defenders by his author, or by his said author's predecessors, enumerated in the said summons, to whom his author might succeed jure sanguinis; which action the said Lords sustained, at the instance of the pursuer, he being singular successor; and found the same also competent to him to pursue after that manner for production and improbation of the writs made by his author's father's goodsire, grandsire, and other predecessors, to whom he might succeed jure sanguinis, as said is; as his said author himself might do, if the pursuit had been at his own instance, in case he had not been denuded. Also the Lords found, that it was not necessary, either to libel, or to instruct, that the pursuer's author was heir, or succeeded to these predecessors by progress, by whom the evidents libelled are alleged to be made, but that it was sufficient to libel in this, and all the like actions, that he is apparent heir of blood to them, without any qualification of any other progress of right derived in the pursuer's authors by course of succession, or being heir to each one of his predecessors, he shewing his author's self to be infeft therein, as heir to his father, or successor therein to him, which the Lords found sufficient, seeing in him continued the succession of the blood uninterrupted in linea recta; and if he had been pursuer, he had no need to instruct any other right from each predecessor to his apparent heir succeeding in the blood, except the said descent in blood. But this contrary to the decisions made before; whereanent look February 1st 1622, L. Craigie Wallace, No. 13. p. 6617.; Item, February 26th 1622, Earl Kinghorn contra L. Inshsture, Sect. 6. h. t.; and February 13th 1627, Lady Borthwick, No 4. p. 6625.; December 3d 1634, Lo. Johnston, No 45. p. 6640. In this process also, the Lords sustained the action, for production and improbation of personal bonds made by the said pursuer, his authors and predecessors foresaid, the same being this way restricted, viz. in so far as the pursuer may thereby be prejudged in his heritable and real right to the lands libelled.

In this process also, the Lords found, That lands pertaining to the principality could not be disponed by the King, there being a Prince, except by the King, as being administrator to the Prince, so that if the same should be simply disponed by the King, and not co nomine as administrator, any other thereafter acquiring right from the King, as administrator to the Prince, would be preferred to that prior right given by the King simply without relation to the principality; and where there was no Prince, there was no necessity to dispone, but as King, as in other dispositions made by the King, but the disposition would make mention, that the lands pertained, and were of the principality. See Prince of Scotland.

Alt. Hope & Stuart. Act. Aiton & Nicolson. Clerk, Gibson. Fol. Dic. v. 1. p. 442. Durie, p. 218.