Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
Date: 19 January 1684

Brodie of Milton
v.
Robert Scot

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In a case between Brodie of Milton, and Mr Robert Scott, minister at the Abbey of Holyroodhouse; it was reasoned among the Lords, whether the raiser of an iraprobation, standing infeft in lands, could call for any bonds, or wadsets, &c. granted by any person whom he no ways represented, nor could succeed to jure sanguinis. The solider part of the Lords argued, that he could not; else a compriser might insert a third party's lands in his comprising, and, without instructing his debtor's right to them, force him to produce his whole charter-chest and writs; which was absurd. Others said, the design of improbations was to secure heritors in their rights of lands, and to remove all impediments that stood in his way; and what way could a man secure himself against such rights otherways?

It is Answered,—Proprietors had interest and power to put all lets out of their way, but they must do it habili modo; for they had not interest to improve such rights, but all they could do was, in a reduction and declarator, to annul them as flowing a non habente potestatem; and principles of form and material justice should not be thus questioned nor loosed.

Vol. I. Page 262.