Found that an adjudger who was neither infeft, nor had charged the superior, could not insist in an improbation.
Click here to view a pdf copy of this documet : PDF Copy
In a reduction and improbation at the instance of the Earl of Hume, as infeft on an adjudication of the estate of Hume, the pursuer being debarred by horning ab agendo, there was afterwards compearance for Mr Charles Hume who had adjudged the Earl's right, and consequently the dependence; and craved to be allowed to insist in his own name, as legal assignee by the adjudication; seeing a rebel's factor, or his assignee, may carry on a process from which the constituent or cedent is debarred, by not having personam standi;
Answered; No man can insist in his own right and name in a process of reduction and improbation, unless he be infeft, or have charged the superior.
“The Lords found the answer relevant.”
1685. January 8.—The Lords, supra. having found that Mr Charles Hume, who had comprised his brother the Earl of Hume's right, could not insist without being infeft in his own name, in a reduction and improbation raised by the Earl, who was at the horn;
It was afterwards alleged for Mr Charles; That he was within year and day of another adjudger who stood infeft, which infeftment by the act of Parliament is to be reputed his.
Answered; Though Mr Charles's diligence without infeftment could carry the real right that was in the Earl's person, it could not give him an interest in the action raised in the Earl's, name, more than an appriser could insist in an action of mails and duties commenced by his debtor, without any voluntary right or assignation thereto.
Replied; A comprising, which is a legal assignation, must operate as much as a conventional.
“The Lords sustained the allegeance and reply, and allowed Mr Charles to insist in the action.”
Fol. Dic. v. 1. p. 445. Harcarse, (Improbation and Reduction.) No 543. p. 151. & No 552. p. 153.
*** The like was found, Viscount of Kenmure contra Jolly, January 1687 Harcarse, p. 153.
