Whether a party can be required edere instrumenta contra se.
Relict of William Paton v. Relict of Archibald Paton
Date: 7 July 1668 Case No. No 8.
In a count and reckoning betwixt the representatives of two brothers who were alleged to be copartners, the pursuer craved production of the defender's father's accompt book to fix a charge against him. The Lords appointed one of their number to inspect the book, and if it appeared that there was any coparnership between the parties' defunct, that the books should be given to the pursuer even ad fundandam litem; but if otherwise, that the books should be given back to the defender.
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The relict and executors of William Paton, pursue the relict and executors of Archibald Paton, for count and reckoning of sums and goods belonging to the said umquhile William Paton by Archibald, and crave the defender to produce Archibald's count books, who alleged nemo tenetur edere instrumenta sua contra se ad fundandam litem; so that the desire was no ways reasonable, unless the pursuer had given in a particular charge, and litis-contestation had been made thereon; in which case, the defender might have been compelled, ad modum probationis, to have produced the books. It was answered, the contrary was found in the count and reckoning betwixt the children of George Suitty against the representatives of William Suitty their tutor, and that there was as great reason here, the two defuncts having been brothers, and being in copartnery together, and the one factor for the other. It was answered, that the case of a tutor and his pupil was no way alike, because the count book was in effect the pupil's; and the copartnery, and factory was denied.
‘The Lords ordained the book to be put in the hands of the auditor, and if he found by inspection thereof, any accompts appeared as betwixt partners and factors, he should produce the same to the other party, even ad fundandam litem; otherwise that the same should be given back, and not shown to the pursuer.’
Fol. Dic. v. 1. p. 281. Stair, v. 1. p. 549.*** Gosford reports the same case:
Doctor Paton being executor to his brother William, and having assigned his son to all sums of money due to him as executor, he did pursue an action of count and reckoning, against Agnes Scott, relict of Archibald Paton, for several sums of money due by the said Archibald her husband, to whom she was executrix, and craved exhibition of the said Archibald's count book for clearing of debt and credit betwixt him and the said William. It being alleged for the defender, That nemo tenetur edere instrumenta contra se, the Lords ordained that the count book should be exhibited to one of their number, and if it did appear thereby, that there was any copartnership betwixt the said two brethren, or that the said Archibald was factor for his said brother William, in that case, they ordained the same to be exhibited, reserving to both parties how far the articles might prove pro or con.
