Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lauder v. David Watson and Others
1669.
December.
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In the action of exhibition raised by my Father against Mr. David Watson, (which was called in December 1669 before my Lord Stair,) whereby was craved, that the defender might be decerned to exhibit the decreet of apprising led at the instance of the E. of Ethil against the Lord Ramsay, with the blank translation thereof, and other writs relative thereto; to the effect they might lay in the process of reduction and improbation intended by my father against the same, till the final conclusion thereof: the pursuer's interest, whereby he called for the said writs, was libelled to be as a lawful creditor to my Lord Ramsay, and as having apprised his lands and intented improbation of the writs desired to be exhibited.
My Lord Stair would not sustain the interest, because it was a thing altogether unheard of, to call for exhibition of writs for any other effect except either it were for inspection ad deliberandum at the apparent heir's instance, or for delivery at the owner's. Item, If exhibitions of this nature were sustained, then should none ever wait upon the ordinary terms of improbation their running, but would raise exhibition against the havers, which is against form. 3tio, No man can call for exhibition of writs except they be such as are conceived in his favours; and noways for writs that are in his prejudice, as is here. And hence my Lord Stair by his interlocutor, found, That if we would mend our libel thus, that we called for exhibition of that apprising, as led and deduced to the use and behoof of the Lord Ramsay, the common debtor, and which so behoved to accresce to the pursuer, who had comprised not only the right that then stood in the person of the Lord Ramsay, but also all supervenient rights whatsoever (as this apprising was,) that might become in his person; that then he would sustain the libel.
Item, Found that it would be more proper to crave such an exhibition by a bill to the Lords in præsentia than by an ordinary action. Though it may be reasoned, that having refused the desire of the exhibition, being pursued by way of an ordinary action, multo magis ought it to be refused by way of a bill, which is most summary. Yet the reason of the difference I suppose lies here, that in the matter of bills the Lords exerce much of their officium nobile, by which they may certainly command the defender to exhibit these writs to the clerk of the improbation, there to lay, &c. whereas in ordinary actions they are astricted to the ordinary forms which they may not transgress.
