Scottish Court of Session Decisions

Subject_1 EXHIBITION.
Subject_2 SECT. III.

Demand of exhibition of 'all writs.

George-James Duke of Hamilton and his Tutors, and Dunbar Earl of Selkirk,
v.
Archibald Douglas of Douglas, Esq

Date: 28 November 1761
Case No. No 12.

No person can be obliged to show his charter-chest per aversionem, although any particular writing being called for by a person having interest, the defender may be compelled to produce it.

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Archibald Duke of Douglas was infeft in his estate upon a charter from the Crown in 1707, in favour of himself, and the heirs-male of his body; whom failing, to the heirs called by deeds executed by his father.

In 1759, the Duke became bound to settle his estate upon the heirs-male of that or any subsequent marriage; whom failing, upon the heirs-female of the marriage; whom failing, to such heirs as he had named or should name in the settlements made or to be made by him; and failing thereof, to his own nearest heirs and assignees whatsoever.

Upon the 11th July 1761, the Duke executed an entail, in which he granted procuratory for resigning his estate in favour of himself and the heirs whatsoever of his body; whom failing, the heirs whatsoever of the body of the deceased James Marquis of Douglas, his father; whom failing, Lord Douglas-Hamilton, second son of the deceased James Duke of Hamilton; whom failing, certain other substitutes.

The Duke, of the same date, having no heirs of his body, nor prospect of any, made a deed of appointment of certain tutors and curators to Archibald Stewart, a minor, son of the deceased Lady Jane Douglas, his Grace's sister, as the person who was to succeed to him, failing issue of himself.

The Duke died before the end of that month; and the said Archibald Stewart, now Douglas, took out a brieve from the chancery, in order to be served heir of provision in general to him, upon the deed 11th July 1761; and this service having come before the macers in September said year, a proof was led of his propinquity, and compearance was made for the Duke of Hamilton and the Earl of Selkirk, the former of whom had purchased a brieve for being served heir-male and of provision to the Duke in his lands of the earldom of Angus, barony of Dudhope or Dundee, and Bothwell, and Wandell, as devised to heirs-male by the feudal investitures of the estate: The other competitor, Lord Selkirk, had also taken out a brieve, for being served heir of tailzie and provision to the Duke of Douglas in the estate of the earldom of Angus, and in the barony of Dudhope, which, he maintained, were descendible to him by the investitures.

Mr Douglas having been served by the inquest as heir of provision, under the tailzie 1761, a protestation was entered on the part of the Earl of Selkirk, that the service should not be retoured by the macers to the chancery, till the Earl should be heard upon his claim to the estate.

The counsel, however, for Mr Douglas moved, That his service should be retoured to the chancery in the common form; which was accordingly done; and Archibald Douglas having thereby acquired right to the procuratory in the tailzie 1761, put up a signature in the Exchequer for a charter of resignation of the whole estate, in order that he might complete a feudal title thereto. He also entered into possession, by appointing factors, and performing some other acts of property.

The Duke of Hamilton and Earl of Selkirk in the mean time raised actions of reduction and declarator before the Court of Session, for ascertaining their rights to the above mentioned parts of the estate; and having likewise brought forward their brieves to be served heirs in special upon the investitures as above, the same came before the macers on the 13th November 1761, when compearance was made for Archibald Douglas, who objected to their service; and the debate was reported to the Court of Session upon the 19th November.

While the above matter was in dependence, a petition was given in to the Court of Session for the Duke of Hamilton, and another for the Earl of Selkirk, praying to sequestrate the earldom of Angus, and other subjects in competition between them and Mr Douglas; and to appoint a factor for uplifting the rents till the issue of the competition: And to these petitions answers were put in for Mr Douglas.

Argued for the petitioners; There is neither reason nor justice, that, in questions of this kind, where the right of succession is claimed by different parties, and the matter rendered litigious by a competition of brieves, the one party should be allowed so great an advantage over the other, as to be let into possession of the estate. All parties are upon an equal footing; and, until the question of right is determined, the estate ought to be sequestrated, and a curator bonis appointed. The usual form of procedure in such cases, is to raise and repeat in the service, summonses of declarator and reduction, to be the foundation of the Lords assessors reporting to the Court the debate upon the point of right, Such summonses have been accordingly raised in the present case, and the competition may be brought to a speedy determination; but, in the mean time, it is not reasonable that either party should have the benefit of possession.

Answered for Mr Douglas; When the question of right comes to be debated in the proper shape, he will be able to show, that the former settlements and investitures stand in his favour: But, independent of these, he maintains, that, as heir of line and of provision, served and retoured upon the deed 1761, and lawfully in possession, he is entitled to hold that possession until the rights of the contending parties are finally judged and determined.

Mr Douglas, in the first place, has, by his service as heir of provision to the Duke upon his last deed in 1761, carried right to the procuratory in that deed, and is vested in the personal right to the lands, which gives him a good title of possession against the granter of that right, and against every person claiming as heir under him. He is in the same case with a disponee, whose want of infeftment cannot be challenged by the disponer or by his heir. The disponer is obliged to put him in possession, though his right be only personal; and therefore the disponer's heirs cannot dispute the possession with him.

Neither does it make any difference that the deed 1761 is said to have been on death-bed. A deed granted in these circumstances is not null by the law of Scotland, it is only liable to be challenged by the heir, who shall instruct a proper title so to do, and who brings a regular process for that purpose; but, in the mean time, the deed is held to be good, and will afford an undoubted title to possess.

Further, Mr Douglas is not only heir of provision served and retoured upon the last deed 1761, and whose titles will soon be completed by charter and infeftment, but he is the apparent heir of line, called as such to the succession, by the contract of marriage 1759, failing any nomination; and he is likewise in the possession of the estate, entitled to continue that possession till the same be evicted from him in the regular course of law, by some person having a better right.

‘The Lords refused to sequestrate in hoc statu.’

Thereafter, applications were made by the Duke of Hamilton and the Earl of Selkirk, for access to the charter-chests and papers of the late Duke of Douglas, and to have it found that Mr Douglas had no preferable right to the keys and custody of the charter-room, and other repositories. It was answered for Mr Douglas, That, as heir of line and provision, served and retoured to the Duke, and in possession of his estate, he had right to the custody of his papers, and that no man could be obliged to show his charter-chest per aversionem; though, if any particular writing was called for by a person having an interest in it, he might be forced as a haver, or in a process of exhibition, to exhibit such paper; case of Francis Scott contra Lord Napier, No 11. p. 3965; and cases of Hamilton of Dalziel, and competition for the estate of Balnagowan. See Appendix.

‘The Lords refused the desire of both petitions.’ See Service of Heirs.

For Mr Douglas, Hamilton-Gordon, Burnet, Montgomery, Garden, M'Queen, Rae, Ilay Campbell, Alexander Murray. For the Duke of Hamilton, Lockhart, Sir John Stewart, John Campbell jun. Walter Stewart, William Johnston, Sir Adam Ferguson. For the Earl of Selkirk, Advocate, Sir David Dalrymple, Patrick Murray, Wight, Crosbie. Fol. Dic. v. 3. p. 195. Fac. Col. No 69. p. 158.

*** The like was decided 27th February 1762, Ross of Pitcalny against Lockhart Ross. See Appendix.