Subject_1 EXHIBITION AD DELIBERANDUM. Subject_2 SECT. I.
Competent to all sorts of heirs.
Sir Andrew Cathcart v. The Earl of Cassilis
Date: 4 February 1795 Case No. No 15.
The right of the heir of line, or of former investitures, to bring an exhibition ad deliberandum, found to be cut off by an entail made by his predecessor, in favour of the heir-male.
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David Earl of Cassilis executed an entail of his estates of Culzean and others, in favour of himself and his heirs-male.
On his Lordship's death in 1792, Archibald Earl of Cassilis being the next heir called in the entail, got possession of the estates conveyed by it, with the title-deeds, which last, it as usual assigned to the heirs of tailzie. His Lordship, soon after, took infeftment on the entail, and put it upon record.
Sir Andrew Cathcart was one of the heirs-apparent of line to Earl David, and also (as he alleged) heir of provision in part of the lands entailed by him, of which, in consequence of certain destinations made by his Lordship's predecessor, Sir Andrew contended, that he could not be disappointed by the entail, which was gratuitous.
Sir Andrew, in these characters, brought an action against Earl Archibald, concluding for exhibition ad deliberandum, of all the writings in his possession relative to those lands, to which he alleged he had right as heir of provision.
In defence, Lord Cassilis
Pleaded; Earl David's entail followed by infeftment, is ex facie a complete title for vesting the property of the whole lands and title-deeds in the defender, and until it be set aside in a regular action of reduction, the pursuer, in neither of the characters to which he lays claim, can have any title or interest to insist in this action; Erskine, b. 3. tit. 8. § 56; Harcarse, March 1683, Lady Yester against Lord Lauderdale, No 23. p. 3999. Its proper object is to enable the heir to deliberate whether he should enter, but there can be no occasion for such deliberation, where, as in this case, there is no estate to which he can enter.
Answered; The deed of a predecessor, in order to deprive an heir-apparent of the privilege of pursuing an exhibition ad deliberandum, must be onerous, must be followed with infeftment, and must have completely denuded the granter; Stair, b. 3. tit. 5. § 1.; b. 4. tit. 33. § 4. 6.; Harcarse, No 482, No 23 p. 3999; 483, No 6. p. 3985.; and 484, No 25. p. 4000.; Erskine, b. 3. tit. 8. § 56; Madowall, b. 3. tit. 5. § 7; Kames, 30th November 1756, Heron against Herons, No 37. p. 4019.; Fac. Col. 12th January 1779, Macfarlanes against Buchanan, No 13. p. 3991.; 8th August 1783, Lady Mary Campbell against Earl of Crawford, No 15. p. 3973.; whereas the entail in question was not only gratuitous, but at Earl David's death was an undelivered personal deed, which he might have revoked at pleasure.
Replied; None of the authorities referred to support the plea of the pursuer; most of them indeed relate entirely to the question, What writings an heir, whose title is undisputed, is entitled to call for?
The Lord Ordinary ‘assoilzied the defender.’
On advising a reclaiming petition, with answers, it was
Observed on the Bench; The deed of the late Lord Cassilis clearly excludes the present action. This point was determined both in the case of Duke Hamilton against Douglas, 28th November 1761, No 12. p. 3966.; and in that of Hamilton of Dalzell against Miss Hamilton of Rosehall in 1756, (not reported). The pursuer's object here is, not to get inspection of writs, in order to deliberate about entering, but to discover whether there are grounds for setting aside Earl David's entail. But for this purpose, he must make up titles, and bring a regular process of reduction and declarator, in which, after specially condescending on the papers wanted, he will be allowed a diligence for recovering them.
The Court unanimously ‘adhered.’
Lord Ordinary, Craig,Act. Geo. Fergusson.Alt. Dean of Faculty Erskine, Rolland.Clerk, Home.
Fol. Dic. v. 3. p. 197. Fac. Col. No 154. p. 352.
