Scottish Court of Session Decisions

The application is made under the provisions of the Act 22 Victoria, cap. 20; and the suit in the Court of Chancery, in the course of which this proceeding has been taken, was instituted under the Act 5 and 6 Vict., cap. 69.

I understand that no objection is taken to the prayer of the petition, in so far as regards the examination as witnesses of the trustees and the other gentlemen mentioned. But the prayer for all order of this Court, commanding the production and exhibition of the writings mentioned, is strenuously opposed both by the trustees of the late Marquis and by the Earl of Breadalbane.

I am of opinion that the order for examination of these witnesses may be competently and legitimately granted; but I concur with your Lordships in refusing at present any order for production and exhibition of writings.

Apart from the consideration of the two statutes mentioned, I think it quite clear that this petitioner could not, by action of exhibition or any other form of Scottish suit, compel these trustees to produce and exhibit the writs called for. It was not maintained at the bar that the petitioner could have enforced production or exhibition without availing himself of the provisions of these two statutes. Now, I am of opinion that these statutes do not, either separately or in combination, support this demand.

The Act 22 Victoria, cap. 20, is an Act to provide for “taking evidence in suits and proceedings pending before tribunals in Her Majesty's dominions in places out of the jurisdiction of such tribunals,” and more particularly obtaining the testimony of witnesses outwith such jurisdiction. There is a power given to this Court, as well as other courts out of the jurisdiction of the Court before which the suit is pending, to command production of writings. In this, however, this Court is to proceed, “as may appear reasonable and just.” This Court is to judge, in like manner as in a cause depending, and is to pronounce an order according to judicial discretion. I think that the order to be pronounced must be such as this Court thinks reasonable and just according to the laws and practice of Scotland. The granting of the order is, in my view, a judicial, not a ministerial act.

If, therefore, the Act of 22 Victoria had alone been founded on, this petitioner could not demand production or exhibition of these titles. He could not succeed in an action of exhibition; he has no title on which he could demand exhibition; and our law would not open the charter room at Taymouth Castle to a person in this position. I do not understand this to have been disputed.

But it is said that the Act 5 and 6 Victoria, chapter 69, along with a subpœna duces tecum, obtained in a proceeding under that Act, gives him the right to mike this demand. I am quite unable to arrive at that conclusion.

The Act 5 and 6 Victoria is an English Statute, passed for a special purpose; and its provisions relate to proceedings in the Court of Chancery. The enforcement of production of title-deeds in Scotland is not within the scope of that statute. The evil, or peril, for which a remedy is provided by the Act 5 and 6 Victoria is the loss of “testimony,” and the object of the Act is to prevent that evil and peril by affording facilities for “perpetuating testimony.” The examination of aged witnesses, whose evidence may be lost by death, is legitimately within the scope of this Act. But title-deeds in a charter-room are not within the description of testimony, and the testimony of witnesses is plainly what the Act contemplates. There is no reason to apprehend, and no ground is stated or suggested for supposing, that these titles are otherwise than safe. They are in the lawful custody of trustees in Scotland, from whom this petitioner could not compel production or exhibition by direct action or procedure here.

In these circumstances the petitioner, having obtained from the Court of Chancery a subpœna duces tecum, presents this application, calling on us to enforce the subpœna by an order for production and exhibition of the Breadalbane titles.

I cannot venture to speak with any confidence of the nature and effect of the English writ of subpœna duces tecum. But so far as I can understand it, I believe it to be an authoritative form of notice to produce. It is not, properly speaking, a judgment. It is not granted causa cognita and after judicial consideration of the demand for production. It is obtained ex parte, and issued ministerially; and all rights and pleas against production of the documents enumerated in the writ are held to be reserved. The party served with the writ must be prepared to produce, if law requires it, but the service of the writ does not determine the legality of the call for production, or the obligation to produce. There are many English decisions in the reports, sustaining pleas against production, and refusing to enforce the call. In short, the period for judicial consideration of the right to demand, and the duty to make, production, is, not when the subpœna is issued, but when the party served therewith states his refusal to produce. Our procedure by commission and diligence against havers is different, for the specification is considered before the commission is granted. Now, if we were to make an order for production of these titles merely in enforcement of this subpœna, and without the exercise of our own judicial discretion, we should be seriously disturbing the possession and custody of these important titles, without the question of the right to enforce, and the obligation to make, production having been judicially considered either in England or in Scotland. If the writ, issued in England ministerially, is to be enforced in Scotland ministerially, the custodiers of these titles would be deprived of the protection which the law affords.

I concur in the opinion that in this matter we should grant an order, as craved, for the examination of these gentlemen as witnesses, and at present grant no further order.