Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell, Petitioner. (Ante, vol. iv, p. 84) [1867] ScotLR 5_386 (18 March 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0386.html
Cite as: [1867] ScotLR 5_386, [1867] SLR 5_386

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 386↓

Court of Session Inner House First Division.

Wednesday, March 18. 1867.

5 SLR 386

Campbell, Petitioner.

(Ante, vol. iv, p. 84).

Subject_1Title to Sue
Subject_2Proof
Subject_3Delivery of Document
Subject_4Exhibition — 5 & 6 Vict., c. 69 — 22 Vict., c. 20.
Facts:

A party having commenced in Chancery a suit for perpetuating testimony, alleging himself to be the immediate younger brother of a party who was entitled, to claim certain titles and estate, and having obtained an order appointing an examiner to take the examination of witnesses, petitioned in the Court of Session for an order on certain parties, custodiers of the family papers, to search for and exhibit, before the examiners, certain documents referred to in the examination of one of the witnesses; Held that the petitioner had no title to make this demand.

Headnote:

The Court having, by interlocutor of 11th June 1867, appointed the trustees and law agents of the late Marquis to appear for examination as witnesses before the examiners, Lord Jerviswoode and Mr Thomas Syme were examined. Lord Jerviswoode stated in the evidence which he then gave that the document then produced, (marked A) was a list of documents and papers which he had been informed by Messrs Davidson & Syme the complainer desired to have then exhibited; that he had none of the documents or papers with him; that the Trustees would not search for or exhibit the documents and papers called for without judicial authority; and that the reason they would not do so was, because there was a question raised as to the party who had right to the documents in the Charter Room of Taymouth Castle, or connected with the family or estates, and that they, the Trustees, thought it proper to do nothing in the matter without judicial authority.

The petitioner then, on 26th November 1867, presented a petition to the court, setting forth the previous procedure in the case, and praying the court to order the late Marquis’ trustees and lawagents to search for, and to exhibit before the examiner, at such times and places as the examiner should appoint for their examination, “the writings and other documents above-mentioned and described in exhibit A, referred to in the depositions of the said Lord Jerviswoode and Thomas Syme, already taken before the said examiner, or such of the said writings and documents as are in their custody, possession, or power; and if it should appear to their Lordships to be necessary so to do, in order to give due effect to the said order, or to the prayer of the petition, to grant diligence for the recovery of the foresaid writings, and warrant to cite the said Earl of Dalhousie, Lord Jerviswoode, Alexander Currie, Laurence Davidson, and Thomas Syme, as havers, to produce the same, but all for the purpose of exhibition before the said examiner, as prayed for.” The petition was partly heard on 27th November, and further hearing was adjourned till 5th December.

On 30th November the petitioner presented a note of suspension and interdict against John Alexander Gavin Campbell of Glenfalloch, stating that his agent had received on that day a letter from the agent for the late Marquis’ trustees to the following effect,—“Subsequent to the judgment of the House of Lords in the Breadalbane Succession Cause, the present heir in possession of the entailed estates of Breadalbane has made application to our clients, the Trustees of the late Marquess, for access to the Charter Room at Taymouth; but our clients did not think it their duty, in the circumstances, to accede to them. The Earl has now, through his agents, intimated that, failing our client's assent by Monday first to his obtaining access to the Charter Room in the manner proposed by him, he will, at his own hand, direct the room to be opened, and its contents ascertained and inventoried.”

The letter addressed to the agents of the Trustees by the Earl's agents contained this passage:—“We therefore suggest that the contents of the Charter Room should be examined, and, so far as thought necessary, inventoried by us as the Earl's agents, at the sight of yourselves, as agents for the Trustees, or of some one appointed by you to attend while this is being done, and we are quite ready to concur in arranging a convenient time for this purpose. If the reasonable proposal now made be declined, the Earl will direct the room to be opened, and the contents ascertained, and, so far as thought proper, inventoried by proper persons on his own responsibility.”

The Trustees’ agents accordingly gave this intimation to the agents for the petitioner, who now presented this note of suspension and interdict, craving the Court to interdict the respondent from entering, “or in any way interfering with the Charter Room at Taymouth Castle, or with the titles, muniments, and other writings therein contained, relating to the earldom and other honours and dignities of the family of Breadalbane, or relating to that family.”

On the suggestion of the Court, after hearing parties, an arrangement was come to, on the basis of the proposal contained in the letter by the Earl's agents to the agents for the trustees, quoted above as to an inventory to be made at sight of the latter, in respect of which the note of suspension and interdict
Page: 387↓
was refused, and, on the motion of the petitioner, consideration of the petition superseded.

The petition was now moved in by the petitioner, who alleged that the Earl was not proceeding with the inventory, and apparently did not intend to proceed therewith. He therefore craved the Court to grant the prayer of the petition.

Judgment:

Dean of Faculty, Solicitor-General (Millar), and Mair for petitioner.

Young, Clark and Adam for respondent.

Watson for Trustees.

The Lord President said that, under the Statute 5 & 6 Vict., c. 69, the petitioner had a title to file this bill in the Court of Chancery, because he alledged himself to be the immediate younger brother of the person who, he said, was entitled to claim the estates of the family, and on the death of his brother, he would be entitled to claim in like manner. On the proceeding coming before the Vice-Chancellor, an order was pronounced by him, on which the petitioner presented a petition in this Court on 14th May last, praying that the Court would order the examination as witnesses before Mr Duncan, the examiner appointed by the Court of Chancery, of the trustees and law-agents of the late Marquis, and that these parties should produce and exhibit certain documents. An interlocutor was pronounced upon this petition, ordering the examination of these parties as witnesses, and quoad ultra superseding the case. Some of these parties were examined, but it soon appeared that they had very little to say. They were asked to produce a number of documents then in Taymouth Castle, but their answer was that they had no power to do so, for though they had the key, the room was part of Taymouth Castle, then in possession of the present heir. The petitioner came back to the Court with the present petition, in which, after limiting to some extent his call for documents, he asked the Court for an order on the trustees and law-agents to search for and exhibit before the examiner the writings and other documents referred to in the depositions of the witnesses already examined, or such as they had in their possession, and, if it should be necessary, to grant diligence for recovery of the documents, but all for the purpose of exhibition before the examiner. The first idea that occurred was, that if the petitioner had any title to demand delivery or exhibition of these documents, his remedy would be in this Court by some form of procedure known to the law of Scotland. If he could say that the documents were his, he would be entitled to demand them in a proper action. If he was merely entitled to sue for exhibition, there was an appropriate action for that purpose. But it was not contended that he had any such title; and yet in the petition he proposed to get exhibition as if he had such a title. There was a third case which might be mentioned. Documents might be in the hands of a third party which were in danger, but of which the party thinking there was danger had no title to demand delivery or sue exhibition. There might be a remedy for that, but it would not require the roundabout remedy of a suit in England for perpetuating testimony to secure the safety of documents in Scotland, and a remedy might be had, perhaps, by having the documents put under the care and custody of the Court. But that was not the nature of the present case, and these cases were mentioned merely for the purpose of showing that a party having a sufficient title would find a remedy in our Courts. The purpose of the petitioner here was to obtain some such remedy under the commission issued by the Court of Chancery. But that was a perversion of the instrument. It had not been shown that any such proceeding was competent in England, and if it had, that would not have necessarily made it competent here, for the duty of the Court in such a case was to exercise its judicial discretion, according to its own legal principles. There was no ground on which the Court could be called on to order parties to produce such documents at the suit of a party who had no title or interest whatever, and therefore the prayer of the petition must be refused.

Lord Curriehill concurred.

Lord Deas differed, and was rather for taking steps to ascertain what was the practice in England in such cases.

Lord Ardmillan— I am of opinion that the prayer of this petition, of 26th November 1867, for Donald Campbell, in the terms and to the extent set forth, cannot possibly be granted. The petitioner could not bring an action for delivery or an action of exhibition. He has no present title or right to make application to this Court for production or exhibition of the multitude of titles and documents, which he has set forth in this list—a very singular list, such as I have never seen, even in an action of exhibition, being not only a fishing demand, but a fishing with a net, so constructed as to let nothing escape. The petitioner is not a competing claimant; he is only the brother of a person who is, or was, a claimant. His proceedings here, with his call for production of writings, are quite irregular and incompetent, unless in so far as they are authorised by the Statute 5 and 6 Vict., cap. 69, entitled, an Act for perpetuating testimony in certain cases. Apart from that Act, he has no title and no persona standi to sustain such demands. Now, without detaining your Lordships by stating my reasons at length, I am clearly of opinion that the very wide and sweeping demand here made—first for a search, and thereafter for exhibition of titles and documents—is not within the scope of the Statute for “perpetuating testimony.” This is a proceeding under pretence of perpetuating testimony. Titles are not testimony. Titles in safe custody, under double lock, so that Lord Breadalbane cannot get them without the consent of the trustees of the late Marquis, are not in danger of being lost by death of witnesses, or failure of memory, and do not require perpetuating in the meaning of the Act; and unless for perpetuation of testimony, the petitioner cannot proceed under that Act; and, apart from the Act, he can have no right whatever to enter the Charter-room at Taymouth. Taking the prayer of this petition as it stands, I certainly could not concur in granting it [ reads prayer ut supra]. It appears to me to be inconsistent with the bill which this petitioner filed in Chancery, under 5 and 6 Vict., and to be, in this Court, quite out of the question. The Solicitor-General, at the close of his argument, seemed disposed to urge the claim of the petitioner in a more moderate, and, it may be, a more reasonable manner; and the footing on which the process of suspension was dealt with in respect of an arrangement between the Earl and the trustees, sanctioned by the Court, does to some extent tend to place the petitioner's claim to obtain (of course at his own cost), an inventory in a rather more favourable position. That is not, however, within the prayer of his petition, and, after careful

Page: 388↓

consideration, I am of opinion that the objection of the respondents, that the claim here made for production of titles and documents, or exhibition of titles and documents, is not within the provisions of the Act for perpetuating testimony, is a conclusive objection, and that we must therefore refuse the prayer of this petition. The Act of 22 Vict. is merely an auxiliary statute, in order to obtain aid in this Court to the proceedings in the English Court, which here were under the 5 and 6 Vict. It brings to us the power of contributing to give the remedy; it cannot extend the scope and nature of the remedy; and that remedy, which is exclusively in relation to the perpetuation of testimony, is not what is here sought. The petition is quite without precedent, and, I think, without support or authority in the Acts founded on.

The Court gave no expenses to the Earl of Breadalbane, on the ground that for upwards of three months no steps had been taken by him by way of fulfilling the arrangement under which the suspension and interdict presented by the petitioner had been refused, and consideration of the petition superseded.

Solicitors: Agents for Petitioner— J. & W. C. Murray, W.S.

Agents for Respondent— Adam, Kirk & Roberton, W.S.

Agents for Trustees— Davidson & Syme, W.S.

1867