Scottish Court of Session Decisions

The pursuer avers that he is the great grandson of James Fulton, farmer in High Warwickhill, in the parish of Dreghorn, and that he has been served heir of line in general to the said James Fulton. We may assume that that is so. Then he proceeds to state that by a Crown charter of resignation “in favour of Archbald Eleventh Earl of Eglinton, dated 23d February 1778, written to the Seal, and registered 8th May 1778, the lands, lordship and barony of Eaglesham and Eastwood, and others, were granted and conveyed to the said Archbald, Eleventh Earl of Eglinton, and the heirs-male of his body, whom failing, to the deceased James Fulton or Fultoune, farmer in High Warwickhill, and the heirs-male of his body.” That charter, he says, was produced in certain proceedings in 1786, was borrowed by the Earl of Eglinton of the time, and is now in the possession of the defender. The form of the prayer in which he asks for exhibition of this charter, is this—“that the Court should ordain the defender to produce and exhibit to the pursuer, in the hands of the Clerk of Court, the Crown charter of resignation of the lands, lordship and barony of Eaglesham and Eastwood, and others, in favour of Archbald Lord Montgomerie, Eleventh Earl of Eglintoune, and the other heirs therein mentioned, dated on or about 23d February, and sealed on or about 8th May 1778.” The description of the charter given there is not the same as that given in the statement of facts, and the respondent denies that any such charter as that described in the statement of facts is in existence, but there may very well be a charter corresponding to the more general description given in the prayer. The Earl of Eglinton does not dispute that there is a charter of the same dates in favour of Archbald Earl of Eglinton, and the heirs of his body, whom failing, to the heirs called by the previous settlement of the estate. Now, if we were to grant the prayer of the petition, the petitioner would be entitled to obtain exhibition of this charter, which the defender admits he possesses.

The first question therefore is—Is the petitioner entitled to demand production of the charter which the Earl of Eglinton possesses? He has not shown and cannot show that he has any interest in it. That charter contains at all events no destination in favour of James Fulton or any one with whom the petitioner says he can connect himself. There stills remains the question, Whether the petitioner is entitled to recover the charter, which may be in existence, containing the destination described by him in his condescendence? It would be, to say the least of it, a very strange thing that there should be two charters in existence of the same date, one containing a destination to the Earl of Eglinton and the heirs male of his body, whom failing to James Fulton and the heirs male of his body and the others a destination to the Earl of Eglinton and the heirs of his body whom failing to the heirs of the former investitures.

But the question is—Has the petitioner made out his right to demand exhibition of such a charter? He says that he requires to have inspection of that charter in order that he may deliberate and be advised whether or not he should enter as heir-male of the body to the deceased James Fulton. Now, we have it stated that James Fulton predeceased Archbald Eleventh Earl of Eglinton by ten years. The succession to these estates therefore never opened to him; he never was in possession of the estate; he never had any right or title to it; he never even was in apparency; he predeceased the time when he could have had a right of any kind to the estate.

Plainly, therefore, the petitioner's service as heir-male of the body of James Fulton will not advance him one step towards his object, for there was nothing in his hæredilas to take up. If he can make out that he is heir of provision to the eleventh Earl of Eglinton, that will be a very different matter, and in the course of that proceeding he may have to show his relationship to James Fulton in order to connect himself with the Earl of Eglinton. But the proceeding in aid of which this petition is brought being a useless one, the petition itself ought, I think, to be refused.

I am therefore of opinion that the petitioner has no title to see this charter, and that we should adhere to the Sheriff's judgment.

Lord Deas—The defender's counsel made what I thought a very fair offer, viz., to produce the charter of 1778 in the hands of the Clerk for inspection by the Court. I confess I do not see what harm there could be in that. There is no doubt, however, that it is a serious thing to ask a party to open his charter-chest and produce his old charters, and the party who asks that must show that he has an interest to do so. He must make out a very consistent and clear case to warrant exhibition even in the hands of the Clerk of Court. I am not satisfied that the petitioner has done that so far as to justify me in dissenting from your Lordship.

Lord Mure and Lord Shand concurred with the Lord President.