Scottish Court of Session Decisions

An action of declarator was brought by Francis Robert Gregson against Sir Arthur Henry Grant, Bart. of Monymusk, with regard to the possession of certain lands adjacent to their respective properties. Proof was led, and on 24th February 1910 a final interlocutor was pronounced which was not reclaimed against.

On 2nd June 1910 the defender presented a minute in the following terms—“Millar for the defender stated that on or about 8th July 1909, in the course of the proof in the above action, a roll of estate plans dated 1846 was brought into Court by the defender's agents and exhibited to your Lordship and to the pursuer's counsel and agents; that said roll of plans had been discovered only a short time previously to be in defender's possession, and for this reason it had not been produced at an earlier stage in accordance with the diligence granted by your Lordship in terms of the specification of documents for the pursuer; that on the production of the said roll of plans in Court the defender's counsel offered to put it in process, but neither your Lordship nor the pursuer's counsel asked that this should be done; that the pursuer, or his agents Messrs Somerville & Watson, S.S.C., Edinburgh, after being allowed to examine the said roll of plans in Court, retained possession of the same, and although his agents have been repeatedly requested to return them to the defender they decline to do so; that the defender is not aware whether the said roll is in the actual custody of the pursuer or of his said agents; and he accordingly craved the Court to order intimation hereof to be made to the pursuer through his said agents, and to his said agents, and to allow the pursuer and his said agents to answer the same if so advised within eight days after intimation, and thereafter, either with or without answers, to ordain the pursuer and his agents forthwith to deliver the said roll of plans to the defender's agents on his behalf.”

Answers were lodged by the pursuer, who therein stated “that the minute was incompetent, in respect that (1) the Lord Ordinary was functus, except quoad expenses, in the case of Gregson v. Grant, as a final interlocutor had been issued on 24th February 1910, and had not been reclaimed against by either party: (2) The document in question was not a number of process, and the competent and appropriate remedy to Sir Arthur Henry Grant was an action of delivery: (3) The minute craved a decree ad factum præstandum, involving imprisonment if not implemented, against a firm of agents and not against the partner or partners thereof; and therefore moved that the minute should be refused: Further, while maintaining the incompetency of the minute and that he was not bound to answer same, stated out of deference to the Court that the said Francis Robert Gregson, while unwilling to surrender unconditionally to Sir Arthur Henry

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Grant a book of plans, great part of which is his own property, had repeatedly offered, and again offers, to hand over said book of plans to the neutral custody of any third party either agreed upon by the parties or nominated by your Lordship, in order that all plans the property of the said Francis Robert Gregson be excerpted from said book at sight of said third party.”