United Kingdom House of Lords Decisions

About six months before the husband died, he executed a holograph deed in the appellant's favour, and thereby “surrogated, substituted, and appointed the appellant, and gave to her his full right to all and every thing he had or could have had if living, as fully and amply in all manner of respects as if every thing were there Set down at large;” and he appointed the appellant his sole executrix.

After her husband's death, the appellant re-commenced the action of exhibition and declarator against the respondent, to compel him to produce and deliver uncancelled the respondent's marriage settlement, whereby (the appellant contended) her husband was to succeed his father in his estate; and also the said disposition and sasine, which (she stated) were made in implement of such marriage settlement: and also to give the appellant relief in the declarator. The respondent made objections to the title of the appellant to carry on the action, as founded on the deed executed by her deceased husband, which being a testament, if it could be supposed to extend to lands, the devise was void by the law of Scotland. The court allowed the process of exhibition at the appellant's instance to proceed, reserving to the respondent all objections against her title after production.

The respondent was afterwards examined upon oath in the exhibition; and made a deposition to the following purport:

1685. c. 13.

“That in 1684, the time of the Test, he was in prison for not complying with the temper of that time, and understood that the government was to press the Test on all heritors, and accordingly by an act of parliament in 1685, the same passed into a law:—“that he remained prisoner till 1686, and having taken the advice of lawyers how to preserve his fortune, upon their advice he granted a disposition in favour of his son, a child then 12 years old, both fee and liferent, but burdened with the payment of 60,000 l. Scots, as the deponent should dispose thereof: that he did this, knowing that Lieutenant-General Drummond was his near relation, and upon sight of such a paper, or being informed of it by the deponent's wife, he could make use of it to protect the deponent from the threatened hazard; and accordingly he did sign that disposition, containing many other conditions and qualities in the deponent's favour, and delivered it to his wife, with a liberty to her to take infeftment upon it or not as she thought fit;—and, that thereafter while he was in prison there was a sasine brought or sent to him by Arthur Nasmith, who signed as notary to the same, and Nasmith, by letter, desired him to send it back to him: but the deponent, before he came out of prison, did cancel both the sasine and

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disposition, upon the information that the king was not to press the test with that severity: that Nasmith wrote to the deponent to send it back to him, in respect that it either was not insert in his book, or that he was to insert it: that there was no registration or mark of registration on the sasine; and as he gave it to his wife, so she re-delivered it to him, and when she redelivered it, the told him, that the disposition had never been out of her hand, which made the deponent believe there never was sasine taken upon it, but that the sasine sent was but a sham: but being interrogated if he did not believe it was a real sasine, deponed that he believed it was: and deponed that he had not had it in his custody, and knew not where the said disposition was, but acknowledged that he had the said cancelled disposition and sasine, and said that he laid them among useless and cancelled papers, but that he had not seen them since the intenting of any process between him and his son, and having occasion to look through these papers on another account, he had not found either of them, and acknowledged he did not make a search especially on account of the said disposition and sasine, because his wife told him they were burnt or destroyed: and being interrogated if or not he had seen the said cancelled disposition or sasine after the time that differences began to arise between his son and him, deponed that he believed he did see them among cancelled papers, but knew nothing of them then, farther than that his wife told him they were destroyed.—And being interrogated if or not he had the contract betwixt himself and his lady, deponed that he had, and it should be produced with the infeftment thereon; but he did not know of any former tailzie made by his predecessors.”

The appellant, after this deposition was made, protested against all the qualities contained in the same, in regard there were no qualities contained in the act which directed such examination to be made.

She also petitioned the Court, that the respondent might be compelled to search for the disposition and sasine, and if found, to exhibit the same in such state, as they then were.—The respondent accordingly was re-examined, and deponed that after search he could not find the disposition and sasine.

After advising these depositions, the Court, on the 26th of July 1706, “Found that the defender cancelled the disposition and seisin warrantably, and that the oath proved not, and assoilzied the defender from the exhibition, and declared him to be free therefrom.”

The appellant presented two reclaiming petitions to the Court, which were severally “refused, and the former interlocutor adhered to,” on the 30th of July 1706, and 11th of July 1707. All these interlocutors were carried in favour of the respondent, by a majority of one vote each time.

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