Scottish Court of Session Decisions

Subject_1 EXHIBITION.
Subject_2 SECT. I.

Who have an Interest to Pursue Exhibition.

Earl of Rothes
v.
The Tutors of Buccleugh

Date: 7 December 1661
Case No. No 4.

The Lords allowed inspection of the vassal's retours, to the donatar of ward, that he might know what lands held ward.

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The Earl of Rothes, as donatar to the ward and marriage of the Countess of Buccleugh, with concourse of the King's Advocate and the Countess also, pursues her tutors-testamentars, for exhibition and delivery of her charter-chest, and all writs and bonds, &c. It was alleged, that there could be no process sustained at the Countess her instance; because her tutors were pursued, and she could not be authorised by the donatar against them; and that as no process could be sustained against the Countess, except her tutors were called, 2do, No process at the donatar's instance, because he had no interest to call for exhibition of the pupil's whole evidents; far less for delivery; but when he, as donatar, should pursue for mails and duties, or for removing, then he would get his intent; unless it were alleged and proven, that the lands whereof the mails and duties were craved, held otherways. To which it was answered, that the Countess her marriage was under the donatar's ward; and the law presumes her whole estate to hold ward, unless it were otherways shown; and that she might very well be pursuer with concourse of the donatar against her own tutors, she being under his ward, and he being in effect her tutor. To the second it was answered, ut supra, that as donatar he had good interest to call for the evidents, to the end he might know the holding, and pursue for removing, or mails and duties.

The Lords found no process at the instance of the Countess: and yet, seeing she was named in the process as pursuer, they found no necessity she should be called, seeing her tutors were called as havers: and they sustained the process at the donatar's instance against the defenders, for exhibition; to the effect the donatar may have inspection of the countess her retour, as heir to her sister; and her sister's retour, as heir to her father; and their father's retour, as heir to his father, with the instructions of the same only; unless the donatar would allege, that they, or their predecessors, were infeft in ward lands, not mentioned in the saids retours: and appointed the President to go to the place where the charter chest is, receive the keys from the tutor, open the same, and show the saids evidents to the Earl of Rothes.

In præsentia.

Fol. Dic. v. 1. p. 281. Gilmour, No 10. p. 8. *** Stair reports the same case:

The Earl of Rothes, as donatar to the ward of the Countess of Buccleugh, and the said Countess for herself, pursued the Tutors of Buccleugh, for exhibition of the charter-chest, and whole evidences and writs therein, that the donatar may have inspection thereof, to the effect he may know what lands are ward. The tutors compeared, and disclaimed the pursuit, at the pupil's instance, and alleged, 1mo, No process, till the countess were called. 2do, The libel is not relevant to conclude inspection of all writs whereunto the donatar can pretend no interest. 3tio, Non relevat for any writs; because no body is obliged edere instrumenta contra se. 4to, If there were any ground for this pursuit, the lands holden in ward behoved to be particularly libelled.

The Lords repelled the first defence, in respect the countess was in processu, and found the second defence to restrict the inspection only to the countess and her sister and father, their retours, and warrants thereof, and no more; unless the pursuer condescend particularly of other ward lands, and appointed one of their number to have inspection of the charter-chest, who should shew the procurators of either party such of the writs as they found were ward.

Stair, v. 1. p. 71.