Scottish Court of Session Decisions

Subject_1 EXHIBITION AD DELIBERANDUM.
Subject_2 SECT. III.

What writs may be called for.

Tailzifer
v.
Forrester and Sornbeg

1661. November 19. & 20.
Case No. No 29.

Exhibition found relevant of all writs granted to the defunct, and of all obligations made by the defunct to his wife, children, and others in his family, at his death, but exhibition of writs granted to strangers was refused. Exhibition refused of writs on which infeftment had past.

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Patrick Tailzifer, apparent heir to his brother Alexander Tailzifer of Redhouse, pursues his relict and her second husband, for exhibition of all writs made to her husband, and by her husband to any person or persons, to the effect he may advise whether he will be heir or not. It was alleged, That the defender was not obliged to exhibit writs made by the defunct, seeing they pertained not to the defunct; and, as he could not pursue exhibition of them, so his apparent heir cannot, and nemo tenetur edere instrumenta to his adversary; and, if that were sustained, no man would secure his charter chest, but might be forced to discover his weakness and secrets at pleasure, and many other inconveniences might follow. It was answered, That the hazard of an heir being so great in Scotland, not having beneficium inventarii, it was reasonable that ad deliberandum, the apparent heir should see not only what belonged to the defunct, but what deeds the defunct had done, else he should never know, whether the heritage were profitable or not; especially considering, how wives, children, or servants, having power with the defunct, might clandestinely obtain rights, and keep them close till the apparent heir were served, by which he might be destroyed.

The Lords having seriously considered the matter, they sustained the exhibition for all writs made by the defunct to his wife, or any being in family the time of his decease, whereupon no infeftment followed before his death; but not for any whereupon infeftment followed: For they thought, that the infeftment being registrate, it was sufficient to give information to the apparent heir.

Fol. Dic. v. 1. p. 284. Gilmour, No 8. p. 8. *** Stair reports the same case:

Alexander Tailzifer, as heir apparent to umquhile Tailzifer of Redhouse, pursues Mrs Margaret Forrester, his uncle's relict, and John Shaw of Sornebeg, her husband, for exhibition ad deliberandum, of all writs granted, not only to the defunct, but also granted by the defunct to his said relict, or any other person.—The defender alleged, non relevat, for writs granted by the defunct to the defender, or other persons; because, albeit the pursuer were entered heir, he had no interest for exhibition thereof, unless there were clauses in his favour therein, et nemo tenetur edere instrumenta contra se; and if this were sustained, it were the way to make patent all the charter-chests in Scotland, at the instance of apparent heirs, under pretence to deliberate, but in effect to pick quarrels, and find the weakness thereof.—The pursuer answered, maxime relevat; for seeing the law gives heirs the benefit of deliberation, they must have the necessary means thereof, by inspection, not only of the benefit, but also of the burden of the defunct, without which they cannot know num sit damnosa hæreditas; especially in this case, against a relict, who probably might have had influence upon the defunct's husband to grant right to her that might evacuate the heritage. And in this case, the apparent heir had a more large interest to crave exhibition than the heir entered, who could only crave exhibition for delivery, transumpt, or registration, and so behoved to libel a peculiar interest; but the apparent heir's interest is only ad deliberandum; and therefore, the exhibition, as medium thereto, must reach to all whereupon he ought to deliberate, especially the defunct's debt; and albeit it be true, nemo tenetur edere instrumenta contra se, to found or give title to the pursuer's action, yet he having title by the law to crave inspection for deliberation, hath good interest;yea, if he produce a title in himself, he may even force the defender to exhibit writs ad probandum, by an incident, as well as third parties, to whose writ he hath no right, save only to bear testimony for him.

The Lords having heard this case in their presence, because the point had been variously decided as to writs granted by defuncts, found the libel relevant, not only for all writs granted to the defunct, but also granted by the defunct, to his relict, bairns, or servants in his family at the time of his death, being such writs upon which no infeftment followed; for as to these, they thought the registers may give as much evidence as was sufficient to deliberate, and would not upon this ground open charter-chests for showing real rights; and the plurality carried, that even personal rights, granted to strangers, should not be produced hoc modo; several being of the opinion, that debts, discharges, and personal rights should be thus exhibited, in respect that heirs in Scotland were liable simpliciter for all the defunct's debts, and therefore should have inspection, as well of his debts as of his estate, as was found before between the Lairds of Swinton and West Nisbet, observed by Durie, 26th February 1633, No 28. p. 4005.

Stair, v. 1. p. 65.