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Scottish Court of Session Decisions >>
Janet Buchanan, Lady Leny, and her Husband, for his interest, v The Marquis of Montrose. [1707] Mor 3986 (20 March 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor1003986-008.html Cite as:
[1707] Mor 3986
Subject_1 EXHIBITION AD DELIBERANDUM. Subject_2 SECT. I.
Competent to all sorts of heirs.
Janet Buchanan, Lady Leny, and her Husband, for his interest, v. The Marquis of Montrose
Date: 20 March 1707 Case No. No 8.
An apparent heir in a process ad deliberandum, cannot insist to have the writs exhibited transumed.
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In the exhibition ad deliberandum at the instance of the Lady Leny, as apparent heir to John Buchanan of that ilk her father, against the Marquis of Montrose, the defender having exhibited certain writs, the pursuer craved to be allowed to take a transumpt upon her own charges of such of them as she had a peculiar interest in, and contained clauses in her favour.
Alleged for the defender, He was not obliged to allow transumpts of his own writs in an action ad deliberandum, which only tends to inspection; for to transume is much the same with giving up the papers, and inconsistent with a deliberandum; seeing intromission with writs is ipso facto behaviour as heir, and intromitting with transumpts thereof is equivalent; 2do, The pursuer cannot have transumpts without an active title as heir; and though she were served heir, the defender could exclude her interest by a preferable right.
Answered for the pursuer, It is not only usual to pursue actions of transumpt, but the Lords have frequently allowed transumpts incidenter in other actions, when writs were produced that were common evidents, or wherein parties had special interest; and the pursuer's summons ad deliberandum contains a conclusion for transuming such writs as she has interest in, and the act thereupon extracted bears, that transumpts of such writs should be given her upon her own charges.
The Lords found, That an apparent heir cannot, in a process ad deliberandum, insist to have the writs exhibited transumed; and therefore refused to allow transumpts to the pursuer.
