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Scottish Court of Session Decisions >>
William Rose v Sir Ludovick Grant, and Others. [1781] Mor 3971 (5 December 1781)
URL: http://www.bailii.org/scot/cases/ScotCS/1781/Mor1003971-014.html Cite as:
[1781] Mor 3971
The Crown's donatary to chaplain-duties is entitled to production of the title-deeds of the lands liable to these duties.
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Rose having obtained from his Majesty a liferent-grant of the duties and revenues which had belonged to certain chaplainries situated in several of the northern dioceses of Scotland, and which at the Reformation fell to the Crown, brought an action against Sir Ludovick Grant, and other proprietors of lands holding of these chaplainries, for payment of the arrears of the duties, and for exhibition of the charters containing the lands subject to them, in order that the amount might be ascertained.
Pleaded for the defenders; It is a rule of law, Quod nemo tenetur instrumenta edere contra se, Haddington, 10th February 1623, Monteith, No 7. p. 3963. Though this rule so far admits an exception, that a vassal may be compelled by his superior to exhibit his titles; yet as this can be done only in a process of reduction-improbation, Stair, b. 2. tit. 11. § 33.; Erskine, b. 2. tit. 5. § 3.; the present case being a simple action of debt, falls not within that exception. Nor is the Crown itself to be distinguished in this respect from other superiors; much less the pursuer, its donatary, possessed of nothing more than a mere personal assignment to the duties claimed.
But were such a compulsatory competent, the law would yet never authorise a general exhibition of writings. On the contrary, those which are called for must be particularly specified or described; Erskine, b. 4. tit. 1. § 52. A just jealousy is entertained of the tendency of an unlimited access to the charter-chests, or of an uncontrolled inspection of the title-deeds of parties; Clerk Home, 8th July 1737, Scot contra Lord Napier, No 27. p. 358.; Hamilton of Dalziel contra Hamilton; Duke of Hamilton and Lord Selkirk contra Douglas, No 12. p. 3966.
Answered; An action for exhibition merely, is competent to superiors; Stair, b. 3. tit. 5. § 49.; Erskine, b. 2. tit. 5. § 3. Nay, such a production as that now claimed, is enjoined by act of Parliament 1592, c. 133.
The Court adhered to the interlocutor of the Lord Ordinary, which was as follows:
‘As the exhibition required stands confined to such of the defenders' charters of land as fall under the pursuer's grant, the reddendos of which specify certain chaplainry, feu, and other duties payable out of their respective lands; and the Lord Ordinary being of opinion, that this exhibition could not be disputed in an action at the Crown's instance for payment of those duties, and proof of the extent thereof, and that the same remedy must be competent to the same purpose and effect when pursued at the instance of the Crown's donatary and grantee; ordains the defenders to exhibit upon oath all the charters in their custody which contain the lands liable in the said chaplain-duties, and make mention thereof in the reddendo.’
Lord Ordinary, Covington.Act. J. Swinton.Alt. D. Rae, Ilay Campbell.Clerk, Home.
Fol. Dic. v. 3. p. 196. Fac. Col. No 10. p. 19.*** This cause was appealed:
The House of Lords, 15th April 1782, ‘Ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed.’
