Scottish Court of Session Decisions

Subject_1Proof
Subject_2Commission
Subject_3Haver
Subject_4Search for Documents — Suspension and Interdict. Headnote:

Donald Campbell, designed as some time of. 20 Devonshire Terrace, Hyde Park, in the county of Middlesex, late lieutenant in Her Majesty's 57th Regiment, and residing in Port-Glasgow, presented this petition to the Court, craving an order upon the trustees and law agents of the late Marquis of Breadalbane to search for and exhibit before Mr J. M. Duncan, advocate, examiner appointed by the Court of Chancery, a number of documents relating to the first Earl of Breadalbane and his family; and, if the Court should think it necessary, a diligence for recovery of the documents, and a warrant to cite the late Earl's trustees and law agents, as havers, to produce the same. The case has been already before the Court on several occasions. In May last the petitioner presented a petition to the Court in virtue of the Act 22 Vict., c. 20, and in pursuance of an order by the Court of Chancery, in a suit at the petitioner's instance for perpetuating testimony, craving an order upon the late Earl's trustees and law agents to appear before the examiner for the purpose of being examined as witnesses for the petitioner in the said suit, and of producing certain documents mentioned in the petition. The Court pronounced an interlocutor appointing the parties named to appear for examination as witnesses, and quoad ultra superseded consideration of the petition. In October last Lord Jerviswoode, one of the trustees, appeared for examination, and stated that he had none of the documents called for; and that the trustees would not search for or exhibit the documents called for without judicial authority. Mr Syme, one of the agents of the late Earl's trustees, stated that he had not searched for the documents, not being authorised to do so by the trustees, or ordered by the Court. Mr Cosmo Innes, one of the principal Clerks of Session, was also examined, and stated that he had been in the charter-room in Taymouth Castle, and that from the documents he saw there he considered it very probable that an account of the descendants of the first Earl down to the eighteenth century might be made out. This petition was then presented, and was partly heard on 27th ult., and continued

Page: 86↓

till 5th December. Along with this petition there was heard a note of suspension and interdict, which had been presented by the petitioner against J. A. G. Campbell of Glenfalloch, on Saturday, 30th November, craving interdict against the respondent entering or interfering in any way with the charter-room at Taymouth Castle, or with the titles and other documents therein contained relating to the Earldom or the family of Breadalbane, at least without the consent of the trustees of the late Earl. The note of suspension and interdict was presented to the Lord Ordinary in consequence of intimation having been sent by Glenfalloch's agents to the agents for the trustees of the late Marquis, that if the trustees did not consent along with Glenfalloch to go into the charter-room, and make an inventory of the documents therein, and that by Monday the 2d December, Glenfalloch would direct the charter-room to be opened on his own responsibility. When the suspension and interdict was presented to the Lord Ordinary, his Lordship, after hearing parties, and on the assurance of Glenfalloch's agents that nothing would be done in the matter complained of until the note and answers were disposed of, appointed answers to be lodged. Parties were afterwards heard before his Lordship, and he reported the note and answers to the Court, because of its bearing on the petition for recovery of documents.

Counsel were heard on the petition.