Scottish Court of Session Decisions

Mrs Barclay-Allardice, only surviving lawful child of the deceased Robert Barclay-Allardice of Ury and Allardice, raised a summons against the Most Noble James Duke of Montrose, concluding that the defender ought and should be decerned and ordained to exhibit and produce before our said Lords all and sundry patents of honour and nobility, and other creations of dignities and honours, royal warrants and gifts, charters, dispositions, assignations, conveyances, procuratories and instruments of resignation, precepts and instruments of sasine, special and general services and retours thereof, apprisings, adjudications, reversions, tacks, and leases, bonds and obligations, letters of horning, inhibition, and other diligence, letters of correspondence, and all other writs, evidents, rights, titles, and securities of and concerning or in any way connected with the lands and Earldoms of Strathern and Monteith and Airth, or any of them, and lands and baronies of Kilpont and Kilbride, or either of them, and the titles of honour and dignities of Earl of Strathern, Earl of Monteith, Lord Graham of Kilpont and Kilbryde, and Earl of Airth, or any of them, made and granted prior to the 12th day of September 1694, and all inventories of the same: or otherwise to make the said writs and documents and inventories patent to the pursuer, or to a person or persons to be named by our said Lords, in such way and manner, and at such time or times, and place or places, as our said Lords may direct, with a view to the same being used and made available in modum probationis, and in proof and support of the pursuer's claims to the titles and dignities of the Earldom of Strathern, Earldom of Monteith, Earldom of Airth, and Lordship of Graham of Kilpont and Kilbryde, presently depending before the House of Lords and the Committee for Privileges of that House; and the same being so exhibited and produced, or made patent as aforesaid, our said Lords ought and should authorise and grant warrant to the pursuer, or to such other person or persons as they shall appoint, to take possession of the said writs and documents and inventories, or such of them as shall be selected in the course of the process to follow hereon, and to transmit or remove the same to London, subject to such conditions and safeguards as our said Lords shall ordain, and to exhibit and produce the same before the House of Lords or the said Committee for Privileges in proof and support of the pursuer's said claims, reserving to all parties concerned their rights and interests in the said writs and documents.

In the condescendence the pursuer stated that “she was duly served and retoured heir to the last Earl of Monteith and Airth; that upon the death of the said last Earl of Monteith and Airth, all the title-deeds, patents of honour, records, and documents of every kind which had been in his possession, came into the hands of the ancestors of the defender, and they are now all in his possession at his residence of Buchanan House, in the county of Stirling, or elsewhere. They comprise not only the patents of honour granted to the Earl's predecessors and the title-deeds of his different estates, but also many important documents connected with the Earldom of Strathern, the earlier Monteith Earldoms, and a great variety of other documents, having reference to and throwing light upon the said honours and dignities, and the families of which the pursuer is the representative;” that “the pursuer has claimed all the titles of Airth, Strathern, and Monteith by two several petitions presented to Her present Majesty, which were in like manner referred by Her Majesty to the House of Lords, and by them to their Committee for Privileges, and a good deal of discussion has taken place in her claim to the Earldom of Airth, her claim to the peerages of Strathern and Monteith having been allowed to stand over in the meantime. The proceedings in the said whole claims of peerage are herein referred to and held as repeated.” That “with a view to instructing the pursuer's claim and right to these peerages, it is necessary for her to have access to the titles and documents which were in the possession of the last Earl of Monteith and

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Airth, and are now in the possession of the defender; but though the pursuer has repeatedly requested the defender to allow her to have access to or exhibition of these documents, he refuses to do so.” Also, “that William Cunninghame Bontine of Ardoch and Gartmore, Esq., by his curator bonis, George Auldjo Jamieson, Esq., chartered accountant in Edinburgh, presented a petition in the claim of the pursuer to the said titles of Monteith and Airth in opposition to the claim of the pursuer, upon which sundry proceedings have taken place in the House of Lords before their Committee for Privileges, which are herein referred to. While the defender has given the said William Cunninghame Bontine and his advisers unlimited access to and use of the documents in his possession, and permitted them to produce, as they have produced, those which tend to support Mr Bontine's claim, he has refused the pursuer all access to them. It is not in accordance with the rules or practice of the House of Lords, or their Committee of Privileges, to make orders for the exhibition or production of the documents, and the pursuer has consequently been unable to obtain from that House or Committee an order for the exhibition or production of the requisite documents. Unless she shall obtain an order for production and exhibition as concluded for, she will be unable to recover highly material, and, as she believes, essential evidence, in support of her claims to the foresaid honours and dignities.”

The pursuer pleaded “(1) As heir duly served and retoured to the last Earl of Monteith and Airth, and as the claimant of the titles, dignities, and honours above condescended on, the pursuer is entitled to exhibition of the whole of the said documents, and to have the same made available in proof and support of her claims to the said titles, dignities, and honours, under such conditions as the Court may appoint; (2) the pursuer is entitled to such exhibition in respect that the same is essential or highly material to her proving and establishing her said claims.”

The defender pleaded “(1) The action ought to be dismissed, in respect it is incompetent; (2) the statements of the pursuer are not relevant or sufficient to support the conclusions of the summons.”

The Lord Ordinary ( Mure) sustained the second plea in law for the defender, and dismissed the action, with expenses.

The pursuer reclaimed to the Second Division of the Court.

Balfour and Watson for pursuer.

Asher and Solicitor General for defender.

Authorities cited—Stair iv. 33, 1. 2. 3.; Erskine I. 4, 1; Lindsay Crawford v. Campbell, 26th May 1826, Wilson & Shaw's Ap. vol. ii. p. 440; Campbell, 6 Maepherson, 632; H. L., 7 Macph. 101; Campbell, 1 Morison, 759.

At advising—