Scottish Court of Session Decisions

Subject_1 EXHIBITION AD DELIBERANDUM.
Subject_2 SECT. III.

What writs may be called for.

Pringle
v.
Johnston

Date: 23 December 1707
Case No. No 35.

It is a good defence against exhibition that the writs called for are registered in the books of Session, the defender condescending on the dates of the registration. This defence was not sustained as to writs registered in Chancery, or in the books of inferior courts.

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Margaret and Mary Pringles, daughters to John Pringle of Woodhead, pursue Robert Johnston of Straiton, in an exhibition of papers ad deliberandum before the Sheriff, and obtain a decreet, which he suspends on this reason, he was not bound to exhibit them, because they were registrate, and in publica custodia; and he condescended on their dates, and they might extract them. Likeas, they were common evidents to them both, and he had greater interest in them than they; and Stair, lib. 4. tit. 33. affirms, that this is a good defence against deliberandums. Answered, It was not competent now after a decreet, and however the condescendence on the date of a registration was sufficient in a reduction, yet it had not yet taken place in such exhibitions. The Lords sustained the defence as to any writs registrate in the Session-books in Edinburgh, but not as to writs in the Chancery, or inferior courts, and ordained the condescendence quoad these to be taken in; and though it looked too contentious to put the parties to so much unnecessary expense in extracting, yet the defenders having an interest in the papers did much influence the decision.

Fol. Dic. v. 1. p. 285. Fountainhall, v. 2. p. 406.