Answers 1767

A N S W E R S F O R Poor Margaret and Mary Murrays, and James Mackie, husband o f the said M argare t for his interest,; Pu rsu e rs; 9 J F OR F P o P E T IT IO N o f r a n d E a r l o f Breadalbane, Defender. p T HE respondents, as heirs apparent to the ancientproprietors of the estate of Shian, are now in­sisting in a process of exhibition ad deliberan­dum against the Earl of Breadalbane, and cer­ tain other defenders called in that action, all of whom have appeared, and offered to exhibit in common form, the noble petitioner alone excepted, who holds possession of that estate, and has made a partial production of the writings in his custody; upon which he maintains, that the proprietors of Shian were fully denuded of the estate in his favours, and that, of consequence, the respondents are not intitled to demand any further exhibition. This action coming in course before Lord Gardenstoun, his Lordship ordained the respondents to give in a special condescendence of the writs they called upon the petitio­ ner ner to exhibit: A condes cendence was accordingly given in, to which the petitioner made answers, and the respon- dents replied: Upon advising of which, the Lord Ordina- ry, of this date, pronounced the following interlocutor: Having considered the condesc endence for the pursuers answers for the Earl of B readalbane, and replies for the pursuers, finds, That the defender has not produced suf- ficient to exclude, and that he must take a day to depone in the exhibition.” And upon a representation and an- • swers, his Lordship, of this date, pronounced this inter- locutor: “ Having again considered this representation with answers thereto, finds, That the defender Lord Breadalbane s production only instructs, that he has the righ t o f an adjudger, which cannot bar the heir appa­ rent's right to insist in an exhibition adelibrnum; therefore adheres to the former interlocutor, and refuses the desire of the representation.” Against these judgments of the Lord Ordinary, the Earl having reclaimed, your Lordships, of this date, were plea- sed to pronounce the following interlocutor: “ The Lords having advised this petition, with answers thereto, they adhere to the Lord Ordinary’s interlocutors, and refuse the desire of the petition.” The Earl, not yet satisfied with these repeated judg­ ments, has presented another reclaiming petition; which being ordained to be answered, what follows is humbly of­ fered on the part of the respondents, pursuers. The estate of Shian was, by simple destination, original- ly provided to heirs male; but James Menzies of Shian who was undoubted proprietor, and regularly insest as heir to his predecessors in that estate, having no heirs o f his own body the persons nearest to his succesion, were two children of his sister, viz. Alexander Murray, grandfa ther to the respondents, and Janet Murray, wife to Alexan- 'd e r M e n z i e s i n B u chantie: And it would seem that Shianei­ ther ther not being fond of his nephew Alexander or, what is fully as probable, wanting to prefer the children of his niece Janet Murray, on account of her being married to one of the name of Menzies, which was the ancient sur- name of the family of Shian: James, in order to carry this plan into execution, did, of this date, execute a deed of entail in favours of himself, and the heirs o f his own bo­ dy whatsoever; whom failing, to the heirs male to be pro­ create betwixt Alexander Menzies in Buchantie and Janet Murray his spouse; and failing of them, to any person he the said James Menzies should appoint, by a writing under his hand, at any time of his life; all whom failing, to the heirs and assignies whatsomever of the said James Men­ zies. This bond of tailzie, altho’ recorded of this date, con- tinued in the state of a personal right, as no insestment e- ver followed thereon. James Menzies, the maker of the above mentioned entail, soon after married Helen Graham, sister to Mungo Graham of Gorthie: And, by contract of marriage, of this date, after pro­ viding his wife in a small locality, in the event there shouldO # J 7 # be children of the marriage, and in an annuity of 1200 merks yearly, in case there should be no children, goes on and settles the estate in the following manner: “ And also, the said James Menzies binds and obliges him and his above written, to insest and seize himself, and the heirs male lawfully to be procreate of the said marriage betwixt him and the said Helen Graham; whilk failing, the airs male to be procreate of his own body, of any other law­ ful marriage; whilk failing, the airs famal, without di- vision, to be procreate betwixt him and the said Helen Graham, in see, heritably and irredeemably, with and under the provisions, reservations, conditions and re- strictions after mentioned; 'which als o failing, his own nearest and lawful heirs and assignies whats omever." James "James Menzies of Shian died in the end of the year 1698, or beginning of 1699, without leaving any issue; and soon after his death, three different competitors appeared, each of them claiming the estate of Shian on separate set- tlements. Alexander Murray, the grandfather of these respondents, and nephew to Shian by his sister, claimed the estate, as nearest lawful heir to the deceast James Menzies, and, of consequence, directly called to the succession by the con­ tract of marriage 1692, immediately, failing heirs o f Shian’s own body. One William Menzies claimed, as heir male on the foot­ ing of the old investitures.. * 1 And, lastly, James Menzies, the son of Alexander Menzies- and Janet Murray, claimed the estate, as being expresl y cal­ led to the succession by the entail 1691, above mention­ ed. A ltho' the bond of tailzie in the year 1691, upon which James Menzies founded his claim, was undoubtedly virtu- ally altered by the posterior contract of marriage in the 1692, upon which Alexander Murray founded his claim, in so far as a different succession was pointed out by the con- tract of marriage, altho’ there is no clause therein expresl y altering or revoking the tailzie. By the tailzie, the heirs male or Janet Murray, the tailzier’s niece, are called imme­ diately after the descendants of his own body, in preference to his nephew Alexander Murray, or his heirs; whereas, by the contract of marriage 1692, the nearest lawful heirs and assignies of James Menzies, are directly called, failing issue of him by that or any subsequent marriage. ° Such being the situation of the different pretenders to this estate; and as James Menzies, the maker both of the tailzie and contract of marriage, died without issue. there seems to be little doubt, that Murray's claim on the con­ tract 1692 was best founded; but as James Menzies, who claimed claimed on the deed 1691, was a favourite of, and greatly supported by the family of Breadalbane, who were superi- ors of the greatest part of the lands, he, by the interest of that family, found means to get into possesio n of the estate, without waiting till it should be determined who had the best title. Sensible, however, that the titles by which he held that estate, would not bear to be canvassed, he resolved to en­ deavour to compromise matters with the other claimants; and, for that purpose, he prevailed on Captain James Men­ zies of Comrie to act as trustee for him, and transact with the other heirs. Accordingly, of this date, William Menzies, who pre­ tended to have right as heir male, in consequence of the old investitures, disponed the lands and estate of Shian in favours of Captain Menzies, and his heirs or asign ies. Having thus obtained a disposition from the pretended heir male, Captain Menzies next entered into a transaction with Alexander Murray, the respondent’s grandfather,- who claimed, as heir of line, on the contract of marriage 1692; the result of which transaction was, that, of this date, A- lexander Murray likewise disponed his right to the lands of Shian, in favours of Captain Menzies, and his heirs or asign ies. The only title which Alexander Murray appears to have made up in his person, is a general service, tanquam legiti- mus et propinquior haeres to the deceast James Menzies of Shi­ an, which the petitioner, in the present cafe, maintains, was sufficient to veil in Alexander Murray the personal right to this estate under the contract of marriage 1692, but which the respondents, with great submisio n, apprehend, was by no means sufficient effectually to carry the personal right of this estate under the marriage contract; and they hope to be able to shew your Lordships, that in the present B case, cafe, such a general service could not possibly carry the right to the lands in question. Captain Menzies, as has already been observed, acted on­ ly as trustee for James Menzies, who still held possession of the estate in character of heir of tailzie: And, as the Cap­ tain now apprehended he had transacted the whole matters for the purpose of which he was employed to a ct as tru- stee, he, of this date, granted an obligation, whereby he became bound to denude of the rights that stood in his person, in favours of the said James Menzies, and to make and grant such a right as might be necessary for effectually denuding himself thereof. Soon after this period, James Menzies, who held possessi- on of the lands of Shian, and was intitled to the benefit of the trust reposed in Captain Menzies, died without issue, and was succeeded by his brother Archibald. Of this date, Captain Menzies, in implement of the ob­ ligation 1709, acknowledging the trust reposed in him, granted a disposition to Archibald Menzies, as coming in place of his brother James, of the whole lands and estate of Shian.—By this deed, the lands are disponed to Archi­ bald Menzies, and the heirs of his body, whom failing, to the heirs appointed by the entail 1691 above mentioned, and their heirs and assignies whatsomever. Archibald Menzies, still doubting the validity of his right, ■ in farther security thereof, of this date, obtained from John Murray, the father of these respondents, a kind of corroborative disposition to these lands. This John Murray was a poor ignorant country man, who could not so much as sign his own name; nor does it appear, that ever there was the most distant title to the lands in question made up in his name; so that this corroborative disposition can have no effect, and, indeed, the petitioner hardly seems to found upon it. U pon Upon these titles above mentioned, ArchibalMnzs continued to possess the lands of S h ian down t ill the year 17 4 5; but at that period, unfortunately engaging in the rebellion, he is supposed to have been killed at the batle- of Culloden as he has not been heard of since that time. By this misfortune, the lands were left withouanypr-prieto, snalycdkfhm; Archibald left no issue, and the Earl of Breadalbane, who had acquired right to some incumbrances affecting these lands, took this opportunity of leading an adjudicati­ on for the whole sums alledged due him and at same time no person appearing to oppose him, he assumed the possession of the lands, which he has held ever since, to the total exclusion of the natural heirs of this unfortunate family. None of the writs and evidents belonging to these lands, are or ever were in the possessio n of the respondents; and it is only from the partial production now made by the- petitioner, and from some private informations they have received from people who knew the former situation of the family, that the respondents are able to give your Lordships the date of the facts above set furth, or what shall be here further humbly offered for them. T, The petitioner sets out with proposing to shew your Lord- ships 1 mo,“ That independent o f the adjudications stand- ing in his person, the voluntary rights granted by the former proprietors of this estate to his the petitioner's authors, in whose right he is intitled to plead, are, per fe relevant to exclude this process of exhibition ad deli berandum. 2do, et separatim, He maintains in point of law, that had he no other title than his adjudications whereof the legals are long ago expired, these would also be sufficient, in the present case, t o e x c l u d e t h i s p r o c e s s. " Altho’ 9 Altho’ the petitioner does not admit, that the destinati­ on 1691 was effectually altered by the contract of marri­ age 1692 yet, in the whole argument on the first propo­ sition above mentioned, the petitioner does suppose that to be the case, and holds the contract 1692 as the governing rule of succession; and, on that supposition, endeavours to shew, that he has already produced sufficient to exclude the present action. The respondents shall take matters in the very same point of view with the petitioner, and holding the contract 1692 as the only rule of succession, will humbly endeavour to- shew your Lordships, that the titles produced by the peti­ tioner, can by no means bar the respondents from insisting in this action-. • ' 5 Your Lordships have already been informed, that upon the death of old Shian in the 1699, without issue, several competitors appeared to claim the estate, and, among o— thers, Alexander Murray, the grandfather of these respon- dents, founding his claim, as being called by the marriage contract 1692 immediately, failing heirs of Shian s body. It appears, that the only step he ever took to make up titles, in virtue of the contract he founded on, was obtain­ ing himself served in general legitmus et proinqu haeres to James Menzies of Shian. Now, the great point maintained by the petitioner, is, that Alexander Murray, by this general service, did establish in his person the unexecuted procuratory and personal right to this estate by the marriage contract 1692. But the re­ spondents humbly contend, and hope to be able to satisfy, your Lordships, that the general service of their grandfa­ ther Alexander Murray was improper, and absolutely inef­ fectual to carry the personal right to the estate upon the marriage contract 1692; and consequently, that the dispo- sitions from him to Captain Menzies can have no effect, as flowing a non habente. The The respondents apprehend, that nothing is better esta- blished by the law of this country, than the method of transmitting rights from the dead to the living; and the different rules prescribed by law, equally applie to real rights that are completed by insestment in the person of the defunct, as well as to personal rights of lands which were not completed at the time of his decease; and as a general service is necessary to establish a title to the one, so is a special service to the other. The doctrine, fu i e t necessarii haerdsnotbeing known in the law of Scotland, it is, no doubt, optional for every heir either to take up or abandon the succession of his pre- decessor; and i f it shall happen, that two different rights of representation coincide in the same person, he may chuse the one title and desert the other. But the respon­ dents, with submission, hold it to be a certain consequence, that if an heir makes up his title in one way, that must, in the construction of law, be held as deserting his other titles; for they cannot conceive how it is possible for an heir to shew a more direct intention of abandoning his other rights, than by making up his titles entirely up­ on one. It has already been said, that the only step AlexandrMu- ray took to invest in him the right to the lands in conse­ quence of the contract 1692, was the general service above mentioned, which the respondents, with submission, apr prehend, could by no means be sufficient to carry any right of succession descending to Murray, in consequence of any special provision or destination made in his favours, e- ven altho’, by the failure of the prior heirs of investiture, he should happen to be both heir of line and heir of pro- vision: For, supposin g that to be the case, they do con­ tend, that it was absolutely necessary for him to have claimed in special as heir of provision. C As As the opinion of a late writer on the law of Scotland is, in the respondents apprehension, directly in point to the present case, they will beg leave to lay it before your L ord- ships, in support of what is here advanced by them: “ The intent of a service, is not only to enquire and ascertain the propinquity that intitles one to succession, but like- ways the character under which he claims to represent the deceast; and therefore, as I formerly remarked, a special service includes a general that is founded on the same character and propinquity, but not otherways. And for this reason, one that is both heir of line and heir male of tailzie or provision, serving as nearest law­ fu l heir, carries only the subjects falling to him as heir of line, or heir at law, but not the rights that are pro­ vided to him under any or the foresaid characters; in respect, not only the propinquity must be particularised and proved to the inquest, but likeways the character under which the party claims the succession ascertained; and therefore, the deeds of settlement in relation to rights provided to heirs male, or of provision, granted by one who really was such, but was served only nearest and lawful heir, are void as to the same, because such rights remained still in haereditate jacente of the fiar who made such provision or settlement of the estate, the heirs ser- vice not having carried the s ame!'— Bankton's Inst. b. 3. tit. 5. § 59. And exactly agreeable to the doctrine here laid down, many cases have been determined by your Lordships, par­ ticularly, 21 st July 1738, Edgar against Maxwell of Barn­ cleugh, noted in the Dictionary, voce Repres entation, in these words: "In a contract of marriage, an estate being dispo- ned to the husband and his heirs male of that marriage, which failing, his heirs male of any other marriage, which failing, his heirs female of that marriage, and there being daughters of that marriage, but no sons, a s ervice service by the eldest son of the second marriage, as heir male in general to his father, was found not to carry the provision in the contract of marriage, tho’, at the same time, he was heir male of provision; upon which foot­ ing, the heirs female of the first marriage, who claimed the estate after his decease, were preferred to his gratui­ tous asigney.” Another judgment exactly similar, was pronounced in the 1738, in the case of Coulterallers. And again, the 12th November 1742, Creditors of Gar- roch against Elizabeth Cairns, noted in the late collection of remarkable decisi ons. “ James Cairns of Minibuie lent 600 L Scots to Alexander Cairns of Garroch, and took a bond from him payable to the said James Cairns, he being on life, and failing of him by decease, to William Cairns his second lawful son, heirs or assignies, secluding exe­ cutors.—William Cairns, the nominatim substitute, having died before his father without issue, Elizabeth Cairns his niece, only child to the eldest brother Alexander, did, af­ ter the death of her father and grandfather, expede a ge­ neral service, as heir of line to her grandfather, and al- so a confirmation as his next of kin; and upon these titles, she led an adjudication upon the said bond against the debtor’s estate.—In the competition of his creditors, the following objection was moved against her interest, That the said bond, containing an express substitution, did not fall to the heir of line, nor was a general ser­ vice, as heir of line, the proper title, because it could only be carried by a service as heir of provision. It was answered for Elizabeth Cairns, That she is both heir of line and heir of provision; and since she had the natural right to the bond, it was a matter of indifference what title she chose.—The Lords found, that the bond could only be carried by a s ervice as heir of provis ion to James Cairns the creditor, and not by a service as heir of line; and therefore, found Elizabeth Cairns' s adjudication null, as as proceeding upon a bond to which she had made up no proper title.” And the respondents are informed, that the case of Lau­ rie of Redcastle, lately determined by your Lordships, and affirmed in the last resort, is exactly similar, and on the. same principles with those above mentioned. The petitioner has endeavoured to support the position laid down by him, that a general service was sufficient in the present case, by a case that was lately under your Lordships consideration, in a competition about the estate of Lanerk. But the respondents, with submisio n, cannot think that the circumstances of that case, in so far as they have hadJ access to be acquainted with them, are at all similar, or will apply to the case in hand; for many cases may occur, where the heir of line and the heir of provision are ex­ tremely different: Whereas, in the case of the Haldanes, • as John Haldane, the father of Patrick, was served and cog­ nosced legitimus et propinquior haeres dict. Patricii Haldane e- jus patrisy it was impossible that the character of heir male to his father could exist in any other person but himse lf; because John Haldane could not be nearest lawful heir to his father without being his eldest son, and consequently his heir male. The respondents do apprehend, that the only method by which the lieges can be certiorated of the representati- on of any deceased person, is, by the service of his heirs; and they, with submission, humbly contend, that it is es- sentially necessary, that the service should not only point out the heir's propinquity, but also, that it should evident­ ly appear from it, by what particular right or title the heir means to vest in himself the subjects of his predecessor. For your Lordships will easily perceive, that many cases may occur, where, altho’ both the right as heir of line and heir of provision coincide; yet it would be much more eligible for the heir to take the succesio n as heir of line, rather than asheirofpvn But at present, the respondents do not think it necessary for them, to enter minutely into the consequences that would attend heirs being allowed such a liberty in services, as that for which the petitioner contends —For, if the re- spondents are right, in what they have above laid down as a rule in the law of Scotland, v iz. That a general s e r v ic e, t anquam legitimus et propinquior haers, will not carry any right or subject provided to a certain series of heirs, even altho' the claimant should happen to be the heir of provi­ sion likewise; then they do, with great submission, con- tend that that rule has been broke through in the present case; and, of consequence, that the s ervice of A lexander Murray with all that followed thereon, must fall to the ground. And your Lordships will please particularly to attend to this circumstance; that it was alone upon the contract of marriage 1692, that Alexander Murray could claim the suc- cesi o n as nearest and lawful heir to James Menzies of Shian- for if your Lordships are to suppose this contract entirely laid aside, then Alexander Murray could not claim as nearest and lawful heir in general, because James Menzies, the son of Janet Murray, would have come in preferable to him upon the deed of entail 1691; so that y o u r Lordships evidently see it was alone, as being heir of provision in the contract of marriage 1692, that Alexander Murray was en­ titled to claim at the time he did; and yet, there is not the least mention of that contract in Alexander Murray' s service, but he is only served in the common general way, tanquam legitmus et proinqu haeres to old Shian. U p o n the whole, as to this point, the respondents hum­ bly hope they have satisfied your Lordships, that the gene­ ral service of Alexander Murray their grandfather, was by no means a proper service, and absolutely ineffectual to cary carry the estate on the marriage contract 1692, and conse- quently, that the disposition afterwards granted by him to Captain Menzis, must be a void and ineffectual deed. With regard to the contract entered into between the Earl of Breadalbane and Archibald Menzies of Shian in the 1723, it can, in no view, aid his Lordship in the defences he now maintains, for the following, among many other reasons: 1mo, Archibald Menzies at the time of entering into this contract with the Earl, was minor, and entirely ig norant as to the situation of his own affairs. 2d o had made up no titles whatever to the estate.' 3tio, The con- tract ex facie, evidently appears to be entered into on the part of Archibald M e n z i e s, in the firm belief, that the rights to the annuities which stood only nomialy in the person of the Earl were simple and absolute, without condition or qualification, which was not the case, as will appear in the sequel. 4 to It seems evident, that the contract itself had before the death of the late Shian, been, at least, tacitely depart fombyhis,nwk either of them to carry it into execution.-- And as the Earl, during the lifetime of the late Shian, never took any step’ towards implementing his part of the contract, by convey­ ing the annuities which stood in his person to Shian, he cannot now be allowed to demand implement of the coun- ter part of that contract, either from Shian of his represen- tatives. With regard to the adjudication founded on by the peti tioner, as per se relevant to exclude this action, the fact in so far as the respondents have been able to learn, stands thus: Soon after the death of James Menzies of Shian in the 1698, or 1699, his relict Helen Graham, married James Graham a merchant in Anstruhe Ea; and finding that the 1200 merks of annuity, to which he was entitled in virtue of her contract of marriage with Shian, was not regularly paid by by his representatives: She led two separate adjudications against the lands for the bygone annuities; and these ad­ judications seem to comprehend all the annuities that was due prior to the year 1707. Alexander Menzies, the husband of Janet Murray, menti­ oned in the deed of entail 1691, having, as has already been said, found means to get into possession of the estate, as administrator for his son, who was directly called to the succession by the entail 1691, he, for his son’s behoof, o f this date, entered into an agreement with Helen Graham, the relict of Shian, and her husband; whereby the relict became bound to convey to him, for his foil’s behoof, her right to the annuity of 1200 merks during all the days of her life after Whitsunday 1707; and he, on the. other hand, became bound either to pay her, or grant heritable security on the lands of Shian for 7400 merks, bearing interest from Whits unday 1707; but with this special provision, that in case, at any term before Whitsunday 1712, the bygone annualrents, with the sum of 6400 merks, should be paid, that sum should be accepted of in place of the 7400 merks. Alexander as administrator for his son, st i ll continued in possession of the estate, but paid neither principal nor in- terest to the liferentrix; and of this date, he entered into a transaction with the deceast John Karl of Breadalbane, whereby he conveyed to the said Earl, the minute or agree­ ment, formerly mentioned to have been made betwixt him and Helen Grahame in the 1707; and she at the same time disponed her right to the Earl, on payment of 5572 l. Scots- the Earl at the same time granted a backbond, obliging himself to reconvey this right to the annuity, in favours of the heir of the family of Shian, how soon he was paid or properly secured in the sum at that time advanced by him. Soon after this period, Alexander died, and the Earl granted a new backbond to Archibald Menzies, the son of Alex- Alexander, and heir on the footing of the deed 1691; by which bond he acknowledged, that if Helen Grahame the liferentrix should live down till Whits unday 1720, in that event, all the sums due to his Lordship would be sa- tisfied and paid, by the annuity he would be intitled to draw by that period; and therefore, he obliged himself to discharge Archibald Menzies of Shian of 1000 merks year­ ly of the annuity, after Whits unday 1720. It was soon after this period, that the contract 1723 was entered into between the Earl and Archibald Menzies, when a minor; and it plainly appears ex facie of the con­ tract, that Archibald either knew nothing of, or had en­ tirely forgot these backbonds granted by the Earl; and that at the time he entered into this contract, he supposed the rights to the whole annuities to stand in the Earl’s person simply and without qualification. But further; altho’ the Earl of Breadalbane has adjudged for the whole annuities that have become due since 1 707; yet the fact is, that several very considerable payments were made to the Earl by the late Shian, in so much that, in ‘January 1731, an accompt was made up betwixt the Earl and Shian by the Earl’s own doer, by which it clearly appeared, that the sum Shian was at that time due to his Lordship was very inconsiderable.— The vouchers of the abovementioned accompt most probably are in the hands either of the Earl of Breadalbane himself, or some of his doers, along with all the other writs and evidents re­ lative to this estate: For as the respondents have former­ ly said, there never was a single paper of them in their cus- tody; and the probability is, that they have been all laid hold of by the Earl’s doers at the time he assumed the pos- sesio n of the estate, after the unfortunate death of the late Shian in 1 745. Such being the fair and candid state of the facts, in so far as the respondents have been able to learn, they sub- mit mit it to your Lordships, how far in such circumstances the petititioner can be allowed to plead these adjudications, as being sufficient to bar the respondent from insisting to have inspection of all the deeds granted by, or to their prede- cessors to some of whom they are undoubtedly heirs apparent. The petitioner, as an additional security, has founded on two adjudications led by Helen Graham, the relict of old Shian, for annuities due to her prior to the year 1707, to which adjudications the petitioner has acquired right from Sir Robert Menzies to whom he alledges he has paid, on that account, 400 l. Sterling.—But the very papers produ­ ced by the Earl himself, clearly instruct, that these adju­ dications were no more than a tru st in the person of Sir Robert, for the benefit of Archibald Menzies, the last pro­ prietor of Shian; for, by a back-bond of this date, Sir Robert is expresly obliged to denude thereof in favours of Shian, on being paid 3181 l. 10s 4 d. Scots, the sum that was truly paid by Sir Robert himself to the relict Graham and her husband; and this is made an express condition in the rights which Sir Robert grants to the pe­ titioner. As it thus plainly appears, that the petitioner’s whole claim to this estate upon legal titles, stands solely upon the adjudications led in consequence of annuities due to Graham; and as it also appears, that all the rights upon which these adjudications proceed, were trusts for the be­ hoof of the family of Shian, the respondents most humbly contend, that in such circumstances, altho’, by the unfor­ tunate death of the late Shian, the petitioner, or his doers have found means to get into their custody every paper belonging to that unfortunate family, yet the petitioner cannot now be allowed to avail himself so far of that acci­ dent, as either to set up the whole of these annuities as in­ cumbrances upon that estate, in defiance of the back-bonds granted by the petitioner and his authors; nor yet to plead E these these adjudications as complete legal titles, sufficient to ex­ clude these respondents from insisting in an exhibition or the back-bonds, or other writs, which they humbly ap­ prehend, in character of apparent heirs, they are intitled to demand. Upon the whole, as it is not, nor indeed cannot be de­ nied, that the respondents are undoubted heirs apparent to the ancient proprietors of the estates of Shian, not only upon the marriage contract 1 692, but now by the failure of the nearer heirs of entail, also upon the bond of tail­ zie 1691, they do therefore, with great submission, con­ tend, that, in either of these views, they are intitled to demand a full exhibition of every writing relative to that estate, and of every deed done by, or granted to any of their predecessors;—because, it is from these writing only, that, in their present situation, they can be able to judge, whether it will be their interest to take up or repudiate this succession0 In respect w hereof, & c. A L E X. E L P H I NSTON.