WILLIAM BURN CALLANDER v Mrs ELIZABETH LAIDLAW or ANDERSON (Court of Session)

In virtue of the power contained in this disposition, Mr Justice, on 21 June 1739, granted an heritable bond over the lands of Ugston, upon which Mr Pringle was infeft.

The pursuer applied to the defender, the sister and representative of Mrs Laidlaw, for the title-deeds of the property; but she having refused to give them up, on the ground that, in virtue of Mr Laidlaw's right of hypothec, she was entitled to retain them in security of his business accounts, for which decree had been obtained, the pursuer raised the present action of exhibition and delivery, and

It has long ago been decided, and is now by recent decisions held as quite established, that a writer's lien or right of hypothec was preferable even to prior heritable securities—Lidderdale, 5 July 1749, M. 6248—Hamilton, 9 August 1791, M. 6253—Campbell v. Smith, 1 Feb. 1817—Campbell and Clason v. Goldie, 15 Nov. 1822—Cameron v. Burns, 25 June 1824.

An heir of entail is the verus dominus of the estate, and the true owner of the title-deeds during his possession. The entail does not affect the heir in possession's right to impledge the title-deeds, which are not directly entailed, and cannot be held so by implication.

The Lord Ordinary pronounced the following interlocutor and note : ‘The Lord Ordinary having considered the revised case for the parties, and whole process, finds, that the defender is bound to exhibit and produce the writs and evidents called for by the pursuer, and to deliver them to him, to be used and disposed of as his own property, and decerns : Finds the defender liable in expenses, and remits the account thereof, when lodged, to the Auditor to tax and to report.’