Triennial Prescription of Accounts, Act 1579. c. 83.
Mitchel of Bredhead v. Andrew M'Adam, Writer in Edinburgh
Date: 18 January 1712 Case No. No 300.
The exception or defence, whereby an agent refuses to deliver up pa-papers until payment of his account, does not prescribe as to the manner of probation.
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Mitchel of Bredhead pursued Andrew M'Adam, for exhibition and delivery of his writs, who pretended to jus detinendi, till he be paid of his fees as agent for the pursuer in his business, conform to an account given in.
Alleged for the pursuer; The account is prescribed quoad modum probandi; except as to his oath, not being sued within three years; which prescription is not hindered by a writer's having his client's papers in his hand to which his account related, November 29. 1709, Mason against Earl of Aberdeen, No 298. p. 11094.
Answered for the defender; The decision cited doth not meet; for the Earl of Aberdeen was pursued per modum actionis for payment of a writer's account; whereas here the defender pursued to deliver up his client's writs, says only by way of defence, he cannot be obliged to do it till once the account be paid. Which defence is perpetual, and doth not prescribe; though action upon the account be prescribed as to the manner of probation. The Lords found, That the exception or defence, whereby Andrew M'Adam claims payment of his account, doth not prescribe while the papers are in his custody.
