A writer may detain his client's papers for his account, but not for money advanced for him.
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In the ranking of the Creditors of James Lidderdale of Torrs, James Nasmyth writer, called upon a diligence at the instance of the Creditors to exhibit the common debtor's rights to his estate, produced an inventory of the writs called for; but insisted that he was not bound to deliver them till he was paid of an account due to him by the common debtor; which the Ordinary ‘having sustained,’ the Creditors reclaimed, and the Lords were of different opinions.
Some thought that the right competent to agents was improperly called a hypothec, as it is no pledge or real right, but only a personal right of retention of the writs while they are in his hands; and if so, only competent against his employer, but not against singular successors or real creditors, who eo ipso, that they acquire the real right in the estate, must of consequence have right to the title-deeds as accessory thereto: And to this purpose a case was remembered to have occurred in the year 1735, between Neil M'Vicar writer, and the Relict of Campbell of Kirnan, (See Appendix.); where Neil M'Vicar, who had got from Kirnan his charter, which contained also an annuity to the Lady of 600 merks, having refused, at the suit of the Lady, to exhibit the charter till he was paid an account due to him by Kirnan, the Lords, after altering the Ordinary's interlocutor, repelling the hypothec, upon advising a bill for the Lady, returned to the Ordinary's interlocutor, and found the hypothec only competent to M'Vicar against his employer.
Noswithstanding which, the Lords in this case “ adhered to the Ordinary's interlocutor, sustaining the hypothec.”
As that case of M'Vicar and Lady Kirnan was upon no record, it was uncertain what circumstances may have attended it; and the Lords generally attested, that in their practice in rankings, the agent's right to retain, till paid of his account, was always admitted; and as it was a creature of the Court introduced for the agent's security, who otherways would not undertake the affairs of a person of doubted circumstances, which sometimes might be a loss even to his creditors, so, if it was only good against his employer, it would in most cases be good for nothing.
A special objection was then made for the Creditors to an article in the agent's account of L. 160, paid to the Stewart-Depute of Kirkcudbright, as the non-entry and relief due to the Crown, which he had promised to pay when he obtained the Stewart's precept for infefting the common debtor on his service and retour, in compliance with the clause in the precept capiendo securitatem.
Which objection the Lords ‘ sustained,’ as the payment of such money did not properly fall within the agent's province; for that by the same rule, that the agent should be entitled to a hypothec for this, it might be pleaded, that the hypothec extended to the case of an agent's becoming cautioner in a suspension.
Fol. Dic. v. 3. p. 294. Kilkerran, (Hypothec.) No 7. p. 275.*** D. Falconer reports the same case:
1749. July 6. —The Creditors of James Lidderdale of Torrs having adjudged his estate, and being about to bring it to a voluntary sale, executed a diligence against James Nasmyth writer to the signet, for recovering out of his hand the title-deeds thereof; who alleged, That he being employed by the common debtor as a writer, was not obliged to give up the writs till he obtained payment of his account, consisting partly of L. 160 Scots of bygone feu duties, paid in order to obtain his client infeft.
The Lord Ordinary, 19th July 1748, “ found that James Nasmyth had a right of hypothec upon the writs, and to retain them, until he should be paid of the whole of his account.”
Pleaded in a reclaiming bill, The writer's right is not properly a hypothec, though called so; for if it were, he would have right to recover the papers when out of his possession, which he has not; but it is only a retention competent against his employer; and he cannot, on being employed by one man, retain from another his papers, consequently not from the Creditors, whose the papers now are, as the estate is, which they have carried off by their diligence.
The article of money paid of arrears of feu-duties, is a common debt, and no article of a writer's account.
Answered, A writer has the papers pledged to him for his employment, and can retain them against all persons, though not recover them, if he lose the possession; and being employed to infeft his client, which was his proper business, he was obliged to give security for the bygone feu-duties, which he afterwards paid.
“The Lords adhered, in finding he had right to retain the writs, till paid of his account due to him as a writer; but found that the money laid out by him for payment of the bygone feu-duties, was of the nature of a common debt, and he had no right of retention therefor.”
Act. H. Home.Alt. A. Macdouall.Clerk, Murray.
D. Falconer, v. 2. No 78. p. 83.
