Writer's hypothec on his client's writings, found to bar even a demand of exhibition in modum prohationis, at the client's instance.
Click here to view a pdf copy of this documet : PDF Copy
Syme, cited as a haver in virtue of a diligence at the instance of Finlay, the purpose whereof was, to recover writings, in order to instruct Finlay's claim against a third party, acknowledged upon oath, that he had sundry writings in his custody, which he had got possession of in consequence of their being transmitted to him, in order to be used in different processes whereof he had the management for behoof of Finlay; but insisted, that, as Finlay was indebted to him for money disbursed in the foresaid processes, and other articles, he had a hypothec upon the writings in his custody, which he therefore could not be obliged to deliver up till the account was paid. He, at the same time, exhibited an inventory of the papers in his custody, and a copy of the account due to him by Finlay.
“The Lord Ordinary having considered the objection, is of opinion, that Mr Syme must exhibit the writings in question.”
Syme reclaimed; and, in point of fact, observed, that his case is certainly as favourable as any in which the question can come to be tried. The articles which compose his account consist, in a great measure, of disbursements in 1761 and 1762, still wholly owing. And the diligence is at the instance of the person to whom the papers belong, for whose behoof the articles were expended, and who, in order to get restitution of papers so material for him, ought to make a voluntary payment of the account.
With respect to the question itself, he cited the authority of Bankton, B. 1. T. 17. Par. 15. and Mr Erskine, B. 3. T. 4. § 21; and a decision, November 1705, Ayton contra Colvil, No 51. p. 6246.
Finlay stated some objections to the justness of the account on which the hypothec was claimed; and further contended, that, supposing it were a true account, and justly due, Syme has no title to insist on the demand he makes. A writer indeed has a hypothec upon the papers of his client, which may entitle him to say, that he will not deliver up these papers until he has paid his account; but he had no title to say, that he will suppress the evidence which they may afford, in a disputed question of fact, any more than he has a title to say, that he would not depone as a witness, when cited by a person who owed him money on account, till his account was paid. The present question is about exhibition of papers in modum probationis, and by no means about the delivery of them; for, if they are produced in the way of evidence, Mr Finlay has no objection that they be returned to Mr Syme afterwards.
“The Lords find, that Mr Syme has a right of hypothec on the papers, and is not obliged to produce them till satisfied of his debt.”
Act. Cosmo Gordon.Alt. Crosbie.Clerk, Ross.
Fol. Dic. v. 3. p. 295. Fac. Col. No 49. p. 130.
