Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HYPOTHEC-PRESCRIPTION.
Subject_3 Found, that although a writer hold possession of his client's papers, this does not interrupt the triennial prescription of his account.

John M'adam
v.
John Fogo

Date: 22 December 1780

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[Fac. Coll. VIII. 22; Dict. 6252.]

Braxfield. That I have a counter-claim is no reason for my not constituting; for prescription may run in the interim. When a pledge is once constituted, the negative prescription will not run, because then there is possession: but, as to the case of a writer having retention, that does not necessarily suppose that anything is due to him. It is not an impignoration on a ground of debt: the account must be constituted.

Justice-Clerk. It would have bad consequences were this privilege allowed to writers. The Ordinary appears to have gone, not on his own opinion, but on the authority of the only decision produced before him.

Gardenston. One decision is nothing. This puts me in mind of what Gulliver reports to be the law of England, that, if judges once go wrong, they make it a rule never to come right.

Hailes. I did not consider myself at liberty, in the Outer-house, to controvert a judgment of the whole Court. If the Court should consider itself no more at liberty, then Gulliver's report might apply.

Covington. I know not the origin of the privilege claimed by writers: I would not deprive them of it; but it ought not to be extended, so as to make their accounts real incumbrances on the estate. To maintain the rule of prescription will be beneficial to writers: it will both excite them to demand payment and furnish an excuse for demanding it.

President. The origin of the practice is good, that a writer may have a security for payment in a cause on which he has bestowed pains and expense.

On the 23d December 1780, “The Lords found that the holding of the client's papers does not stop the currency of the triennial prescription;” altering Lord Hailes's interlocutor.

Act. — Boswell. Alt. G. Ferguson.