Scottish Court of Session Decisions

Subject_1 HYPOTHEC.
Subject_2 SECT. VII.

Hypothec competent to Writers and Agents.

James Foggo, and Others, Executors of John Foggo, writer in Glasgow,
v.
John M'Adam of Craigengillan, and Others, Creditors of John Alston

Date: 22 December 1780
Case No. No 57.

Found, that a although writer hold possession of his client's papers, this does not interrupt the triennial prescription of his account.

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In a process of ranking and sale of the bankrupt estate of John Alston, the title-deeds of said estate were produced by the Executors of John Foggo, writer in Glasgow, under condition, that producing these papers should not hurt any claim of preference, or right of hypothec, Mr Foggo's executors had, for payment of an account for business done by Mr Foggo for Alston.

After the process of ranking and sale was concluded, the papers were delivered back to Mr Foggo's executors, who, in the divisions of the rice, claimed payment of the account due to Mr Foggo.

Objected by the other creditors; The account on which Mr Foggo's executors found their claim, begins in 1774, and the last article stated is in 1762. John Alston died in 1768; and it is to be presumed this account was settled before his death. It is cut off by the triennial prescription. For, however reasonable it may be, that a writer should have a hypothec on his client's papers, for an account of business, this right cannot be understood as giving a privilege, præter communes juris regulas, so as to keep up such a claim against the client and his representatives for ever; and so it was determined, Mason against Earl of Aberdeen 26th November 1709, voce Prescription.

Answered for the executors; Although they consented to produce the papers, rather than interrupt the sale, they did so, under condition that it should not hurt their right of hypothec; and, after the decreet of ranking was extracted, the papers were given back, and are now in their possession; so they are not to be considered as claimants bringing an action for payment of an account, to which the triennial prescription may be objected. They are in the case of a person having a pledge, and are entitled, in virtue of the right of hypothec, to retain the papers till payment of the account; as was decided, Mitchel contra M'Adam, 18th January 1712, voce Prescription, and has ever since been held to be law.

The Lords found, that a writer, holding possession of his client's papers, does not stop or interrupt the triennial prescription of his account; and remit to the Ordinary to proceed accordingly.

Act. J. Boswell. Alt. G. Fergusson. Clerk, Tait. Fol. Dic. v. 3. p. 295. Fac. Col. No 12. p. 22.