The Creditors of John Newlands v. Andrew Mackenzie
Date: 9 February 1793 Case No. No 59.
An agent ordained to make exhibition to his client's creditors, of his title-deeds, on getting a decree of preference for his account, on the produce of the subjects, and a warrant for payment out of the first and readiest of the funds in medio.
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John Newlands owed Andrew Mackenzie, writer to the signet, an account for business performed. His creditors demanded exhibition or inspection of certain title-deeds belonging to him, in Mr Mackenzie's possession, which he refused till he got payment of his account.
The creditors had no objection that Mr Mackenzie's preference on the funds of the debtor should be ascertained by a decree of the Court, but insisted, that they should have inspection of the title deeds.
Mr Mackenzie objected; A third party may no doubt call for exhibition of writings in modum probationis, although subject to the writer's hypothec, without paying his account; Aiton, No 51. p. 6247. But this is not competent to the employer, or to creditors standing merely in his right; Creditors of Lidderdale, No 54. p. 6248.; 23d January 1773, Finlay against Syme, No 54. p. 6250.; 9th August 1781, Ranking of Provenhall, No 57. p. 6253.
From the peculiar situation of the property of Mr Newlands, there is reason to believe, that the creditors will not find it their interest to sell it, so that the hypothec will thus be completely disappointed.
Answered; The decisions above quoted proceeded on specialties. If the title-deeds are not produced, the subjects must remain unsold, and the account unpaid. If they are produced, and the subjects sold, the objector will get payment; if they are not, he can suffer nothing by the production.
The Lord Ordinary ordered the writings called for to be produced, reserving to Mr Mackenzie his right of hypothec.
The Court, upon advising a reclaiming petition and answers, ‘ remitted to the Lord Abercromby to ascertain the amount of the petitioner's account; and upon the petitioner's lodging in the clerk's hands the papers in question, found him entitled to a warrant upon the factor, for the amount of the account, when so ascertained, out of the funds received or to be received by him out of the subject in medio, and remitted to the Lord Abercromby Ordinary to proceed accordingly.’
Lord Ordinary, Abercromby.For Mr Mackenzie, G. Fergusson, Cha. Hay.Alt. Charles Hope.Clerk, Sinclair.
Fol. Dic. v. 3. p. 295. Fac. Col. No 25. p. 52.
