Scottish Court of Session Decisions

Subject_1 HYPOTHEC.
Subject_2 SECT. VII.

Hypothec competent to Writers and Agents.

The Interim Factor on the sequestrated Estate of Bertram, Gardner, and Company,
v.
David Thomson

Date: 16 January 1794
Case No. No 61.

An agent, whose client's estate was sequestrated, ordained to deliver the bankrupt's papers to his creditors, on receiving a warrant for payment of his account out of the funds in medio, as soon as it should be adjusted.

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David Thomson, writer to the signet, was agent for Messrs Bertram, Gardner, and Company, and in that character had many of their papers in his possession. On their bankruptcy, he acted as clerk to the general meeting of creditors, at which Richard Hotchkis was appointed interim factor. The grounds of debt produced for the creditors were immediately returned to them, but their oaths of verity and mandates were left with Mr Thomson.

The interim factor having demanded from Mr Thomson the whole papers he held in his possession, whether as agent for the bankrupts, or clerk to the general meeting of creditors, under reservation of his right of hypothec, Mr Thomson, though willing to allow inspection of them in his own hands, refused to quit possession of the former, until an account due to him by the bankrupts was paid, or at least an obligation granted for payment of it; and contended, that Mr Hotchkis was not entitled to possession of the latter, as they belonged to the creditors, and not to the bankrupts, of whose effects only he was appointed to take charge; 33d Geo. III. c. 74. § 15.

Upon this Mr Hotchkis presented a petition to the Lord Ordinary on the bills, to which his Lordship ordered answers to be lodged, and both to be presented to the Court.

* Net reported.

† Not reported.

The Lords ‘authorised the said Richard. Hotchkis, as interim factor on the sequestrated estate of Bertram, Gardner, and Company, and of John Gardner, Adam Keir, and Robert Forrester, individual partners of the said Company, and the trustee acting for the time upon the said estate, to make payment to the said David Thomson out of the funds in his hands, of the amount of his accounts, as soon as the same are finally liquidated and adjusted; and in the mean time ordained the said David Thomson instantly to deliver to the said Richard Hotchkis, the whole writings, vouchers, documents, books, and papers of every kind, both of the creditors and of the bankrupts, or connected with their affairs.’

Lord Ordinary, Ankerville. Clerk, Pringle. Fol. Dic. v. 3. p. 296. Fac. Col. No 91. p. 203.