Scottish Court of Session Decisions

This was an action for payment of certain business accounts.

The defender stated that he was, and had been all along, willing to pay the accounts (with a trifling exception), as the same might be taxed, and upon the pursuers restoring to him certain letters and documents which he averred had been entrusted by him to their care.

With regard to these letters, the pursuers, who are writers in Glasgow, averred that they had been produced by them under diligence, and had formed part of the process in the action for which the accounts had been incurred; that they had been borrowed by the opposite agent; that they, the pursuers, had instructed their Edinburgh correspondents to adopt proceedings to enforce delivery, but after some steps had been taken, the defender intimated that he would not hold himself responsible for the expense, and that they accordingly ceased to carry out the proceedings they had commenced.

The answer of the defender to this averment was—“ Admitted that the letters were handed by him to the pursuers in the course of his employment of them, and with reference to the matters upon which they were employed as his agents. The defender does not know what afterwards became of them; and does not admit the statements here made. Explained that the defender has lately repeatedly required the pursuers to restore the said documents, but they have failed and decline, and now decline, to do so.”

He pleaded—“(1) The pursuers are not entitled to demand payment from the defender of the amount of their accounts against him while they refuse to deliver up the letters and documents belonging to him with which they had been entrusted on his behalf, and the defender should therefore be assoilzied. (2) The defender having offered, and been all along and being now willing, to pay to the pursuers the amount of their accounts as taxed, upon receiving back from them his said letters and documents, the present action was unnecessary, and ought to be dismissed, and the pursuers found liable in expenses.”

The Lord Ordinary ( Jerviswoode) found “that the averments set forth on the part of the defender on the record, and on which the first and second pleas in law on his behalf are rested, are not relevant in defence against the conclusions of the present action.”

The defender reclaimed, and shortly after consigned the sum claimed.