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Scottish Court of Session Decisions >>
William Blair of that Ilk, v Mr Adam Cunninghame, Advocate. [1713] Mor 357 (19 February 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor0100357-025.html Cite as:
[1713] Mor 357
William Blair of that Ilk, v. Mr Adam Cunninghame, Advocate
Date: 19 February 1713 Case No. No 25.
An advocate granted receipt for writs, referring to an inventory. It was granted to a private individual, not to a person in a public office. Not being holograph, nor otherwise formal, the advocate no farther liable, than to make oath what became of the writs.
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The Laird of Blair having pursued Mr Adam Cunninghame, for exhibition and delivery of writs, contained in an inventory, bearing at the bottom these words, “I Mr Adam Cunninghame, advocate, grant me to have received the writs above-mentioned, from Mungo Campbell of Burnbank; and I oblige me to reproduce them to him upon demand. In witness whereof, I have subscribed these presents, at Edinburgh, the last day of July, One thousand seven hundred and fix. A. Cuninghame.”
Alleged for the defender: 1st, The receipt and obligation is null, as neither holograph, nor mentioning the writer's designation, nor yet signed before witnesses: For not being a receipt granted to any clerk's office, nor yet in the ordinary form of a receipt of papers, but in the form of an obligation; it cannot be sustained, unless it were solemn according to law. 2d, Seeing papers pass between clients and advocates, without receipts, the receipt in question hath no more force, than if it were proved by the defender's oath that he received these writs: And his receipt could not oblige him to more, than to purge himself by oath, That he had not fraudfully put them away, nor suppressed them. It ought to be presumed, that writings, not in a lawyer's hand, are returaed; because persons are not in use to give receipts, for their writs, to their lawyers. And if it were otherwise, lawyers were in a miserable condition; it being hard for them to instruct the returning of all writs that might be proved to have been in their hands in the course of their employment.
The Lords having considered the defences, and particularly that the receipt is not holograh, wanting writer's name and witnesses, and not granted to a person in a public office; they found the defender no further liable for the papers in the inventory whereto the receipt is subjoined, than to give his oath what he knows concerning them, what became of them, and how they were disposed of.
