Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HYPOTHEC.
Subject_3 Writer's hypothec on his client's writings bars even demand of exhibition in modum probationis at the client's instance.

John Finlay
v.
Robert Sym

Date: 23 January 1773

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[Faculty Collection, VI. 13; Dict. 6,250.]

Gardenston. If this interlocutor were adhered to, the credit of the lieges would be hurt; writers would not trust their clients. The answer, that the writings are only called for as in an exhibition, is not sufficient: this would be to make the writer merely a custodier of the papers. It is true, as the Ordinary expresses it, that this incidental question embarasses the cause: but that is Finlay's fault; he should have brought an action at first for his papers, and then the defence of hypothec would have occurred. His delay in bringing this action cannot alter the nature of Sym's defence.

Kaimes. Here the writer stands out against his own interest; his payment depends on Finlay's success, and Finlay's success depends on the exhibition.

Hailes. I was so much prepossessed with the notion that Sym argued against his own interest, that I did not give sufficient attention to the legal defence, which I apprehend my interlocutor wounds. It is certain that Sym's only chance of payment depends on his waving his right of hypothec, and that, by gaining his cause, he will lose his money.

On the 23d January 1773, the Lords found that Sym has a right of hypothec for payment of his account, and that he is not obliged to exhibit the papers called for; altering Lord Hailes's interlocutor.

Act. A. Crosbie. Alt. Cosmo Gordon.