Scottish Court of Session Decisions

Messrs M'Lay, M'Alister, & M'Gibbon, accountants, Glasgow, raised in the Sheriff Court at Glasgow an action against John Hampton, solicitor, Glasgow, in which they prayed the Court to ordain the defender to deliver up to the pursuers certain specified accounts.

The pursuers averred—“(Cond. 1) The pursuers are accountants in Glasgow, and Mr Dugald M'Alister, accountant there, is a partner of said firm, and trustee on the sequestrated estates of George Watson junior, builder, 2 Auchentorlie Street, Partick, and the defender is a solicitor in Glasgow, and carries on business there in an office at 217 West George Street, of which Charles Yule, accountant, is the tenant and occupant. (Cond. 2) The defender lodged a claim and affidavit on the said sequestrated estates of George Watson junior, on 11th June 1897, and in support of his claim the various accounts detailed in the prayer hereof. (Cond. 3) On or about the 17th day of November 1897 the defender obtained from the pursuers on loan the accounts detailed in the prayer of the petition, and granted in their favour a borrowing receipt of which the following is a copy— ‘Glasgow, 17th November 1897. Borrowed from Messrs M'Lay, M'Alister, & M'Gibbon, C.A., Glasgow, to be returned on demand the following, viz.—Nos. 25/1 to 25/14 inclusive in the sequestration of George Watson junior—(Sgd.) John Hampton.’ Explained that said receipt, so far as not printed, is holograph of the defender. (Cond. 4) The trustee on the said sequestrated estates requires these accounts, and the pursuers have consequently applied to the defender for them, but he declines to return them.”

The defender in answer “Explained that on or about the date mentioned the defender, with the view of remodelling his claim upon the seqestrated estates of George Watson junior, builder, 2 Auchentorlie Street, Partick, applied personally to Mr Dugald M'Alister, accountant, 94 Hope Street, Glasgow, the trustee on said sequestrated estates, for the return of the vouchers which he had lodged in support of his claim, at the same time informing him what his object was in getting up the vouchers to enable him to remodel his affidavit and claim on the said sequestrated estates. Mr M'Alister agreed to the request, as he was bound to do by the provisions of the Bankruptcy Statutes, and he asked the defender to call for the documents on the following morning, by which time he would have them all looked out. The defender accordingly called, when he was met by Mr M'Alister, who handed him several accounts referred to in his claim upon the said estates with the printed form of a receipt to be filled in by him. Denied that the documents were borrowed from the pursuers, and that they were ever in a position to lend them, or that the documents were ever in the custody of the pursuers, the trustee in the sequestration alone being the custodier thereof, and he was bound when called upon to return them to the defender, whose property they have all along been. The defender avers that the only receipt which he intended to give, and the only one which the trustee intended to take and was entitled to get, was simply a memorandum or acknowledgment to preserve evidence of where the documents had gone to. The defender was quite within his rights in receiving up the documents.”

On 9th June 1898 the Sheriff-Substitute ( Spens) repelled the defences, and ordained the defender to deliver the documents as craved.

Note.—“The case of Herbert v. Ruther-glen, June 23, 1858, 20 D. 1164, appears to me directly in point, and the Lord President's observations seem decisive against any defence being entertainable. I think the delay which has taken place in giving effect to the plain agreement upon which the writings were received by defender is intolerable. Counsel for the defender did not dispute that the case referred to was conclusive, had it not been, he argued, for the Sheriff Court Act of 1877. Under that Act he contended the borrowing receipt on which this action is founded should be set aside ope exceptionis on the ground that the defender was under a misapprehension when he signed it that it was a borrowing receipt. Such a defence I would hardly be inclined to accept from anyone, but certainly not from a law-agent, who must surely be expected to have looked at what he was signing. This document being swept aside, counsel was prepared to argue that the defender was owner or at least in right of the documents asked for. But whatever misapprehension there was on defender's part, there was none on the part of the pursuers. They let the documents out of their hands on a borrowing receipt of defender agreeing to return them on demand: They must be reinstated in the status quo ante. Pursuers are entitled to have the documents, and any question as between them and defender with regard to them would require to be fought out with the pursuers in the position of defenders.”

The defender appealed to the Court of Session.

Counsel for the pursuers were not called on.