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Scottish Court of Session Decisions >>
Sir Robert Stewart, and Others, Petitioners. [1742] Mor 6248 (29 January 1742)
URL: http://www.bailii.org/scot/cases/ScotCS/1742/Mor1506248-053.html Cite as:
[1742] Mor 6248
If a writer or agent be obliged to allow inspection of writings, on which he has a hypothec?
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It was reasoned among the Lords, whether or not an agent or writer, who had an hypothec on writs in his hands, was obliged to allow inspection till his account was paid ? It was on the one hand said, that all the party wanted, was inspection, whereby the hypothec would be eluded; on the other hand, should a writer be allowed to say, ‘ I have papers, but I will not shew them till I am paid;’ he might draw his account for shewing papers that might be no better than a pack of cards. 2do, Why should a writer, on account of his hypothec, have a stronger right than a proprietor has in his own papers, who yet is obliged to exhibit ad modum probationis?
The point did not in this case receive a direct determination; but it seemed to be the opinion of the majority, that inspection was to be allowed.
N. B. It is remembered, that in a declarator of recognition, the writs of the lands being called for by a diligence, to shew that they held ward of the pursuer, the defender's writer, in whose hands they were, was found obliged to exhibit them, notwithstanding his hypothec, which could not bar the third party's interest, to have them produced ad modum probationis, January 31. 1738, Earl of Sutherland contra Mr David Coupar, No 52. p. 6427.
