M'Lay, M'Alister, & M'Gibbon v Hampton
| Jurisdiction | Scotland |
| Judgment Date | 16 July 1898 |
| Date | 16 July 1898 |
| Docket Number | No. 189. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Trayner, Lord Moncreiff.
Loan of DocumentsBorrowing-receipt
Where documents are borrowed on a borrowing-receipt to be returned on demand, the obligation to return is absolute, and the documents cannot be retained by the borrower even on the ground that they are his own property.
In March 1898 M'Lay, M'Alister, & M'Gibbon, accountants, Glasgow, raised an action in the Sheriff Court at Glasgow against John Hampton, solicitor, Glasgow, for decree ordaining the defender to deliver up to the pursuers certain specified accounts.
The pursuers averred that Mr Dugald M'Alister, accountant, a partner of their firm, was trustee on the sequestrated estates of George Watson junior, builder, 2 Auchentorlie Street, Partick; and that on 11th June 1897 the defender lodged a claim and affidavit on the said sequestrated estates, and also, in support of his claim, the accounts detailed in the prayer of the petition. (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.
In answer the defender averred,(Ans. 3) Denied. Explained that on or about the date mentioned the defender, with the view of remodelling his claim upon the sequestrated estates of Watson,applied personally to M'Alister, 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, and 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...
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