Subject_1 ANNUALRENT. Subject_2 Whether due, in condictione indebiti.
Mr George Gray v. James Cuthbert
Date: 5 July 1677 Case No. No 93.
In a condictio indebiti, tho' the Court would not allow of annualrent, they awarded a considerable sum in name of damages, which was nearly equivalent.
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In an action at Mr George Gray's instance, as having right by translation from Robert Gray of Skibo, who had made double payment of two several bonds to Cuthbert of Drackies, of one of them to himself, and thereafter of both bonds to Drackies' son, as assignee by his father; did pursue the said Cuthbert of Drackies for repayment, not only of the principal sum, but of the whole annualrents due, not only for the principal, but for the annualrents since payment.—It was alleged for the defender, That he could not be liable for the annualrent of these sums paid to him: 1mo, Because he being but an assignee, he had bona fide received the same. 2do, Annualrents are only due ex lege vel pacto, and so are not liable in this case, where there is neither act of Parliament nor law to make the same due.—It was replied to the first, That the defender, albeit he was an assignee, yet being eldest son to his father, to whom the money was paid, et in familia paterna, and the person that in law represents him, he is liable as if the father himself had gotten twice payment, and so was not in bona fide.—It was replied to the second, That the bond which was twice paid, bearing annualrent, being twice paid, they are in as strong a case, as if it were lent money, and it must be presumed that indebite solutum, as founded upon that same principle with mutuum; and if it were not so sustained, then quilibet potest lucrati ex suo dolo, by keeping monies free of annualrent for a long time, until they be recovered in law. 3tio, Annualrents are due pro damno et interesse.——The Lords having well considered this case, did find, That by our law and practique annualrents were not due; but upon that ground that they might modify pro damno et interesse, they did decern the double of the whole sums which were indebted paid, to be repaid, which did not amount to the full annualrent of the principal sum.
