Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Alexander Gordon of Auchintoul v. Duff of Bracco
Date: 10 February 1709
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The deceased Duff of Bracco being debtor to Alexander Gordon of Auchintoul in £1000 Scots by bond, Bracco's son, after his father's decease, sends his servant with the haill money, principal and bygone annualrents, to Auchintoul's house; and, in presence of the said creditor, on the 21st February 1707, offers him the money, and counts it down on the table, in specie current at the time; and, upon his refusal, he consigns it in the hands of one Grant of Ruddry, to lie there, to be forthcoming to his use; and takes instruments on the offer and consignation, and protests he may be free of annualrent in time coming; and if any damage emerge, that it may be on Auchintoul the creditor's risk. What made him decline to accept of it was, that he thought the offer unseasonable, being between terms, and surprised with the suddenness of it, without any previous advertisement, he knew not how to dispose of it; besides, there was a rumour then dispersed, and which accordingly fell out, that the money was to be called in, and made conform to that of England, in the terms of the Union; and he apprehended that Bracco was taking advantage to palm that loss upon him.
Auchintoul having raised a process for payment, it was answered,—The money lies consigned, you may take it up when you please. And, accordingly, the consigned money being ordained to be transmitted to the clerk of the process, it was alleged for Auchintoul,—I am not obliged to accept of it; and so incur not only the loss of my annualrent since that time, but likewise the downfal of the species of money then offered, and now prohibited, and no better than bullion to be taken by weight, which will amount to 400 or 500 merks of clear loss. And the consignation can never sustain, for thir reasons:—1mo, It was oblatio intempestiva, twenty days after Candlemas, which in Aberdeenshire is no known term for paying money, but only Whitsunday and Martinmas; and, being included within terms, I was not bound to receive it. 2do, If I refused, your remedy was to have suspended, and consigned the money, and not to have made a voluntary consignation in your own tenant's hands; all legal consignations being to be made authore prœtore, by an intervention of a judge; or, in the case of wadsets, in the hands of the magistrates of such a town: which method Bracco not having followed, his consignation was not to be regarded, they being strictissimi juris; and, failing in the least punctilio and solemnity, they cannot subsist: liberado non continget nisi solemniter facta, et consignation totius pecuniœ debitœ,—I. 9, C. de Solutione; for solutio per partes non minima habet incommoda. And this Menochius explains,—De Arbitrants Judicum Quœst. —that it must be oblatio et consignatio totius quantitatis debitœ, adeo ut ne unus nummus deficiat. 3tio, The consigliato!' so far disposed of the consigned money, that he sent it to Captain Grant of Elchies his house, who was Bracco's factor; and so was all one as if it had been delivered to himself, 4to, It was but a simulated consignation; for, by comparing the species then offered with what is now produced at the bar, there is a diversity betwixt them, which could not be had it remained constantly sealed. 5to, It was but a captious offer, being at a juncture when the money was to be cried down, viz. the English crowns, passing then at £3: 5s. Scots, were shortly after reduced to £3; and the ducatoons, dollars, &c. were totally-discharged to pass; and some of it consisted of the French threepenny pieces: and the same Menochius is clear, that nec offerri nec deponi potest pecunia qua' adhuc non est quidem reprobata, sed est de proximo reprobanda.
Answered for Bracco to the first,—He opponed his bond, bearing monthly, termly, and proportionally; so I may pay my creditor any time after the term of payment is past, providing I pay him up his annualrent to the day. To the second,— No law obliged me, upon your refusal, to put myself to the trouble and expense of a suspension and consignation in the clerk of the bills' hands, where I must pay so much consigned money ere I can lift it; but if I find my creditor at his own house, I may offer him his money, and, on his refusal, consign it in any responsai man's hand, as Craig and Stair, p. 333 and 148, say, in conventional consignations; but, if the creditor be not present, then law requires ut interpellatur magistratus; whereupon Perezius, ad tit. C. de Usuris, concludes, that, by such a consignation, omne periculum à debitore amovelur. To the third, —Esto the consigliato), Ruddry, thinking his own house not secure, had carried it to Elchies, as a more safe and fencible place, that can never alter or infringe the consignation; for what if he had flitted, might he not remove the bags with himself? To the fourth, Esto there were any difference of the species, (which is very small, not exceeding £4 or £5 Scots,) yet that was occasioned by Bracco's putting £40 Scots more in the bag than paid the sum, in case any of the money had chanced to be cast; and the taking that out occasioned the alteration. To the fifth it was answered, that the calling in of the money was not for some months after, so that he had time enough to have got it exchanged with current money, if he had not refused it.
The Lords were all clear, That, if Bracco had either taken up the money after it was consigned, or any way meddled with it, he would be liable both in the annualrent and the downfal of the specie; but this was not categorically alleged.
Then it was argued if this was a legal consignation.
Some thought, where a debtor comes short-hand to his creditor, and in an unmannerly way presently offers him his money, and, if he be not at leisure, shall instantly consign it, this ought not to be allowed; but there should be a previous intimation some days before, that he may be in readiness both to receive and to know how to dispose of it. Others said, the thing may be legal, though indiscreet; and the plurality of the Lords found Auchintoul was bound to have accepted of the money, and the consignation was legal; and so the loss fell upon him.
