Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by those who uplift Sums bearing Annualrent.
Alexander Irving of Drum, v. Thomas Gordon, Son and Heir to Mr Thomas Gordon
Date: 22 December 1710 Case No. No 95.
A party, assigned a bond bearing annualrent, containing a larger sum than was due to the assignee. The assignee, who uplifted the whole sum, was found liable, not only for the surplus, but for annualrent thereof, from the time he uplifted the money.
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The deceased Alexander Irving of Drum having assigned to Mr Thomas Gordon his creditor in 2600 merks, for his more ready payment, two bonds granted to the cedent for 2716 merks, bearing annualrent, by Walter Robertson and William Souper; upon the assignee's obliging himself by a back-bond to retrocess the cedent in case he paid the 2600 merks, or to order Souper and Robertson to pay to him the superplus 116 merks, in case the assignee got payment of what was due to him by virtue of the assignation: Alexander Irving, now of Drum, pursued Thomas Gordon as representing Mr Thomas his father, (who uplifted the whole sums assigned) for repetition of the 116 merks, with the annualrent thereof since uplifting. The defender was content to pay the principal, but alleged, That no annualrent could be required; seeing Mr Thomas Gordon doth not oblige himself in the back-bond for annualrent of the 116 merks, in the case of his uplifting the whole sum assigned; and annualrent is only due ex pacto vel lege. So an ordinary factor uplifting money by commission, would no be liable for annualrent of the sums uplifted, though the same bore interest formerly to the constituent; because he is obliged to have it ready by him, when called for.
Replied for the Laird of Drum: Mr Thomas Gordon's back-bond did not indeed oblige him expressly to pay annualrent for the 116 merks, but it obliged him to leave it in Souper and Robertson's hand, and to order them to pay the same to Drum; which, if he had done, that balance would have born annualrent, it being a part of the principal sum in their bond: Consequently Mr Gordon, who had the use of the 116 merks ever since Souper and Robertson paid it, must be liable for the interest thereof to Drum, as they would have been, had it remained in their hands till now; and annualrent is sometimes found due without express paction, 2d December 1628, Zair contra Ramsay, No 12. p. 484.; 13th January 1669, Hume contra Seaton, No 15. p. 486.
The Lords found Mr Gordon liable for the 116 merks, and the annualrent thereof from the time the same was paid to Mr Thomas his father.
