Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by those who are lucrati, as having had the use of money belonging to others.
William Lesly, Merchant in Aberdeen, v. David Robertson, younger of Gladney
Date: 8 December 1714 Case No. No 88.
A purchaser of salt accepted a bill for the price. The seller was in mora. The acceptor was obliged to pay to an indorsee. Found entitled to interest of the money so advanced, until delivery of the salt.
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In anno 1709, Gladney, younger, accepts a bill for 450 bolls of salt, to one Alexander Gordon, which he indorsed to William Gordon, and he again to James Steuart, merchant in Edinburgh. Steuart charges, and a suspension is presented by Gladney, wherein he alleges circumvention by Alexander Gordon, and that he should have got meal from him by way of barter for the salt; and offered to prove the same by Steuart's oath. But he deponing negative, the suspension was refused; whereupon Gladney transacted the matter, got up the bill, and gave Steuart a new one for 460 bolls of salt. This new salt bill is thereafter indorsed to William Lesly, for the value whereof he accepts a bill for L. 736 Scots, payable to Steuart, and indorsed by him to John Parkhill, who having charged Lesly thereon, he paid the same; whereupon Lesly charges Gladney for the salt bill, and he suspends, still insisting upon Alexander Gordon's fraud upon the first bill.
After five year's litigious debate, Gladney at length consents that decreet might pass against him for the L. 736 Scots, as the price of the salt, at L. 1: 12s. per boll; and now the expences of plea being the only point in controversy, Lesly the charger insists that Gladney may be decerned, 1mo, For a considerable sum necessarily debursed in discussing the suspension, and that upon the act 1681 anent the privileges of foreign bills, which is extended to inland bills by the act 36th Parl. 1696; as also insists upon the act 22d of the said Parliament, anent expences in suspensions, in case the suspender be caluminous. 2do, He insists for damages for not delivery of the salt in the terms of his bill; at least craves the annualrent of the L. 736, nomine damni, from the day it should have been delivered; and this upon the foresaids acts of Parliament, and because the charger, when he acquired right to the salt bill, granted a bill for the value, which he was compelled to pay. 3tio, He claims the expences to be debursed in extracting the decreet, or that Gladney may satisfy the clerks.
Answered for Gladney: That the original fraud of the Gordons being manifest by the contract of barter, and the meal bill extant in process, and by the Gordons going off, when they had got free of the salt bill to Steuart, Gladney could be no caluminous suspender, since now he was obliged to deliver the 460 bolls of salt by the Ordinary's interlocutor, for which he had nothing. Nay, 2do, Lesly having precipitantly paid Parkhill, though there was reduction raised at the suspender's charges, both against him and Steuart; wherein the Lords had allowed Lesly the benefit of Steuart's oath, for proving the fraud, it would seem that Lesly ought rather to be liable in expences.
The Lords founds, That Gladney the suspender was liable for the annualrent of the sums contained in the money bill, accepted by the charger, from the time he paid the same; and that in lieu both of damages and expences.
For Robertson, Graham.Alt. Leith.Clerk, Roberton.
Fol. Dic. v. 1. p. 43. Bruce, No 15. p. 20.
