Subject_1 ANNUALRENT. Subject_2 Whether ANNUALRENT be due by CONSIGNATARS?
Alexander Barklay v. Carruthers of Dormont
Date: 20 July 1716 Case No. No 99.
Found as above; but the consignatary entitled to no indemnification for intermediate diminution of the value of money.
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The Earl of Nithsdale having some years ago used an order of redemption of a wadset of some lands, and consigned the money in the hands of Alexander Barklay, then bailie of Dumfries, there happened thereafter a dispute betwixt Maxwell of Barncleugh and Carruthers of Dormont, touching the liferent of the money, &c.; which process is yet in dependence; but, in the mean time, Barklay insists in a multiple-poinding, in which both the contending parties compeared and concurred, and alleged, That Barklay, the consignatar, ought to pay annualrent for the sum consigned in his hand, in regard he had lent out the same upon interest, and that the money was depositate as a species, not as a fungible.
Answered for Mr Barklay: 1mo, That annualrent is only due ex pacto, vel ex lege, vel ex mora, neither of which can be pretended here; and this seems to be confirmed by the act of Parliament 1695, anent the price of bankrupts estates, which, on a very special case, appoints annualrents to be paid by a consignatar; and therefore exceptio confirmat regulam, &c. 2do, By the nature of the contract as to the consigner, the money is to lie ready to be made forthcoming to all having interest; and as to the consignatar, the same is to be paid at a call; but as to his lending out the money, the parties having interest have no concern therein, since the consignatar runs the risk of all accidents by breaking of the borrower, &c. et quem sequuntur incommoda, eundem sequi debent commoda. 3tio, By the common law, usuræ, in depositi actione, sicuti in caeteris bonæ fidei judiciis, ex mora venire solent, l. 2. c. depos. which mora is not so much as pretended here. 4to, This is inforced by our own practics, 29th January 1624, Douglas against Weddel, No 98. p. 555.; and lately in a case betwixt Harry Douglas and Mr John M'Kenzie, clerk*, where this very allegeance, that the money was lent out by the clerk, was disregarded. Replied for Dormont to the first and third: That annualrents are here due ex lege, though not by any special statute, yet by the common and consuetudinary law, and by the analogy of law taken from parallel cases, and the very nature of the thing: Thus, by the analogy of the common law, and without any express constitution, annualrents were due where the depositar lent out consigned money, as in l. 29. § 1. ff. Depos. is most expressly said: ‘Ex permissu meo deposita pecunia, is, penes quem deposita est, utatur, ut in caeteris bonæ fidei judiciis, usuras ejus nomine præstare mini cogitur;’ and, l. 4. c. cod. ‘Si deposita pecunia, is qui eam suscepit usus est, non dubium est, etiam usuras debere præstare.’ And so Perezius on that title well explains it:
“Quemadmodum, says he, etiamsi, inscio aut invito domino, depositarius quantitatem depositam in suos usus convertat, has usuras præstabit, cum hoc ipso moram faciat, et furtum committat:”
“And Voet. on that tit. in the Dig. says, That interest is due, ‘five mora in reddendis rebus fungibilibus depositis commisia sit, five pecuniam depositam in suos proprios usus convertant, five de usuris per depositarium præstandis pactio sit apposita:’ In all these cases he says, usurarum quoque rationem habendam esse.”
2do, That this is plain from the nature of the thing; for 1mo, If the lending out of the money be looked upon as an unwarrantable intromission, interest is due because of the fraud; 2do, If we consider the depositar as a trustee, the nature of the trust obliges him to communicate to the person that intrusted him, all the benefit arising from the subject intrusted; or, 3tio, If we consider that the money remains the property of the person who depositates it, the interest given for the use thereof is an accessory or fructus, and so belongs to him to whom the money itself did belong.
To the second, replied: That money being lent out contrary to the terms of the trust though it be on the lender's risk, yet that is no reason for his getting the profit since the hazard becomes his for his fault; but the profit, as an accessory, is still the owner's. 2do, If the consignatar's debtor, and also himself, had become insolvent after lending the money, it would have been lost to the true
* Examine General List of Names.
owner, and therefore it was properly lent on his risk; which, if it had not been lent, could not have happened, but the owner could have recovered it rei vindicatione.
Duplied to this last: 1mo, That this is too remote a consideration to have any influence in this cause; for, whether the money had been lent out or not, the case would still have been the same, if the consignatar had turned insolvent. 2do, It is to be considered, that even such accidents are not upon the owner's risk, but upon the peril of the consigner.
To the fourth, replied: 1mo, That with respect to clerks, custom hath established that to be law, perhaps contrary to the common rule; 2do, There is a very great difference betwixt clerks, who ratione officii are obliged to receive consignations, and a private depositar who voluntarily becomes so; for so it was common to the Romans, that when consignations were made in public offices, or apud argentarios, no annualrent was due, though the argentarii made use of the money; for the consigner was supposed to consent thereto.
‘The Lords found no annualrent due by the consignatar for the sums consigned in his hand.’
In the above cause the consignatar having demanded allowance for the fall of the rate of the guineas after the union, he having received a great part of the sum in that coin:
To this it was objected by Dormont, 1mo, That he could have no deduction, because he had disposed on the specie; and therefore, since, now he cannot return the corpora, he must pay the sum; 2do, The receipt he granted is simply of such a sum of money, without mentioning the, specie; 3tio, It was his fault to receive it in guineas, these not being, at that time, a coin current in Scotland by authority.
Answered for the consignatar: 1mo, That the loss cannot fall upon him from the nature of the contract, whereby a consignatar, if he keeps the specie, can be liable only to make forthcoming the same as he received it; 2do, It is certain that guineas were then the current coin which passed, in all bargains, at a certain denomination, which ought the rather to be regarded in this nation, that all other different species were received, such as dollars and crowns of foreign countries; and yet it was never heard that any consignation was rejected upon this account, that it was made in a foreign specie; and since officium nemini debet esse damnosum, especially where he had no premium, and run the risk of the custody, this deduction is founded on both law and equity.
“The Lords found the consignatar could have no allowance, or deduction, for loss occasioned by the fall of guineas, but that he must pay the consigned sums at the bar.”
Act. Grahame.Alt. R. Dundas.Clerk, Justice.
Fol. Dic. v. 1. p. 41. Bruce, No 21. p. 26. & 28.
