Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by those who are lucrati, as having had the use of money belonging to others.
Patrick Vanse v. John Vanse
Date: 29 June 1736 Case No. No 89.
Aliment furnished by a father to an infant, does not compensate his intromission with the Son's Money. Such intromission as administration in law, found not to subject him to annualrent.
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The deceased Colonel Vanse having settled his estate upon his issue of a second marriage, the said Patrick Vanse, his eldest son and heir, brought an action against, them as heirs of provision; one of the articles of which, was a claim he had against his father for intromiting with some pay due to him while an infant, as an, ensign in a regiment, to which the colonel was paymaster.
The defence proponed against this demand, was: That his father had alimented him in his family, which behoved to compensate the pay.——But the Lords found the aliment presumed to have been furnished ex pietate; and therefore could not compensate or extinguish the claim.—After obtaining this judgment, he insisted, in the next place, That the Colonel having received that money as tutor and administrator in law to him, behoved likewise to be accountable for the annualrents thereof from a year after the several dates of his intromissions.
Answered for the defender: That there was a great difference betwixt a father, who acts as administrator in law, and other tutors; seeing he is not liable for omissions; whereas they are: And that such is the case; is a necessary consequence of the act 1696; for, as he has thereby a power to name tutors and curators with that quality, he must be supposed to act under the same character himself.
2do, Et separatim, though it has been found, That the aliment furnished by the father to the son does not extinguish his claim to the pay; yet it does not follow, that the aliment, furnished by the father does not exhaust the claim for interest; for, if the father shall be supposed subject to annualrents, it as impossible to imagine that he designed to aliment his son gratis. Nor will the law impute the aliment to the pietas paterna, if the son had a fund bearing interest: And, although it might have had some influence in determining the first point, That the aliment given to an infant bore no proportion to the pay; yet that circumstances of no weight in this question, since it must far exceed the interest claimed: Nay, a tutor, in the common case, is only liable to lay out his pupil's rents at interest, in so far as they exceed the expences of his aliment. And it has been found, That a father is not obliged to pay the annualrent of a legacy belonging to his son which was uplifted by him, seeing he alimented him, 15th December 1668, Windram, (Stair, v. 1. p. 570. voce Presumption, donatio non præsimitter.
Patrick Vanse replied: That his father was liable to the same duties and obligations in every respect with other tutors; as was determined 4th February 1665, Beg, (Stair, v. 1. p. 264. See Tutor and Pupil.); where it was found, That the father was liable for annualrent of his own third of moveables, which his son claimed in the right of his mother: And the same thing ought to take place here; as it would not be denied, that the Colonel laid out the money profitably, either upon annualrent or purchasing land. Neither can the difficulty with respect to the aliment which occurred in determining the first point, have any influence upon this; seeing, however that had been decided, still this demand, with respect to the annualrents, would have remained, at least in part.
The Lords found both defences sufficient to liberate from the claim of annualrents.
