Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ANNUALRENT.
Subject_3 If due on sums arrested.

William Elliot and Others,
v.
George Malcolm

Date: 5 March 1767

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[Faculty Collection, IV. p. 383; Dictionary, 550.]

Kaimes. As the price of land bears interest, Why should not the price of stocking?

Pitfour. The question as to interest has varied much of late years: formerly, a demand for interest was strictissimi juris; but now, when one is lucratus, he is thought liable for interest in equity. I do not know any case where the rule as to interest on the price of lands has been extended to moveables.

President. No practice has carried the demand of interest so far as is claimed in this case. Interest is due on a merchant's account because of a mora; but here the money was locked up, and Malcolm had it not in his power to pay it.

Coalston. There is great equity that, where one retains my money, he should pay interest for it; but with us, in law, interest is not due unless ex lege pacto vel mora: nothing of this kind here.

Auchinleck. The money was to have been paid at the Martinmas after finishing the bargain. So there was a term fixed: had a bill been granted, there would have been a legal claim for interest. Interest would have been due had there not been a compearance for the creditors: dies interpellit pro homine. Why not so now when Malcolm reaped a benefit by the interpellation of the creditors.

President. The Court has never so far extended the maxim of dies interpella pro homine. See case of Lockhart of Carnwath and Walston.

Pitfour. I agree that the case of merchants' accounts does not apply: dies interpellit is not enough. Where then was the use of denouncing?

Hailes. Thinks interest is due from July 1766; for, at that period, the creditors called upon Malcolm to consign in the hands of a banker: and, if he had consigned, and the money had perished, the loss would have fallen upon the creditors, not upon Malcolm; and, as soon as they intimated their willingness to run the risk, he ought to have consigned. As he did not consign, he ought to pay interest at the bankers' rate of four per cent.

The Lords at first found no interest due, but afterwards, from the special circumstances of the case, found interest due at the rate of four per cent, from the Martinmas after the bargain, adhering thereby to Lord Stonefield's interlocutor.

Act. D. Armstrong. Alt. Ilay Campbell.