Captain John Dunning v. William Carmichael, late Writer in Edinburgh
Date: 15 June 1770 Case No. No 7.
Mandatary found not liable to account for the interest of his constituent's money lying in his hands, while in the course of making payments for him in the management of his affairs.
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The defender had, for several years, been employed as the pursuer's agent; had become jointly bound with him in a bond for the price of a subject he had purchased; and had been in the course of receiving and paying away different sums of money on his constituent's account. No settlement of accounts had taken place for a period of 17 years; and the pursuer having then brought an action against the defender for that purpose, wherein he charged periodical interest upon the sums the defender at different periods had in his hands, this was objected to; and the Lord Ordinary, on the 15th December 1759, pronounced the following interlocutor:
“Finds, That while the defender was in the course of making payment for the pursuer out of the money in his hands, which therefore he was obliged to have always ready, he is not liable for any interest: Further finds, that the defender is not bound to pay interest for the balance that remained in his hands after the several payments made for the pursuer, while the bond to Alexander Dunning, in which the suspender was conjunctly bound with the pursuer, was not delivered up, as it does not appear that the delay of delivering it up was owing to the defender; but as it is acknowledged that this bond was delivered up on the 21st June last, finds interest due from that time.”
Thereafter the following interlocutor was pronounced:
“Finds, That while the defender was entitled to retain the pursuer's money in his hands, he was not obliged to lend it out at interest; because if he had done so, it must have been at his own risk; so that it is not necessary to enquire whether he did put it out to interest or not.’”
The pursuer reclaimed, and contended, That the defender, as his mandatary, was liable in the same diligence in the management of the affairs entrusted to him as he would have bestowed upon his own; and, as he would not have allowed his own money to lie as a dead stock in his hands, so neither would he that of the pursuer; and as he must have drawn interest upon the pursuer's funds, he was liable to account for it. The reason was stronger here, as the defender's employment was not gratuitous, being amply rewarded; and in support of this argument, the following authorities were referred to, L. 10. § 3. Digest. Mandati vel contra; Voet. lib. 17. t. 1. § 9.; L. 13. 21. Cod. Mandati vel contra; Lord Stair, b. 1. t. 12. § 10.; 1701, Creditors of Carden contra Robertson, No. 52. p. 515.; Wallace contra Cunningham, No. 100. p. 558.
The defender rested his defence upon the reasons assigned in the Lord Ordinary's interlocutors, and quoted the following authorities: 20th July 1716, Barklay contra Caruthers, No. 99. p. 555.; July 1730, Creditors of Thomson contra Monro, No. 74. p, 534.; 23d January 1747, Earl of Roseberry contra Primroses, No. 75. p. 534.
The Lords, June 15. 1770, adhered.
Lord Ordinary, Monboddo.For Dunning, Boswell.For Carmichael, Maclaurin.
Fac. Col. No 33. p. 91.
