Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BONA ET MALA FIDES.
Subject_3 Money found in the Repositories of a Factor. Bona fide intromission therewith. It gives a legal title of competition with Creditors.

James Bremner
v.
Lieutenant-Colonel James Sinclair

Date: 15 July 1771

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[Faculty Collection, V. p. 263; Diet. App. I.; Bona et Mala Fides, No. 2.]

Pitfour. Whenever my money is in my factor's hands, if I can prove the identity, I am entitled to retain it. So it was determined in a late case of Ruthven's Creditors.

Kennet. In that case the identity was proved; not so here.

President. There may be cases where money may be detained as the property of the master; as when a factor, just after receiving a certain sum, breaks his neck by a fall, and has that precise sum in his pocket: but here there is not sufficient evidence that the money detained by Colonel Sinclair was the money received by the factor in payment of the rents.

Kaimes. Colonel Sinclair possesses the money bona fide: ought he not to be allowed to retain it, in so far as to create a pari passu preference?

Justice-Clerk. Colonel Sinclair acted bona fide, and intromitted with the money at the sight of the nearest of kin.

On the 13th June 1771, “The Lords, in respect that the money intromitted with is not proved to have been the rents received by Ross, found that Colonel Sinclair has no right of retention, further than to so much as extends to a proportional share with the executor-creditor;” varying Lord Gardenston's interlocutor.

Act. G. Wallace. Alt. W. Mackenzie.

Diss. As to any retention at all, Barjarg, Elliock, Stonefield, Hailes, and Monboddo.

1771. July 18.—Coalston. There is a distinction between money-rent and victual-rent. Victual in my girnal, whereof my factor has the key, is mine: there is a difference as to money-rent, unless the identity is proved; and therefore the first part of the interlocutor is well founded: but I do not understand how a bona fides can give any right which the law does not give. I am glad to see that Colonel St Clair did not open any repositories, but received the money from the executor: Still he must be just in the same case as other creditors.

Kaimes. The interlocutor does not stand upon the footing of preference. Colonel St Clair received payment of a just debt from the nearest in kin: still there is a res in medio attachable by all the creditors.

Quæritur. Is not this sufficient to render unnecessary a citation of the executor's creditors?

Gardenston. I would adhere to the rules of law. There is a certain way known in making up titles. No person can lay to his hand. There is certainly a bona fides on the part of Colonel St Clair; but where is that to stop? The case of Magbiehill was erroneously decided. I may say so: for the Court itself, in a late case, (Galloway,) has said so.

Auchinleck. I have no doubt of Colonel St Clair's bona fides; but he has been ill advised. The executor qua nearest of kin might have paid primo venienti, providing the primus veniens had taken a decreet. Here the rule applies vigilantibus jura. It is dangerous to say that a man, by acting irregularly, is in as good a situation as if he had acted regularly.

Kennet. If Colonel St Clair had taken a decreet, he would have drawn his full debt. May he not still draw his proportion just as if he had used a citation?

President. Suppose the executor qua nearest of kin had made a division among all the creditors except one, who did not concur, would you allow that one to carry off the whole subject?

Justice-Clerk. There was no occasion for the executor qua nearest in kin to place this sum in the inventory, because it was already in his hands: He paid to Colonel St Clair, because he did not suppose there was any other creditor. May the other creditors, after years are elapsed, come in and claim decreet, so as to exclude Colonel St Clair?

Coalston. Creditors, who all use diligence within six months, will be pari passu preferable: after six months, the creditor who is first in diligence will be preferable to all others. Here payment was made by an executor to a creditor without decreet: such payment gives no preference. Why bring him in pari passu? This deprives the other creditors of the jus quæsitum, which they had already by decreet. It unhinges the whole doctrine of confirmation.

Kaimes. The creditor who has received the money cannot do diligence. All that he asks is a pari passu preference, which he would have got had it not been for the accident of the money being in his hands.

On the 18th July 1771, “The Lords adhered to their interlocutor of the 13th June 1771.”

Act. G. Wallace. Alt. W. M'Kenzie.

Diss. Gardenston, Auchinleck, Barjarg, Coalston, Hailes. Absent, Alemore, Stonefield, Monboddo.

This judgment, more distinguished, in my apprehension, for equity than law, was carried by the President's casting vote. It has so many circumstances attending it, that there is little hazard of a case exactly similar occurring once in a century.