Money found in the repositories of a factor intromitted with bona fide by his constituent, gives a legal title in competition with creditors, to retain a proportion of the sum intromitted with, corresponding to the sum due to the constituent.
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The defender appointed John Ross his factor; who, after two or three months employment, and having uplifted about £l40 of the rents, died, being then, on account of his intromissions, £20 in the defender's debt. The sum of £25. was found in Ross's repositories after his death; and Colonel St. Clair having demanded payment of the balance due to him out of that sum, as being part of his rents uplifted by the deceased, Donald Ross, his brother, who had got himself confirmed executor, paid him the same, taking a receipt from the Colonel; wherein he obliged himself to be answerable to all concerned, and to relieve Donald Ross accordingly.
John Ross having been owing several small sums to different tradesmen, they constituted their debts; and having conveyed the same to the pursuer, he expede a confirmation qua creditor of the defunct ad omissa, and on that title brought an action against Colonel St. Clair and Donald Ross; concluding against them, conjunctly and severally, for repetition or payment of the said sum of £20. with interest from the date of the intromission.
The Lord Ordinary pronounced an interlocutor, finding, “That the defender had no legal or proper title to intromit with the money out of the repositories of the deceased John Ross; finds, that the pursuer, having made up a legal and proper title, has right to recover the same; and therefore decerns against the defender for the sum libelled.”
In a reclaiming petition, Colonel St. Clair pleaded:
1mo, As the sum in dispute was truly a part of his rents uplifted by the deceased from his tenants, it was repugnant to every idea of justice that it should be applied to pay the factor's private debts. The constituent and his factor were, in the eye of law, one person: The factor was considered merely as a hand or depository; so that the property still remained with the Constituent, and could not be transferred by the factor's act or deed. On this principle it was, that arrestment used in the hands of the factor could not found an action of furthcoming without calling the constituent. The right of retention and compensation proceeded upon the same idea. Stair, B. 1. T. 18. § 6. Dict. voce Payment. Bankton, B. l. T. 24. § 34. Erskine, B. 3. T. 4. § 8.
2do, The defender was, at any rate, in optima fide to receive the money in question. There was every appearance that the sum in medio was part of his own rents; he received it from the nearest of kin and executor confirmed of the defunct; and he was not now contending for any thing more than a pari passu preference with the other creditors. The present dispute had not occurred with an executor confirming within six months; so that his bona fide possession was, at all events, sufficient to supply the want of a legal title by confirmation; which, if the executor had refused payment, he could at once have procured.
Answered for the pursuer:
1mo, The defender's whole argument was founded on a petitio principii, on an erroneous supposition that the money found in the repositories of the defunct was his property. This idea was without foundation: The possession of moveables presumed the property; and that presumption was equally strong in the case of money as in that of any other subject. All the claim which the defender had was merely a jus crediti to a share of the sum found; and it would be absurd to suppose, that every one who alleged he had a share or interest in this fund should be authorised to put forth his hand and lay hold de plano of whatever part he might pretend he had a right to. The defender being therefore but a creditor, the only regular way in which he could make his claim effectual was by a process of constitution against the defunct's executor or nearest of kin; but which mode of proceeding he had not followed.
2do, As the defender admitted he knew that the deceased had other creditors, there could be no bona fides in the brevi manu possession of the money he had assumed. But although he had been in optima fide, he would not be entitled to withhold the money from the executor-creditor who had made up a proper title. The act of Sederunt 1662 fixed the rule as to competitions of this kind. Colonel St. Clair had not confirmed within the six months limited: Were he still to confirm, he could not come in pari passu with the pursuers; and it was impossible to understand how, without confirmation, he could be allowed that preference which he could not, even by using that legal diligence, now acquire. Were bona fides, in cases of this kind, sustained as a justification, the consequences would be extremely dangerous: Creditors who lived in the neighbourhood, or who got early notice, would carry off every thing; and there would be an end to confirmation, as well as every other diligence now required to be used.
The Court pronounced the following judgment:
“In respect there is no sufficient evidence that the money intromitted with was truly the rents of Colonel St. Clair's estate, therefore find the Colonel had no proper title to intromit in preference to the respondent; but in regard of the bona fides of the Colonel, and other special circumstances of the case, find the Colonel has a title to retain so much of the money as corresponds to his debt, in proportion with the debt of the respondent.”
The pursuer having reclaimed, and an answer having been given in, some of the Judges expressed great doubts as to the propriety of admitting the defence of bona fides in the present question; but it was carried to adhere.
Lord Ordinary, Gardenston.For Bremner, G. Wallace.Clerk, Campbell.For St. Clair, W. Mackenzte.
Fac. Coll. No. 89. p. 264.
