Rules of accounting. - Right to salary. - Malversation.
Lord Elphinstone, v. Alexander Keith, Senior and Junior
Date: 15 May 1790 Case No. No 23.
In an action at the instance of the executor of a defunct against his factors, it was found that the factors having received no recompence for their services, were not liable to pay interest for the money in their hands before their constituent's death; but interest was found due for the money in their hands from the period of his death.
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Messrs Keith had long been the confidential agents of the late Earl Marischal. At different times they had rendered an account of their management, without making any demand for their personal services. On the other hand, although considerable sums had been allowed to remain in their possession, they were not required to pay interest.
Earl Marischal died on 28th May 1778, after having made a settlement in favour of Lord Elphinstone. Some difficulties however occurred with regard to the effect of it; and it was not till the year 1780, that they were entirely removed. In 1788, an action having been brought by Lord Elphinstone against Messrs Keith, for the payment of certain sums lodged in their hands by Earl Marischal; the defenders claimed a deduction on account of their services; and they also contended, that no interest could be demanded from them.
The Court considered the mutual obligations between the defenders and Earl Marischal to be sufficiently ascertained, by the manner in which the accounts had been settled between them; the advantage derived by the defenders from the temporary use of the money deposited with them, having been viewed as a proper recompence for their personal trouble.
The only difficulty arose with regard to the interest of the money left in the defenders possession at the time of Lord Marischal's death. In general it was held, that a facter was not obliged, immediately after the death of his constituent, to pay interest for the money in his hands. As soon, however, as it could be known in what manner it was to be disposed of, if he did not put it into one of the banking-houses, it was thought just that he should be liable in the same rate of interest which might have been obtained for money so employed.
The Lord Ordinary found, ‘That the defenders were not liable for interest on the above-mentioned balance.’ But the Court altered that interlocutor, and
‘Found the defenders liable in interest, at the rate of 4 per cent. on the money in their hands at Lord Marischal's death, from 28th May 1779, being a year subsequent to the death of Lord Marischal.’
Ordinary, Lord Alva.Act. Dean of Faculty, Abercromby.Alt. C. Hay.Clerk, Sinclair.
Fol. Dic. v. 3. p. 202. Fac. Col. No 127. p. 246.
