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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robarts v Mackintosh [1835] CA 13_877 (5 June 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0877.html
Cite as: [1835] CA 13_877
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SCOTTISH_Shaw_Court_of_Session
Page: 877↓
v.
Subject_Interest.—
Circumstances in which the rate of four per cent fixed on as that with which a factor was chargeable on money in his hands.
This was a question as to interest arising out of the process of multiple-poinding, reported ante XI. 314. Mackintosh, the factor upon the estate in medio, having lodged his accounts, with an unsettled claim for commission, &c. in 1808 and 1811, and the creditors on the estate having made no objection till 1829, when the accounts were remitted to an accountant to be taxed, the Lord Ordinary, on the grounds stated in the note below, * found that the creditors were not entitled to charge him with full legal interest upon a balance in their favour, but that Mackintosh, on the other hand, was liable in interest, at the rate of four per cent, up to the date of the lodgment of the accountant's report in 1829, and in interest at five per cent from that date to the date of consignation.
Both parties having reclaimed,
The Court adhered.
_________________ Footnote _________________
* “As Mr Mackintosh lodged his accounts, with an unsettled claim for commission, &c. in 1808 and 1811, and the creditors made no objection till 1829, the Lord Ordinary does not think they are entitled to charge him with full legal interest for the balance which, with all the elements before them, they delayed or neglected to liquidate till that late period. On the other hand, he thinks Mr Mackintosh ought to have pressed for an earlier adjustment, and final exoneration; and therefore, must pay something more than bank interest upon the money which he retained, though it may be, bona fide, from its true owners. The Lord Ordinary has, therefore, charged him with four per cent during this period. After the accountant's report, he continued to retain the balance at his own peril; and, as this report has been finally approverd of, he must pay legal interest from its date till the period of consignment. The same general views, as well as the partial failure or success of both parties in the litigation since 1830, has determined the Lord Ordinary to find no expenses due to either.
“ The Court plainly thought there was a difference between the case of Robarts and that of Mackintosh, as to the rate of interest for which each ought to be liable, since, when both were before them, they decided that Robarts should be chargeable with five per cent, but remitted as to Mackintosh. It is possible that the former may still be liable for what has been deducted from the charge against the latter.”
Solicitors: John Court, S.S.C.— Georce Brunton,—Agents.