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Scottish Court of Session Decisions >>
Lady Kinfauns and her Son v Mb John Mackenzie. [1712] 4 Brn 895 (29 February 1712)
URL: http://www.bailii.org/scot/cases/ScotCS/1712/Brn040895-0386.html Cite as:
[1712] 4 Brn 895
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Lady Kinfauns and her Son v. Mb John Mackenzie
Date: 29 February 1712
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Mr Lord Nairn owing 22,000 merks to the Lady Kinfauns and her son, and resolving to pay it, the same was consigned in Mr John Mackenzie the clerk of session his hand, till a new security were drawn; and, when it is demanded up, the clerk claimed to retain the 20th penny, as the consignation money due to him by his office, which amounted to no less than 1100 merks.
Alleged for the Creditors,—There was no law for such a deduction; it was not a custom, but a corruptela; and was an exorbitant demand for a few days' custody.
Answered,—Our ancient customs were a part of our law; and this consignation-money had never been controverted, but usually divided betwixt the debtor and creditor, each of them bearing a halfpenny in the pound: and it was but just; for they run the risk of bad money, and of its being stolen.
The Lords found consignation-money due, but to be exacted with discretion, and not to be screwed to the full; and therefore modified the same here, and restricted it to 400 merks.
