WILLIAM SCOTT v Lieutenant JOHN SELBIE (Court of Session)

The pursuer raised an action against the defender for payment of sums amounting to L.166, 12s., and upon the dependence of this action raised letters of inhibition and arrestment against the defender, using arrestments also against him in the hands of various parties.

By an extrajudicial arrangement proposed by the defender, it was agreed between the parties that the diligences should be withdrawn, upon the defender consigning the sum in dispute, and finding caution for interest and expenses. The bank in which the deposit was made, which was that of Messrs Kinnear, Smith and Company, appeared, from the correspondence produced, and the terms of the deposit receipt, to have been also matter of arrangement between the parties.

Messrs Kinnear, Smith and Company failed, and the pursuer having obtained decree in his favour, it came to be a question upon whom the loss of the consigned money was to fall.

The Lord Ordinary pronounced an interlocutor, in which he finds that the sum consigned ‘remained the property of the defender, and at his risk; and therefore finds that he must bear any loss which may be incurred by the bankruptcy of the consignees.’

The pursuer pleaded —The risk of consigned money is always held to fall on the party who is found to be in culpa. It was at the request, and to accommodate the defender, that he had consented to change the security obtained by his diligence, to that obtained by consignation of the sum, and the defender must therefore bear the loss; Mowat v. Lockhart, Mor. 10,118.