Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. IX.
Effect relative to Donatars of Escheat.
Fletcher v. L Craigivar.
Date: 3 March 1629 Case No. No 74.
Found in conformity with the above.
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L. Craigivar being cautioner for one Irvine, and paying the debt to the creditor, being distrest by him therefore, and he being thereafter debtor to Irvine in a proper sum owing to Irvine by him, and Irvine being rebel, the donatar to his escheat seeking payment by special declarator of the sum owing to him by Craigivar, it was found, That Craigivar having paid as cautioner for Irvine a greater sum, before that Irvine, who should have relieved him, was at the horn, by virtue of which horning his escheat was taken, he might compense with the donatar in the sum owing to the rebel, by the said payment of a greater sum for the rebel; which compensation was received against the donatar, the payment being made, as said is, before the rebellion.
Act. Fletcher.Alt. Lermonth.Clerk, Hay.
Fol. Dic. v. 1. p. 163. Durie, p. 431.*** Auchinleck reports the same case:
A donatar to a person's escheat, pursues the debtor for a sum of money addebted to the rebel. The debtor alleges, That he being cautioner for the rebel, was compelled to pay a greater sum for him than he was owing to the rebel, and that before his rebellion, and therefore ought to have compensation.—It was replied by the pursuer, That the King was not bound to pay the rebel's debt, nor to compense.——The Lords allowed compensation of the sum paid before the rebellion.
