Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Elliot v. Elleis
Date: 1 July 1631 Case No. No 113.
A person was pursued for a sum contained in his ticket granted to his factor abroad. He alleged the factor had goods of his in his hands beyond the amount. This plea was repelled, unless he would allege that the goods were sold, and the price in the hands of the factor.
Click here to view a pdf copy of this documet : PDF Copy
This same question, (as in Inglis against M'Cubine, voce Writ), occurring the same day again, betwixt Elliot and Elleis, the same decision was followed. And it being further alleged by the defender Elliot, who was convened for payment of a sum contained in his ticket, addebted by him to one Elleis, factor in Campvere, at the instance of James Elleis burgess of Edinburgh, assignee thereto, that the said cedent being the defender's factor, was full-handed with as many wares pertaining to the excipient, as would in price extend to far more than would pay this sum libelled, with which he was content to compense the sum; The Lords repelled the allegeance, and found the same had no relevant ground of compensation, because the defender alleged not, that the factor had sold the goods, and had the prices thereof in his own hand, quo casu it being so, the compensation was receivable; but the factor having only the goods to be sold, as occasion might offer, he was only obliged to the defender to compt; so that if the goods were not sold, he could be no further obliged, but to deliver the same to the pursuer again, and that could not compense the defender's ticket of a liquid sum, to be paid at a precise time contained in the bond.
Clerk, Hay.
Fol. Dic. v. 1. p. 167. Durie, p. 592.
