Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. V.
Compensation, its Effect Relative to Onerous Assignees
Keith v. Heriot
Date: 14 February 1633 Case No. No 51.
An heritable bond, not payable except on requisition, was conveyed to an assignee. It was found, that this bond might be compensated by the sum in a moveable bond due by the cedent.
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Nathaniel Keith being addebted to Heriot in the sum of 1000 merks, by heritable bond, which bore infeftment to be given by the said debtor, of an annualrent redeemable, and payment of the principal sum not to be made, but upon requisition to be made, on the part of the debtor to his creditor, upon 40 days warning to receive the same; and, thereafter, the said Nathaniel Heriot being debtor to Nathaniel Keith in some sums, by bonds conceived only in payment of a moveable sum; the said Nathaniel Keith pursues Heriot, and Alexander Heriot, his assignee made to the said heritable bond, to hear him give an acquittance of the said heritable bond, as compensed with the other bonds foresaids, granted to him by the said Heriot. In which action it was found, that this compensation was as receivable against the assignee, as against the cedent: It was also found, that this moveable bond, of this tenor, not bearing any clause of annualrent, ought to compense the other bond, albeit heritable, and bearing infeftment and premonition, which the said debtor was astricted to make to the said creditor before he loosed the sum; and so thereby the defender alleged, that he could not compense, seeing he could not pay the sum, but upon requisition first made to the creditor to receive the same upon 40 days, and which not being done, far less was this compensation by pursuit now receivable, where the party was not charging this pursuer for that sum, which was repelled.
Act. Mowat.Alt. Burnet.Clerk, Gibson.
Fol. Dic. v. 1. p. 161. Durie, p. 672.
