Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. IX.
Effect relative to Donatars of Escheat.
Innes v. Leslie
Date: 3 February 1635 Case No. No 75.
Retention of a debt due to a rebel at the horn, found competent to the debtor against the donatar, on account of the debtor's being cautioner, and under distress for another debt, due by the rebel before his rebellion.
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One Innes being donatar to the escheat of one Douglas, after general declarator, pursues one Lesly for payment of 400 merks, addebted by his bond to the said Douglas the rebel; and the said Lesly alleging, That he was cautioner for the said rebel to one of his creditors, before the said rebel's rebellion, for payment whereof he was distressed, and would be forced to pay the same, and therefore that bond ought to compense the said cautionry; and he has just cause of retention of the same, for his relief of a part of this greater sum, which he was distressed for; and so this relief, pro tanto, being in his own hands, it ought not to be taken from him.—The donatar replied, That the fisk pays no debt of the rebel's, therefore the defender cannot obtrude this compensation against the fisk, albeit it might have met the rebel's self, if he had been seeking this debt from the defender.——The Lords found the exception relevant, and found that the defender might allow in his own hands this debt of 400 merks addebted by him to the rebel, in satisfaction for so much of the other debt of 11,000 merks pro tanto, wherein he was cautioner for the rebel, to the rebel's creditors, he being distressed therefor; and the Lords admitted this against the fisk and his donatar, albeit regulariter in our practice, the fisk pays none of the rebel's debts.
Act. Gibson.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 163. Durie, p. 749.
*** See This case by Auchinleck and Spottiswood, voce Escheat.
