Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Forsyth's Assignee v. Captain Coupland
Date: 16 March 1639 Case No. No 115.
Compensation proponed by a debtor against an assignee, was found relevant, upon a debt of the cedent's, purchased by the debtor before the date of assignee's right, but not intimated to the cedent until after the assignee had used inhibition against the debtor.
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Captain Coupland being debtor to William Forsyth in 1000 merks, and being charged by William Forsyth's assignee for payment; he suspends upon this reason, that Forsyth was debtor by two bonds to William Ogston in 1000 merks, and 500 merks; the right of which bonds and sums was devolved in the person of the suspender, and he was content to compense this debt, for which he was charged, with so much of the sums foresaid pro tanto, owing by the charger's cedent, against whom, as the compensation would have been relevant to have met himself, so must it be against this assignee. The Lords found this reason of compensation relevant to be received against the assignee, as well as it would have been against the cedent; neither was it respected, that the charger alleged, that the compensation ought not to be admitted, in respect that the suspender was made assignee a year before the obligation libelled, whereby he borrowed this sum, now acclaimed, from the charger's cedent, at which time, if the cedent had been the suspender's true debtor, by no probability would he have granted him a bond of borrowed money, if he then had been debtor of these sums, with which he compenses; for, with what probability can it be supposed, that a creditor will borrow sums from his debtor, before he be paid of the debt owing by him, from whom he borrows. Likeas, the bond bears, “That the Captain renounces all exceptions of not numerate money, and all other exceptions whatsomever, competent in the contrary;” and this right being then in the Captain's person, when he borrowed the sum libelled, it must be presumed to have been paid. Likeas, before any intimation made by the Captain of his right to these bonds, wherewith he compenses, Forsyth's assignee raised inhibition against the suspender, upon the bond libelled; which allegeance the Lords repelled, and notwithstanding of the same, sustained the reason of compensation, and suspended the letters simpliciter.
