Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. IX.
Effect relative to Donatars of Escheat.
Mr James Drummond v. Stirling of Ardoch
Date: 23 January 1669 Case No. No 77.
Compensation sustained against the donatar of an esheat, on a debt due by the rebel before rebellion.
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Mr James Drummond being donatar to the escheat of the Laird of Glenegies, pursues exhibition and delivery of a bond granted by George Mushet to James Henderson, containing 2000 merks principal, and by him assigned to umquhile Glenegies, and thereby falling under his escheat; and the bond being produced by Ardoch, the donatar craves the same to be delivered by Ardoch.—It was answered by Ardoch, That the bond ought not to be delivered to the donatar, because it cannot belong to him, in respect that Mushet, who by the assignation became debtor to Glenegies, had two bonds granted by him to Glenegies containing 3000 merks, wherein Ardoch is cautioner; whereby this bond of 2000 merks, due to Glenegies, was compensed long before Glenegies' rebellion.—It was answered for the pursuer, That compensation is not relevant, unless it had been actually proponed in judgment, or extrajudicially stated by the parties offering and accepting the compensation; 2dly, That the allegeance is nowise relevant against the donatar, who has right to the debts due by the rebel; 3dly, Ardoch had no interest to allege the compensation, which could only be proponed by Mushet the creditor, and not by Ardoch, who is cautioner to him.—The defender answered, That compensation is competent ipso jure, from the time that the sums be mutually due by the debtor and creditor, in the same way as if they had granted mutual discharges to each other; and therefore, when an assignee pursueth or chargeth, compensation is always sustained against him upon debts due by the cedent before the assignation, albeit the compensation was not actually stated before the same; neither is the donatar here in better case than an assignee; so that when he pursues Mushet, debtor to the rebel, Mushet may allege compensation upon the like debt, due to him by the rebel before the rebellion; and the defender hath good interest to propone the compensation, because he is cautioner to Glenegies for Mushet; and if Mushet be forced to pay the donatar, without allowing compensation, Ardoch will be necessitated to pay Mushet, to whom he is cautioner; and therefore hath good interest to propone that by the concourse of the two debts, they are both extinct, and he is not obliged to deliver up to the donatar the bond constituting Mushet's debt.
The Lords found the allegeance proponed by Ardoch relevant and competent, and that compensation was relevant against the donatar upon debts due by the rebel before rebellion.
Fol. Dic. v. 1. p. 163. Stair, v. 1. p. 590.*** Gosford reports the same case:
Mr James Drummond, as donatar to the Laird of Glenegies' escheat, pursuing for delivery of a bond granted to Glenegies by one Mushet, for the sum of 2000 merks; it being alleged, That Mushet being assignee, constitute by one Henderson, to a bond of Glenegies, before the donatar's gift, he ought to have compensation;——The Lords did sustain the compensation, and found no necessity to allege that the assignation was lawfully intimate before the donatar's gift, albeit the compensation was only proponed for Stirling of Ardoch, who was only cautioner for Mushet, and not by himself.
