Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. V.
Compensation, its Effect Relative to Onerous Assignees
Hamilton v. The Earl of Kinghorn
Date: 11 November 1674 Case No. No 53.
A party having used expressions inducing an assignee to a debt due by him, to suppose he meant to hold himself to be the assignee's debtor, without mentioning grounds of compensation against the cedent, was held to be no longer entitled to plead compensation.
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James Mauld of Melgum having assigned to James Hamilton two bonds, and he having intimate his assignation to the E. of Kinghorn, granter of the same, did thereafter write to the said Earl, shewing him that he had use for the sums contained in the said bouds; and that he desired a course might be taken to pay the same: And, in answer to his letter, the said Earl did write and subscribe a postscript upon a letter written to him by the said James Mauld to that purpose, that the said James Mauld had assured him, that he had made the assignation foresaid upon assurance that my Lord should not be troubled to pay the said debt, and that he was about to take a course to that effect; but that, notwithstanding, if he must be his debtor, he should take a course to pay the annualrent; but as for the principal sum, it was not foreseen by him, that he should be put to pay it at that time, and he desired forbearance. And thereafter being charged, the said Earl suspended, upon that reason, that the said bonds were granted by him to Melgum, for the price of lands disponed by him to the Earl; and, by a back-bond, of the date of the said bonds, Melgum was obliged to warrant the rental of the said lands for two years: and quatenus the tenants should be short in payment of their duties the time foresaid, he should pay wherein they should be wanting, and that the Earl might retain in the first end of the foresaid sums. And that the said Earl had got a decreet against the tenants of the said lands, for payment of the sums therein contained; and, therefore, that he had ground of retention and compensation upon the foresaid bond granted by Melgum, effeiring to the sums resting by the said tenants. Whereunto it was answered, That though compensation, competent against the cedent, is competent against the assignee, yet where there is not only an assignation, which is the deed of the cedent, but a delegation, and the debtor doth accept and consent and becomes debtor, as in this case, as appears by the foresaid letter written to the charger, compensation is not receivable. It was replied for the suspender, That the letter is not positive that the suspender should become debtor, but only in these terms, if he must be debtor to the charger; and that, upon the matter, he is not debtor to him, in so far as he has a ground of compensation. Whereunto it was answered, That these words, if he should be debtor, are to be understood only in relation to the complement and assurance contained in Melgum's letter, viz. if he should not take course himself with the said debt; and that the letter is positive, that the Earl should pay the annualrent, and also the principal sum, which he could not do presently; and, if the Earl had intended to compense, he should have told the charger that he had a ground of compensation, in which the charger would have had recourse against the cedent, and would not have relied upon the suspender's letter.
The Lords found the letters orderly proceeded, in respect of the said answer and letter.
