Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XVII.
Effect of Compensation, of Retention, of Re-compensation in instances not included in the Preceding Sections.
Cruickshank v. Ker
Date: 23 July 1675 Case No. No 142.
A debtor opponing compensation to an assignee, upon a claim of warrandice, incurred by the cedent, the compensation was found not to take place from the time the warrandice was incurred, but only from the liquidation.
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Alexander Cruickshank having right by translation to a bond granted by Ker of Littledean, charged him thereupon. He suspended upon this reason, That he had compensation against the cedent, who assigned him to a greater sum; and, contrary to his assignation, and the warrandice therein, had discharged the same himself. This reason was sustained, but the question arose a quo tempore the compensation should take effect, whether from the date of the discharges, or from the time that the discharges were produced.
The Lords found, That the warrandice was not liquid to found a compensation on of itself, till it was liquidated by application thereof to the discharges produced, by which the warrandice was contravened; and therefore allowed the charger's sum to be accumulate with annualrents, till the production of the discharges, and then to be compensed by the discharges.
Fol. Dic. v. 1. p. 167. Stair, v. 2. p. 361.*** Gosford reports the same case:
Alexander Cruickshanks, as having right by translation to a bond granted by Ker of Littledean, to Nicolas Turnbull, for the sum of 250 merks, contained in a bond, bearing annualrent from Whitsunday 1658, did charge Littledean for payment, who did raise suspension upon this reason, That the said Nicolas was debtor to the suspender in greater sums before her assignation to the charger's author, in so far as she had assigned the suspender to a bond of 700 merks, bearing annualrent, due by Andrew Crombie of Cruilly, with absolute warrandice; and notwithstanding she had granted two discharges, one of the whole bygone an nualrents, and another of L. 100 of the principal sum before the assignation, so that by the obligement of warrandice, she was debtor in these sums, which did exceed the sums charged for.—It was answered for the charger, That the reason resolving into a compensation could not now be admitted, unless the warrandice had been made liquid by a decreet against the said Nicolas, as having contravened; neither is there any intimation produced, or diligence done by the suspender, upon the said assignation, whereupon only he could have had his recourse against the said Nicolas; and she being now dead, the reason cannot be sustained against her assignee, at least if it were found a ground of compensation. It can only be sustained against the charger, who is a singular successor, from the time of the raising that suspension, and insisting upon that reason.—The Lords, finding that the reason of suspension being founded upon writ, making the charger's cedent debtor upon the clause of warrandice, and the contravening thereof, which was proven scripto, did sustain the same against the charger, who was assignee, unless he could allege against the discharges produced, for instructing of contravention of the warrandice; but the reason resolving in a compensation, there was debate among the Lords a quo tempore it should be sustained, whether from the date of the assignation bearing the warrandice, or from the time that it was insisted on in the suspension; and at last it was voted to be only sustained from the raising of the suspension, and insisting thereon, upon these reasons, That the charger was a singular successor, and did intimate his assignation during the cedent's lifetime, who might have elided the same in law, there being nothing produced but extracts of her discharges; likeas the charger being assigned for an onerous cause, and having intimate his right to the suspender, did never make mention of this compensation until after the death of the cedent; so that it ought not to militate against him but from the date it was insisted on, albeit it would have been sustained against the cedent since the date of the assignation and warrandice.
