Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Crokat v. Ramsay
Date: 18 January 1676 Case No. No 119.
Compensation found relevant against a gratuitous assignee, tho' the liquidation was after intimation.
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Donald Crokat, as assignee by John Donaldson to a bond of L. 400 granted to him by David Ramsay, charges thereon. He suspends on this reason, that the cedent was debtor to him for four years aliment. It was answered, Non relevat, unless the aliment had been liquidate before intimation of the charger's assignation, but it is now only liquidate by a subsequent decreet, and is not receivable against the assignee. It was replied for the suspender, That whatever might be pretended of a subsequent liquidation against an assignee for causes onerous, yet this assignation is not for causes onerous, and the cedent, Donaldson, being good-brother to this assignee, the narrative of the assignation will not prove the cause onerous, unless it be proven aliunde, and the benefit of assignees their being in better case than the cedent, though he can only pursue as his procurator, is introduced by custom in favours of commerce, where the cause is onerous, but where the assignation is gratuitous, the assignee is in no better case than the cedent, and the cedent's oath will prove against him, and so must a posterior liquidation. 2do, The assignation being fraudulent betwixt confident persons, to exclude this liquidation, the cedent having nothing, and the assignee knowing of the aliment before the assignation, the same ought to be received against him. 3tio, The liquidation is only to modify the quota due for the aliment, and is not an alteration of the species, as when victual is turned into money, and therefore is receivable against the assignee.
The Lords proceeded only upon the first reason, and found, that if the assignation was gratuitous, compensation is competent against the assignee, though the liquidation was posterior to the intimation, and that the narrative of this assignation betwixt good-brothers, did not prove the cause onerous. See Proof.
