Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Dickson
v.
Edgar

Date: 19 June 1677

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In a pursuit at the instance of Mr George Dickson against Edgar of Wedderly, wherein Mr George insisted, as heir to his brother, Mr Robert, for transferring of a decreet, at his brother's instance, against Edgar of Wedderly, which was pronounced, but not extracted, in his brother's time; the defender alleged Compensation; because the pursuer's right was as heir to his brother, who was assignee by Nethermains, by whom his name was filled up in blank assignations and translations, which were Nethermains's rights, in his own hand; and, therefore, were compensible by Nethermains's debt: and, therefore, Wedderly, as executor-creditor to old Wedderly, his mother's father, having confirmed a debt due by Nethermains's father to old Wedderly, had good interest to compense a debt due by old Wedderly to Nethermains, against Nethermains's assignee; it being an uncontroverted rule, that compensation is relevant against the assignee, upon the cedent's debt prior to the intimation.

It was answered, 1mo. That the pursuer's brother did obtain decreet, against this Wedderly, before the Sheriff of Berwick; and therefore, by the Act of Parliament anent compensation, it was not receivable post sententiam; and the Lords had lately decided that they would not receive compensation after sentence, though in absence, and of an inferior court. 2do. Compensation must be liquid inter easdem partes: but here, the time of the pursuer's brother's completing his right by assignation, both by apprising, that needs no intimation, and by intimation by citation; the defender had then no right to the sums wherewith he would compense, but was only executor-creditor; which is but like to an assignation; which will not found a compensation against an assignee, unless it had been intimated before the intimation of that assignee's assignation.

It was replied, That the defender was not executor-creditor as a mere stranger, but was one of the nearest of kin to the defunct; which gave him sufficient interest to propone compensation of a debt due by the defunct, with a debt due by that same creditor to the defunct; for, by the concourse of these two debts inter easdem partes, primo momento of the concourse both were extinct; which might not only be proponed by those who had right to the sum whereupon compensation was founded, but to all others having interest, who might allege compensation as well as payment; and, therefore, an heir might propone compensation of an heritable debt, due by a defunct, upon a moveable debt due by the defunct to that same creditor, though he could not otherwise discharge a moveable debt; but the decreet would import a discharge: and so a cautioner may compense upon the debt of the principal; and a relict, bairns, or nearest of kin, may compense upon any debt due by, and to a defunct, which were liquid: which liquidation required no decreet; but that debitum and creditum were clear and commensurating in the defunct's time.

The Lords sustained the compensation against the party filled up unwarrantably in a blank right, upon the debt of him who had the said blank right in his power and possession as his own, upon a debt of the first creditor, being liquid, though no sentence followed in his time: And found, That any of his nearest of kin might propone that compensation, though having but a right only to the debts with which it was compensated: but found the compensation not receivable post sententiam, though in absence, unless the sheriff's decreet were found null; but sustained several allegeances of nullity against the same.

Vol. II, Page 525.