Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Dickson v. Edgar
Date: 1 January 1679 Case No. No 121.
The debtor of a rebel taking assignation, and intimating before his escheat be gifted and declared, may compensate against the donatary, but not after-wards.
Click here to view a pdf copy of this documet : PDF Copy
Umquhile Mr Robert Dickson having obtained decreet against Wedderly, as assignee by Bruntfield of Nethermains. and as having apprised from him for the sums therein; the decreet was turned into a libel, and Mr George Dickson, as heir to his brother, having transferred the process did insist upon his brother's apprising, which was found only to extend to the principal sum, and annualrents after the apprising, but not to the annualrents prior to the apprising; for supply whereof, Mr George hath taken a gift of Nethermains his escheat, and hath obtained general declarator, and insists thereupon, as having right thereby to the annualrent of the apprising. As to which, the Lords, by their interlocutor the 19th of June 1677, ‘Sustained compensation against Mr George, insisting upon his brother's assignation, and upon bonds wherein his name was filled up unwarrantably upon Nethermains's debts, to whom the blank bonds did belong.’ But now Mr George insists as donatar to Nethermains's escheat, and alleges, that compensation was not competent against him as donatar, especially when it is not founded upon a debt due by the rebel to his debtor before the rebellion; for the compensation formerly sustained, and now repeated, was not upon a debt due by the rebel, to the defender's father, who was the rebel's debtor, but upon a debt due by the rebel to the defender's mother's father, so that there was no concourse debiti et crediti in the same persons before the rebellion; and therefore this compensation is no better founded, than if the defender had taken assignation after the rebellion to a debt of the rebel's, therewith to compense and exclude the donatar, which, if it were sustained, would make gifts of escheat of no effect, nor needed any back-bond to be taken by the exchequer, in favours of the rebel's creditors, who had a far easier way, by agreeing with the rebel's debtors, that thereupon they might compense the donatar. It is true, if the assignation to the rebel's debt had been intimate before the rebellion, there was there concursus crediti et debiti, quæ se mutuo tollunt ipso jure; but, after the rebellion, it could have no effect. It was answered, That the donatar was but a legal assignee; and therefore, before intimation or assignation to any debt due by the rebel, might found compensation against the donatar, as well as against another assignee; for all the rebel's creditors, arresting the debts due to the rebel before declarator, and using diligence thereupon, are preferable to the donatar; and it is to the same effect, that a creditor of the rebel's gets payment from the rebel's debtor, and assigns the rebel's debtor to his debt.
The Lords found this compensation not competent against the donatar, seeing there was never a concourse of debit and credit, betwixt the rebel's debtors, and the rebel before the rebellion, but only betwixt the rebel's heir and the rebel, upon a debt not due to his father, who was the rebel's debtor, but to his mother's father, whereas he is pursued as representing his father, and not his mother's father.
Stair, v. 2. p. 662.*** Fountainhall reports the same case:
Found a debtor of a rebel taking assignation, and intimating before his escheat is gifted and declared, may compense against the donatar, but not after it.
