Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. VI.
Retention, its effect relative to Onerous Assignees.
Sibbald v. Turnbull
1683.
January. Case No. No 58.
A man being first debtor, and thereafter becoming cautioner for his creditor in a bond for the like sum, bearing a clause of relief, and the creditor having, after the cautionry, assigned the bond, and it being intimated, the Lords sustained compensation and retention, in respect that the compenser was creditor by the clause of relief, prior to intimation of the assignation.
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One being pursued on his bond, at the instance of an assignee, proponed compensation or rather retention, in so far as he stood engaged as cautioner for the cedent before the assignation.
Answered for the pursuer: Relief of cautionry becomes not a stated debt, which might be the ground of compensation till distress; and there was no distress here before the assignation; and the distress thereafter is not relevant, the cedent being then denuded; and compensation should be inter eosdem.
Replied: The Lords are still in use to sustain retention for cautionry without distress; and here the defender being debtor to the cedent, was thereafter induced, upon that account, to be cautioner for him; and the assignation was made by a father to his own son.
The Lords sustained the defence of retention.
Fol. Dic. v. 1. p. 162. Harcarse, (Compensation.) No 256. p. 61.
