Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Mackbrair of Netherwood v. Sir Robert Crichton, and - Romes his Assignees
Date: 22 November 1683 Case No. No 122.
A claim not liquidated by sentence before apprising, was found not to compensate, to the prejudice of the appriser.
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Mackbrair of Netherwood having intented against Sir Robert Crichton, and —— Romes, his assignees, a reduction of a decreet recovered against him, as lawfully charged to enter heir to his father, grandfather, and grandsire, for certain debts resting by each of them; as also, of the apprising following upon the said decreet; the reason of reduction was minority and lesion, in so far as might be extended to the father's or grandfather's debts, whom he noways represented; and that, as to the grandsire's debts, he offered to prove paid, partly by Sir Robert and his assignees intromission with the mails and duties of the lands of Netherwood, wherein his grandsire died last vest and seased, before the deducing of the foresaid comprising of the said lands. It was alleged, That the mails and duties could not compense the debts of the grandsire, because they were in bonis of the grandfather and father, who were apparent heirs to the grandsire; and they were not in hæreditate jacente; and that the defender had ground of recompensation upon debts due by the father and grandfather, which would elide and compense all the mails and duties intromitted with; and that, by an interlocutor in the same cause, it was found, that the mails and duties uplifted belonged to the executors of the apparent heir, and that they might be compensed with his debt. It was duplied for the pursuer, That he opponed a decreet recovered at his instance, as heir to his grandsire, against Sir Robert, for payment of the mails and duties; and that recompensation was not receivable after sentence.——The Lords found, that although the mails and duties were in bonis of the intermediate heir, yet the grandsire's debt being stated against the last apparent heir, by the foresaid sentence recovered against Sit Robert, and the comprising subsisting in so far as concerned that debt, they found, that the mails and duties ought to be primo loco ascribed in satisfaction of the debt due by the grandsire, who died last infeft in the estate, it being sors durior, as being the ground of an apprising, whereas the other, due by the grandfather or father, were only personal debts. It was further alleged, That Sir Robert's intromission could not compense to the prejudice of the assignee, who had deduced the apprising, in regard Sir Robert's intromission was not liquidate by a sentence at the time. It was answered, That, before assignation, there was process intented at the pursuer's instance against Sir Robert for mails and duties, so that res fuit litigiosa, after which, Sir Robert could not assign his debt to the pursuer's prejudice.——The Lords sustained the reply, and found, that it being res litigiosa by a citation at the pursuer's instance, whereupon followed the decreet for mails and duties, the assignation after the citation, before the sentence, could not prejudge the pursuer. See Heir Apparent—Indefinite Intromission—Litigious.
Fol. Dic. v. 1. p. 166. Pres. Falconer, No 68. p. 45.
