Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. VI.
Retention, its effect relative to Onerous Assignees.
Scrimzeour v. The Laird of Gadgirth
1684.
December. Case No. No 59.
Found as above.
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The Laird of Gadgirth being debtor to Alexander Blair in the sum of 1,000 lb. by bond; and, Alexander Blair having the occasion to borrow money from another, Gadgirth becomes cautioner for him in the equivalent sum; and thereafter, Blair having assigned Gadgirth's bond to Mr David Scrimzeour, who having charged Gadgirth, he suspends upon this reason, That he being cautioner for Blair, the cedent, in the equivalent sum for which now he was distressed, Blair, by the clause of relief in the bond, was debtor to him, and so he ought to have compensation and retention of the money in his own hand, for payment and relief of that sum wherein he was engaged as cautioner for Blair; and the charger, who was the assignee, could be in no better case than the cedent; and albeit, the distress was after the charger's assignation and intimation, yet the bond, which did bear the clause of relief, being prior, the distress must be drawn back to the date of the bond, and the compensation ought to be sustained against the assignee. Answered, That the clause of relief in the bond, not being to take effect before distress, and the sum due by Gadgirth to Blair being assigned, and the assignation intimate before the suspender was distrest, the clause of relief cannot be sustained as a ground of compensation or retention against the charger, who is an assignee for an onerous cause; nor can the distress be drawn back to the date of the bond wherein the suspender was cautioner, so as to compense or extinguish the bond granted by Gadgirth to Blair the charger's cedent, seeing the assignation and intimation, which is prior to the distress, is medium impedimentum. The Lords sustained the compensation and retention, in respect the suspender was creditor, by the clause of relief, prior to the intimation of the charger's assignation.
Fol. Dic. v. 1. p. 162. Sir P. Home, v. 2. No 632.
