Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. VII.
Effect Relative to Executors and Executors-creditors.
Captain M'Rieth v. Kennedy of Munuishow
1685.
March. Case No. No 67.
A tenant having paid up his rent to his master, for eight or ten years, and the minister's stipend standing out unpaid all that time, was found to have retention of a term's rent confirmed by the executor-creditor, after the proprietor's decease, until he should be relieved at the hands of the minister.
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In a special declarator at the instance of a donatar of escheat, compearance was made for an executor-creditor, who had confirmed a year's rent prior to the gift, or general declarator.
Alleged for the donatar, That as the confirmations could not exclude another executor-creditor confirming within six months after the rebel's decease, no more could it exclude the pursuer's declarator raised within the six months.
The Lords preferred the executor-creditor, in respect the act of sederunt concerns only concourse of confirmations, and the donatar is in causa pænæ. See Escheat.
2do, It was alleged for the tenants, That they must have allowance against the executor-creditor of eight or ten years stipend to the minister, for which they are liable.
Answered, That minister's stipends are not debitum fundi; no, not for the current year; and the executor having confirmed but one year's rent, they ought at most to be liable but for a proportion of one year's stipend.
Replied, The tenants being liable to the minister for all the years of their intromission, and having paid the whole former rents to their master, who would have been obliged to relieve them if he were pursuing; consequently the executor, who is his representative, and not properly a singular successor, must allow them so much out of the year's rent confirmed, as will answer their relief at the hands of the minister.
The Lords allowed the retention for all bygone years stipends, till they be relieved of the same at the minister's hand.
Fol. Dic. v. 1. p. 163. Harcarse, (Escheat.) No 435. p. 116.
