Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr Harry Irving v. Mr William Irving
Date: 4 December 1696
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On a bill given in by Mr Harry Irving against Mr William Irving, son to Drumcoltran, this point occurred to be argued amongst the Lords,—Whether one debtor in a sum, and creditor by a clause of relief, as cautioner, can plead retention against an assignee until the cedent first relieve me of my cautionary. It was not doubted, if he be distressed, that the compensation meets. The only question is, If retention be legal before distress. The Lords, in the case of Lord Sinclair against the Lord Bellenden, found the registration of his bond a sufficient distress; and more lately betwixt the Laird of Gadgirth and Mr David Scrymzeour, and in other cases, they sustained retention though there was no distress. But the Lords superseded to determine here till it were farther considered.
