Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XII.
Whether good against an Actio Depositi.
Sir Francis Scot of Thirlestane, and James Scot of Bristo, v. Scot of Hartwood-myres
Date: 23 February 1697 Case No. No 84.
A party obtained assignation to an adjudication, and gave back-bond to pay or denude. He attempted to retain till paid a debt due to him by the cedent. Being a trust, or deposite, compensation found not competent or receiveable.
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Arniston reported Sir Francis Scot of Thirlestane, and James Scot of Bristo, who had led an adjudication against Scot of Hartwood-myres, for debts owing to himself, and likewise on bonds due to James Scot of Bowhill, and others, to whom he gave back-bonds declaring the trust, and obliging himself to hold compt, reckoning, and payment for what he should recover, or denude. Bow-hill having assigned Sir Francis to Bristo's back-bond, and he craving him to denude; he alleged, upon compensation, that Bowhill was owing him as much by clear liquid bonds, and which he advanced him on the faith of the trust he had of Hartwood-myres' adjudication, and that he would retain till he were paid.—Answered for Sir Francis, 1mo, This is not liquid, neither being inter eosdem, nor a compensible sum, but only an obligement to denude, which is the prestation of a fact.—Replied, That it was an alternative obligation, either to pay or denude, in all which cases electio est debitoris; and if he elect to pay, then compensation is in construction of law equivalent thereto. Yet the Lords considered this was a trust, and that reddere depositum, was juris gentium, and compensation was neither competent nor receiveable against a depositum; and Sir Francis being an assignee for an onerous cause, they repelled the compensation in so far as proponed on Bowhill's debts against him. Yet Bowhill's discharge would have precluded Sir Francis; and it has been oft found, that back-bonds qualify and affect not only personal rights, but even apprisings and other real rights, till either infeftment be taken upon them, or the legal be expired; and even against singular successors and third parties, whereof there is an eminent case, 5th February 1678, Mr Rory M'Kenzie against Watson. See Personal and Transmissible.
Fol. Dic. v. 1. p. 164. Fountainhall, v. 1. p. 770.
