Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Anna Hamilton v. Lord Torphichen
Date: 28 November 1699
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Anna Hamilton, relict of Sandilands of Hilderston, having adjudged 10,000 merks owing by the Lord Torphichen to her husband, on an heritable security, she pursues for payment. It was alleged for Torphichen, He must have compensation ., because Hilderston was owing sundry sums by bonds, and he stood cautioner for him, and was forced to pay the debt. Answered,—No compensation but inter debita ejusdem speciei; but here, moveable personal bonds and tickets are obtruded to compense and extinguish an heritable right whereupon infeftment has passed. Replied,—Compensation being debiti et crediti contributio, it clearly took place here; for, though seasine had followed upon the heritable bond, yet it bore also a personal obligement to pay, beside the feudal security of the annuus reditus; and which, being a liquid obligement, may be clearly compensed and taken away by other personal debts.
The Lords at first made a distinction betwixt the grounds of compensation extant and contracted before the taking the heritable bond and completing it by infeftment, and the debts contracted subsequent; and seemed to incline that all before the date of the seasine might be good grounds of compensation: though it was urged that the granting an heritable bond was a tacit passing from using these anterior grounds as compensations; just as the granting a blank bond was a renouncing of compensation. But the Lords thought this only a presumption; quœ cedit veritati, and could not hinder the proponing and applying the compensation now. The difficulty lay as to the debts contracted after infeftment was taken, if they could compense and extinguish an heritable right. And it was urged by some of the Lords that it could not: because, the investiture being now feudal, it were to unhinge the security of the lieges, if personal debts contracted after could meet a singular successor, and extinguish his right by compensation, no more than his author's back-bond militates against him after it is once made real by infeftment. Others said, this was no more than what occurred when one acquired an apprising or an adjudication; for they might be elided by any deed of their author's without a formal registrate annunciation, whether it was a simple discharge or an intromission with the rents, and that even found probable by witnesses, 4th February 1671, Wishart contra Arthur; and they had nothing to rely on but the recurring on their warrandice. But the Lords, considering this action of the Lady Hilderston's being for payment of the principal sum, it occurred to some, what hindered but any debts, whether prior or posterior to the seasine, should compense the pursuit on the personal obligement to pay? and ordained the parties to be farther heard thereupon.
There were decisions cited for both parties: For Torphichen, 14th February 1633, Keith contra Herriot, marked by Dury; and 8th July 1680, Rankin contra Arnot, in Stair. And, for the Lady, were quoted 2d January 1667, Oliphant contra Hamilton, per argumentum à contrario sensu; and Sir George Mackenzie's Observations on the Act of Parliament I617, anent Registration of Seasines, where he affirms that infeftments of annualrent cannot be extinguished by compensation.
