Scottish Court of Session Decisions

Subject_1 COMPENSATION - RETENTION.
Subject_2 SECT. XV.

Concursus Debiti et Crediti.

Adam Elliot, Eldest Son to Walter Elliot of Arkletoun,
v.
William and Nicol Elliots, his Younger Sons

Date: 29 June 1711
Case No. No 126.

Compensation of a bond for money borrowed was refused to be sustained to the granters, upon a debt due by the creditor to their pupil, which they had no right to; although they offered to prove, by his oath, that they borrowed the money from him, upon the pupil's account, who, now major, was willing to apply her debt to extinguish the bond.

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William and Nicol Elliots being charged, at the instance of Adam Elliot, to pay L. 70 Sterling, and annualrent thereof, contained in their bond granted to William Elliot their father, and assigned by him to the charger, they suspended, upon this reason, that they offered to prove, by the charger's oath of knowledge, that they truly borrowed the money charged for upon the account of Margaret Elliot their pupil, and that the cedent was debtor to the pupil in more, which she, now major, was content to apply towards the extinction of that debt.——The Lords repelled the allegeance of compensation, in respect no debt due to Margaret Elliot, by the charger's cedent, can meet the suspender's bond, having no relation to Margaret; seeing they have no assignation thereto from her. The changer is not concerned whose use the money was applied to; but the suspenders must satisfy their bond to the charger, and seek relief from their pupil as accords.

Fol. Dic. v. 1. p. 167. Forbes, p. 514.