Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
William Ferguson of Auchinblain v. Hugh Muir of Auchindrain
Date: 28 December 1711 Case No. No 127.
A debtor was, charged for payment of a liquid sum. He suspended, pleading compensation, upon rents due by the chatged for subjects over which the suspender was factor. The debt not being due to him proprio nomine, compensation found not proponable.
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Hugh Muir of Auchindrain being debtor to William Ferguson of Auchinblain in 300 merks by bond, and being charged to pay, he suspends, and craves compensation, on a tack set by ham to the charger, of the lands of Craigskean, the tack-duty whereof is owing, and so must compense. Answered, If the suspender had been heritor of the lands set in tack, then the compensation would have met, but you set it only as factor for Robert Baillie, (as the tack itself proves), and so the tack-duty is your constituent's and not yours, which makes, that there can be no concursus debiti et crediti betwixt you and me; it being absurd to extinguish my debt with one you have no proper right to. Replied, The tack-duty is payable to me nominatim, and not to my constituent; and as I have the sole power to uplift and discharge, so I may compense; and as he could charge me to maintain him in the peaceable possession, if he were disturbed, and make, me liable for his damages, so a pari, as I have the jus exigendi, so likewise the jus compensandi: All mutual contracts being equally obligatory on both parties; and therefore cui competit actio ei multo magis exceptio competit, cum partes rei semper sint favorabiliores.——The Lords considered, that factors and chamberlains have not the property of their constituent's rents, but only the custody thereof as servants; and that it made no difference in law that he had taken the rent payable to himself, and not to his constituent, seeing his very title of setting it is qua factor, and not proprio jure; therefore the Lords repelled the compensation. See the 9th of November 1672, Pearson contra Murray alias Creighton, No 80. p. 2625. where a chamberlain may not acquire a debt of his master's to found compensation on; which is stronger, and farther than this present decision goes.
Fol. Dic. v. 1. p. 166. Fountainhall, v. 2. p. 695.*** Forbes reports the same case:
Huch Muir having, as factor to Robert Bailie, indweller in Glasgow, set a tack of the lands of Craigskean, to William Ferguson, for a certain tack-duty payable to the said Hugh Muir; and William Ferguson having charged Hugh Muir for payment of 300 merks of principal, with annualrent and penalty, contained in a bond granted by the latter to the former; compensation was not sustained against the charger upon the said tack-duty, in respect Hugh Muir was not heritor of the lands set, but only factor, and the constituent could uplift and discharge the tack-duty, albeit payable by the tack to his factor.
