Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XVII.
Effect of Compensation, of Retention, of Re-compensation in instances not included in the Preceding Sections.
Irvine v. Menzies
Date: 10 July 1711 Case No. No 146.
In a suspension of a charge on a bond, the suspender craved compensation of a sum due to him by the charger per bill. The charger proponed recompensation, because he was cautioner for the suspender in a bond for a greater sum, and therefore must have retention of the sum in the bill till he be relieved, though the charger was not yet distressed. The Lords found, that the retention took place against the liquid compensation, and that he was not bound to let the debt be extinguished by compensation, till he was relieved of his cautionry.
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Charles Menzies, writer to the signet, being debtor to Mr Alexander Irvine of Saphock in L. 319, by bond, and charged thereon, suspends, that he must have compensation for L. 212, contained in a bill due by Irvine, to which he has right.—Answered, Your compensation cannot extinguish my debt; because I recompense you again, in so far as I am cautioner for you in a 3000 merks bond, whereof you are bound to relieve me; and so I must have retention of your L. 212, whereon you ground your compensation, till you relieve me of that debt.—Replied, There can neither be retention nor recompensation, unless you were distressed and had paid the debt. And seeing the concourse of the two debts does, ipso jure, extinguish one another, no pretence of retention can make a debt extinct to revive; the bond of relief being only an obligement ad factum præstandum, and so illiquid.—Duplied, His claim of retention is founded both in the common law, in reason, and in the analogy of our municipal law; and first, the Roman law is plain, in l. unica C. etiam ob chirograph. pecun. pignus retincri posse; though you pay me the debt for which I had the pledge, yet I'll retain it if you owe me any sum, till that be likewise paid or secured. Next, this retention is founded in reason; for, if I have your effects in my hand, and you owe me money, you cannot draw them out till you pay; it being tutius rei inhærere quam in personam agere; 3tio, As to our awn law, a creditor in relief cannot, by any diligence [of arrestment or otherwise, affect the subject in his own hands, as if it were in another's; for supplying which difficulty, law has allowed retention; and was so found betwixt Ballenden and Sinclair*, and 14th February 1708, Mr Patrick Strachan and the Town of Aberdeen, No 60. p. 2609. And though he be not yet distressed, he knows not how soon he may be overtaken, the creditor having paratam executionem against him when he pleases; so that it is more than a mere factum præstandum—The Lords found, That the retention took place against the liquid compensation, and that he was not bound to let this debt be extinguished by the compensation, till he was relieved of his cautionry.
Fol. Dic. v. 1. p. 168. Fountainhall, v. 2. p. 657.
