Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. IV.
Who entitled to Propone Compensation and Retention.
Mr John Hay, Son to the late Parson of Peebles v. Archibald Crawford of Ardmillan
Date: 20 February 1712 Case No. No 31.
An heir, pursued for his predecessor's debt, was allowed to compensate it with a debt owing by the creditor to the defunct, though that being a moveable debt, belonged to his executors, and not to the heir who proponed compensation.
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In the action at the instance of Mr John Hay, as having right by progress to several bonds granted by old James Crawford of Ardmillan to his creditors, against Archibald Crawford as heir to the granter; the defender proponed compensation upon the pursuer's author's intromission with moveables and other effects belonging to James Crawford the debtor, to the value of the sums pursued.
Answered for the pursuer, The defender, who is heir to Ardmillan the debtor, cannot propone compensation upon the moveables and effects aforesaid; because these belong to Ardmillan's executors to whom the intrommitter is liable; and no person can compensate a debt with a subject he hath no right to; for compensation operates only extinction ipso jure si applicetur: And a man cannot apply a debt he hath no right to, for compensating what he owes to the debtor, more than he can exact another man's money to pay his own debt.
The Lords found, That the compensation that was competent to the deceased James Crawford of Ardmillan, is competent to his heir.
