Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XI.
Compensation or Retention, whether good against an Actio Mandati.
Creditors of Mr Hugh Murray v. Andrew Chalmer
Date: 19 June 1744 Case No. No 82.
When money is put into the hands of a mandatary, to be applied for a certain purpose, the death of the mandant, before the application, entitles the mandatary to retain the money in compensation of debt due to him by the mandant.
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Hugh Murray advocate, executor nominate by Sir James Rochead's will, confirmed the moveables and executed the testament. In March 1741, being about to leave the town of Edinburgh, and apprehending a demand from Sir James Rochead's next of kin of the balance in his hand, for which they had obtained a decree against him as Sir James's executor, he lodged in the hand of Andrew Chalmer, his clerk and ordinary doer, a sum to answer the said demand, and took from him a declaration in the following terms:
“I Andrew Chalmer, writer in Edinburgh, grant that Mr Hugh Murray advocate, has given me in cash L. 135 Sterling, with which I am to pay the sum he is decerned to pay to the nearest of kin of Sir James Rochead, and to report him their discharge.”
The next of kin not having made a demand, the money remained with Chalmer till Mr Murray died insolvent, when his creditors attached the same by a confirmation as executors-creditors. Chalmer brought a multiplepoinding, and claimed retention of this sum for relief of certain debts wherein he was cautioner for Mr Murray. The creditors opposed this demand, insisting, in terms of the statute, That compensation is confined to actions of debt, and does not take place in an actio mandati; that a person employed as a hand, is limited to act like a hand, by delivering the subject as directed; and that Chalmer can no more with-hold Mr Murray's cash from his creditors, than he could from Mr Murray himself. Chalmer on the other hand admitted, That being employed only as a hand, it became his duty to pay the sum to Sir James Rochead's executors, or to redeliver the same to Mr Murray himself, if demanded; and that in either of these cases he had no ground of compensation or retention. But he insisted, That the case was altered by Mr Murray's death, which put an end to the mandate; after which he, Chalmer, could not lawfully pay the money to Sir James's next of kin, which therefore remained in his hand as a proper debt due to Mr Murray's representatives, subjected to compensation and retention.
The creditors acknowledged the madate to be so far at an end by Mr Murray's death, that Chalmer could not lawfully thereafter pay the money to Sir James's next of kin; but insisted, That one branch of the mandate remained entire, which is, to redeliver the money to Mr Murray's representatives. They put the case, that Mr Murray, finding use for the money, had changed his mind, and recalled the commission; Chalmer must instantly have restored the money, and would not have been allowed to retain the same upon any ground whatever; and yet, by alteration of will, the mandate was as much at an end as it could be by Mr Murray's death.
Chalmer answered, That there is a wide difference betwixt the putting an end to the mandate by Mr Murray's death and by his alteration of will; that, during Mr Murray's life, there were no termini habiles for compensation or retention, in respect that Chalmer, if he did not restore the money to his constituent, stood bound to pay it to Sir James Rochead's next of kin; but that Mr Murray's death having put an end to the latter branch of the obligation, nothing remained but a simple claim of restitution, which may be subjected to compensation or retention; and he added, that the same exception would have been competent against Mr Murray himself, had Sir James's executor's been aliunde satisfied of their claim against Mr Murray.
‘Found, That the contract betwixt Mr Hugh Murray and Andrew Chalmer, was a mandate Which expired and became ineffectual by Mr Murray's death; and that thereby Andrew Chalmer was in the common case of one having his debtor's money in his hand, for which he was obliged to account; and that therefore retention is competent to him until he be relieved of his cautionary engagements.’
Fol. Dic. v. 3. p. 149. Rem. Dec. v. 2. No 54. p. 82.
