Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. II.
What understood to be a Liquid Claim.
Rose of Kilravock, v. The Creditors of Kinstery
Date: 4 January 1749 Case No. No 18.
One of two parties having paid money for the other, on which he stated annualrent; and the other having paid victual for him; it was found interest might be stated on the price of the victual.
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Sir James Calder of Muirton disponed his estate, with the burden of his debts, to Hugh Rose of Kilravock, James Sutherland of Kinstery, William Brodie of Coalfield, and Alexander Dunbar of Moye; with a view, as it would seem, that by the management of these gentlemen, the subject would be equal to the burdens; and they disponed it, with absolute warrandice, to Rose of Kilravock.
The value of the estate falling short of the debts, the remainder of them which rested unsatisfied were divided amongst the disponees, who mutually became bound to pay the several bonds allotted to each of them.
Kilravock paid a debt undertaken by Kinstery, and adjudged his estate for it; and appeared amongst his creditors in a ranking and sale raised by them.
Objected to his interest, Compensation by debts paid by Kinstery, which Kilravock was bound to relieve him of.
Answered, Recompensation by a yearly payment of eight chalders of victual to the relict of Sir James Calder, which Kinstery was obliged to relieve him of, effeiring to the proportion of the trust undertaken by him, having disponed the estate with absolute warrandice; and the victual was stated with interest from Candlemas after the separation of each crop; to which it was objected, That interest ought not to be stated; whereupon the Lord Ordinary, 10th July and 12th December, repelled the objection to the stating the account.
Pleaded in a reclaiming bill, Compensation is de liquido in liquidum, but the value of the victual was not liquidate till of late, and therefore cannot meet Kinstery's debts sooner than the liquidation.
Answered, The question is not to be determined by the rules of compensation and recompensation; the parties ought to be considered as in a society for paying Muirton's debts; and it were unjust that one of them should state his payments at the time of making them, and bring down interest thereon to the time of fitting the account; and the other state only the principal paid by him without interest: The several payments ought to be applied to each other at the time they were made.
Observed, That Kilravock having paid a demand made upon him, which the others were obliged to relieve him of, interest was due.
The Lords adhered.
Act. Burnet.Alt. A. Maidoual.Clerk, Gibson.
D. Falconer, v. 2. No 27. p. 34.
