Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 COMPENSATION AND RETENTION.

Sligo
v.
Fotheringham

Date: 28 February 1777

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Alexander Knight, merchant in Rotterdam, having drawn a bill upon John Fotheringham, which was accepted, indorsed it to John Sligo, value in account with Alexander Knight. Sligo pursued Fotheringham for payment of this bill; who suspended upon this ground, That Sligo was owing to him a greater sum, for which action was depending, at his instance, before the Court of Admiralty, and for which he claimed compensation, at least retention. Answered, primo, That, whatever was in this point, it could have no effect as to the bill in question, which was truly in Sligo's person as trustee for Knight, whose debts, about Aberdeen, he was in use to collect; and, indeed, the fact appeared from the tenor of the indorsation. But, secundo, Compensation there could be none,—a liquid debt could never be compensated by one not liquid; and, tertio, As little could there be retention, for, though this was allowed in certain cases, on the head of equity, yet, in this case, there was no equity in allowing it; the defender, Sligo, in the process before the Admiral, having found caution de judicio sisti et judicatum solvi.

The Lord Elliock, Ordinary, repelled the first reason of suspension, but sisted process till the action before the Judge-Admiral was determined. But the Lords altered,—found the letters orderly proceeded, and the suspender liable in the expense of the extract.