Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Robert Campbell of Downie, v. James Campbell of Silvercraigs
Date: 11 December 1781 Case No. No 132.
A trustee is not entitled to retention for a debt due to himself.
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Campbell of Asknish, and Campbell of Silvercraigs, as trustees for Archibald Campbell of Danna, sold the estate of the last, which was burdened with the payment of certain annuities.
Silvercraigs was himself a creditor of Danna, and prevailed upon the purchaser to pay him, and Asknish, the other trustee, that part of the price which he might have retained as the stock corresponding to the annuities. For this, without mention of their character as trustees, they granted to him a bond, obliging themselves and their heirs to indemnify him for these annuities.
On the death of one of the annuitants, Robert Campbell of Downie, likewise a creditor of Danna, laid arrestments in the hands of Asknish and Silvercraigs, the trustees. In a process of multiplepoinding which followed, a competition arose betwixt this arresting creditor and Silvercraigs, who acknowledged, that he was possessed of the whole sum paid to him and Asknish; but insisted, That he was entitled to retain the stock of the annuity which had fallen for payment of the debt due to himself; and, in support of this claim,
Pleaded; It is a point triti juris, That an arrestee who is likewise a creditor, is entitled to retain payment of his own debt. This privilege obtains in every case; wherein, as in the present, the sum arrested has been lawfully and bona fide acquired; Bankton, b. 1. tit. 24. § 35. Nor, on this occasion, can it be precluded by the character of trustee. Officium nemini debet esse damnosum. A factor is entitled to a more extensive retention; Erskine, b. 3. tit. 4. § 21.
Answered for the arrester; The sum in question being a deposite in the hands of the trustees, is not a subject of retention; Erskine, b. 3, tit. 4. § 17.
The Court adhered to the Lord Ordinary's interlocutor, finding, ‘That the sum in medio was in Silvercraig's hands merely in the character of one of the trustees of Danna; and that he had no right of retention or preference therein.’
Lord Ordinary, Monboddo.For Arrester, G. Fergusson.For Trustees, Rolland.Clerk, Menzies.
Fac. Col. No 12. p. 24.
