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SCOTTISH_HoL_JURY_COURT

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(1721) Robertson 368

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 82.

The Commissioners and Trustees of the Forfeited Estates, Appellants

v.

Mr. David Erskine of Dunn, one of the Senators of the College of Justice, Respondent

19th April 1721.

Subject_Compensation against an Assignee. — Forfeiture for Treason. —

A bond of Lord Panmure's was conveyed to an onerous assignee on 21st April 1716; by an act passed on 7th May 1716, his lordship was attainted of treason from November 1715: the holder of the bond, in January 1717, acknowledged upon oath, that he had purchased in April or May 1716, from Lady Panmure, as her husband's attorney, a quantity of grain, and had paid her the price: the trustees for forfeitures found that the bond was compensated against the assignee; and that an arrestment used on 9th May 1716, and a horning signeted on October thereafter, were no sufficient intimation; bus their judgment was reversed by the Court of Delegates, and such reversal affirmed upon appeal.

By an act of 1 Geo. 1. which received the royal assent on the 7th May 1716, James Earl of Panmuir was attainted of high treason, from the 13th of November 1715, and his estate was vested in the appellants for the use of the public from the 24th of June 1715.

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In June 1717, the respondent entered a claim before the appellants, upon the Earl of Panmuire's estate for the sum of 5000 merks, with interest, since Candlemas 1715, as assignee of a bond granted by the said Earl of Panmuire. The circumstances as stated by the respondent were, that the earl having borrowed from George Dempster, merchant in Dundee, the said sum of 5000 merks, the earl, for repayment thereof, granted Dempster his bond on the 5th of February 1715; and on the 21st of April 1716, Dempster, in consideration of the respondent's paying to him the principal and interest then due upon the said bond, assigned the same to the respondent; who thereupon arrested the rents in the tenants' hands, on the 9th of May 1716, and a horning was signeted the 26th of October thereafter.

To this claim, the appellants objected that Dempster, the assignor, had, upon oath before the appellants on the 24th of January 1717, acknowledged that in April or May 1716, he had bought from the late Countess of Panmuire, who was factrix for the earl, wheat and meal, to the value of 3751 l.10 s. 9 d. Scots; and that he paid the price thereof to the Countess, and got her discharge for the same: that this payment, being after the forfeiture, was in Dempster's own wrong; and that consequently he stood debtor to the appellants in as much as would compensate the bond claimed on.

The appellants, by their decree in October 1719,“found that no legal intimation was made of the said assignation by the said George Dempster, to the trustees, preceding the date of the said Dempster's deposition made the 24th of January 1716–17, upon record in this court, and now read, whereby he acknowledges that he, the said Dempster, received the sum of 3751 l. 10 s. 9 d. Scots, out of the said estate, for crop 1715, and other very considerable sums; and he not having yet accounted to the commissioners and trustees for the same, the horning produced for the claimant, though bearing date before the time of the cedent's said deposition, yet is after the attainder of the said late Earl, and no charge was used thereupon; and therefore find the said sum of 5000 merks Scots money, with interest thereof, so assigned by the said Dempster to the claimant as aforesaid, to be extinguished by compensation, to the extent of the said sums intromitted with by Dempster; and do therefore dismiss the said claim, in so far as the same is compensed as aforesaid, together with the penalty contained in the said bond, which penalty is hereby absolutely disallowed: but as to the residue of the said debt not thereby compensed, the said commissioners and trustees do find that the same is a just, true, and lawful debt, to which the said claimant is justly entitled, as a lawful creditor on the said estate.”

Against this decree, the respondent presented his appeal to the Court of Delegates; and after a hearing of the cause, and memorials given in by the parties, the Court of Delegates, on the 23d of December 1720, “reversed the aforesaid judgment and decree of the said commissioners and trustees.”

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The appeal was brought from “a decree of the Lords Delegates of the 23d of December 1720.”

Entered, 3 Feb. 1720–1.

Heads of the Appellants' Argument.

It is an undoubted principle of the law of Scotland, that where the same person is debitor in a sum, and has a counter claim against his creditor for the like sum, that those claims are mutually extinguished by compensation, in the same manner as if each claim had been paid and satisfied by the person who was debitor in it; and consequently, granting it were true (which the appellants know not) that the 5000 merks pretended to have been owing by the late Earl of Panmuire to Dempster, formed a true and lawful debt, yet the public being now in the room and right of the late Earl of Panmuire, and Dempster having become debtor to the public for the rents of the estate of Panmuire, equal to the extent of his debt, levied by him without just title after the forfeiture, that debt was thereby extinguished by compensation, or payment out of the effects of the debtor, and could not after that be lawfully assigned to the respondent, or any other person whatsoever.

It was objected, that Dempster's oath was not a good proof against the respondent, his assignee, for an onerous consideration: but the oath of the cedent is a good proof in many cases, even in prejudice of the assignee. Such as, first, if the debt be rendered litigious, before the assignation, which is the present case; since by the forfeiture all the debts on the forfeited estate were made subject to a question, and claimants were put under the necessity of proving their debts to be true debts, otherwise they could not be allowed as a charge upon the estate. The oath of the cedent is likewise a good proof against the assignee, where the assignation is not completed by being lawfully intimated to the debtor in the method the law directs, which is likewise the present case; for the respondent's assignment never was intimated in a legal way.

It was objected also, that Dempster's oath must be taken with all its intrinsic qualities; and at the same time that he swears to the receiving of the grain, he swears he paid for it to the late Countess of Panmuire. But the paying for the grain is not an intrinsic quality: if there was any payment, it was a considerable time after; his oath is a good proof against himself, but it can be no proof for him. If he did pay it, it was an unlawful payment; for the law directs the profits of forfeited estates to be answered and paid into the receipt of exchequer, not to the wife of a forfeiting person.

The time of Dempster's intromission, and pretended divesting himself of this and other debts, happening so precisely about the same time, is a convincing proof of the contrivance entered into by the parties to cover the estate from the public. It signifies nothing what was the date of this simulate assignation, but only of the time of the legal intimation; and in this case there was no legal intimation before entering the respondent's claim. An arrestment

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in the tenants' hands was indeed used after Dempster's intromissions, but that was no notice to those concerned for the public, who came in place of the forfeiting person: Letters of horning were afterwards obtained in the month of October 1716 against the debtor, the Earl of Panmuire, which looks yet more extraordinary, he being then undoubtedly attainted. And all such processes used against forfeited estates, are already by act of parliament, declared to be void, and of no effect.

Heads of the Respondent's Argument.

As the only foundation for this demand against Dempster is his own oath, so that must be taken altogether, which is very far from establishing him a debtor to the late Earl of Panmuire; for he only swears, that he, as a merchant, in the ordinary course of his business, purchased from the late Countess certain quantities of grain, and thereupon made payment to her of the agreed price. So what he bought was from the lady, and he has paid for what he so bought.

Though the act for attainting the said earl did by a retrospect attaint him from the 13th day of November 1715, unless he should surrender himself on or before the last day of June 1716; yet in fact this bargain was made by the Lady Panmuire, factrix for her husband, and the money paid to her before ever that act of parliament passed into a law ^(a): so that were the debt even in Dempster's own person, it were a great hardship indeed to oblige him who had once paid the money, for the purchase he bonâ fide made, to pay it over again. If the appellants have any demand, it is against the Lady Panmuire; and in fact, the appellants do charge her with this very sum.

Whatever might have been said, in case the debt had still been in the person of Mr. Dempster, yet that cannot militate against the respondent, an assignee for an adequate valuable consideration, without any manner of notice of this pretended demand, or title of compensation: and were it the case, that Dempster had by his oath established himself a debtor to the late Earl of Panmuire, yet to insist that that debt should compensate and extinguish a debt against a just assignee, who paid a valuable consideration for it, were introducing a great hardship indeed.

Besides, compensation is never allowed against an assignee, but where the debt is liquidated and established against the assignor before intimation of the assignment. Now this debt is not yet liquidated against the assignor, for it cannot be said that his oath liquidates the debt, because he swears that the debt is paid; nor can it be done without an action between Dempster and the appellants.

The assignment was intimated by raising and executing arrestments on 9th May 1716. Dempster's oath was not made till January 1716–17, and nothing is more certain in the law of

_________________ Footnote _________________

( a) The act was passed 7th May 1716; Dempster's oath speaks generally to the time of his transaction with Lady Panmuir, as in April or May 1716.

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Scotland, than that diligence by arrestment is as sufficient an intimation of an assignment, as a personal intimation under the hand of a public notary to the obligor; and this was the most proper way, since the obligor was not to be found; and a horning was likewise signeted thereon.

Judgment, 10 April 1721.

After hearing counsel, It is ordered and adjudged, that the petition on and appeal be dismissed: and that the decree of the Lords Delegates in Scotland, therein complained of, be affirmed.

Counsel: For Appellant, Rob. Raymond. Rob. Dundas.
For Respondents, Charles Erskine. Will. Hamilton.

1721