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Scottish Court of Session Decisions >>
Paton v Barclay. [1627] Mor 2601 (11 January 1627)
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor0602601-050.html Cite as:
[1627] Mor 2601
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. V.
Compensation, its Effect Relative to Onerous Assignees
Paton v. Barclay
Date: 11 January 1627 Case No. No 50.
A master being pursued by a tenant's onerous assignee, his compensation was sustained, though upon a decree against the cedent posterior to the assignation, the decree being for bygone farms, long before the assignation.
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In a suspension betwixt Paton and Barclay, wherein Paton being charged to pay 300 merks, conform to his bond, whereto Barclay was made assignee by the creditor to whom the bond was made; the reason was, that the cedent being this suspender's tenant, in some lands occupied by him, for the which he was debtor to the suspender in as many farms as, being liquidate, extended to the sum contained in the said bond, and which farms were owing to him at the time of the making of the said assignation; likeas, since that assignation, he hath recovered decreet against the cedent, his tenant, for paying of the same, and liquidating the prices thereof, which ought to compense against the assignee, as it would have compensed against the cedent's self if he had been charger.——The Lords found this compensation relevant against the assignee, as well as against the cedent; albeit the decreet against the cedent, which both found the cedent his debtor, and also liquidate the debt, was posterior to the assignation made to this charger, who was a true creditor to the cedent, and that it was made for satisfying of his just debt; and albeit the assignation preceded the said decreet, seeing the decreet was obtained by the master against his tenant for the farm of the ground, which was a debt for some years duties preceding the assignation made to the charger, owing to the master, albeit the same was not decerned before the assignation, but thereafter, which was sustained, seeing nothing was alleged against the debt owing by the cedent to the suspender, contained in the said decreet.
Act. Mowat.Alt. Lawtie.Clerk, Hay.
Fol. Dic. v. 1. p. 161. Durie, p. 255.
