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Scottish Court of Session Decisions >>
Hodge v Brown. [1664] Mor 2651 (13 February 1664)
URL: http://www.bailii.org/scot/cases/ScotCS/1664/Mor0702651-117.html Cite as:
[1664] Mor 2651
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Hodge v. Brown
Date: 13 February 1664 Case No. No 117.
Compensation upon a debt due by a tacksman to his sub-tenant, was found competent to be proponed against the master; compensation being payment in law.
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Mr Robert Hodge pursues Robert Brown, merchant, for certain duties of land in Leith, possessed by the defender belonging to the pursuer. It was alleged, That the defender ought to have allowance of certain profitable expenses, wared out by him upon the house. It was answered, That the defender possessed the house as succeeding in the vice and place of Andrew Brysson, to whom the pursuer by tack set the houses for a duty simply, without respect to any charges to be wared out by the tacksman; so that what the tacksman built or repaired, it was on his own hazard and charge, there being nothing conditioned therefor. It was replied, That the defender was only convened as possessor; and, as possessor, he ought to have allowance of what he profitably beslowed. It was duplied, That what he bestowed without warrant of the master, and being in vice of the tacksman, he can be in no better case than the tacksman, who, during his tack, if he had built never so much, it would have accresced to the heritor, without remedy or recovery of the expenses.
The Lords found no allowance should be granted.
In this same process, it was alleged, The defender ought to have compensation for such debts as were owing to him by the said Andrew Brysson, setter of the houses to him. It was answered, That the pursuer being heritor and master, ought to have his duty fully paid to him, without respect to any debt owing to the defender by Brysson. It was replied, That the tacksman being the setter of the houses to the defender, he was the defender's master, to whom, if the defender had made formal payment, he would have been assoilzied; now, compensation is payment by the law, or the equivalent.
The Lords allowed compensation, the debt being proven.
