Scottish Court of Session Decisions

Subject_1 COMPENSATION - RETENTION.
Subject_2 SECT. XV.

Concursus Debiti et Crediti.

William Alison
v.
John Duncan

Date: 23 January 1711
Case No. No 125.

A party assigned a debt to his son-in-law. The debtor suspended on compensation, having acquired right to a debt due by the cedent. The cedent had been denuded, and the assignation intimated, before the suspender acquired right to the ground of compensation. Found, the compensation could not meet the assignee, but without prejudice to reduction on the act. 1621.

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John Duncan, late Provost in Dundee, being debtor to Robert Christie by bond, Christie assigns it to William Alison, his son-in-law, who charging Duncan, he suspends, and craves compensation, on this ground, that Christie the cedent was owing to Hunter of Baldivie a greater sum, whereunto he has right as executor-creditor confirmed to Hunter. Answered, The compensation never met nor concurred betwixt the two, because Christie was denuded by the assignation, and the same duly intimate to Duncan, before he had established the right of the debt due by Christie to Hunter in his person as executor-creditor; so there was never a concursus debiti et crediti betwixt Christie and Duncan. It is confessed, if Duncan had purshased the debt due by Christie to Hunter in his person, before Christie assigned Duncan's bond to Alison, or even before it was intimated, then the compensation would have met; but Christie being totally denuded by an intimated assignation before ever Duncan had right by his confirmation to Christie's bond to Hunter, it is impossible that can be a ground of compensation, but only for an action against Christie, and cannot meet his assignee. Replied, If the assignation had been for an onerous cause, then it is acknowledged it would have excluded the compensation; but being from a father-in-law to his goodson, it does not prove its own narrative, but is pes umed gratuitous, unless the onerous cause were aliunde instructed, and so is reducible on the act of Parl. 1621; and as such rights inter conjunctos do not debar from the cedent's oath, so neither can they exclude compensation against the cedent, no more than if the assignation had been in trust upon a backbond, as was found, 38th January 1676, Crocket contra Ramsay, No 120. p. 2652. Duplied, Non refert, what be the cause of the assignation; for esto it were a donation, and duly intimated, before you acquire in a debt of the cedent's, you are no more his debtor but the assignee's, and can never obtrude the cedent's debt purchased in ex post facto against him; for that were to elude my assignation; whereas, factum cuique suum nan adversaria nocere debet; and an executor, taking assignation to some of the defunct's debts after his own confirmation, will neither get retention nor compensation thereon against the defunct's other creditors. Next, the assignation, esto it were gratuitous, can never be quarrelled, unless they prove the granter was insolvent, at the time he gave it, as has been found, 6th March 1632, Garthland contra Ker, No 45. p. 915.; 30th June 1675, Clark contra Stewart, No 46. p. 917.; 11th December 1679, Creditors of Mouswell, No 60. p. 934.; and 10th November 1680, M. Kell contra Jamieson and Wilson, No 47. p. 920. Though some thought it hard to put creditors to expiscate their debtor's means and effects, and whether solvent or not, it was more reasonable that the debtor's relations should lose than they. However, in this cause, the Lords found the compensation did not meet the assignee, but prejudice of reducing the assignation on the act of Parliament 1621, as accords.

Fol. Dic. v. 1. p. 167. Fountainhall, v. 2. p. 629.