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Scottish Court of Session Decisions >>
Annuitants of York Buildings Company v Buchan. [1733] Mor 2660 (19 December 1733)
URL: http://www.bailii.org/scot/cases/ScotCS/1733/Mor0702660-128.html Cite as:
[1733] Mor 2660
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Annuitants of York Buildings Company v. Buchan
Date: 19 December 1733 Case No. No 128.
Found that a tenant, a creditor of his master, could not retain bygone rents, still in medio, in prejudice of a prior infeftment of annualrent.
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In a process of mails and duties, at the instance of an annualrenter against the tacksman, the defence, as to the rents falling due before citation, was compensation by an equivalent sum that his master owed him by bond. It was agreed that the tacksman would have been safe had he paid up these rents before citation; and from thence it was argued for him, that compensation operates retro, which brings the case to the same with actual payment. It was answered, That compensation operates not till it be proponed; and, though it might have been proponed against the master, it cannot now be proponed against the annualrenter, after citation in the process of mails and duties; the annualrenter having a real right in the ground, as much as a singular successor in the property.——The Lords found, compensation cannot be sustained against a prior infeftment for bygone rents, the same being in medio. See Appendix.
