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Scottish Court of Session Decisions >>
Alexander Stevenson v Laird of Hermishills. [1666] Mor 2615 (15 June 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor0602615-065.html Cite as:
[1666] Mor 2615
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. VII.
Effect Relative to Executors and Executors-creditors.
Alexander Stevenson v. Laird of Hermishills
Date: 15 June 1666 Case No. No 65.
Compensation being proponed against one of four co-executors, it was alleged, that it could not take place but for the fourth part. It was found, that compensation being equivalent to a discharge, taking away the debt ipso jure, it might be proponed against any of the executors in solidum.
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Alexander Stevenson, as assignee by his father, pursues Hermishills for payment of a bond, who alleged absolvitor, because the defender, as heir to his father, had right to a bond due by the pursuer's father before the assignation; after which the assignation was a deed in fraudem creditorum, and so null.—It was answered, non relevat, unless the cedent had been bankrupt, or at least insolvendo.
The Lords repelled the defence, in respect of the answer.
The defender further alleged compensation upon the said bond, which was relevant against the pursuer, both as heir to, and as assignee by his father.—It was answered, non relevat against the pursuer as executor, but for his fourth part, being one of four executors; 2dly, The defender's father was tutor to the pursuer, et nondum reddidit rationes.
The Lords found, That compensation being equivalent to a discharge, taking away the debt ipso facto, it might be proponed against any of the executors in solidum; but in regard the tutors accompts were depending, the Lords sisted this process till the Tutors Compts proceeded.
