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Scottish Court of Session Decisions >>
Pearson v Sir Robert Crichton, alias Murray. [1672] Mor 2625 (9 November 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor0702625-080.html Cite as:
[1672] Mor 2625
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XI.
Compensation or Retention, whether good against an Actio Mandati.
Pearson v. Sir Robert Crichton, alias Murray
Date: 9 November 1672 Case No. No 80.
A factor cannot retain or compensate his intromissions, by any of his constituent's debts, assigned to him after his intromissions.
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Pearson having charged Sir Robert Murray for payment of a bond, he suspends and alleges compensation; and that Pearson, having been chamberlain to the late Earl of Annandale in Ireland, and after his decease, being continued by Sir Robert, to whom the Earl, according to the law of Ireland, had disponed his estate by testament for payment of his debt, that the charger had intromitted with certain rents of these lands, which he referred to his oath, and craved compensation; who deponed and acknowleged his intromission, but alleged he ought to retain these rents, and have compensation in his own hand, by certain bonds due by the said Earl to John Greg, whereupon he is assignee; and the said Sir Robert being, by the disposition, liable to the Earl's debt, ought to allow the same.—It was answered, That these debts were not liquid by any sentence, and that no chamberlain, nor any other servant or depositary, could take assignation to his constituent's debts, and crave compensation thereupon; because the chamberlain being a servant, the property of his intromission remained in his master, and he could not refuse to deliver the same, whensoever demanded.
The Lords found that the chamberlain could not retain or compense his intromission, by any of his constituent's debts, assigned to him after his intromission.
