BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Sibbald v Turnbull. [1683] Mor 2608 (00 January 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Mor0602608-058.html Cite as:
[1683] Mor 2608
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. VI.
Retention, its effect relative to Onerous Assignees.
Sibbald v. Turnbull
1683.
January. Case No. No 58.
A man being first debtor, and thereafter becoming cautioner for his creditor in a bond for the like sum, bearing a clause of relief, and the creditor having, after the cautionry, assigned the bond, and it being intimated, the Lords sustained compensation and retention, in respect that the compenser was creditor by the clause of relief, prior to intimation of the assignation.
Click here to view a pdf copy of this documet : PDF Copy
One being pursued on his bond, at the instance of an assignee, proponed compensation or rather retention, in so far as he stood engaged as cautioner for the cedent before the assignation.
Answered for the pursuer: Relief of cautionry becomes not a stated debt, which might be the ground of compensation till distress; and there was no distress here before the assignation; and the distress thereafter is not relevant, the cedent being then denuded; and compensation should be inter eosdem.
Replied: The Lords are still in use to sustain retention for cautionry without distress; and here the defender being debtor to the cedent, was thereafter induced, upon that account, to be cautioner for him; and the assignation was made by a father to his own son.
The Lords sustained the defence of retention.
Fol. Dic. v. 1. p. 162. Harcarse, (Compensation.) No 256. p. 61.
