Scottish Court of Session Decisions

Subject_1 COMPENSATION - RETENTION.
Subject_2 SECT. XII.

Whether good against an Actio Depositi.

The Executors-Creditors of John Stuart, Merchant in Edinburgh,
v.
Mr Robert Stuart, Professor of Philosophy in the College of Edinburgh

Date: 16 July 1709
Case No. No 85.

A legacy being left to two brothers, the share of one them who had died, was deposited in the hands of the other. Found, that he could not retain for a debt due to himself, in competition with other creditors of the defunct.

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James Stuart advocate, one of the town clerks of Edinburgh, having, before his decease in January 1704, disponed and made over all his means and effects in trust to Sir James Stuart of Goodtrees his uncle, and Sir Hugh Cunninghame of Graigend his father-in-law, for the ends mentioned in the disposition; with a clause ordaining what remained of his estate, after payment of his debts and legacies, to be made furthcoming to his two brothers, John and Robert Stuarts, equally betwixt them; and John Stuart chancing to die a little aftet James; before the trustees had executed his will; they, the trustees, the 25th March 1705, ordered L. 6029, the superplus balance of James's free gear; to be put in Mr Robert's hands, to be kept and made furthcoming by him, to such as should be found to have best right. John Stuart's creditors confirmed his share of the money as executors-creditors to him; and pursued Mr Robert for payment.

Alleged for the defender; He being creditor to his brother John in a liquid bond of L. 730 of principal, and some bygone annualrents, ought to have retention in his own hands for his payment; especially considering, that the share of James Stuart's estate falling to his brother John, was never in bonis of John, but in the person of the trustees, who had the absolute disposal thereof after John's death, and were only liable to an action of trust at the instance of his creditors or representatives. And these trustees having put the money in the defender's hands, to be furthcoming to John's creditors, he might justly pay himself in the first place, by virtue of the delegation; as well as the trustees might have immediately paid the creditors with the money, as far as it would go, without necessity of confirmation.

Replied for the pursuers; Their debtor's share of his brother's means, was in bonis of the debtor, at his decease, and not then in the defender's hands; so that whatever way thereafter he attained possession, he could not retain for his Own payment, without establishing a title, by confirming himself executor-creditor. Creditors cannot, by any indirect means, prefer themselves to other creditors, doing diligence after the common debtor's decease, 8th February 1662, Crawford contra Earl of Murray, No 63. p. 1613.; and 14th February 1662, the Children of Mouswell contra Laurie, No 64. p. 2614. And the trustees could not transmit any title to John Stuart's effects, from whom they had no trust or powers to pay his debt. Besides, whether the right of John's share was in bonis ejus, or in the person of the trustees, they could never evacuate the trust, by giving his share, after his death, to any person wanting a title.

Duplied for the defender; Creditors cannot, indeed, by indirect means prefer themselves to others, and it is certainly a most indirect method, for a debtor to take an assignation to his deceased creditor's debts, in order to compense against the defunct's other creditors doing diligence, which is the case of the cited decisions; seeing this course would open a door to any creditor to operate his own preference, by colluding with a debtor. But here there is no such practice; on the contrary, the defender got the money fairly in his hands by the trustees, who had the only right thereto, and did truly apply it for the use they received it; 2dly, Suppose John Stuart had lodged in Mr Robert's hands, a sum to be expended by him, in paying John's creditors, is it to be imagined that Mr. Robert could not in that case have paid himself, after the debtor's decease, without confirmation? seeing, qui suum recipit, condictione non tenetur; much more must retention be allowed in this case, where in effect the money was never in bonis dejuncti, but the trust flowed from others. Again, as, had the money been put by the trustees in Mr Robert's hand, while John was alive, he, Mr Robert, would have good right of retention; so he must be allowed the like jus retentions against John's executors-creditors.

Triplied for the pursuers; The disparity is manifest; for putting the money in Mr Robert's hand in John's lifetime, would, ipso facto, have made an extinguishing concursus debiti et crediti, which could not happen by his getting the money after John's decease, which nothing but a legally established title could effect.

The Lords found, That Mr Robert Stuart had no right of retention for his own payment; and that the Creditors of John Stuart ought to be preferred to his share of the deposited money, according to the diligence used by them to affect the same.

Fol. Dic. v. 1. p. 164. Forbes, p. 348.