Scottish Court of Session Decisions

Subject_1 COMPENSATION - RETENTION.
Subject_2 SECT. I.

Nature of Compensation.

Lees
v.
Dinwiddy

Date: 10 December 1707
Case No. No 4.

A creditor having proceeded to poind, bona fide, not knowing of his debtor's death; in a process for restitution at the instance of an executor-creditor, compensation or retention was sustained to the poinder upon the debt due to him by the defunct, which was the foundation of the poinding.

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Lord Minto reported Lees and Dinwiddy, merchants in Glasgow. Robert Dinwiddy being creditor to Ninian Glass by bond, he poinds a gabert-boat and some barrels belonging to him. James Lees being also a creditor to Glass, and confirming himself as executor to him, he pursues Dinwiddy for restitution of the poinded goods to him, as executor; because the poinding was unwarrantable, Glass having gone abroad, and was dead in Holland before that; and probation being led, it was found the poinding was after his death; and so the Lords declared it null, though it could be no spuilzie, the poinder being in probable ignorance of his death. Then Dinwiddy finding that Janet Kelburn, the debtor's relict, was confirmed executor before James Lees, and she not called, the relict, and he, repeated a reduction of his confirmation, that it was null, because there could not be two principal testaments to the same defunct, and on the same subject; but ita est she was confirmed before Lees, and all he could have done was to take a dative ad omissa.——The Lords found, though this practice was common in the inferior commissariots ob commodum curiœ, yet it was never done by the Commissaries of Edinburgh, and ought not to be allowed; and therefore annulled James Lee's confirmation, for not calling the principal executor thereto. The third point that occurred here was, Kelburn the relict pursued Dinwiddy before the Commisssries, for restoring the goods, as being in his hands now sine causa. Alleged, I must have compensation, because your husband, to whom you are executor, was my debtor in more, which I instantly instruct by his bond. Answered, You cannot exhaust the inventory of the testament, there being many other creditors besides you. The Commissaries sustained the compensation, and assoilzied Dinwiddy from her pursuit. This Lees quarrelled, on this ground, that the Commissaries had unjustly sustained the compensation, and she had, by collusion, suffered him to be assoilzied, to his prejudice, who had cited her before that absolvitor; for law has secured creditors of defuncts, that taking assignations to his debts, after his decease, shall not found a compensation against their executors farther than the debt was of its own nature privileged, or by diligence preferable; else this might lay down a ground for an unlawful gratification and preference of one creditor before another; and it was so decided, Thomas Crawford contra the Earl of Murray, infra, h. t. and the Children of Mouswal contra Laury, infra, h. t. Answered, The Commissaries did most justly; for there is a great difference betwixt a partial and a voluntary taking of an assignation, and being creditor ab ante and proprio nomine; and his citation is not to be regarded, the testament whereon it is founded being found null, it must fall in consequence. Replied, Though his confirmed testament was not sustained, for his omitting to call the principal executor, yet the citation on a null summons has been found good for an interruption. Duplied, It may indeed serve to interrupt prescription, which is odious, but not in a competition among creditors Triplied, He has no interest to found on the wife's confirmation, seeing he derives no right from her. Quadruplied, It is very competent to me to allege upon my absolvitor, in respect of my compensation sustained.——The Lords found the allegiance competent to Dinwiddy, and that he behoved to have compensation upon Ninian Glass's bond to him, and so preferred him to Lees, and assoilzied him from Lees's reduction.

Fol. Dic. v. 1. p. 159. Fountainhall, v. 2. p. 402.

*** See This case voce Executor.