The Law of Bankruptcy, Insolvency, and Mercantile Sequestration, in Scotland (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1845 edition. Excerpt: ... ditor has only got a dividend, pursue him for the full counter debt. Baillie v. Young, 22d Dec. 1837, 16 S. 294. This was a very peculiar case. The bankrupt had been discharged on a composition contract. Having paid a composition on certain bills, he obtained decree for a debt in an action against the person standing in right to them, the cause of action having arisen before the sequestration. It was on these facts found by verdict of a jury, that the bankrupt's discharge was fraudulently obtained, and it was reduced quoad the interest of this particular creditor. The result was, that compensation being allowed to act, tho bankrupt was found to be still debtor in the excess of the claim against him over that for which he had obtained decree against the creditor, deducting the amount of the composition. When there is a concurrence of debts before bankruptcy, it is essential to the principle of compensation, that neither the creditors at large, nor the bankrupt himself should be entitled to exact full payment and give only a dividend in return. sect. 2. retention of money. Retention distinguished from Compensation and Lien.--The proper foundation of the law of compensation is, not that the party pleading it has a security for payment of his debt, or is in possession of a fund out of which he may pay himself, but that by the concourse of debt and credit both debts are paid and extinguished. It is hence a necessary element in the operation of compensation, that both the debts should be liquid at the time when the compensation exists. But there are circumstances in which a person may retain money he is due to another in security for a liability of that other person not yet liquid and exigible; and as this cannot proceed on the principle of a...