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‘ Note. —This is a case of very old standing, and the record is certainly not so prepared as to bring very clearly into view the matters truly in dispute. But with the assistance of the minute lately given in by the parties, the Lord Ordinary thinks that there are means of arriving at a conclusion sufficient to exhaust the cause.
The Lord Ordinary has confined his interlocutor to the claim for the legacies due to Robert Kerr. As to them, there can be no doubt that compensation is pleadable on the balance due by the company to Cochran, the debtor in the legacies. The only question, then, is the amount to which it is to be sustained.
The balance due by Kerr and Son on the general accounting on the bill transactions is L. 838. But the Lord Ordinary thinks this must suffer a deduction to the amount of the sums paid to the Leith Bank by Kerr and Son, in consequence of their cautionary obligation for Stead and Paterson, and in which Cochran was their co-cautioner. The Lord Ordinary understands that these sums were paid before their bankruptcy, and as there is here no question of double ranking, there seems no reason to reject their claim of relief or recompensation against Cochran and his trustee.
On these grounds, the Lord Ordinary thinks that the claim of recompensation or retention urged by the pursuers must be confined to the sum paid by Kerr and Son before their bankruptcy to the Leith Bank.’
Lord Gillies .—If Kerr and Son had paid the bills altogether, they would clearly have had retention on them; now though they have paid a dividend only, I think they have retention to the extent of that dividend, otherwise the act of the holder of the bills in ranking on the estate of Cochran, which they could not prevent, would impair the security they held in relief. I think there is not here a double ranking as the Lord Ordinary supposes. The case is not the same as that of Chippendale, and I am therefore for altering the interlocutor, and sustaining the pursuer's plea of retention.
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Common Room
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