Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIV.
Compensation or Retention not Proponable after Decree.
Viscount of Stormont v. Duncan
Date: 1 December 1626 Case No. No 98.
The Lords refused to admit compensation by way of suspension tho' instantly verified, since it was not proponed before sentence, tho' the suspender had then compeared, but proponed it not.
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In a suspension at the instance of the Viscount of Stormont, against a man of Mr Harry Chaip's, wherein the suspender offered compensation to a part of the sum contained in the sentence, which was suspended with a like sum owing to him, by the obtainer of the sentence; and which debt he instantly verified by production of the writ, bearing the debt subscribed by the charger, or by his cedent, before the assignation made to the charger, which was all one; for the Lords are in use to admit compensation eodem modo against the assignee, as against the cedent's self; The Lords would not admit this compensation by way of suspension, albeit instantly verified; seeing it was not proponed before the obtaining of the decreet, which the Lords found should be then proponed, and was not admissible after sentence; specially the sentence being given against the suspender, at what time it was competent, and should have been proponed, and he compearing then, and then not proponing it. The Lords found it not admissible by way of suspension, in respect of the 143d act, 12th Parl. James VI. which prohibits the same to be receceived by way of suspension (as was offered in this case), or by way of reduction. “I. C. Compensatio admitti potest post sententiam aliquando; nam est regula, quod ea peremptoria, quæ venit ad limitandam sententiam tantum, sed non impugnandam, potest opponientiam post sententiam, videtur etiam post sententiam opponi posse compensationem, ubi non requiritur altior indago, nam ibi actio est instar exceptionis.”
This decision agrees with the act of Parliament; but the same was never observed to my memory before this time; for the Lords have ever been in use to admit compensation by way of suspension, notwithstanding of this act of Parliament, which while now was not in viridi observantia. The like was done January 17th 1632, ——— contra ———, where compensation in a suspension was not received, after sentence given against the party compearing, the compensation being then competent before the sentence, and not then proponed. See Suspension.
Act. Chaip.Alt. ——Clerk, Hay.
Fol. Dic. v. 1. p. 165. Durie, p. 240.*** Spottiswood reports the same case:
In a suspension raised by the Viscount of Stormont against William Duncan, the Lords would not sustain compensation, albeit de liquido in liquidum, in respect the decreet sought to be suspended, was given in foro contradictorio, and that compensation being then competent, was not proponed before the giving of the said decreet. Fol. Dic. v. 1. p. 165. Spottiswood, (Compensation) p. 40.
