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One being pursued for a sum addebted by the defender, and which was referred to his oath, and the defender granting the debt, but in his oath declaring, that the debt was not owing, in so far as the pursuer had intromitted with the farms and duties of the lands of the defender diverse years, which were possessed by the pursuer, he retaining the duties unpaid, and which he compensated with the defender for satisfaction of his debt now acclaimed; the Lords allowed of this compensation, and, in respect of the oath which proported the same, they assoilzied him from this pursuit, which was so found, albeit this was an exception proponed by the defender, not instructed, but sworn by himself, it being neither referred to his oath, nor yet otherwise qualified by the deponer, who granting the debt for which he was pursued, made himself free by affirming of another debt owing by the pursuer, which was neither instructed nor liquidated; neither was it shown, that the pursuer possessed these lands, nor what farms should have been paid therefor, nor what were the prices of the farms these years, nor that the deponer had right thereto, without which there could be no compensation; nevertheless, this being deponed by the party, it was found sufficient to liberate him of this liquid sum confessed to be owing, and elided only by the said compensation; and it was found, That the deponer, by his qualified oath, might propone and swear his own exception.
Act. Gibson.Alt. Nicolson & Cunningham.Clerk, Hay.
Fol. Dic. v. 2. p. 300. Durie, p. 444.
