Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

John Martin
v.
Adam Livingston

Date: 12 December 1632

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John Martin, Englishman, having obtained decreet against Adam Livingston, before the admiral, for payment of twenty-one pounds sterling, for his service in a ship called the Lyon, which was referred to his oath, and confessed to be owing, and therefore decreet given against him; to which decreet, John Ker, in the Cannongate, being made assignee, and suspending upon compensation of eight pounds sterling, owing by the cedent to Livingston; which being reasoned, the Lords received the compensation, eodem modo, against the assignee, as against the cedent: but, because the ticket subscribed by the cedent, of the sum for which compensation was craved, was dated before the sentence, and the term of payment also before the sentence, and that the decreet was given against the suspender, compearing and granting the debt, being referred to his oath; at which time he neither proponed the said compensation, it being then competent, nor made no defalcation of the sum in that ticket, nor no mention thereof at that time;—therefore the Lords found, that it could not now be received against the sentence, after the same, and not being proponed before the decreet.

Gibson, Clerk.

Vid. 20th December 1632, Knox; and the cases there cited.

Page 659.