Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. II.
What understood to be a Liquid Claim.
Lairds of Tulliallan and Condie v. Crawford
Date: 17 June 1664 Case No. No 12.
A debtor being obliged to deliver a certain quantity of coals weekly, or, in case of failzie, four pounds for each chalder; this sum was not found liquid, to be the foundation of compensation, not being constituted expressly as a price, but being a personal failzie beyond the ordinary price, which could not be liquidated till declarator and modification of a Judge.
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The Lairds of Tulliallan and Condie, as Having right from him, pursue declarator of the expiration of an apprising, led at the instance of ——— Crawford, to which Margaret Crawford his daughter has now right, and condescend, that the sum apprised for was satisfied within the legal by compensation, in so far as Tulliallan had right to a contract, whereby Crawford, the appriser, was obliged to deliver so many chalders of coal weekly; or, in case of failzie, four pounds for each chalder. It was alleged for the defender, That this article of compensation ought to be repelled, 1st, Because the said contract is prescribed, 2dly, The apprising proceeded upon a decreet of count and reckoning, wherein an allegeance, being founded upon the same contract, was past from pro loco et tempore, and so can never now be made use of to take away that decreet, much less the apprising, against a singular successor, who seeing the same past, in tuto; to take right without the hazard thereof; 3dly, The defender cannot be obliged, after forty or fifty years time, to prove the delivery of an yearly duty of coal; 4thly, The compensation is not de liquido in liquidum, because the one is a personal contract, the other is an apprising and infeftment; the one hath not a liquid price constitute, but bears expressly, such a sum in case of failzie, and not as the price, which being much more than the ordinary price then, is but a personal failzie, which cannot be liquidate till declarator and modification of a Judge. The pursuer answered, That he was evicting the rigour of an apprising in causa maxime favorabili. And as to the first allegeance anent the prescription, offers to prove interruption by arrestments, &c. To the second, not relevant; according to the custom, before the years 1649, competent and omitted, was not relevant against decreets of suspension; but suspenders might either omit, or pass from their reasons, and suspend upon them again, which could not but be as well effectual against the assignee as the cedent. As to the third, this article being instructed by writ, no presumption, nor less time than prescription, could take it way: To the which, the coals having a liquid sum in lieu thereof, the article is liquid; and, as payment within the legal will annul an apprising, so will compensation, which is equiparate in law, though the case would not be alike in a wadset against a singular successor.———The Lords found the defences against this article relevant, viz. that the article was not liquid by a sum, constitute expressly for a price; and that it being alleged, that, in the decreet, this allegeance was past from, and an express reservation that it might be made use of against any other just debt than that which was in the decreet, whereupon the apprising proceeded.———The Lords had also consideration, that the legal of the apprising was not yet expired.
