Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. III.
Quod statim liquidari potest pro jam liquido habetur.
Stuart v. M'Duff
Date: 11 December 1674 Case No. No 22.
An exception of compensation proponed thus, viz. that the pursuer had intromitted with goods belonging to the defender, to the value of the debt, allowed to be verified instanter by writ or oath.
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In a pursuit for payment of a sum of money, it being alleged, That the pursuer had intromitted with moveables and goods, to the value of the debt libelled pertaining to the defender's father, for whose debt he was pursued; and that it was to be presumed, that he had got the said goods, in satisfaction of the same debt, unless he should allege and prove another cause;
The Lords found, That if the defence should be proponed in these terms, that the pursuer had got the said goods in satisfaction, and that they were data in solutum; the defence ought to be positive, and that the delivery of the goods was probable by witnesses; but the quality foresaid could not be proven otherwise, but by writ or the pursuer's oath: But if the exception was proponed, so as to infer compensation, viz. that the pursuer had intromitted with the said goods to the value of the debt; that it ought to be verified instanter by writ or oath.
Reporter, Castlehill.Clerk, Hamilton.
Fol. Dic. v. 1. p. 160. Dirleton, No 200. p. 89.
