Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIII.
Real and Personal Rights, Whether Mutually Compensable.
Home v. Home
Date: 12 November 1675 Case No. No 92.
Compensation was not sustained up a wadset, which contained a clause of requisition; because, until requisition, there was no debt.
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Home of Plendergaist pursues Home of Linthill, as representing his father, for payment of a debt of his, which was assigned to Patrick Andrew; the pursuit was founded upon a ticket by Linthill's father, bearing, That he had received a bond of L. 1,200, payable to him for the behoof of John Home, within five weeks after the date; and having a cautioner, Linthill cannot produce the bond. The question is, Whether, he should be liable for annualrent on this ground, that it was to be presumed, that the band of L. 1,200 having a cautioner, did bear annualrent, which then was ordinarily insert in bonds.
The Lords found that the presumption was not sufficient to infer annualrent, seeing the term of payment was within five weeks.
All the parties and witnesses were dead, and Linthill was examined, whether he knew that the bond bore annualrent, which he denied. There was also compensation proponed upon an apprising led against Colonel Home, to which Linthill was assignee, and upon a wadset.
The Lords sustained the compensation upon the apprising for the principal sum and annualrent; but in respect the ground of it was one of the bonds given by the friends of the Earl of Home, for purchasing a right of teinds, whereof Linthill was one, and got the disposition in his name; therefore the Lords allowed no further Sheriff-fee nor penalty than Linthill should depone he gave out. They did also refuse to sustain compensation upon the wadset, if it contained a clause of requisition, unless requisition were made, as not being liquid.
