Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

William Wright
v.
George Sheill

Date: 25 July 1676

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In a removing, pursued at William Wright's instance, as being infeft upon a comprising in some tenements of land in Leith, wherein George Sheill being likewise infeft, and also pursuing for maills and duties, both causes being advocated;—it was alleged for George Sheill, That he ought to be preferred; because his comprising was at his instance, as assignee constituted by John Sheill in Carlourie, to several debts due by John Sheill in Leith to him; and thereupon having obtained decreet, the same was suspended upon compensation; in so far as the said William Wright, cedent, was debtor, by contract of marriage and other bonds, in as much as the sums contained in the comprising; and so in law did extinguish that debt, and the comprising led therefor.

It was answered, That the compensation could not be now received after sentence; being contrary to the 141st Act, Parl. 12, James VI, and comprising following thereupon, which is now expired.

It was replied, That the decreet being for null defence, and suspension raised upon that same reason of compensation, which hath never been distrusted, may be here repelled, as not falling within the Act of Parliament.

The Lords did prefer the compriser; and found, That, after a decreet and fifteen years' possession of an expired comprising, compensation could not be received in a real action of removing, or for maills and duties; but prejudice to George Sheill, who was heir to John Sheill, for whose debt the land was comprised, to be reponed against the decreet, whensoever he should pursue a declarator of reduction upon the grounds of compensation.

Page 572.