Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIV.
Compensation or Retention not Proponable after Decree.
Wright v. Sheill
Date: 25 July 1676 Case No. No 101.
Compensation not receiveable against a decree in absence, unless where made null and turned into a libel.
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William Wright, as assignee by John Sheill in Carlourie, to several bonds addebted to John Sheill in Leith, obtained decreet before the Sheriff of Edinburgh in anno 1662, against George Sheill, brother and heir to John Sheill, wherein he appriseth certain tenements in Leith, and now pursues for mails and duties thereof. The defender alleged, That he had raised reduction of the Sheriff's decreet upon compensation, by a debt due by John Sheill in Carlourie, the pursuer's cedent, to John Sheill in Leith, and takes the same away by compensation, so that the ground of the apprising being extinct, it falls in consequence; likeas, shortly after the apprising decreet is obtained, establishing the debt both active and passive, whereupon compensation is founded, albeit the very concourse of the two sums ab initio inter easdem personas was sufficient for compensation when proponed. The pursuer answered, That the allegeance of compensation ought to be repelled, because it was not proponed ante sententiam, conform to the act of Parliament 1592, cap. 143. It was replied, That that act was only to be understood of decreets in foro, against which, by the course of process then allowed, competent and omitted was not relevant against suspensions or reductions; but that whatever was omitted in the first instance, might have been proponed in the second by suspension or reduction, which the foresaid act only obviates as to compensation, that it shall not be received in the second instance, which doth import that compensation is only excluded against a decreet in foro, unless it be proponed before sentence; but the decreet in question is a decreet in absence, and accordingly de consuetudine compensation hath been ordinarily admitted by way of suspension; and if it were otherways, great inconveniencies would arise, for parties might obtain decreets, stolen through clandestinely by citations at dwelling-houses, carrying away the copies, or against parties out of the country; and in this case, the defender offers to depone upon his oath, that he never knew of the citation whereupon this decreet proceeded. The pursuer duplied, That he opponed the clear act of Parliament relating to all Judges within the realm, who are to admit compensation by way of exception, but the same is never to be admitted, after the decreet is given, by suspension or reduction, nor is there any ground to limit the decreet in foro, upon pretence of competent and omitted, whereof there is no mention in the statute; and if the decreet itself had been in foro, nothing then competent was receivable afterward by suspension or reduction, by law or custom ancient or recent; but when the defender was absent in the principal decreet, if he compear in the second instance by suspension, and insisted on any reason, one or more, though he succumbed therein, yet he might raise a suspension on other reasons, and the decreet of suspension in foro did not exclude the same in subsequent suspensions, as competent and omitted in the decreet of suspension in foro; but if the principal decreet was in foro, competent and omitted was always sufficient against any suspension or reduction thereof; and therefore the common course was to be absent in the first decreet, and to suspend as oft as particular reasons could be founded on, to the great vexation of the people, and delay of justice, which therefore is well remedied by the late act of regulation, declaring, That whatsoever was competent and omitted against any decreet principal, or decreet of suspension in foro, shall not be received thereafter; and therefore the excluding of compensation post sententiam by this statute, is chiefly in relation to decreets in absence, for if the decreet was in foro, the common exception of competent and omitted, which was always in vigour against the first decreet, would have excluded compensation, yea payment itself, and so the statute was needless, unless it had been to exclude compensation against decreets in absence.
The Lords found that compensation was not receivable against decreets in absence by the foresaid statute, unless the decreet were made null, and turned into a libel by improbation of the executions, or by fraudulent and clandestine taking away of the executions, or any other nullity.
