Improbation by action being succumbed in, hinders not to propone compensation.
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Captain John Binnie, as assignee to a bond of Gibson's of Clayships, pursues him for payment, who alleged, That the pursuer having raised improbation of this bond, and succumbed, he could propone no other defence; because, exceptio falsi est omnium ultima.—It was answered, That here there was no exception, but an action.—The pursuer replied, That there is par ratio, that parties be not encouraged to propone falsehood, which is a common exception, and would breed long delay, and would be ordinary, if, after they succumb therein, they might propone other allegeances, by way of defence.—It was duplied, That, albeit the allegeance of falsehood might exclude allegeances of payment, as inconsistent, yet it cannot exclude compensation, especially where the bond in question was old.
The Lords found, that an action of improbation against an old bond did not exclude compensation against the same, after absolvitor in the improbation.
Fol. Dic. v. 2. p. 188. Stair, v. 2. p. 526.*** Gosford reports this case:
In the action depending at the instance of Binnie against Gibson, for payment of a sum of money contained in a bond, there being a defence of compensation proponed, it was replied, That no defence was now competent to elide the said bond; because, the defender had intented an improbation, wherein he had led full probation; and finding that he was like to succumb, hath not farther insisted; so that, not having prevailed, he can never farther be heard in this action, to propone a defence to take away the debt.—It was duplied, That, albeit in our law, as to all titles and executions, produced for instructing a process, exceptio falsi est omnium ultima, and the defender cannot recur to any new defence, yet where the improbation was intented via actionis, it did not hinder the debtor, when he is pursued for payment, to propone all other defences, to take away that bond, and debt therein contained.—The Lords did consider this as a general case, and sustained the defence of compensation founded upon, notwithstanding of the action of improbation, upon these reasons, that exceptio falsi est omnium ultima, and did exclude all other defences, but that was not to be extended to a prior action of improbation; 2do, That in that prior action, there was no decreet, condemnator nor absolvitor, but the action passed from; yet, if there had been a decreet, the case had been a little harder.
Gosford, MS. No 978. p. 658.*** Dirleton also reports this case:
The Lords found That a party, being pursued as representing his predecessor, for payment of the sum due by a bond, might propone a defence of payment, notwithstanding that he had, before, pursued an improbation of the said bond; in respect the bond being ancient, and not granted by himself, he was in bona fide to pursue improbation of the same; and thereafter it appearing to be a true bond, he may also allege payment; giving his oath of calumny upon the defence.
