Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. III.
Quod statim liquidari potest pro jam liquido habetur.
John Seton v. -
Date: 22 November 1683 Case No. No 23.
In a pursuit on a liquid bond, compensation was pleaded on a charter party betwixt the pursuer and the defender's husband. The Lords decerned for payment of the bond, but superceded extract for 3 or 4 months, that the defender might have an opportunity to liquidate her ground of compensation, by proving, that her husband had performed the voyage.
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John Seton in Aberdeen, charges the relict of ———, on a clear bond; alleged, her husband, by a charter party with the said John, was creditor to him for the freight, because he had plied the voyages. Answered, This was not compensatio de liquido in liquidum, because his plying the voyages abode probation; which answer, the Lords having sustained, they offered to prove the plying the voyages by the charger's oath, which is an instant verification; and the act being thus extracted, yet the Lords on a new bill, allowed it to be proven prout de jure; seeing quod mox potest liquidari habetur pro jam liquido; they only decerned, superseding extract for three or four months, that if the debt be liquidate betwixt and that time, then the compensation was to be received; which was reversing the act, stopping a liquid debt upon an illiquid compensation; and allowing a term to liquidate it, which is agere id indirecte quod directo fieri prohibetur; and though it be materially just, yet it is a great relaxation of our antient form. See the contrary decided in Durie, 1st December 1626, Balbegno, No 20. p. 2564.; and 6th December 1622, Campbell, No 21. p. 2565.
Fol. Dic. v. 1. p. 160.
Fountainhall, v. 1. p. 244.
