In a suspension upon the reason of compensation, the charger proponed, and thereafter proved recompensation. The letters were found orderly proceeded against the principal party, but suspended quoad the cautioner, the grounds of re-compensation not having been liquidated until after suspension.
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More having charged Finnison for payment of a sum of money, conform to his bond, he suspended upon a reason of compensation, and found ——— cautioner in the suspension; and the suspension having come in the last Session to be discussed, the reason of suspension founded upon compensation was found relevant and proven, and the letters were suspended simpliciter; but the decreet of suspension having lyen over unextracted, the charger obtained a decreet against the suspender for the price of certain bolls of victual, and did now propone re-compensation, wherethro' the compensation was elided, and the letters found orderly proceeded against the suspender: The cautioner in the suspension gave in a bill craving, That he might be assoilzied, in regard the reason of suspension founded on the compensation, was found relevant and proven, but that the same was now elided by an emergent re-compensation, and instanced the case betwixt Mr Robert Colt and Somervell, and others, the 2d January 1683, No 70. p. 2143. The Lords suspended the letters simpliciter, quoad the cautioner, notwithstanding that it was alleged for the charger, that the ground of re-compensation was extant before the suspension, albeit it was not liquid till after the foresaid decreet suspending the letters.
Fol. Dic. v. 1. p. 128. Pres. Falconer, No 105. p. 73.*** Sir P. Home observes the same case:
John More maltman in Musselburgh, having charged Marion Johnstoune for payment of the sum of L. 100, contained in her bond; and she having suspended upon a compensation for the price of several barrels of ale, furnished by her to the charger, for which she had pursued him before the Commissaries of Edinburgh, and adduced witnesses for proving of the libel, which the Lords sustained, being de proximo liquidand. To which it being answered by the charger, That albeit the furnishing of the ale, and price, were proven, yet he ought to have re-compensation, because it was offered to be proven, that he had delivered to the suspender a considerable quantity of malt, the price whereof would amount to much more than the ale furnished to the charger, for which he had in tented process against her before the Bailies of Edinburgh. But in respect, it was not presently liquidate, the Lords repelled re-compensation; but thereafter, the charger having liquidate the price of the malt, by an decreet; and the suspender not having extracted the decreet of suspension, the charger gave in a petition craving, that the Lords would sustain the compensation founded upon the decreet; which, seeing it did take away the ground of compensation, the letters ought to be found orderly proceeded. And there being another petition given in by James Samuel, who was cautioner in the suspension, making mention, that albeit the re-compensation should be sustained to take away the compensation, so as to make the suspender liable for the debt, yet the cautioner ought to be free in respect the reason of suspension founded upon the compensation, was sustained, as was decided, Mr Robert Colt contra Somervell, No 70. p. 2143. The Lords found the letters orderly proceeded against the principal party, but suspended the letters as to the cautioner in the suspension, in respect the ground of re-compensation was only liquid, since the decreet of suspension at the instance of the principal party.
