Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. III.
Quod statim liquidari potest pro jam liquido habetur.
James Brown v. Mr John Elies
Date: 14 January 1686 Case No. No 24.
Compensation being proponed against a charge of a liquid debt, on the pursuer's father's intromission with a sum of money belonging to the suspender, the Lords allowed the suspender 5 weeks to prove his ground of compensation.
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Mr John being charged on a clear liquid bond granted by him to umquhile William Brown, and assigned by him to his son James; he craved compensation, because William Brown the cedent was debtor to him, in so far as Elieston entrusted his name in an assignation of a debt owing him by Gordon of Buckie, and Macintosh of Borlam, and which trust did appear from his own compt-books, and an oath he had given in another process; and it was offered to be proven, that by virtue of this trust he had uplifted and intromitted with sums of money equivalent to this charged for. Answered, That compensations by the 143d act, Parl. 1592, must be de liquido in liquidum, and instantly verified, which this was not; and therefore the letters behoved to be found orderly proceeded, and his compensation reserved to him as accords. Replied, That brocard of the instant verification of compensations is not to be understood in rigore Judaico, but cum aliquo temperamento; lawyers laying down this for a principle, that quod statim vel intra breve tempus illiquidari potest habetur pro jam liquido; as cigendus pro cincto; et dies inchoatus pro completo in favorabilibus; and that Menochius, lib. 2. centur. 1. casu 14. debating how long time ought to be granted for liquidating a debt whereon compensation is craved, tells, that Bartolus ad l. 46. § 4. D. de jure fisci, allows two months; but he places it in arbitrio judicis; and the Lords, in the case of Seton, No 23. supra, allowed three months; and though this pursuer be an assignee, yet the compensation must meet him, whether the assignation to his son be gratuitous, or onerous, for relief of cautionries; it being undoubted law, that exceptio quæ obstat cedenti obstabit et cessionario; the reason whereof is, quia exceptio compensationis non cohæret personæ sedrei, and so extinguishes the debt pro tanto, et transit etiam in singulares successores. The Lords, on this debate being reported, would not tie Elieston to prove instantly his ground of compensation, though it was his reason of suspension; but being in facto, allowed him till the first of February to liquidate the same. And on a bill they prorogated it to the 20th of March.
November 20.—Mr John Elies, in his cause with Brown, mentioned 14th January 1686, gets a new diligence against M'Intosh of Borlam, to produce the writs for proving the compensation, though the day was elapsed, and that to the 10th of January; because lying in the Highlands, he did not obtemper the laws. I think it were a just certification to force witnesses to compear, and discover the truth, (which is a duty introduced in societies jure gentium) and for parties to produce writs; that if they do not, they shall be liable for the debt, and damages to the party.
Fol. Dic. v. 1. p. 160. Fountainhall v. 1. p. 391. & 429.
