Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIII.
Real and Personal Rights, Whether Mutually Compensable.
James Daes of Coldingknows v. Johnston of Hilton and Mother
Date: 13 January 1697 Case No. No 97.
Found that a moveable bond might compensate and extinguish one heritable, by decree of comprising, but not e contra, unless it were loosed and made moveable by a requisition or charge.
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I reported James Daes of Coldingknows against Johnston of Hilton, and his mother, for the teind-duties of Huttonhall; out of which Hilton craved allowance and compensation for the sum of 3,650 merks he had paid as cautioner for Wamphray, Mr James's author, in the right of the teinds. Alleged, The compensation can only begin after the date of the bond of corroboration given for that debt by Wamphray to Hilton in 1678, wherein the bygone annualrents are accumulate, and Wamphary acknowledges himself then debtor in the sum, which is an evident renunciation and passing from any ground of compensation he then had; for quorsum all this security of a corroboration, if the debt was extinct by compensation before granting the same? And it was not Hilton's fault, that the teind-duties lay in his hand; for they were arrested, and he knew not whom to pay to, till he raised a multiple-poinding, and called all the competitors: And compensation is presumed from the tacit acquiescence of parties, but not that they would insensibly moulder away a sum bearing annualrent with one that carried none. Answered, The principles of law were clear, that compensation took place, ipso momento there came to be a concursus debiti et crediti between the parties; and though it cannot be applied, without being sought and proponed, yet how soon it is founded on, it draws back to the time when the two rights came to be together: And the Lords found it so, that it commenced from the date that Hilton acquired the debt, wherein he was cautioner for Wamphray, and did not begin at the bond of corroboration, which being no innovation of the debt, cuts off no defence of payment, or other defence competent against the bond corroborated, unless it expressly renounced the compensation. The Lords also found a moveable debt might compense, and extinguish an heritable one due by a comprising, but not e contra, unless it were loosed and made moveable by a requisition or charge.
Fol. Dic. v. 1. p. 164. Fountainhall, v. 1. p. 754.
