Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. III.
Quod statim liquidari potest pro jam liquido habetur.
Robert M'Dowal of Logan, v. Andrew Agnew of Sheuchan
Date: 31 July 1707 Case No. No 26.
Compensation was proponed upon a bond produced by the charger's father, which the suspender offered instantly to liquidate, by referring to the charger's oath, that he represented his father. The Lords found this relevant.
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In a cause at the instance of M'Dowal of Logan, against Agnew of Sheuchan, the Lords upon the 12th of June last, having found that Logan had right to uplift 2500 merks contained in Sheuchan's bond: He, the debtor, proponed compensation, upon this ground, that Logan was debtor to him, as representing Patrick M'Dowal of Logan his father, in the proportionable relief of a debt paid upon distress by Sheuchan, for which the said Patrick M'Dowal was bound conjunctly and severally with him; and offered instantly to prove payment to the creditor by his discharge, and to prove by Logan's oath, that he represents his father.
Alleged for Logan, That the compensation was not liquid, the compensing debt not being constituted against him as representing his father, by a decreet anterior to the allegeance of compensation, in which it would be competent to Logan to make his defences. So compensation upon a bargain of victual, offered to be liquidated by the pursuer's oath, was repelled for the like reason, December 1.1626, Lady Ballegerno against the Laird of Lauriston, No 20. p. 2564.
Answered for Sheuchan, To liquidate a debt, is only to make appear, quid, quale, quantum; and compensation opponed to an heir who is una persona cum defuncto, is inter eosdem. Compensation operates ipso jure retro, if proponed before extract of the decreet upon the debt to be compensed, though there be no decreet for the compensing debt; for, if the other party have any objections against it, he may presently propone them, Keith contra Heriot, infra h. t.; Forsyth contra Coupland, infra h. t. But the imaginary possibility of having objections against the compensing debt, cannot stop the real effect thereof. As to the decision cited for Logan, it doth not meet; for there the compensing subject being victual, and not money, and so alterius generis, did not compense retro from the time of the concourse to stop the annualrent of a liquid bond.
The Lords sustained Sheuchan's compensation, he proving by the charger's oath, that he is heir served and retoured to his father.
