Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIV.
Compensation or Retention not Proponable after Decree.
Hugh Corbet of Hardgray v. William Hamilton of Wishaw
Date: 20 March 1707 Case No. No 105.
Compensation being proponed after a decree in absence, the decree being against the party among many others, the Lords found, that a decree in absence against debtors excludes not compensation.
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Hardgray, as assignee to a decreet of the Commissaries of Glasgow, against Wishaw for 400 merks, contained in a ticket granted by him to the deceast William Anderson, Provost of Glasgow, pursued Wishaw for payment.
Alleged for the defender; Absolvitor, because, 1mo, The decreet was in absence, and intrinsically null for being pronounced in vacation time without a dispensation, by a commissary who is not competent to judge in actions above L. 40 Scots, except where the libel is referred to oath, and the ticket was prescribed. 2do, Compensation upon a bill drawn by Patrick Murray, clerk to the Fishery company upon Provost Anderson for 1200 merks payable to Wishaw, which the Provost, by a letter under his hand to Wishaw, acknowledged and promised to pay.
Replied for the pursuer; Compensation upon the bill and letters cannot be sustained, because both being holograph were prescribed by the elapsing of 20 years before any diligence done thereon. 2do, A decreet having followed upon the ticket; no compensation can be sustained thereafter. 3tio, There is no compensation in this case, because the bill on Provost Anderson was to have been allowed to him upon producing the possessor's receipt of payment in the first end of what he owed to the company: And Wishaw having neglected for 20 years to present the bill, or to offer a receipt in the terms thereof, Provost Anderson neither did nor could get allowance of the sum in the bill from the company.
Duplied for the defender; The bill and missive letter could not prescribe, because eo momento that they did exist, they ipso jure extinguished Wishaw's obligation; it being the nature and effect of compensation, to extinguish the concurring debts; and after extinction, it is absurd to talk of prescription by course of time; 2do, Wishaw had no reason to pursue them upon the accepted bill, for that he knew it compensed by his ticket; but now that he is pursued upon the ticket, he cannot be debarred from proponing compensation upon the bill; because, quod est temporale in actione, in exceptione est perpetuum; and in conformity with this brocard, the Lords decided in the cases of Gordon of Park contra Hay of Ranis, 1702; and Hay of Lochcoat contra Bonhard, 1703, see Process; 3tio, The act of Parliament excluding compensation after sentence, is only to be understood of decreets in foro, whereas the decreet founded on was in absence, pronounced by a Commissary, who was not a competent judge. Now Wishaw cannot be blamed for not compearing to propone his compensation, where he was not bound to appear; besides, the Lords have sometimes sustained compensation in a suspension, or by way of defence, even after a decreet in foro, where there was any probable cause for not proponing the same in prima instantia, as in the case of Earl of Marshall contra Brag, No 101. p. 2639. observed by Gilmour; 4to, Suppose Provost Anderson had never got allowance of the sum due by him to the Company, what is that to Wishaw, who hath his liquid acceptance and obligement to pay the bill, which, at the very date thereof, did concur with, and extinguish Wishaw's ticket for the equivalent sum? And if the Provost neglected to ask a receipt, (which Wishaw never refused) sibi imputet.
Duplied for the pursuer; The act of Parliament doth not distinguish betwixt decreets in absence and decreets in foro, in the matter of repelling compensation after sentence; and it had been needless to make any such act concerning decreets in foro, which were sufficiently secured by the regulation act concerning competent and omitted; therefore the statute excluding compensation after sentence, should only be understood to relate to decreets in absence, as was decided 25th July 1676, Wright contra Shiell, No 102. p. 2640.
The Lords repelled the reasons of prescription of the ticket pursued on, in respect of the decreet; but found, That the decreet being in absence, and against debtors, it doth not exclude the defence of compensation in the second instance; and found, That the compensation being proponed by exception, doth not prescribe; and therefore sustained the compensation founded on the precept and letter produced, and assoilzied.
Fol. Dic. v. 1. p. 165. Forbes, p. 158.*** Fountainhall reports the same case:
Hardgray, as having right by progress, pursues Wishaw for payment of 400 merks contained in his ticket to William Anderson in 1673.—Alleged, 1mo, It is prescribed by the act of Parliament 1669, being holograph, wanting witnesses, and not pursued for within 20 years after its date.—Answered, No prescription, because interrupted by a decreet obtained against you before the Commissary of Glasgow within that time.—Replied, The decreet was null, being supra vires, the instructions given to the Commissaries in 1666, limiting their jurisdiction to L. 40 Scots, except where referred to oath.——The Lords found this a sufficient interruption to stop prescription.—Then Wishaw alleged on compensation, because William Anderson, Hardgray's author, was debtor to him in the like sum of 400 merks, by an accepted precept drawn upon him by Patrick Murray, clerk to the Royal Company of the Fishery, in 1683; so at that moment there was concursus debiti et crediti, and his 400 merk ticket was extinct.—Answered, No compensation can be received now, because it is post sententiam, contrary to the act of Parliament 1592, ordaining it to be receiveable only before sentence; but so it is, there is a decreet against Wishaw for his ticket, and though it be in absence, yet even such decreets were found to seclude compensation in the second instance by way of suspension, Wright contra Shiell, No 102. p. 2640.; for quoad decreets in foro upon compearance, by the articles of regulations 1672, compensation could not be proponed against them, because it was debarred by being competent and omitted.—Replied, Where decreets in absence are recovered against one defender, and no others called, there was ground to seclude them from proponing compensation in the second instance; and yet even in that case, it was admitted, as Gilmour observes, Earl Marshall contra Brag. No 101. p. 2639. But there it was in a suspension of a decreet in a Baron Court; whereas, here Wishaw is called among many other debtors, and so might easily be ignorant of it; and the citations never came to his hand; and in such a case it were durissimum to reject his compensation; for if he got it not allowed here, he loses the debt for ever, Anderson being dead and broke.——The Lords found against such a decreet as this, That the compensation was yet receiveable.—Then Hardgray contended, This precept by Murray on Anderson, was extinct by the vicennial prescription, being holograph, and without witnesses, and never insisted on within the 20 years.—Answered, If Wishaw were pursuing on this accepted precept, Anderson or his assignee might very well reply, it is prescribed; but when it is proponed by way of exception, to elide their pursuit on this 400 merk ticket, no prescription can be intruded against it, though after 100 years silence, because I considered it as compensate with my ticket; and it is a rule in law, quod est temporale, and prescribeable when pursued, per viam actionis, the same is in exceptione perpetuum; and was so found in 1703, in the cases betwixt Sir John Gordon of Park and Hay of Ranis; and Hay of Lochcoat contra Bonhard, (see Process.)——The Lords found, it being only founded on by way of defence, it was not prescribed.
