Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XVI.
Effect relative to Prescribed Debts.
Robert Herries in Forberliggit, v. Sir George Maxwell of Orchyardtoun
Date: 18 January 1712 Case No. No 137.
In an action for payment of a bond, the defence of compensation upon a debt once due by the creditor pursuing to the debtor, prescribed quoad modum probandi, and referred to the pursuer's oath, was repelled; unless the defender would offer to prove, also by the pursuer's oath, that this debt is still resting.
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In the action at the instance of Robert Herries, against Sir George Maxwell, as representing Sir Robert Maxwell his father, for payment of L. 260 of principal, with penalty and annualrent contained in a bond granted by him to Janet Affleck in Midtoun of Spots, and assigned by her to the pursuer her son. The defender proponed compensation, upon this ground, That he offered to prove by the pursuer's oath, that his cedent possessed the lands of Spots, as tenant to the defender's father, for more years than the rent thereof would satisfy the bond.
Alleged for the pursuer; It being more as 30 years since his cedent possessed these lands, the defence of compensation upon her possession ought to be repelled; unless it be offered to be proven by the pursuer's oath, that these years rents of the lands possessed by his cedent are still resting owing, they being prescribed quoad modum probationis.
Answered for the defender; From the very terms the rents fell due, they compensated and extinguished the bond, by the course of debit and credit bewixt the parties, as effectually as if the pursuer's father had got a discharge thereof; and though action for these rents be prescribed as to the manner of probation, the defence of compensation thereon is perpetual, and must be sustained, unless, that the pursuer can prove that the rents were aliunde paid.
The Lords repelled the defence of compensation, unless the defender offer to prove by the pursuer's oath, that the rents of the lands possessed by his cedent are still resting owing.
