A bill prescribed found due, the debtor acknowledging the debt, but adding that it was for wine which was useless, and which had been admitted by the creditor to be so.
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Robertson pursued Clarkson for payment of a bill which had undergone the sexennial prescription; so that the debt contained in it could not be proved but by the oath or the writ of the debtor. What the latter alleged, and offered to depone, was, that the only value he got for the bill was a quantity of wine, which on trial he found to be totally unfit for use; That he recently intimated this discovery to the seller, who satisfied with the information, signified how unnecessary it was to return the wine, as the price of it would not be demanded; and that in a vain attempt to meliorate it, he had expended a considerable sum. Accordingly these allegations were understood as if made upon oath.
Pleaded for the pursuer; The defender has acknowledged the debt; and though he likewise alleges that he suffered loss from a defect he discovered in the quality of the wine, this exception, which is really a plea of compensations is extrinsic to his admission, and cannot be established but by a separate action.
Answered; In a question which relates to the constitution of a debt, it cannot be an extrinsic exception, that the debt never existed. And this is truly the plea of the defender, who only says so in explicit terms when he describes the absolute uselessness of the subject, from the real value of which alone the debt could have arisen; and who affirms that he recently made an offer of returning the wine, which was refused.
The Lord Ordinary “sustained the defence of the sexennial prescription;” but the Court altered that interlocutor, and
“Repelled the defence of prescription.”
A reclaiming petition for the defender was afterwards refused, without answers.
Lord Ordinary, Ankerville.Act. J. Grant.Alt. D. Armstrong.Clerk, Menzies.
Fol. Dic. v. 4. p. 206. Fac. Col. No 156. p. 279.
