Scottish Court of Session Decisions

Subject_1 COMPENSATION - RETENTION.
Subject_2 SECT. XVII.

Effect of Compensation, of Retention, of Re-compensation in instances not included in the Preceding Sections.

Balmerino
v.
Sir William Dick's Creditors

Date: 14 July 1664
Case No. No 140.

Before litiscontestation or decree, the defender may passfrom his defence of compensation, so as to be at liberty to use the writ upon which he might compensate to any other purpose.

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James Gilmor, for the use of the Lord Balmerino, being infeft in the lands of North Berwick, upon a right from Sir John Smith, who had right from Sir William Dick, pursues the tenants for mails and duties. Compearance is made for Sir William's other creditors, wadsetters and apprisers, who allege absolvitor, because the pursuer's right is extinct, in so far as Balmerino being debtor to Sir William Dick, and charged by him, had acquired this right from Sir John Smith, to compense Sir William, and did actually compense him, by alleging the same reason of compensation, producing the disposition then blank in the assignee's name; whereupon the letters were suspended simpliciter, and my Lord assoilzied; and the disposition given up to Mr Alexander Dick, which is instructed by the testimony of William Downie, clerk at that time. Balmerino answered, First, That William Downie's testimony could not make up a minute of decreet, where there were no process, nor adminicle to be seen. 2dly, Though the minute of the decreet were lying before the Lords, not being extracted, the Lord Balmerino might pass from his reason of compensation, and take up his disposition, which is always permitted before litiscontestation, or decreet; and litiscontestation is never accounted until the act be extracted: So that there being no act of litiscontestation extracted in the said process, but only an alleged minute of a decreet without an act, neither party might resile. 3dly, Though the suspender might not resile simpliciter, yet it is still competent to him, to propone a several reason of suspension before extract, being instantly verified; and now he propones this reason, that the debt owing by him to Sir William Dick, is a public debt, and the Parliament has suspended all execution thereupon, till the next Parliament; which by consequence liberates him from, making use of, or instructing his reason of compensation. The creditors answered, It was most ordinary for the Lords to make up minutes by the testimonies of the clerks, when they were lost. So that William Downie being a famous clerk, his testimony must make up the minute, after which the Lord Balmerino cannot resile from his reason of compensation, or take back the disposition, seeing it was his own fault he did not extract it, and cannot make use now of a supervenient exception, that was not at that time competent, in prejudice of their creditors, Balmerino being now in a much worse condition.

The Lords found, That the Lord Balmerino might now propone a reason of suspension emergent on the late act of Parliament, and pass from his reason of compensation, and take up his dissposition, seeing it did not appear that the process was miscarried through Balmerino's fault, or that the disposition was delivered to Mr Dick, neither of which did appear by William Downie's testimony.

Fol. Dic. v. 1. p. 168. Stair, v. 1. p. 214.