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Cleland v Stevenson. [1669] Mor 2682 (5 February 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor0702682-141.html Cite as:
[1669] Mor 2682
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XVII.
Effect of Compensation, of Retention, of Re-compensation in instances not included in the Preceding Sections.
Cleland v. Stevenson
Date: 5 February 1669 Case No. No 141.
Compensation being sustained upon a decree, liquidating a quantity of victual, due by the charger to the suspender, the same was found to operate from the time the victual became due, and was not restricted to the date of the decreet.
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William Cleland charges John Stevenson upon a bond of 400 merks, bearing annualrent. He suspends on this reason, That the charger was owing him more for victual, being his tenant, which was now liquidated before this time, but after the date of this bond, and craved compensation thereupon, not only from the date of the liquidation, but from the time the victual-rent was due.
Which the Lords sustained.
Fol. Dic. v. 1. p. 167. Stair, v. 1. p. 598.*** Gosford reports the same case:
Stevenson being charged upon a bond granted to Cleland, for 400 merks, in anno 1646, did suspend upon this reason, That he was assigned to a tack-duty for the said year, due by Cleland to his father, whereupon he had obtained a decreet of liquidation in anno 1664, which ought to be drawn back to the year 1646, which was the time the tack-duty was owing; and so the question was, if the tack-duty, not being liquidate till the year 1664, should liberate from all bygone annualrents of the 400 merks, preceding the liquidation.——The Lords did find, That it ought to be drawn back and liberate from all annualrents, notwithstanding it was alleged, that until the liquidation there could be no compensation, which was only competent de liquido in liquidum; for albeit before the liquidation they could not have suspended to hinder payment, yet they found, that liquidation being made before the charge, it ought to be drawn back to its first cause to save from usury, which was odious; as likewise, because the charger, during all that time, had the benefit of the product of the victual, which was the tack-duty.
