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Scottish Court of Session Decisions >>
Children of Wolmet v Ker. [1662] Mor 2557 (00 December 1662)
URL: http://www.bailii.org/scot/cases/ScotCS/1662/Mor0602557-010.html Cite as:
[1662] Mor 2557
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. II.
What understood to be a Liquid Claim.
Children of Wolmet v. Ker
1662.
December. Case No. No 10.
The plea of compensation was sustained, tho' the decree on which it depended, pronounced by the English Judges, was under review.
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Patrick Edmiston of Carden having comprised, from the Laird of Wolmet, the reversion of a wadset granted to James Loch, which the said James disponed by progress to Mr Mark Ker of Moriston; upon this comprising, Carden uses an order of redemption against Mr Mark, and pursues a declarator.—It was alleged, no declarator, because no consignation was really made, but simulately by money taken up again, and now at last the money should be consigned in the clerk's hands to be given up by the defender.—It was answered, The money was truly consigned, and whether taken up or not, it was nothing to the defender, seeing the pursuer must be answerable for it; and now he offers the equivalent, viz. to compense that money with a greater sum pro tanto resting to the pursuer by virtue of a right in his person, from the children of Wolmet, who have a sentence standing at their instance, against the defender for a greater sum.—It was replied, That the foresaid sentence could be no ground of compensation, because it lyes under question and review, as pronounced by the English Judges unjustly.
The Lords, before answer, ordained the defender to repeat his reasons of review against the reply of compensation or retention. In prœsentia.
