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John Gordon elder of Fechil v Captain Melvil. [1697] Mor 2642 (9 July 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor0702642-104.html Cite as:
[1697] Mor 2642
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIV.
Compensation or Retention not Proponable after Decree.
John Gordon elder of Fechil v. Captain Melvil
Date: 9 July 1697 Case No. No 104.
A party in a suspension of a decree in foro, proponed compensation, which had emerged after the decree; so that here it was not industriously omitted to be proponed prima instantia, animo protelanai litem. The Lords, nevertheless, found the statute general, and repelled the compensation.
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In a suspension given in by John Gordon elder of Fechil, against Captain Melvil, of a decreet in foro; one of the reasons was founded on a compensation emergent after the decreet; it was acknowledged that any grouud of debt standing in his person before the decreet could not be obtruded by way of compensation, because it was competent and omitted, and presumed to have been omitted purposely to procure a new delay by suspension; but this was a debt Fechil had purchased an assignation to after the decreet, and was not fraudulently omitted and kept up. Answered. The act of Parliament discharging compensations to be received in the second instance, makes no distinction when it was acquired; and the buying in of debts is no very favourable thing; and the Lords have found even compensation unreceivable in the second instance, though the decreet was in absence, Wright contra Sheill, No 102. p. 2640. The Lords repelled the compensation, reserving his action thereon against Melvil, as accords; whereby Fechil was at this disadvantage, that he was forced to pay, and Melvil was vergens ad inopiam, and so had little hopes of recovering what he now claimed to compense him with.
Fol. Dic. v. 1. p. 165. Fountainhall, v. 1. p. 784.
