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.

Watson
v.
Cunningham

Date: 4 December 1675
Case No. No 143.

It was found, that money may be compensated by debursements of money from the time of debursement, or intromission with money rent, but not by victual or any prestation, until that be liquidated or reduced to money.

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Watson of Glentop having charged Robert Cunningham upon a bond of borrowed money, which he suspends upon compensation of debursements by him for the charger, in reducing an apprising, and several other affairs, and for allowances to his own servants of meat and drink that the charger got in his house, and for his own service; which being referred by the charger to the suspender's own oath, he deponed; which being advised by the Lords, this question arose, a quo tempore the compensation should take effect, whether only from the date ot the sentence, by which it is liquidate, or from the time the oath prove it was due; the ground of the doubt being, that compensation is only competent de liquido in liquidum, and therefore can have no effect till the liquidation, which was not till this sentence; for by our custom, no debt is counted liquid till it be determined by a sentence, and thereby have paratam executionem.

The Lords found, That liquidation requisite for compensation did only import that both debts were of the same kind, to be estimated as a fungible quantity, and therefore money may be compensed with debursements of money, from the time of debursement or intromission with money-rent, but not with victual, or any prestation, until the same were liquidate or redacted into money; and therefore the Lords allowed the compensation of the suspender's debursements, from the time they were given out, but of the modification for his own service allenarly from the time of the decreet, liquidating the same.

Fol. Dic. v. 1. p. 167. Stair, v. 2. p. 375. *** Dirleton reports the same case, naming the parties Cunningham against Maxwell.

A bond being suspended upon a reason of compensation, viz. that the suspender had debursed diverse sums, (confrom to an account) for the charger; and the said reason being referred to the charger's oath, and deferred back again to the suspender's oath; it was debated among the Lords, a quo tempore compensation should be sustained; whether from the time of the debursements, or from the time the same was liquidate and cleared by the suspender's oath; and it was found, That compensation should be sustained from the time of the debursements, seeing the said sums then grew to be due.

Debts being illiquid, either because not constituted by writ or decreet, or because they are not due in money but in victual, or such like, which must be liquidate as to the prices and value before there can be any execution for the same; the question may be of greater difficulty as to the last, seeing compensatio is solutio, and ipso jure minuit; whereas a debt in money cannot be said to be payable, and far less to be paid in victual, unless the creditor be content to be satisfied that way.

Dirleton, No 309. p. 152.