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Scottish Court of Session Decisions >>
Muir and Mulliken v Kennedy. [1697] Mor 2567 (8 December 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor0602567-025.html Cite as:
[1697] Mor 2567
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. III.
Quod statim liquidari potest pro jam liquido habetur.
Muir and Mulliken v. Kennedy
Date: 8 December 1697 Case No. No 25.
A minor who was the heir of a cautioner, being pursued, and getting a day to prove payment, and then also proponing compensation of a sum not liquidated, the Lords in this favourable case, and because the pursuer was delayed however, allowed the minor a term to prove his compensation.
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Kennedy of Kilkenzie being pursued by Muir and Mulliken for a sum contained in his father's bond; this exception was proponed, that he being minor, and only the heir of a cautioner, he offered to prove payment made by the principal or cautioners, and a term is assigned him to that effect; now he craves compensation on an aliment, that Muir staid several years in his father's house. Answered, This is not liquid, as all compensations ought to be. Replied, By the 143d act 1592, compensations verified before giving of decreet are allowed; ita est, he will liquidate this compensation before sentence; neither does this delay, because I have got a term however to prove payment; and Stair, I. 18. of liberation from obligations, is clear, that if a compensation be instructed, though by witnesses, before the other probation can be closed, that it ought to be received. The Lords, considering the favour of this case, being a minor and the heir of a cautioner, and the pursuer delayed however, they gave him a term to prove his compensations, seeing quod statim potest liquidari habetur pro jam liquido; yea, the Lords have allowed this without these favourable circumstances.
Fol. Dic. v. 1. p. 161.
Fountainhall, v. 1. p. 800.
