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Scottish Court of Session Decisions >>
James Clark v Isobel Buchanan. [1773] Mor 2664 (6 August 1773)
URL: http://www.bailii.org/scot/cases/ScotCS/1773/Mor0702664-131.html Cite as:
[1773] Mor 2664
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
James Clark v. Isobel Buchanan
Date: 6 August 1773 Case No. No 131.
Compensation found not pleadable upon an open account, against which the triennial prescription had been run, before the date of the bill with which it was sought to be compensated.
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Clark brought an action, in 1771, against Isobel Buchanan, as representing her husband, James Muir, surgeon in Glasgow, for payment of a bill of L. 20 Sterling, granted by him to the pursuer, 22d November 1757, payable one month after date.
Against Clark's demand upon this bill, the defender pleaded compensation upon an account of medicines and attendance, due to her deceased husband, by Clark and his mother. Clark admitted this account, in so far as respected himself; but in so far as it regarded his mother, whom he represented, he pleaded, That it was cut off by the triennial prescription. This account alleged due by the mother, commenced in the 1744, and ended in the 1750.
Observed on the Bench; That it was plainly prescribed before there was a mutual concourse.
The Court ‘sustained the objection of prescription to the account due by the mother;’ and upon a reclaiming bill and answers, ‘adhered.’
Act. D. Armstrong.Alt. Ro. Cullen.Clerk, Ross.
Fol. Dic. v. 3. p. 150. Fac. Col. No 88. p. 223.
