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Scottish Court of Session Decisions >>
Colonel John Fullerton v Viscount of Kingston. [1663] Mor 2558 (8 January 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor0602558-011.html Cite as:
[1663] Mor 2558
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. II.
What understood to be a Liquid Claim.
Colonel John Fullerton v. Viscount of Kingston
Date: 8 January 1663 Case No. No 11.
An article of compensation was rejected as illiquid, being founded upon a process at the instance of an executor having only a license to pursue, without confirmation, and no sentence recovered, nor so much as proof led.
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Colonel John Fullerton having charged the Viscount of Kingston upon a bond of borrowed money, he suspends, on these reasons, That the Colonel granted assignation, to umquhile Sir Alexander Douglas, to a sum due by Sir William Thomson; and, notwithstanding of the assignation, he uplifted the sum himself, at least his brother by his order; whereupon the Lady Kingston, daughter and heir to the said Sir Alexander, having license to pursue, hath pursued the Colonel upon the warrandice for repayment; which action being seen and returned, and ready to be discust, the suspender craves compensation thereon. The charger answered, That the reason of compensation is not relevant, because it is not liquid, the foresaid sum not being confirmed by any executor, nor sentence thereupon; neither can it be instantly verified, because it must abide probation, that the Colonel, or his brother by his order, uplifted the sum, and there being only a license to pursue, the debt cannot be established till a confirmation. 2dly, Albeit the compensation were receivable, yet the reason ought to be repelled; because, that any such assignation was granted, it was in trust, to the Colonel's own behoof, as is instructed by a missive letter to the charger, produced. It was answered for the suspender, That the answers founded upon the missive letter ought to be repelled, because it was null, neither being holograph nor having witnesses. 2dly, It is most suspect, being written upon old blacked paper. The charger answered, That letters amongst merchants, though not holograph, are sustained, and ought much more among soldiers, especially between the charger and Sir Alexander, who then was his Lieutenant Colonel; which is the more clear, that there was never a question of it these 20 years, neither was it contained in the inventory of Sir Alexander's papers, though there were insert papers of less moment, but that it was gotten from one White for L. 40 or L. 50.
The Lords repelled the compensation as not being liquid, and found the letters orderly proceeded, superceding execution till Whitsunday 1663; but, upon the other process against the charger, the Lords considering the matter was old and dubious, before answer, they ordained witnesses to be examined hinc inde, upon all adminicles that could he adduced for or against the trust.
