The defenders in an action for payment of an account pleaded compensation, and founded on a debt which came admittedly under the provisions of the Act 1579, c. 83. The defenders were therefore limited to writ or oath on reference in proving the constitution and resting-owing of this debt, and in proof they founded upon letters of the pursuer, the last of which was dated within the period when prescription was running. The writs established the constitution of a debt. The pursuer averred that they instructed an agreement whereby the defenders agreed to accept goods of the pursuer in full settlement of their counter-claim. The defenders averred that the agreement was to accept merely the amount the goods realised in reduction pro tanto of their counter-claim. Held ( dis. Lord Johnston; sus. Lord Ordinary Hunter) that the writs though dated within the triennium were competent to prove the resting-owing of the debt, that they proved resting-owing, and that, the plea of prescription being elided by the writs produced, the parties should be allowed a proof habili modo of their respective averments,
Citations:
[1916] SLR 181
Links:
Jurisdiction:
Scotland
Contract
Updated: 23 April 2022; Ref: scu.618262
