[1683] Mor 10286
Subject_1 PERSONAL and REAL.
Subject_2 SECT. VII. Effect of Fraud - of Force and Fear - of Simulation of a Gift of Escheat - of Spuilzie - of Pactum contra Fidem - of Minority - of Reduction ex capite lecti - of Donatio inter Virum et Uxorem - of Payment to an Adjudger.
Anderson
v.
Spence
1683 .November .
Case No.No 99.
In a pursuit against a minor upon his bond, the defender having founded upon minority and lesion; the Lords found, that the qualification of circumvention was only personal.
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In a pursuit against a minor upon his bond, the defender having founded upon minority and lesion,
It was alleged for the pursuer; That though the benefit of restitution might take place in things disponed, whereof a minor might have rei vindicationem, as goods, lands, &c. yet it cannot be effectual against successors to nomina debitorum
for onerous causes, as the pursuer is, because that would make a great interruption in commerce, 2do, The minor being a merchant, and the bond granted in relation to trade and merchandise, he cannot be restored. Answered for the defender; Minority is exceptio realis competent to heirs against singular successors; for otherwise, the creditor would always assign, and so disappoint the benefit of restitution in the case of the cedent's insolvency. Nor is the argument from the favour of commerce of any weight, seeing assignees rest secure upon the cedent's warrandice; and the same objection might be made if the cedent had discharged the bond before assignation; which discharge would certainly meet the assignee. 2do, The defender was circumvened by the pursuer's (cedent) in the stating of their own accompts. 3tio, The bond was extorted by force, the pursuer's (cedent) having threatened to put the defender in the correction-house, unless he signed it.
Replied for the pursuer; That the personal qualification of circumvention used by the cedent cannot be obtruded against the pursuer, who is a singular successor for onerous causes. 2do, The reason of metus, as it is qualified, is not relevant: For as the cedent might have used legal execution against the defender, he might have threatened him with it. And though deeds done under the terror of legal diligence do not infer homologation, so as to cut off the granter from his defences against the debt, such securities are not null, nor infer justum metum; and consequently labour under no vitium reale, which can overtake singular successors for onerous causes.
The Lords found, That the qualification of circumvention was only personal; and also repelled the defence of metus as qualified, in so far as concerned the pursuer a singular successor; and the rather, because the cedent was sufficiently solvent, against whom the defender might have recourse.
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