Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Andrew Howstoun
v.
Thomas Row

Date: 13 July 1668

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Andrew Howstoun of Gathland, and Adam Muschot, being tacksmen of the assize of Lanrickshire, and some others, did appoint Thomas Row to be sub-collector, and gave bond to pay him £100 sterling yearly during his employment; and, having obtained decreet for some bygones, and thereupon charged and denounced the said Andrew Howstoun, and taken him with caption; during the time he was prisoner, did get a bond for the sum of £30 sterling: whereupon he did charge; which was suspended, and a reduction intented of the bond and decreet, as given for null defence; and that the bond was extorted metu carceris, and for ensuing a far greater prejudice than the sum contained in the bond. As likewise, upon this reason,—That Adam Mushot, who was correus debendi, had gotten a full discharge of all bonds granted to the charger; which did liberate the suspender.

These reasons were found relevant; notwithstanding it was answered, That there was no force used, but a legal execution, and that the suspender did transact, by submitting all controversies to the Laird of Baldoon, who ordained the bond charged upon to be given, and whose declaration to that purpose was produced. Which the Lords would not sustain to be such deeds of homologation as could hinder the reduction; unless they could prove, by the suspenders' oaths, that he did transact, and, the time thereof, did know of the discharge granted to the tacksmen.

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