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In a reduction of a bond granted by Robert, Alexander, and James M'Intoshes, to Spalding of Ashintully, and assigned by him to Farquharson, upon this reason, that their father John M'Intosh being taken with caption, and carried to a private house in the Highlands, notwithstanding he had a standing suspension and intimate, the pursuer's sons finding their father kept under guard a close prisoner did grant this bond for his liberation from the danger he was in by such an illegal execution, not knowing but his life might be in hazard. It was answered, That the father being truly debtor, and under caption, and not having the suspension to show the messenger, he was justly apprehended; and the reason he was not carried to a public prison was his own desire, so that the sons having voluntarily transacted and given their bonds, they could not reduce the same ob vim et metum, there being no violence done to them.
The Lords did sustain the reduction, and found that children giving bond to liberate their father from imminent danger, who by the caption could not be lawfully carried away to the Highlands after a suspension intimated, albeit at the dwelling place of the creditor; that therefore the sons being moved out of duty and natural affection to grant a bond for his liberation, it was equivalent to violence and fraud done to themselves.
Gosford MS. p. 209.*** Stair reports this case:
Robert Farquharson of Burghdarge having obtained a bond of 1700 merks from John, Robert, Alexander, and James M'Intoshes, and having assigned the same to Andrew Spalding, he charges thereupon, and they suspend, and raise reduction upon a reason of extortion, ex vi et metu, which they qualify thus, that Farquharson having obtained decree of spuilzie before the Sheriff, most unwarrantably against the suspender's father, he did suspend the said decreet, and intimated the suspension to Farquharson; yet Farquharson, with a number of his accomplices, came to M'Intosh the father's house, and notwithstanding of the suspended caption upon the decree of spuilzie, took him violently out of his house, and carried him to the mountains of Glenlee, and there detained him, and menaced him, until he was forced to send for his four sons, who gave this bond to liberate their father. It was answered, that the reason was not relevant, in so far as concerned the sons, who do not pretend any force or threats against them; and as a major becoming obliged for a minor, though the minor be freed upon minority, the major will remain liable; so a cautioner obliging for a person who granted bond, ex vi et metu, will not be liberated, though the principal was liberated; 2do, Whereas it is alleged that the caption was suspended, non relevat, unless the suspension had been shown at the time of the execution of the caption; and for any citation or intimation of the suspension, it might have been at the charger's dwelling house, and not known to him, and might have been made without a warrant, as the same party had done before, having given the copy of a suspension when none was raised; 3tio, Farquharson or the messenger had a caption against M'Intosh, at the instance of the Earl of Airly, which was not suspended; and for the carrying of him to Glenlee, it was offered to be proved that it was at his own desire; and there was a transaction made not only of their debt in the caption, but of several other questions; and though these suspenders would repone the charger, res non est Integra, for medio tempore M'Intosh their father is lapsus bonis. The suspenders answered, that the unwarrantable imprisonment and threats against the father was justus metus as to his son, who by their natural obligation and affection could not but interpose to relieve their father from unjust imprisonment and hazard of his life; and seeing the father did intimate his suspension, and produced the intimation which he bides by as a true deed; he was not obliged to bear the suspension always about with him, but the chargers behoved to proceed upon their peril.
The Lords found the reasons of reduction relevant, and the several members thereof thus qualified, that the suspender was taken upon pretence of a caption, which was suspended, and the suspension truly intimated, without necessity to show it at the time of the execution of the caption, unless the intimation had been only at the charger's dwelling house, and that he would depone he knew not of it, and so had proceeded bona fide to a lawful incarceration; neither had they any respect to Airly's caption, which was not executed, nor any power granted by Airly for that effect; but as to that member, they found the allegeance relevant to be proved by M'Intosh's oath, that he was carried to, or kept at Glenlee by his own consent; yet so, as that if any threats or menaces were used against him there, it should be relevant separately; neither would they oblige the sons to be caution for what the father should be found liable upon the decree of spuilzie.
