Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Blair
v.
Blair

Date: 29 July 1673

Click here to view a pdf copy of this documet : PDF Copy

There being a contract of sale of lands by Ardlair to Denhead, Denhead was obliged for 2000 merks as the price; whereupon Ardblair obtained decreet, of the Lords, for payment of the sum. Denhead raiseth suspension and reduction, on this ground,—That this sum being the price of land due by a mutual contract, the price could not be demanded till the disponer's obligements, which were the cause thereof, were perfected, viz. to cause Bagillo infeft himself in the lands, and resign; after which there is a second contract, whereby Denhead ratifies the decreet against him, and renounces his reduction and suspension; but it is provided, that if, between and such a day, Denhead should obtain decreet against Bagillo for a greater sum, Ardblair should accept of it. The day being elapsed, Ardblair took Denhead with caption; who, being under caption, gave Ardblair a bond for the 2000 merks, and renouncing the obligements in the second contract: Which bond Denhead now suspends on this reason,—That this bond was granted metu carceris, he being under caption; and therefore could not hinder him to make use of his defence upon the first contract; and that he could not pay the price till they were secured in the land. It was answered, That, before any caption, he had ratified the decreet whereon caption was used; and that this, being obtained upon a legal diligence, was no extortion, nor could it be reduced ex capite metus; for although parties giving bonds after decreets, being under caption, when they get no ease nor transaction, nor do not ratify the decreet, but simply give bond, it is not accounted a homologation, more than if they had paid the money; in which case they must quarrel the decreet; but here the decreet quarrelled was ratified when there was no caption, and the obligements in the second decreet were renounced. The Lords found, That there was here no relevant ground against the execution of this bond, upon pretence of the mutual obligements in the first contract; but reserved them by way of action, as accords.

Vol. II, Page 225.