Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Stewart of Castlemilk v. The Duke of Hamilton and Sir John Whytfoud of Milneton
1677.
January10,June16, and
November27.
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January 10.—Duke Hamilton and Sir John Whytford of Milneton's defences against Stewart of Castlemilk's reduction ex capite metus being this day advised, the Lords allowed a conjunct probation as to the spontaniety of the deed; yet upon the matter they rendered Duke Hamilton's probation ineffectual, by declaring they would not admit those same witnesses whom the pursuer should make use of to prove the compulsion, fear, and force, to prove his being at liberty, but the Duke behoved to use others; whereas there was no others that knew ought of it save whom the pursuer intended to make use of. They took Castlemilk ere the caption came; they carried him not to a prison, but two or three days, one after another, to private houses, which was carcer privatus; and instead of taking from him an obligement to fulfil the will of the horning and caption, they presented him a disposition of his estate, and undertook to pay debts for him, and constrained him to sign it. In this cause it was, that the Lords debated if the Duke should be permitted to come within the bar, and sit with his hat on; item, de alienatione litis in potentiorem; which see in the observes anent Session emergents, on the 19th of December, 1676. Vide supra, No. 278 and 279, in December, 1671, Spalding and M'Intosh.
On the 16th of June, 1677, the Lords advising the probation led, found the reason of force clearly proven, and therefore reduced the disposition; for it is the interest of every private man to be compelled to do nothing but according to law. Yet if a man be owing me money, and I by threats compel him to pay me, as was in this case, there will be no repetitio or condictio of what is paid. Yet vide 1. 7. C. Unde vi.
Advocates' MS. No. 532, folio 272.
1677, November 27.—Duke Hamilton's action and Castlemilk's was this day advised. The Lords decerned Duke Hamilton to cede the possession to Castlemilk: albeit the commencement and entry of his possession was not by that disposition they had reduced, but by a gift of liferent escheat, and by an assignation to a lady's liferent, which was now extinct by her death; et resoluto jure dantis, resolvitur et jus accipientis; and the escheat was not declared, and so he had no title whereto he could ascribe his possession, but only that disposition now reduced ex capitc vis et metus: But reserved to the Duke all his other pretensions on the land. Some cried out on this interlocutor.
