Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1679 and 1683.
James Wood v. Patrick Reid
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1679. January 15.—In the case betwixt Mr Patrick Reid and James Wood, merchant; upon the report of Lord Newton, the Lords assoilyied from the reduction, in respect of the three decreets, and bond of corroboration; and allow the defender, Mr Patrick, to go on in his execution; he finding sufficient caution, that, in case James Wood shall prevail in his declarator, he shall refund to him so much of the sums as he shall be found to have right to. As also sustain the declarator at James Wood's instance; and find the sums affectable with the debt whereunto he hath right, unless Mr Patrick Reid can Instruct he hath right to the said sums for an onerous cause, before the pursuer James Wood's right to the said debts, and that otherwise than by his own oath; and find that the onerous cause of his wife's mother's contract of marriage, condescended on by Mr Patrick, is no such onerous cause as to sustain Mr Patrick his assignation and right. But, as to the funeral charges, and aliment furnished to Andrew. Balfour, his wife's father, during the time of his imprisonment, the Lords declare they will sustain the same, in so far as it shall be instructed, in such manner and way as things of that nature can be proven. Vide infra, 10th Jan. 1683.
Vol. I. Page 83.
1683. January 10.—The Lords, on Castlehill's report, found that the bond of corroboration given by Wood was elicited and extorted per vim et metum, because in the messenger's hands; and did not put James to prove that he was then in prison; and therefore reduced the bond, unless Mr Patrick proved some onerous cause of it.
There are two cases wherein bonds granted metu carceris are not reputed such final transactions but they may be quarrelled, 1mo, If the imprisonment be found unjust and illegal. 2do, If the first bond or decreet (whereof the corroboration is given in prison) did labour under some defects or nullities, or stood discharged, and these were not known or were not communed at the time of granting the bond of corroboration. Vide 16th January 1683, Tolquhon.
Vol. I. Page 206.
1683. December 20.—Captain James Wood's action against Mr Patrick Reid, mentioned 15th January 1679, was reported by Castlehill. The Lords repelled the right Mr Patrick founded on, acquired from Sir George Nicolson of Kemnay, (for which he paid him 2000 merks,) as no sufficient onerous cause to sustain his disposition from his father-in-law Andrew Balfour; because the right he had taken from Kemnay was 17 months posterior to James Wood's right of his escheat.
