Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1682.
Cornelius Nielson v. James Bonnar's Heirs
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January 11.—The case betwixt Cornelius Nielson, merchant in Edinburgh, and the heirs of James Bonnar, upon the circumvention, was debated, wherein the lawyers expatiated learnedly on dolus incidens et dolus dans causam contractui; which being mistaken by some, has made me set down their definitions here.
Joan. Bockelmannus, in his learned Compendium Institut. tit. De Actionibus, p. 246, defines dolum dantem causam contractui, quo quis inducitur ad contrahendum qui alias contracturus non fuisset; dolus vero incidens dicitur, non quo incidit in contractum, sed quo aliquis circa contractus incidentia decipitur; veluti cum villus vendit et carius emit.
Struvius, in Syntagm. Juris,Vol. 1, p. 257, defines them from Caesar Bor-galius, de Dolo, thus: Dolum incidentem esse, quando quis omnino, sua sponte, al-terius calliditate non inductus, contrahit, et in re de qua initur conventio, (v. g. circa rei valorem, qualitatem, &c.) seu in modo contrahendi, fraudulenter decipi tur; and therefore it does not annul the contract ipso jure, but only produces an action ad damnum resarciendum.
Dolus incidens being no more but extreme lesion, though even ultra dimidium justi pretii, ex 1. 2 C. de Resc. Vendit. if it be only eventual, and not dolus dans causam, does not in our law annul the contract, or reduce it; and was so found, Dury, 4th July 1635, Monymusk. Vide infra, 24th March 1682, Stewart; and 7th December 1682, thir same parties.
Vol. I. Page 169.
1682.December 5, 6, and 7.—Between Cornelius Nielson, late bailie in Edinburgh, and James Bonar's heirs, (vide 11th January 1682;) the Lords, having advised the probations, assoilyied Cornelius from the reduction ex capite jraudis et circumventionis; and, without determining whether pactum corvinum super hære-dilate viventis be valid with us or reprobated, (see Dury, 6th July 1630, Aitlcen-head, where the paction is allowed,) they sustained the disposition to Nielson, in regard of the ratification made of it after James Bonar's death: though it was alleged, against this ratification, that it was a part of the cheat; and that Ballan-tyne was taken sworn not to seek advice, nor discover it; and so he was fraudulently bound up; and the ratification is dated before Bonar was buried, and so was nimia et præpropera diligentia. Yet the Lords, who were for assoilyieing Nielson, said, that George Dallas the writer, and the witnesses, (but it was objected against them, that they got a part of the prey,) deponed, that the thing was deliberately done, and read to them; and argued, that weakness and levity of mind does not hinder men from disponing their rights, unless they were either interdicted, or declared idiots, or on death-bed. Yet some thought, that such a simplicity as this ought to be like a minority, to repone them when they are lesed.
This being decided in the afternoon, the Chancellor, and some Lords, then absent, got it stopped the next day; and urged a review and reconsideration of the affair; and so they having resumed it on the 7th of December 1682, the Lords quite altered their interlocutor, and it was found a mere circumvention and cheat; and therefore reduced it, and restored the parties to their own rights, notwithstanding of the ratification.
For all the Lords were convinced of an unhandsome machination and design; but some of them thought it was not such as was reparable in law, in foro hu-mano; and they were now so displeased with Cornelius Nielson's carriage in it, that the king's advocate got an allowance and warrant from the Lords, to pursue him criminally before the Secret Council for it; as also, for seeking a sight of a bond for £1000 Scots he was owing to umquhile James Bonar, and throwing it in the fire, and burning it at his own hand, pretending that the defunct, knowing it to be paid, had allowed him to cancel it. As this discourages cheats, so it will, on the other hand, render persons afraid to bargain, meddle or transact with needy people, who, without any modesty, though they have got the full value, will clamour they are cheated.
Some contended that the ratification was null, because a cheat cannot be ratified; and non entis nulla sunt accidentia; but others cited an excellent law, l. 78, § ult. D. ad S. C. Trebettian., where a cheat as ill as this may be transacted; for dolus futurus tantum, non præteritus, nequit transigi.
But there was a great tract, series, and concatenation of knavery here; and Sir George Lockhart asserted, that, in all the instances of the lawyers he had read, he had not found so pregnant an example of a contrived and complicated cheat as this was.
