Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Paton of Kinaldie v. Strachan of Glenkindy
Date: 17 June 1698
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Paton of Kinaldie, as assignee, charged Strachan of Glenkindy on his bond. He repeats his reason of suspension and reduction as coincident, that it was extorted from him by concussion, being pursued before the Highland Justiciary for a theft committed by one in his ground, and, though he delivered the man, yet they threatened him till he gave bond; whereas, noxœ deditione, he should have been free.
Answered, 1mo.—This is not good against an assignee for onerous causes; 2do. Instrumenta quarentigiata, such as our registrate bonds, should have summary execution, as appears by the French and German lawyers; and, even by the common law, restitution craved ex capite metus is refused ubi morandœ tantum solutionis gratia earn peti suspicio est,—L. 2 C. ad Leg. Cornel. de Falsis. And, if the casting in of a reduction were sufficient to stop execution, then every debtor would raise it; whereas the reduction should only be reserved, as accords, that the charger may have his induciœ legales.
Replied, to the first,—Vis et metus being actio in rem script a, it meets singular successors licet per mille manus res transiit: To the second, Though a reduction recently intented, after he is charged on the bond, may be suspected as done animo protelandi, and so ought not to be summarily received; yet here it is offered to be proven the reduction was raised before the charge, and delivered to the messenger to be executed; but he was prevailed on to forbear till the party were first charged; and, seeing dolus nemini prodesse debet, it must be reputed as if it had been made litigious before the charge.
The Lords allowed him to prove this prevarication of the messenger; and, in the meantime, before answer, allowed a probation of the qualifications of the concussion, and any alleviations to take them off; and declared it shall be cum onere expensarum if the suspender succumb in proving his reasons of reduction, and the fraud and force founded on, seeing the same are summarily admitted; whereas, in strict form, the letters ought to be found orderly proceeded in the suspension; reserving his reduction for repetition, as accords of the law.
