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Robert Rutherford, as Cashier for the Collectors of the Poll-money, charged Murray, younger, of Hadden, for the sum of £.3083 contained in his bond. He suspends, on this reason, that it appears, both from the bond and a discharge at the time, that the ground of the debt was his being Sub-collector of the Poll for the Shires of Forfar and Kincardine; and this being granted, he offers to prove, that he was threatened with imprisonment by a warrant of the Committee appointed by the Parliament for regulating the Poll, and to avoid it, granted this bond; whereas now he will instruct, that the total of his collection extended but to £.22,000, and that he had paid in the whole before his granting of this bond; and so being per vim et metum, he ought yet to be reponed to a fair count and reckoning; and that the Lords have so decided, 3d July, 1668, Row contra Houston, No. 12. p. 16484.; and 18th February, 1680, Burnet contra Ewing, No. 18. p. 16494.; where parties were reponed against bonds granted by parties under caption, to evade imprisonment, unless by transaction somewhat be given down. Answered, This is a reason of suspension not verified; neither can a count and reckoning impede execution on a clear liquid bond; and the force was not unjust, but metus legalis, which cannot restore him. And the decisions do not meet this case; the first being in a transaction litis dubiæ, where there must be aliquid datum et retentum; and the second was in the case of one arrested at London, which are obtained there, upon any pretence. The Lords refused to take in a count and reckoning here; but found the letters orderly proceeded; and remembered some days ago they had so determined in a stronger case, between Andrew Ker, merchant, and Edgar of Newton, who being pursued on the passive titles for a debt contained in his father's bond, and a decree in absence obtained against him, and taken with a caption, he granted bond of corroboration of the debt; but afterwards raised a reduction and suspension, on this reason, that the decrees corroborated being null, his homologation thereof could never make them subsist, and that he nowise represented his father, and yet he was held as confessed thereon by a decree stolen forth against him in absence, and he granted the bond of corroboration ob metum carceris; and so, upon the grounds of the fore-mentioned practicks, was null; yet the Lords sustained the bond, repelled his reason, and refused to repone him against the bond he had granted, though in the messenger's hands at the time, seeing many securities are the product of legal diligence, and ought not on that head singly to be quarrelled or reversed.—(See the case alluded to, below.)
