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The Lords advised the probation betwixt Logies, elder and younger, of Boddom, and James Wiseman, Procurator-fiscal to the northern Justiciary. Young Boddom having wounded Grant of Ballandailoch's brother, he is cited before the Highland district, and, in absence, is denounced fugitive, though the Sheriff, by prevention, had fined him for the riot, before the citation to the Justiciary Court. Wiseman, as Fiscal, without any farther denunciation, citation, or declarator, went with some Highlanders and dragoons, and intromitted with young Boddom's escheat-goods, by casting in the corns, &c. whereupon old Boddom, to prevent any farther destruction, transacts with Wiseman, and gives him a bill on Gordon of Scotshall for 560 merks, and takes an assignation from him to his escheat goods; and thereafter prevails with a quorum of the Commissioners of the Northern district to meet, and give both a relaxation and discharge to young Boddom of their former act of fugitation; and then he raises a reduction of the precept and bill, which Scotshall had accepted, and insisted on these grounds; 1mo, That it was null, being extorted by force and fear; 2do, It was causa data causâ non secutâ, being given for an assignation, which Wiseman had no power to give; 3tio, The escheat was discharged by the Comissioners. Answered, to the 1st, It was vis legalis; 2do, That summary way of execution is the custom and practice in all these Justiciary decrees; 3tio, As to the discharge, no other quorum could alter or retract the sentence after it was extracted, seeing par in parem non habet imperium, and it only discharges Boddom's escheat; whereas this was a bill after innovation and transaction, and so falls to be due ex nova causa; and these fines and casualities belong to the pronouncers of the decree, and not to another quorum. There being an act, before answer, the debate, at advising of the probation, resolved into these three points; 1mo, If his summary intromission with Boddom's escheat on that decree, without declarator, was warrantable; 2do, Esto it were unwarrantable, if the transaction and composition for the fine and escheat, by giving a bill, may not subsist; 3tio, If the bill did not become void by the Commissioners' discharge, though subsequent to the transaction. As to the 1st, it was alleged, Though escheat gives no title to intromit without declarator regularly, yet both in the commissions for the Highlands and Borders, some formalities are dispensed with, as appears by the acts 75. & 76. 1587, where summary intromission seems to be allowed, especially where it is only custodiæ causa, and that inventory is made of the goods; as to the 2d, Though the initium of his intromission had been vitious, yet you having transacted with me aliquo remisso, it validates the deed, yet, on the other hand, vis et metus are grounds whereupon wives have been reponed against renunciations they had given of their jointures; 9th January, 1623, Marshal contra Marshal, No. 7. p. 16482.; and transactions do not redintegrate null invalid deeds, 4th December, 1671, Macintosh contra Spalding and Farquharson, No. 13. p. 16485. and 10th January, 1677, Stuart against Whitefoord, No. 17. p. 16489. where a son's bond to liberate his father, unwarrantably detained, was found null. Yet Grotius, Lib. 2. De jure belli et pacis, Cap. 11. asserts, that he who pactions to pay a sum to liberate his friend from unjust bonds tenetur, quia tu a paciscente coactus non es. The Lords found Wiseman's intromission unwarrantable; and therefore reduced the bill given by Boddom to him, not only as extorted, but likewise in respect of the subsequent discharge and relaxation of the escheat by a quorum of the Commissioners of Justiciary; and assoilzied from the debt.
