Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Anna Forbes v. Thomas Leslie of Colpnayshiels
Date: 3 February 1703
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Thomas Leslie of Colpnayshiels designing to marry Anna Forbes, daughter to the Laird of Leslie; and falling into some melancholy damps, and apprehending himself impotent and unfit for marriage, he deserted the bargain: whereon her friends resenting the affront, they craved reparation; and he, for satisfying them, did grant her a bond for 4000 merks: whereupon she having charged him, he suspended, on the complex reasons of concussion, circumvention, and melancholy; in so far as he being subject to that melancholic distemper, advantage was taken of it, and he threatened by her two brothers-in-law, Pittachy and Kinnaldy, to crop his ears, and shoot him, if he did not repair her honour; and being struck at that crisis, he gave the bond to redeem himself from that panic terror, where chimeras appear to such a weak person as terrible realities; and so the bond being without any onerous cause, and impetrated by concussion, fear, and threats, and in a very unwarrantable, unaccountable manner, it ought to be annulled.
Answered,—Clear liquid bonds are not to be taken away by such imaginary stories; and, unless he confidently say he was non compos mentis at the granting, he cannot be heard: neither does he pretend that the violence or threats were used by the lady; and they are not such a metus as cadere potest in constantem virum; and it being signed at Count Leslie's house, it cannot be presumed that any hardship could have been offered to him there, but he might easily have got it prevented or redressed; but truly it was a most free and voluntary act; and he both injures himself and the gentlewoman now to quarrel it by an ignominious fiction of his own insufficiency.
Replied,—That the resisting those degrees of fear which a solid firm man will reject, is not to be required in one who is known to be habitually weak, and susceptible of the least impressions; melancholy heightening all objects, and making a thing of no fear become very formidable, and having no strength to resist his lesed imagination; under which discomposure he then laboured, and which was much inflamed by their menacing insinuations if he did not give the bond; and which must be understood to contain this tacit condition, in case marriage followed, without which it must be reputed to be elicited per dolum et me-tum, and to be ex turpi causa, or sine causa, contra bonos mores et libertatem matrimonii, et causa data causa non secuta; so that this circumstantiate case has an accumulate concatenation of reasons for repudiating this bond.
The vote was stated,—Try, before answer, the granter of the bond his condition at that time, and what threats were used; or, Repel the defences in respect of the clear liquid bond? and it carried, by a scrimp plurality, to repel the reasons of reduction, and to sustain the bond. As to that allegeance, That any methods used to impetrate the bond were not by the lady herself, and so cannot meet her, Grotius,—de Jure Belli et Pacts, lib. 2. cap. 11. et lib. 3. cap. 19, —thinks the bond should subsist, because tu a paciscente coactus non es; but this does not hinder but in equity you have an action of damages against the extorters of the deed.
