Effect of transaction in a case where force or fear are alleged.
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Major Alexander Anderson having granted Dalahaple a bond of corroboration of a debt for which his father was in the messenger's hands under caption at the time, with this quality, that the creditor should supersede payment for two or three years, and use all legal diligence to affect his father's estate by adjudication and inhibition; and after using of the diligence against the father, and elapsing of the supersedere, being charged upon the said bond at the instance of Dalahaple; he raised suspension and reduction ex capite vis et metus, upon this ground, that he had granted the said bond of corroboration to the charger in order to relieve his father, who was carried prisoner through the hills from place to place in his nightgown and slippers, while sick and not able to put on his clothes, with the hazard of his life.
Answered for the charger: 1st, That the bond of corroboration was a plain transaction; in so far as the suspender got thereby more terms of payment than were contained in his father's original bond, and the charger obliged to adjudge his father's estate, and transmit the same to him; 2dly, The bond charged on was homologated by the suspender, in that he had gotten from the principal debtor an assignation for his relief to a greater debt, and converted the same in favours of a third party; upon which two grounds the bond of corroboration could not be quarrelled upon the head of force or fear.
Replied for the suspender: That no transaction could be inferred from the supersedere and other quality in the bond charged on; these being in græmio of the right extorted, and terms arbitrarily imposed by the charger; 2dly, Transaction doth not exclude reduction upon the head of force and fear of death; Stair, B. 1. T. 17. § 2. & B. 1. T. 9. § 8. L. 13. C. De Transact. December 4, 1671, M'Intosh against Spaldings, No. 13. p. 16485. 3tio, The suspender's accepting the foresaid assignation from his father was no more an homologation, than if he had got money from him to pay the debt, and upon payment had received a discharge, which the Lords in parallel cases, February 14, 1668, Mackenzie against Fairholm, No. 23. p. 5639.; February 20, 1668, Farquharson against Gordon, No. 65. p. 5685. found not to infer homologation against a cautioner.
Duplied for the charger: A transaction is understood in law to be interposed, where aliquid est datum, promissum, vel retentum; and the suspender in the bond of corroboration got an ease of the debt by a long term of payment: For qui tardus solvit quam solvere debebat, minus solvere intelligitur. Besides, the charger was bound by his acceptance of the said bond to lead several diligences against the father's estate: Which terms and conditions being profitable to the granter of the bond, and burdensome to the charger, cannot be looked upon as the effect of force and fear, but of a free treaty and agreement. 2do, If this case were to be determined by the civil law, the suspender could never be restored against his bond; for there was no force used against him, but he voluntarily offered the same; and there was no lesion, and he corroborated a just and true debt; and by the edict, Quod metus causa, non datur actio si nihil absit, et solum succuritur captis et læsis, vid. L. 12. § 2. & L. 14. D. Quod Metus causa. My Lord Stair, in the place cited, says, “Neither will a transaction be convelled upon such grounds of force or fear as could convel other contracts, but such fear as imports imminent hazard of death or torture.” And however in this case there might have been used some indiscretion in executing the caption, when the debtor was valetudinary and guttish, he was in no hazard of his life. The decision betwixt M'Intosh and Spalding is not to the purpose, for M'Intosh was apprehended upon a caption after intimation of a suspension thereof; 3tio, The grounds urged by the suspender do nowise take off the homologation, for the suspender became debtor to his father, by transferring the debt assigned, and consequently obliged to pay the debt corroborated; although the simple taking of an assignation for his relief would not import homologation, because such a thing is only intended to be effectual in case the assignee were put to pay the debt. The decisions meet not the case, for the suspender was not cautioner, but the only person obliged in the bond of corroboration; and certainly, had he got payment of the money assigned, and there with satisfied the debt corroborated, that would have inferred homologation. The case of the last decision is, where a minor cautioner did obtain only a decree of relief against the principal debtor but no payment; which if he had recovered, the Lords would never have reponed him against his bond, seeing he could not pretend lesion.
The Lords found the suspender had transacted the debt for which his father was prisoner, and had homologated his own bond of corroboration, so as he could not quarrel or reduce the same ex capite vis et metus; and therefore found the letters orderly proceeded.
