Scottish Court of Session Decisions

Subject_1 VIS ET METUS.

Mr John Mair
v.
Stewart of Shambelly

Date: 22 January 1667
Case No. No. 11.

Effect of deeds granted while under caption.

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Mr. John Mair, Minister of Traquhair, having obtained decreet against Shambelly, and the parishioners, to pay him 545 merks, expended for reparation of the manse, and to meet and stent themselves for that effect; upon which decreet, he took Shambelly with caption, whereupon he gave him a bond of £.80 for his part: Shambelly now suspends the bond on this reason, that albeit it bears borrowed money, he offers to prove by the charger's oath, that it was granted for his part of that stent, and that his proportion thereof, casting the sum according to the valuation of the parish, would not exceed 40 merks, and that he granted this bond for fear of imprisonment. It was answered, The reason was not relevant to take away the suspender's bond, being major sciens et prudens; and there was here no justus metus, because the caption was a lawful diligence, so that the giving of the bond was a transaction of the parties, which is a strong obligation. It was answered, That the suspender when he was taken at his house, was sick and unable to travel; yet the messenger would carry him away, and being at the tolbooth, gave the bond rather than in that case to go to prison, which was an irregular force, and a just cause of fear; but this addition was not proponed peremptorily.

The Lords repelled the reason of suspension, unless the said addition were also instructed instanter, otherwise it could only be reserved by reduction, ex metus causa.

Stair, v. 1. p. 429