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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Essintuly v. -
1672.
July.
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About this time, in a reduction raised by Essintuly against ——, the Lords found, that a man having granted bond, and paid a part of the sum, if the creditor thereafter assign the whole bond to a third party, who charges for the whole, and gets out caption and takes the debtor, who, though he had paid a good part of the sum to the cedent, yet through necessity, and to relieve himself out of the messenger's hands, gives a bond of corroboration for the whole, as well that which he had paid, as that which was yet resting. The Lords would not reduce the said bond of corroboration, upon this reason, that though he had corroborated the whole, yet truly there was but such a sum resting, and the remainder was paid to the cedent, as his discharges thereof confess: which they would not receive now, because, by his giving the bond he had renounced any defence or allegeance he could found upon these discharges; that he had voluntarily prejudged himself; that the force and fear he was under when he gave the bond, was legal and just, and so could never annul the bond. And this they found, notwithstanding they alleged, that a bond of corroboration was given in farther security, and not to innovate the first bond; and, therefore, whatever may be objected against the first, may also be objected against the bond of corroboration; now the discharges would have undoubtedly defalked the first bond pro tanto. As it was not metus injustus seu illicitus; so ex l. 13, p. 1mo, D. de Injuriis, Executio juris non habet injuriam, Vide supra, No. 337, [Macintosh against Spalding, 13th June, 1672.] Petrus Peckius de jure sistendi, capite 43. Vide 27th July, 1678.
