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Scottish Court of Session Decisions >>
Poor James Young v Thomsons and Others. [1706] 4 Brn 637 (31 January 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Brn040637-0128.html Cite as:
[1706] 4 Brn 637
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.
Poor James Young v. Thomsons and Others
Date: 31 January 1706
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John Thomson, in Cockeny, being debtor to the said James Young, in 600 merks by bond, and Young being overburdened with debt, the said sum is arrested by his creditors; and Thomson, on decreets of forthcoming against, him, is forced to pay; and Young having gone as a soldier to Flanders, and at last returning, Thomson thought it more secure for him to get Young's discharge, than to rely on his several partial payments made on distresses to his creditors; and so pursues him to count and reckon; and, on production of his instructions, obtains a decreet against him, ordaining him to grant a discharge of the debt as fully paid; and, he having raised a reduction of the said discharge, after a litigious debate, Thomson's heirs are assoilzied. But Young thinking his affair mismanaged, he raises a new process against them, for payment of the 600 merks as yet resting; and they opponing not only their discharge, but likewise their decreet, he offered to prove, by their oaths, that the said discharge was extorted from him, by casting him unwarrantably in prison; and they not consenting to his liberation, (he wanting wherewith to procure a suspension and charge to set at liberty,) he was concussed to give the said discharge ere he could obtain his liberty.
Replied,—That, after a decreet in foro, no such allegeance could be now received, especially so summarily, without a reduction.
But the Lords, considering his poverty, did not put him to the tedious and expensive way of reducing, but thought any writ might be taken away by the party's oath on the head of vis et metus. But suspecting it to be calumnious, they first ordained Young to give his oath of calumny, if he had reason to say the debt was yet owing; and then referred to the Ordinary to examine the defenders on the reason of concussion and force, as he should find cause.
