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Brown v Watson. [1664] Mor 16145 (22 December 1664)
URL: http://www.bailii.org/scot/cases/ScotCS/1664/Mor3716145-002.html Cite as:
[1664] Mor 16145
Effect of transaction of a debt, by granting a new bond for a larger sum, under dread of diligence.
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George Brown, merchant, by his ticket, obliged himself to pay to John Watson £. 18 Sterling, and in case of failure, £.50 Sterling; and upon another ticket, to pay to Thomas Main £. 10 Sterling. James Kirk being factor to both the said creditors, in November 1662 obtains a decreet in absence before the Bailies of Edinburgh against the said George for the said failure of £.50 Sterling, and for the other £. 10 Sterling, upon which he takes out an act of warding wherewith he apprehends the debtor; and in the meantime while they are under trust, and the debtor being so taken, to save his credit and for fear of prison, he gives a new bond relative to the decreet for payment of the whole sum; which bond he suspends, and intents reduction thereof, and of the said decreet, whereunto it is relative, upon this ground, That the decreet was for not compearance, whereas if he had compeared, he would have alleged, that he could not have been decerned for the £.50. Sterling, being but a penalty for not payment of £.18, which exhorbitant penalty in all justice and reason should have been restricted; and as to the new bond, it was granted under trysting, and for fear of prison, and loss of his credit and reputation. It was answered, That the new bond was granted by way of transaction, whereas he might have suspended the decreet; and for fear of prison not relevant, where it is not a private force or prison he feared, but Autore Prætore, upon a legal sentence, and in execution thereof; transactions in such cases being most lawful, and not to be reduced. Replied, That the suspender being surprised in this case by the act of warding under trysting, there was not only fear upon the part of the suspender, but dolus malus in the charger to cause apprehend him when he was under trysting.
The Lords found they would modify the exorbitant penalty, the suspender proving, that they were under trysting the time of the caption or act of warding, or granting of the bond.
