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Scottish Court of Session Decisions >>
Forbes v Tenants. [1591] Mor 2724 (00 June 1591)
URL: http://www.bailii.org/scot/cases/ScotCS/1591/Mor0702724-049.html Cite as:
[1591] Mor 2724
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Forbes of Monimusk wairnit certain tenants dwelling upon the lands and baronie of Monimusk, alleging them to be tenants to the Earl of Huntly, to flit and remove. The persewar producit, for his title to instruct his warning, ane retour and service, where he was retoured as nearest air to his father Mr Duncan Forbes in the said lands. It was alleged against the retour, That it could give him no action; because his umquhile father, to whom he was as nearest and lawful air retourit, renuncit all right, interest, and title, that he had to the said lands; for the truth was, that the lands being wadset to him be the Earl of Huntly, and his brother, and Patrick Gordon, the lands were lawfully redeemit frae him, and he renuncit all right, title, and interest, that he had to the said lands. It was replied, and the persewar offered him to prove, That if any such renunciation was made, it was done metus causa; and the persewar deduced the matter cum variis circumstantiis metus qui potuit cadere in constantem virum. It was duplied, That he could not be heard by way of reply to allege metum et quod metus causa fuit factum facta hac renunciatione et præcipue contra tertiam personam qui vim aut metum non intulit whilk was the tenants: Nor yet could the persewar be heard to allege the same against the Earl of Huntly, his infeftments and renunciations standing unreduced. To this was answerit, That, conform to the law and daily practic, the exception, quod metus causa, will be ay refused be way of exception et de jure, prout in L. quod metus causa est actio in rem scripta nec solum personam vim facient reducet, sed adversus omnes restitui velit quod metus causa gestum est; and the persewar, be way of reply, not only persewed the Earl of Huntly qui vim et metum intulit, but also the tenants and possessors of the grounds.——The Lords fand be interlocutor, that exceptio quod metus causa gestum fuit might come in be way of exception or reply, conform to the act of Parliament, whereby nullities are ordained to come in by way of exception or reply, and therefore ordained the persewar to qualify his reply quod metus causa in writ, and the defenders to answer the same.
