Whether taking annualrent before the term infers usury?
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The Lord Pitsligo having wadset some lands to the Laird of Muckall, redeemable upon a certain sum, and, during the not-redemption, Muckall haivng set a back-tack of the lands to Pitsligo, for payment of a certain yearly silver-duty, which answered to the annual-rent of the principal sum, to be paid yearly at the terms appointed by the back-tack, whereupon Pitsligo being charged to make payment of the silver-duty for the term of Martinmas 1621, the party suspended, upon the late act of Parliament, which prohibits any annual-rent to be taken before the term of payment of the principal sum were first come; and therefore, seeing the party could not charge for the principal sum at that Martinmas, it being only appointed to be paid at the Whitsunday thereafter, he could not seek the duty of the back-tack till the term of payment of the principal sum were come, albeit the said back-tack conferred the payment of the yearly duty to the terms preceding the term of payment of the principal sum, in respect of the said act of Parliament, and that the back-tack, albeit it appointed the duty to be paid yearly, as for the duties of the lands, yet it was only in effect the annual-rent for lent money, which ought not to receive any other construction. The Lords found not the reason relevant, but ordained the payment to be made at the terms appointed by the back-tack, albeit the same preceded the terms at which the party was debtor for the principal sum, seeing the duty appointed by the back-tack came in place of the farm of the land, the right whereof remained in the person of the setter of the back-tack foresaid, so long as the wadset stood, and so he having set the lands for that duty, he might ask payment of the duties of these lands at the terms appointed therefor by the said back-tack.
