One who had stipulated more than legal interest, had obtained decree for payment. Afterwards sued for usury, the decree was not held to be res judicata so as to protect him.
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In a pursuit at the King's Advocate's instance, against one Morison in Dum. blain, to hear him decerned to be punished as an usurer, for taking of more than ten for the hundred, conform to the act of Parliament; because the contract, which was given to the defender, for the security of his money, which was lent by him to Douglas of Mains, who provided him to a victual annualrent, and prices therein liquidated, far exceeding ten for ilk hundred, which was recovered by Morison, and payment made thereof to him by Mains; this pursuit was sustained, and the defender found to have incurred the pain statuted against usurers; notwithstanding that it was alleged for him, that what he had received, and was paid to him of the victual, and price thereof, the same was decerned in his favours by decreet and sentence given in foro against the Laird of Mains this debtor, whereby the Lords found his letters orderly proceeded against this party, for payment of the prices of the victual conditioned in his decreet; so that he having a decreet of the Sovereign Judge for his warrant, the same should not be a snare to make him to be punished as an usurer; especially seeing, in that same process, the party proponed a reason of suspension, founded upon this same act of Parliament, whereby he desired to be freed of payment, of any greater profit than ten for the hundred, and which was then repelled by the Lords, and so ought not now to be produced in this action against him. This allegeance was repelled by the Lords, and the pursuit sustained.
Act. per se.Alt. Kinross.Clerk, Gibson.
Fol. Dic. v. 2. p. 351. Durie, p. 57.*** Haddington reports this case:
The King's Advocate pursued one Morison for the unlawful taking of usury frae William Douglas of Maines, to wit, aucht pund for ilk boll of three score bolls of victual, liquidate in a back tack set be Jackson to Maines of lands wherein he was infeft by Maines for 3000 merks. It was excepted, That the Lords had sustained in foro contradictorio the said back tack as lawful, for the years 1611, 1612, 13, 14, and 1615, and 16. It was answered, That the Lords had not then taken cognition of the unlawfulness of the tack; and that the want of payment had made them to allow the greater prices, having also respect that the prices of these years were not great; and therefore they repelled the exception, in case the King's Advocate should prove that the defender had received payment, but would not condemn him for making the contract, if no payment had followed, or that he had only received lawful annualrent, not exceeding ten for the hundred, albeit the contract contained unlawful paction.
