Subject_1 ANNUALRENT. Subject_2 What puts a stop to the course of ANNUALRENT.
Austine v. Ker
Date: 25 July 1626 Case No. No 109.
A bond heritable by stipulation for annualrent being payable upon a simple charge, it was doubted whether the charge, which made the sum moveable, stopt the annualrent. The Court decerned for as much of the penalty as was equal to the annualrent due.
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Mr David Hume being debtor to James Aikman, by an heritable bond, in a sum of money to be paid upon a simple charge, notwithstanding of the clause of annualrent, whereby it was heritable, and being charged by the said James to make payment of the principal sum, and suspended by the said Mr David; the time of this suspension, Ker of Kippilaw becomes caution for payment of the principal sum and annualrents, so far as should be addebted by the said Mr David. This suspension being discussed, and the letters being found orderly proceeded, George Austine, creditor to James Aikman, arrests the principal sum and annualrents in the hands of Ker of Kippilaw, cautioner foresaid in the suspension, and intents action against him to make the same forthcoming, wherein Kippilaw compearing, alleged the sum could not be arrested, because he being cautioner could be no otherways obliged but as the principal Mr David Hume was, for whom he was cautioner, and he was only obliged by an heritable bond, and so not subject to arrestment. This allegeance was repelled, because the sum was made moveable by the charge given to Mr David Hume, by Aikman, before the suspension, wherein Kippilaw was cautioner; which suspension being discussed against Mr David, made the cautioner liable as the principal was. And it being further disputed, that, after the charge, no annualrent could be craved, because the charge making the sum moveable, there was no further obligements for annualrents, specially against the cautioner in a suspension: The Lords found, that albeit there appeared some probable argument, why, after the charge, the clause of the obligation anent payment of the annualrents ceased; yet that the debtors delayed to pay annualrent after the charge, should not be prejudicial to the creditor, and help the debtor: And, therefore, they found, that the cautioner should pay proportionally, as much of the penalty of the bond as effeirs to the annualrent of all terms since the charge, which preceded the time of the arrestment; for the which, the Lords sustained the action against the cautioner, seeing he had obliged himself, at the suspension, to pay what annualrent the Lords should find to be owing.
