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By contract of marriage, Mr. John Hart was obliged to give to Mr. James King, with his daughter, 2000 merks, to be employed upon profit and annual-rent to both their uses. Mr. James charged Mr. John Hart, eldest son and heir to Mr. John, for payment of both principal and annual-rent of the said tocher. Alleged, That although he might charge for the principal sum, yet he could not for the annual-rent; because, by the contract, he was not obliged in payment of annual-rent so long as the principal remained unpaid; and therefore he should seek the annual-rent by way of action, and not hoc ordine. Replied, The tocher being destined to be employed upon annual-rent by the contract, the defender having retained it in his own hand, whereby he hindered the employment of it, must be thought to be obliged in the annual-rent as well as the principal the time he kept it, and so may be alike charged for it as the principal. The Lords found the allegeance relevant.
Fol. Dic. v. 2. p. 404. Spottiswood, p. 35.*** Auchinleck reports this case:
Mr. James King, upon a registered contract of marriage betwixt him and John Hart, in the Canongate, wherein there is permitted to the said Mr. James the sum of 2000 merks, to be employed upon bond or annual-rent, to the behoof of the said Mr. James's spouse, and the heirs to be begotten betwixt them; this contract being transferred against Mr. John Hart, as heir to his father, Mr. James charges the said Mr. John Hart to fulfill the said contract, and declares, that he charges both for the principal sum and the annual-rents. The Lords will not sustain the charge for the annual-rent, because it was not clear, by the contract, that the annual-rent was due; but ordained the charger to pursue for the annual-rent by way of action.
