Found, that a proper wadset, without back tack, did not fall under the act 1597.
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One Nisbet, in anno 1609, having acquired the heritable right of some lands by contract, charter, and sasine, from the umquhile Earl of Cassillis, under reversion, which lands the Earl and his heirs were, in the contract, obliged to make worth to the wadsetter yearly 22 bolls of victual, and this Earl, as heir, in whom the contract was transferred, being charged to pay 2 bolls yearly for the whole years bypast, seeing the wadsetter had only received payment of 20 bolls, which were suspended by the Earl, alleging, that the same was usury, and that he was not subject to pay the 2 bolls acclaimed, because the 20 bolls received did complete him, and more, of his annual-rent, at 10 per cent. being a wadset redeemable upon £. 1000, according to the act 251, Parliament 1597; likeas, he had used the order of redemption, and had consigned the principal sum the last year, viz. 1629, conform to the act of Parliament 1592, with the annual thereof extending to £.100; and the other party alleging, that this right came not under these acts, because it was a proper wadset of lands, neither bearing any back-tack or annual-rent, but a right of property, by virtue whereof he might claim the benefit of the lands wadset, and the yearly duty thereof, which the contracter and his heirs were obliged to make to be worth the quantity agreed upon, so that what inlaked thereof he ought to refund it;—the Lords found the reason relevant, and suspended the letters simpliciter; for it was found, that the charger could not personally seek from the contracter any greater quantity of victual, or profit of his money, but according to 10 per cent. seeing this personal charge upon that security made the same to come under the act of Parliament 1597; but if the party, by his right of property of the land, should seek the duties thereof from the tenants and possessors thereof, he might pursue therefor as he best might in law; but he could not seek personally from the party any more, as said is, than according to 10 per cent.; and in the redeeming of the wadset, the redeemer was found only obliged to consign the annual, according to ten for ilk hundred, and not the prices of the victual.
Act. Nicolson & Neilson.Clerk, Gibson.
Durie, p. 526.
