Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

James Ladly
v.
The Commissary of Dunkell

Date: 22 July 1634

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The commissary of Dunkell being pursued by Mr James Ladly for payment of an annual-rent of 28 bolls victual, wherein Mr Thomas Abercrombie died infeft, and that of divers years bypast; which the pursuer acclaimed as donator to the escheat of Robert Abercromby, son and executor to the said umquhile Mr Thomas, and which were intromitted with by the commissary; who alleging that he had lawfully redeemed the said annual-rent by payment of the principal sum, whereupon the annual-rent was redeemable to the daughter of the said Mr Thomas, who had right thereto by her father, and whereupon she was infeft; and the most that can be craved for bygones is only 10 per cent. of the principal sum, and not the victual annual-rent, and prices thereof acclaimed, in respect of the 134th Act of Parliament, 1592, which provides that annual-rents be redeemable after that manner, and that the party can be subject in no higher annual-rent than 10 per cent. This exception was found relevant, albeit the infeftment of the annual-rent was before the Act of Parliament: And the Lords found the defender only subject for all bygone years acclaimed, at ten for ilk hundred; and albeit the pursuer replied, that the defender might redeem by payment, and consigning of the principal sum and 10 per cent.; and that the order is sufficient, although no more were consigned; yet that will never hinder the wadsetter to pursue, by way of action, the defender, for payment of the greater quantity whereto his annual-rent extended more than his annual-rent of 10 per cent. as he now does, and has been usually done in the like cases before. This reply was repelled, and the action only sustained for 10 per cent.; but, because this was neither offered nor consigned at the time of the redemption, and that the pursuer had obtained divers decreets against the defender for these bygones, the Lords modified 300 merks of expenses, to be paid by this defender to the pursuer, by and beside the sum whereto the annual-rent, now restricted to 10 per cent., did extend to.

Hay, Clerk.

Vid. 6th July 1630, Nisbet against E. Cassils.

Page 731.