A wadsetter found liable to account for the surplus above his annual-reflt, notwith standing a stipulation to the contrary.
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The Laird of Lamington pursues Sir John Chiesly, upon the late act of Parliament 1661, betwixt debtor and creditor, to restrict a proper wadset, granted by Lamington to him, of the lands of Symington, to his annual-rent. The defender excepted upon a back-bond granted by Lamington, whereby he expressly renounced the benefit of the usurper's act, betwixt debtor and creditor, and all such acts, made or to be made; and obliged himself, upon honour and conscience, not to prejudge Sir John of his bargain, to which no subsequent law could derogate, unless it had been specially, notwithstanding any such paction; 2dly, The foresaid act has an express exception, that where such acts, made and to be made, are renounced, the benefit of that act shall not be competent to such. The pursuer, answered to the first, That pactions, or renunciation of parties, cannot operate against a posterior law; 2dly, The pursuit here is, for restricting of a wadset to the true annual-rent; for all that was done in the usurper's act, was to take land in satisfaction, and to delay payment; but this clause of the act is nothing such, and so is casus incogitatus, which could not be held to be renounced, unless it had been expressed: As to the exception in the act it is not an exception general to the whole act, but to the antecedent part of the act; and this clause, anent restricting of wadsets, posterior to the exception, and not derogated thereby.
The Lords repelled the defence, in respect of the reply, and found the exception not to derogate to the posterior clause concerning wadsets.
