A proprietor of lands having borrowed a sum granted bond therefore, and let to his creditor certain lands. By the tack the tenant was allowed to pay a certain quantity of victual at 20s. less than the fiars. The tack was sustained, though the proprietor alleged that this clause was usurious.
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Bearfoord having borrowed 4000 merks from Malcolm Scot in anno 1652, by his contract, he is obliged to pay the annual-rent thereof, and the sum at certain terms, which contract bears, that for Malcolm's better security, Bearfoord sets to him certain acres of land, for 53 bolls of victual yearly, at Malcolm's option, either to pay the bolls, or to pay twenty shillings less than the Candlemas fiars. Bearfoord alleged, that Malcolm ought to count for the full fiars, and that the diminution of twenty shillings was usurary, giving Malcolm more than his annualrents, indirectly by that abatement; and therefore both by common law, and especially by the late act of Parliament betwixt debtor and creditor, that addition was void. It was answered, that there was here no usurary paction; but it was free to Malcolm Scot, to take the lands by his tack, for what terms he pleased, and he might have taken it for half as many bolls, or at four merks the boll, for each boll which would have been valid; 2dly, The case of the act of Parliament meets not because that is only in wadsets; here there is neither infeftment nor wadset, but a personal obligement, and a tack.
3dly, There is a just reason to abate so much of the boll, because the tenant behoved to be at the expense of the selling thereof, and at the hazard of those that bought, if they failed in payment.
The Lords sustained the tack, without annulling the abatement, and found it not usurary.
