Consent of the King's Advocate required to a reduction for usury.
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A wadset being granted by Sir Thomas Urquhart, elder and younger, of the lands of Brae, to Sir James Fraser, for 44,060 merks, and the granters of the wadset being obliged to warrant the rental (besides customs,) to be twenty chalders of Ross bear, and to furnish tenants, and to cause them pay the said duty, and for each boll undelivered 10 merks, Sir Alexander Urquhart of Cromarty, donatar to the escheat of the said Sir Thomas, elder and younger, pursues the heir and executor of the wadsetter, for the surplus of the rent of the said lands, exceeding the rent of the foresaid sum, for diverse years, in respect the contract was usurary. It was alledged, by the act of parliament 247, anno 1597, the creditor cannot pursue for the superplus of the annualrent but by way of reduction of the usurary bond, or contract, with concourse of his Majesty's Advocate. It was replied, that rei persecutoria he had interest to pursue for what was indebite paid.
The Lords found, that the process could not be sustained without consent of his Majesty's Advocate; the act of parliament being express, that the creditor Cannot repeat the exorescence above the annualrent, unless he concur with the Advocate to reduce; which appeareth to be provided of purpose to oblige the creditor to inform and concur with the Advocate for reducing so unlawful pactions.
