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Umquhile Cornelius Skink pursues the Earl of Roxburgh upon a bond; and the Earl having alleged that the bond was partly paid by Skink's intromission with the Earl's pay in Holland, and partly made up of exorbitant usury, of 16 per cent. monthly, as appears by a count of the same date, with the bond subscribed by Skink, and whereunto the bond relates, there was an act of litiscontestation in anno 1659, sustaining the allegeance as to the intromission and usury after the bond, but repelling the same, as to what preceded the bond, and appointed a count and reckoning. Skink being dead, his relict as executrix having transferred the act, craves now the count to proceed conform thereto. The defender answered, that he ought to be reponed against the act, in so far as it repelled the allegeance, upon the usury preceding the bond, as being unjust. The pursuer answered, that she opponed the act of Parliament, confirming the judicial proceedings in the time of the Usurpation, and specially ratifying acts and interlocutors of the Judges. The defender answered, that this act was unwarrantably extracted, there being a posterior interlocutor, which is now produced under the hand of the President, at that time, ordaining the count to be not only upon the exhorbitant usury after the bond, but also before the same.
The Lords ordained a new act of count and reckoning to be extracted, allowing, the defender to be heard upon the exorbitant usury before the bond also before the auditor, in respect of the said posterior interlocutor.
