Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due ex pacto.
Robert Hepburn v. The Laird of Congletoun
Date: 15 November 1671 Case No. No 9.
The same found.
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The said Robert being assigned by his father, the Laird Beanstoun, to his contract of marriage, whereby Congletoun's father and goodsir were obliged to pay to Beanstoun in tocher, the sum of 4000 merks, did pursue this Congletoun as representing his father, for payment not only of the principal sum, but seven or eight years annualrent, which were yet unpaid.—It was alleged for the defender, That he could not be liable for annualrent, because the contract did bear no obligement to pay annualrent, et usuræ not debentur nisi ex pacto vel lege.—It was replied, That the defender's grand-mother had been in use of payment of annualrent, for the space of eighteen years, and that after her decease the defender had paid for one year; likeas for staying Beanstoun from using execution for his money, the defender dealt with Sir. Robert Hepburn of Keith, who was debtor to the defender, to lend to Beanstoun the like sum, and albeit Sir Robert did take a bond bearing annualrent, yet it being in effect the defender's money, there is no reason that Beanstoun should pay annualrent, and yet get none paid him for his tocher.—The Lords did sustain the use of payment by the grand-mother, with the defender's payment for one year, notwithstanding that the grand-mother neither had any order, nor could get any mandate from her son, who during all these years was not mentis compos, and knew not of any thing was done in his affairs, and that this defender was a minor, when he made payment of that year, at the direction of his grand-mother, who took upon her to administrate the estate without any authority; which was hard.
Fol. Dic. v. 1. p. 37. Gosford, MS. No 392. p. 196.
*** See the same case from Stair, v. 2. p. 2. voce Presumption. (Mandate when presumed.)
