Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Mr Thomas Ramsay, minister at Mordington, v. Jo Renton of Lammerton.
1672.
January18, and
February
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Jan. 18.—Mr. Thomas Ramsay, minister at Mordington, having recovered decreet in 1656, before the sheriff of Berwick, against Jo. Renton of Lammerton, for payment making to him of L.360, as Lamerton's proportion of the manse of Mordington, according as the same was appreciated by craftsmen at the command of the Presbytery: whereupon, after the sheriff's precept was disobeyed, having charged him, then minor, with horning, and denounced, and registrate; he now, upon the act of Parliament 1621, ordaining annual-rent to be due after the denunciation, craves by a summons annual since that time, and in time coming, ay till the sum be paid.
It was alleged,—There could be no annual-rent due, because the horning was null, and unorderly executed, in so far as they did not bear that the defender's tutors and curators were charged at Dunse, as the market-cross of the head burgh of the shire where the minor dwelt, which, in form, they ought to have borne, and so there can be no ground for annual-rent.
Answered,—That the minor was personally apprehended; that his mother, who was his tutrix sine qua non, and managed all his affairs, was present when it was given, consulted it with her advocates; that the other heritors of the parish, viz. old Mordington, and Pat. Scot of Langshaw, then heritor of Edrington, who were majores scientes et prudentes, and as much concerned as this defender, after all imaginary courses taken by them to elude the payment of their proportions, yet were forced to pay the same. That the charge given to him personally, being past tutory, put him sufficiently in mora non solvendi, which is the reason whereon the act of Parliament is founded. That the citations given to minors are, indeed, null, if the tutors and curators be not also cited at the market-cross; but that must not be drawn here: because the annulling the citation is only peremtoria istius instantiæ, which may be made up by giving a new citation; but here majus versatur prejudicium; if the horning be annulled he loses the haill interest of his money, and that most innocently on his part, for the informality or knavery of a messenger. That hornings which are made the ground of declarators of escheat must be strict and formal, but they need no such exactness to the effect of annualrent.
Vide Dury, 28 July, 1625, Rankeillor against the L. of Aytoun.
Yet my Lord Gosfurd found the horning null, even quoad the effect of annual-rent, and all others, unless we would say Lamerton was then major.
Then we converted our process unto damage and interest, which Mr. Thomas had sustained through the want of that money these sixteen years; which damnum et interesse must succeed in vicem usurarum, and are due nomine pænæ et ob moram non solventis; though I call to mind that ex mora non debentur usuræ nisi in bonæ fidei judiciis. This my Lord Gosfoord allowed us to do, providing we gave in our condescendence to the adverse party to see. Vide L. 32, p. 2, L. 35, L. 38, p. 7. D. de usuris, ibique Doctores. Vide supra, num. 251. [11th Nov. 1671, Mathy.] Vide supra, No. 198, [5th July, 1671, Pitreichy against Geicht.]
In this cause we having only produced the letters of horning and their executions, for instructing the summons; my Lord Gosford refused process till the decreet were also produced, and alleged it should have been given out to see ab initio.
Advocates' MS. No. 304, folio 125.
February, 1672.—In the action marked at No. 304, between Mr. Thomas Ramsay, and the Laird of Lamberton, the horning being cast, and no annual-rent found due, we converted it to damage and interest; and having qualified the same pregnantly enough, yet the Lords refused altogether to grant any, but assoilyied Lammerton therefrom; nowithstanding that in our law the English double bonds are restricted to the single with interest, which is in place of damnum. But I think his profession, (cui de jure canonico interdicitur mercantia ilia usurarum,) made this his claim unfavourable.
