Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Nicol Ronaldson
v.
John Bryden

Date: 9 February 1676

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Nicol Ronaldson having charged John Bryden for payment of a bond of 300 merks, he suspends, on this reason:—That he ought to have compensation of three stone of cheese, paid yearly, over and above the annualrent for nineteen years.

It was answered, Non relevat, unless there had been a price made, or promise of payment; otherwise the cheese must be understood to be a gratification or free donation. 2do. The bond pursued upon is of a late date, and the former bond is discharged; after which, there is no ground to come back upon cheese given so many years since.

It was answered, That debitor non præsumitur donare; and, therefore, the cheese must be understood to have been in part of payment; otherwise it might infer usury, if, with the annualrent of 300 merks, being but twelve pounds yearly, three stones of cheese were yearly delivered, over and above the annualrent: or, if it had been expressly in name of donation or gratification, it would open a door for eluding the law against usury; and, therefore, seeing it cannot be presumed to be usury or donation, it must be presumed to be in satisfaction. And, as to the renewing of the bond, it was upon caption, without any transaction or abatement.

The Lords sustained the compensation being instantly verified and liquidated by the charger's oath, and would not sustain such a preparative to be a cloak for usury.

Vol. II, Page 413.