Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due to CAUTIONERS, FACTORS, MANDATARS, TUTORS, &c. Subject_3 As a Recompence for advancing their own Money upon their Constiuent's Account.
The Laird of Stanhope v. The Heritors of Tweedsmuir
Stenhouse v. The Heritors of Tweedmoor
Date: 6 June 1676 Case No. No 64.
An heritor was not allowed annualrent from other heritors, on their proportions of the value of land designed to the minister for a glebe. He might have insisted sooner for the value itself.
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In a pursuit at Stanhope's instance, against the Heritors of Tweedsmuir, for relief of a glebe designed to the minister, not only for their proportions of the lands valued, but for their proportions of the annualrents since the designation and minister's possession, which was many years since: It was alleged no annualrent, but from the decreet quia usuræ non debentur, nisi ex lege, vel pacto, and he doing no diligence, annualrent, during his silence, could not be due.—It was answered, That lands disponed and possessed, albeit there be no annualrent due by the disposition; yet they are due, ob fructus perceptos, et hic est legalis dispositio.——The Lords found that there was no annualrent due, the case not being alike to a disposition for money, and that mora hinders.
Fol. Dic. v. 1. p. 44. Gosford, MS. No 856.*** The same case is thus mentioned by Dirleton, under the following Title:
The Laird of Stenhouse, his lands being designed for a glebe, pursued some of the heritors within the parish for his relief, conform to the act of Parliament: In which case, in respect the pursuit was by the Space of eight or nine years after the designation; and the heritors were in bona fide, and did possess their own lands, and had made fructus suos.
The Lords found, That the defenders were not liable to pay the annualrent, for the sum decerned, from the time of the designation; seeing usuræ debentur only ex pacto vel mora. Albeit it may appear, That that relief that is due ex lege is at least also effectual, as if it were ex pacto; and the very notion of relief imports that the party should be relieved of all damage sustained by him: And the pursuer was prejudged, not only by the want of the value of what he was to be relieved of, but of the interest of it.
