Gratuity taken from a Debtor. - Taking gratification to become Cautioner. - Bond granted by a Criminal on condition of the Creditor using his interest to obtain the Granter a pardon. - Bill granted to Magistrates by a Prisoner. - Respondentia Bond confirmed by Collateral Securities.
Nisbet v. The Laird of Humbie,
Date: 2 January 1677 Case No. No 12.
A donation from the debtor to the creditor, will be imputed to wards payment.
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Sir Patrick Nisbet having charged the Laird of Humbie for payment of some bonds, he suspends, and alleges payment, by delivery of certain goods to the charger, especially two coach-horses, and horse-corn; which being referred to his oath, he deponed that he received the horse-corn, but that it was gifted to him; but as to the coach-horses, his oath was not clear, and he was appointed to be examined at the advising of the oath. This question occurred to the Lords, Whether a creditor might take any gift from his debtor, except it were in remuneration, or for some special favour or beneficence distinct from the debt.
The Lords found he could not, or otherwise there could be no guard against usury, if the creditor might take any thing, either for the delay of the principal sum, or of the annualrent; otherwise the law for six of the hundred might be totally elided; for indigent debtors not being able to make present payment, would in like terms gift things upon consideration the creditor may give delay by way of favour, though not by way of contract, and so might get double annual, so long as the debtor was not able to pay; and they did remember that they had lately done the like in the case of a creditor, who had gotten yearly two stone of cheese, and deponed that it was by way of gift, yet the Lords allowed the same in part of payment of his annualrent.
