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John Donaldson, Chamberlain to the Earl of Panmure, charges the Magistrates of Brechin for 1200 merks contained in their bond. They suspend on this reason, that he had forfeited the sum, the one half to the fisk, and the other to them as discoverers, conform to the act of Parliament against usury, because he had exacted £.A5 Scots as a year's annual-rent of that sum from Lammas 1703, to Lammas 1704, conform to his discharge produced, bearing that sum; whereas the annual-rent for that year, retention being allowed, was only £.44. Answered, This was but a mere mistake and wrong counting; for no man in his right wits would endanger his sum for 20 shillings Scots, which was all the excresce here; and the law says, de minimis non curat prætor; and there could be no animus delinquendi, where there is no temptation; and the town-clerk having drawn the discharge, has so framed it, either by mistake or design, to ensnare him; and the not allowing of retention is not usury, except when demanded and refused, which cannot be pretended here. Replied, The case is plain, he has taken more annual-rent than law allows, et majus et minus non variant speciem, et justicia non consistit in quantitate; and the less it be, it speaks the more covetous humour. Neither can it be palliated and excused as a mistake; for he has wrote on the back of the discharge with his own hand, that he had allowed three quarters retention, whereas it was due that whole year; and processes of usury have been sustained for less before the Justices, as in the case of Purdie in the year 1666, where the excess only amounted to threepence or thereby; and the like, 28th November, 1668, Hugh Roxurgh. The Lords thought it had happened purely by mistake, and therefore repelled the reason of suspension, and found no usury in this case; but ordained him to restore the excresce, or else default and allow it out of the next year's annual-rent.
