Thomas Scot in Castlemains of Crawfurd, v. Mr William Baillie of Glentewing, Advocate.
Date: 7 November 1711 Case No. No. 26.
One suing on a bond which acknowledged the granter to be justly addebted and owing to the pursuer's cedents a certain sum, and obliged him and his to pay the same to the pursuer, his heirs and assignees, at the time therein mentioned, with annual-rent from a term five months and twelve days before the date of the bond, not guilty of usury, because the money was supposed to have been borrowed at the said preceding term.
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Thomas Scot pursued Mr. William Baillie, as heir to James Baillie of Glentewing, for payment of a bond dated 23d April, 1696, whereby James Baillie acknowledged himself to be justly addebted and resting to Robert Scot of Gilesby, the pursuer's author, 100 merks, which be obliged himself, his heirs and executors, to pay to Robert Scot, his heirs, executors, or assignees, at the term therein mentioned, with annual-rent from Martinmas preceding 1695.
Alleged for the defender: The bond is usurary and null; the debtor being obliged to pay annual-rent five months and twelve days before the date, without any declaration (as is usual when money is borrowed betwixt terms) that the money was lent at Martinmas, for this is like the taking annual-rent before hand, which imports usury, December 1st, 1680, Johnston against L. Haining, No. 18. p. 16414; and the many different shapes that usurious oppression has broken forth in, should be a prevailing motive to check the least appearance of it.
Replied for the pursuer: Usury by our law is the taking a greater interest for money than the act of Parliament allows, or taking fore-hand payment of interest; neither of which can be alleged in this case; for the words “justly addebted and resting” do not argue necessarily, or imply, that the money was borrowed and received at the granting the bond; but it is to be presumed, ut actus valeat, that the bond was granted for money owing by the granter to the receiver at Martinmas; and it was reasonable to make it bear annual-rent from the time the money fell due; and though the bond be uncautiously written, for not expressing when the money was first due to the creditor; this oversight cannot be sustained as a ground to charge the guilt of usury upon the pursuer, who is not the original creditor, but an assignee for an onerous cause, especially considering, that no annual-rent hath been paid as yet.
The Lords found, that the pursuer is not guilty of usury, and therefore repelled the defence.
