Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.

Sir Michael Stewart of Blackhall
v.
Earl Dundonald

Date: 3 June 1752
Case No. No. 24.

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Sir Michael Stewart sued the Earl of Dundonald for payment of 100 guineas, with interest from the time of his father's succession to the honours and estate of Dundonald, on his grandfather Kilmarnock's bond to Mr John Stewart, the pursuer's father, in 1698, when the then Earl of Dundonald, his brother, had two sons living, obliging him for a certain sum then received, to pay him 100 guineas how soon he or the heirs of his body should succeed to the honours and estate of Dundonald, with penalty and interest from the term of payment. The defence, was that he had not succeeded to the whole estate, but a part of it sold, and the half of what remained evicted by the Duke of Hamilton; but the Court took up the case on another footing, as being contra bonos mores captare votum mortis viventis; that at best it could be no better than the case betwixt Dr Abercrombie and Lord Mordaunt, (No. 17. supra,) and if we knew the sum paid, we could decree no more than that sum and interest according, We found the bond void and null, reserving to the consideration of the Court whether the pursuer ought to be repaid what money was paid for granting the bond, the pursuer proving the same.—Adhered by the President's casting vote. (See Dict. No. 61. p. 9514,)

See Notes.

See Usury.