Scottish Court of Session Decisions

Subject_1 USURY.

Hamilton
v.
Captain Cleland

1741, July 15.
Case No. No. 1.

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A creditor in 300 merks granting a discharge, as dated in January 1734, bearing receipt of full payment of the annualrent till Lammas 1734; and after his death his heir suing for payment,—the defence was an allegeance of usury proved by that receipt. Answered: That the date must have been a mistake instead of 1735, which mistake is common in writs granted in the first month of a year; 2dly, de minimis non curat prætor, and the usury in this case could not exceed three-halfpence. At advising, we doubted whether by our Scots acts of 15 and 23 Parl. James VI. this was proponable against the heir after the usurer's death; and two judgments in 1706* and 1709,† were observed,

* Dict. No. 62. p. 524.

† Dict. No. 65. p. 16,420.

where the Court found the objection cut off by an indemnity, which it could not, if it annulled the debt; and Arniston seemed inclined to be of that opinion; though now since the act 12th Annæ, where the usury is committed in the original contract, it voids the contract; yet usury committed afterwards does not annul the bond; and Earl Ilay observed, that we had all overlooked that the discharge does not specify the particular sum received, and if the interest of the interest was discounted, there was no usury. We found no sufficient evidence of usury.