Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.

Earl Peterborrow
v.
Dr Abercrombie

1745, July 12.
Case No. No. 17.

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This question was about the validity of an English double bond of L.1600 by Lord Peterborrow, then Lord Mordaunt, to the Doctor in 1780. The case was, that the Doctor gave Lord Mordaunt L.210, for which this double bond was granted, the condition whereof was, that if Lord Mordaunt should die before his grandfather, Lord Peter-borrow, (who was then about 75) or if in two months after Peterborrow's death, he should pay L.840 sterling, the bond should be null. This bond was quarrelled as usarious; and 2dly, on the head of fraud. We generally inclined to restrict it as contra bonos mores, to the principal and interest; only the President thought there should also be some allowance for the real chance; but it being suggested that such a bond has been lately set aside in Chancery, we delayed for a month, that some evidence might be brought of this. Arniston thought it would be no great stretch to find it usurious, 9th June 1745. Vide 12th July, where precedents from the Chancery were laid before us.

Now (12th July) a condescendence was laid before us of precedents from the Court of Chancery, and thereupon the Court unanimously restricted the bond to the capital and interest; but then we thought the money should be readily paid;—therefore we found the bond might be redeemed upon payment of principal truly advanced, and interest thereof, any time before Whitsunday next, without any costs before this time; but in case of not payment at that time, decerned for the whole sum redeemable by payment of principal and interest, and costs hereafter to be incurred.