A minor gets two rings worth about 401. and grants bond for 150 guineas, payable at the first term after his marriage or death, and renews the bond after majority. The bond found good.
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Sir William Maxwell, when not quite major, purchased from Mr. Charles Murray two rings; for which he granted an obligation of the following tenor: He sets forth, That Mr. Murray had instantly sold and delivered to him two rings in value upwards of £.40 Sterling; for which he binds himself, and his heirs, to pay to him 150 guineas at the first term after his marriage or death, with penalty and annual-rent after that term; and he farther binds himself to renew the bond after his majority, when required.
Sir William being major, grants a new bond to Murray, by which he acknowledges, that he is justly addebted, resting, and owing, to him, £.157 10s. which he obliges himself to pay at the terms and on the conditions mentioned in the first bond.
Sir William insisted in a reduction of the bond, against Mr. Pringle, trustee for Mr Murray's creditors.
Pleaded for the pursuer: This bond proceeds on a false narrative, as it sets forth, that Sir William owed Mr. Murray 150 guineas, whereas only £.40 was advanced. The bond is usurious, as the sum it contains is double what could ever be due, according to any calculation of the pursuer's death or marriage. The Court has so decided in two late cases similar to the present, but much more favourable to the creditors; Dr. Abercrombie against Earl of Peterborough, in 1745, No. 35, supra; Sir Michael Stewart against Earl of Dundonald, in 1753, No. 36, supra. In both these cases, the contracts were truly bargains of hazard, in which the creditors run a great chance of losing their money. In the present case, there was no hazard; the bond was undoubtedly due, and only payment delayed till death or marriage; and the consideration to be paid by the debtor for that forbearance greatly exceeded the highest computation of legal interest that could possibly be due at any of these periods.
Answered for the defender: This was not a loan of a certain sum of money, for a consideration above the legal interest. It was a chance bargain. The parties agreed, that the rings were worth above £.40; but how much, is uncertain. Mr. Murray had a pretium affectionis for his rings. Sir William's death or marriage were uncertain as to the time, and he might have died bankrupt. Such chance bargains are not contra bonos mores, not reprobated by the law of Scotland. The present case differs from that of the Earl of Peterborough, in three material articles; 1mo, This is not a loan of money, but a bargain about rings, the value of which was not fixed; 2do, In the present case, Sir William, three years after, when major, sciens et prudens, and when he must have known the just value of the rings, renewed the bond; which is passing from all objections; 3tio, Sir William has disposed of the rings, and so cannot reinstate Mr. Murray in his former condition, which is necessary in all such cases.
Replied for the pursuer: It was not a chance bargain; for the value of the rings was fixed to £.40, and is not yet pretended to be greater. The new bond is admitted to have come in place of the old one; so is liable to the same objections. The rings were clearly sold for £.40; and this action is not brought to reduce the sale of the rings in toto, but only to correct the inequality.
“The Lords repelled the reasons of reduction, and assoilzied.”
Act. Miller.Alt. Lockhart.Clerk, Kirkpatrick.
Fac. Coll. No. 228. p. 420.
