BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Frazer, &c. v Hamilton. [1679] Mor 564 (22 January 1679)
URL: http://www.bailii.org/scot/cases/ScotCS/1679/Mor0200564-111.html Cite as:
[1679] Mor 564
Subject_1 ANNUALRENT. Subject_2 What puts a stop to the course of ANNUALRENT.
Frazer, &c v. Hamilton
Date: 22 January 1679 Case No. No 111.
However long a bond in the English form might remain due; it was found the annualrent could not accumulate, so as to exceed the principal sum.
Click here to view a pdf copy of this documet : PDF Copy
Leyes Burnet, as assignee to Sir Alexander Frazer, having pursued Sir James Hamilton as representing his father, for payment of a bond granted by Sir James to Sir Alexander, when they both resided in England, after the English form, for L. 1600 Sterling in the obligation, and L. 800 in the condition:—It was alleged for Sir James, That the doubling of the sum being penal, is at the Lords' modification, and cannot extend any further than the damage and interest of the party.——Whereupon the Lords restricted the sum to the single bond, and the annualrents thereof, in so far as was not paid; which annualrents being calculated, did exceed the double bond.—Whereupon it was alleged for Sir James, That the duplication of the sum being penal, and restricted by the Lords to the annualrents, these annualrents could never be further extended than to the double bond itself, and then it behoved to sist.—It was answered, That although by the event, the annualrents do exceed the stock, yet it is a favour to reduce the same to the annualrent; for, if Sir James had been but owing a year's annualrent, he would have been liable for no more; and therefore, seeing he would have had that advantage, he must have the disadvantage, which is through his own long delay: And by the law of Scotland, annualrent being once paid, it is always due, though without paction; and in this process, an hundred pounds paid is attribute first to the annualrent, and then to the principal sum.—It was replied, That there was no annualrent ever here paid, but receipts in part of payment generally; which the Lords, by their restriction, did attribute first to the annualrent, and then to the principal: And seeing annualrent is only due by law or paction, there is pretended here no law for annualrent, neither is there any paction that can exceed the double bond; and it were inconsistent that a restriction and modification should exceed the thing restricted.
The Lords found the annualrent could not be accumulated further than the extent of the double bond.
