Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Thomas Scot
v.
William Bailie

Date: 7 November 1711

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The Lord Polton, probationer, (in the room of Lord Anstruther, deceased,) reported Scot against Bailie. James Baillie of Glentirring being debtor to Scot of Gilesby in 100 merks, by bond, in April 1696; Thomas Scot, the creditor's son, having right thereto by assignation, pursues Mr William Baillie, advocate, as representing his brother on the passive titles, for payment.

Alleged,—The bond being usurious, he must be assoilyied from the debt; in so far as it is dated the 23d of April 1696, and yet is made to bear annual-rent from the Martinmas 1695 preceding, which is five months and twelve days; and does not bear the usual clause and declaration accustomed to be inserted in such cases, where money is borrowed betwixt terms, that the money was truly lent, given, and received at the preceding term, notwithstanding its date posterior thereto.

Answered,—Landward writers know not all these subtleties; but it is plain there was a preceding cause of debt prior to the date of the bond; and which was not borrowed money; for it bears no such thing, but allenarly that it was resting owing. Now, it is a known principle that usury takes properly place in mutuo, which this is not; for, though law reprobates the exorbitant profits of money, which, of its own nature, is barren, and has confined and reduced it to a certain moderation and quantity, yet this is only in money borrowed and lent; for, in the matter of goods and commerce, the fcenus nauticum et pecunia trajectitia may very justly exceed these rules, because of the apparent risk and hazard they run; as in policies of insurance, contracts of bottomry and the like. And the ground of this bond has certainly been a bargain of goods, and no lent money.

Replied,—Usurious oppression has appeared under many different shapes; and, as it broke out, it was nipped by sundry Acts of Parliament; such as, Act 52d 1687, Act 222d 1594, Act 247th 1597, and Act 28th 1621; and has been often discouraged by the Lords; as, 30th July 1673, Stevenson against Wilkison; 2d January 1677, Hepburn against Nisbet; and 1st December 1680, Johnston. It is true, the canon law discharged annualrents as usury; yet this was but a mere pretence; for they allowed me to buy an annuity on my neighbour's land, which was every whit as grievous, and the same thing except only the name, and was the rise of our infeftments of annualrents. By the old Roman law, and an article of the twelve tables, all then exacted was usura unciaria; but, in process of time, it grew to six or eight, and sometimes to ten per cent. And the English allow it aye till it equal the principal sum, and then it stops; and Justinian did the like.

The Lords found there was no usury in this case; and it occurred to some, that, though it had, the same was fully taken off by the act of indemnity. Others said, though that took off the penal part, yet it did not dispense with the private party's damage. But there was no necessity of recurring to this defence, seeing the clause was not found usurious.

Vol. II. Page 608.