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Scottish Court of Session Decisions >>
Johnstoun v The Laird of Haining. [1680] Mor 16414 (1 December 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor3716414-018.html Cite as:
[1680] Mor 16414
Usury found incurred by taking annual-rent before it was due.
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Mary Johnstoun having obtained a decreet against the Laird of Haining, he suspends upon this reason, that he hath right to the sum himself, as donatar to the usury committed by the pursuer's husband, by taking annual-rent before hand, proved by a discharge produced. It was answered, That the King by his act of grace and proclamation in March 1674, had discharged all arbitrary and pecunial pains incurred by law anterior to that time, and this discharge is of an anterior date to that time; 2do, The taking of annual-rent before hand is lawful, being no more than what would have been given to a broker for finding out the money. It was replied, That the proclamation could not extend to usury, which is a crime by the law inferring infamy, which is equivalent to death, and is not introduced by any pecunial statute in this kingdom, but is a general crime every where prohibited by divine law; whereupon the King's advocate for the King's interest had a second hearing. It was duplied, That taking of annual-rent is no crime, though it was prohibited among the Israelites by the judicial law, and is yet prohibited by the cannon law, but is allowed by all Protestants and other nations, and the quantity of it is only restricted by our peculiar statute, so that a greater annual is declared usury by the same, which otherwise would not be so; but the proclamation not being a discharge of one of these, which are called penal statutes, but of all pecunial and arbitrary penalties, yet the Lords sustained it to reach to usury. It was further alleged, That the statute could only take away the King's interest, but not the half, which the statute makes to belong to the party injured, or informer.
The Lords found, that the taking of the annual-rent before hand, imported usury, but that the discharge proving it, being before the proclamation, anterior acts of usury were thereby discharged, and that any information given after the act, gave no share to the informer.
