Scottish Court of Session Decisions

Subject_1 ANNUALRENT.
Subject_2 ANNUALRENT due ex pacto.

David Carnagie of Balmachie
v.
Durham of Omachie, and his Tutor

Date: 19 December 1676
Case No. No 14.

The same found.

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In a pursuit at Balmachie's instance, against Durham of Omachie, as representing his grand-father, for payment of the sum of 3000 merks, as the remainder of the wife's tocher, contained in a contract of marriage; as likewise for the payment of some nolt and sheep delivered to Omachie, or some by his order.—It was alleged for the defender, That he ought to be assoilzied for the annualrent of the sum due in the contract, because it did bear no obligement to pay annualrent after the term of payment; and as to the annualrent of 1000 merks, it was not payable until after Omachie's decease, and so could not bear annualrent, his heirs nor executors not being bound.—It was alleged as to the price of nolt and sheep sold and delivered, that not being pursued within five years, conform to the late act of Parliament, it was not probable, but vel scripto vel juramento.—It was replied to the first, That albeit the contract did not bear annualrent, yet the pursuer producing a fitted account, stated by Omachie himself, not only for the principal sum resting, but for the whole bygone annualrents, with a subscribed ticket to make payment of both at a certain day; it was a sufficient ground for annualrent thereafter; use and payment of bygones being sustained by our law, without any obligement in write; and for the thousand merks, payable after Omachie's decease, albeit none can be craved but since his death, yet it being a part of that same principal sum of 5000 merks of tocher, by stating himself debtor in annualrent for all that was due in his own time, it was a just ground to make that sum bear annualrent since the term of payment.—It was replied to the second, That the delivery and price of the goods libelled was probable, prout de jure, being before the late act of Parliament, which did only extend ad futura; whereas, before that act, bygones of that kind were only probable by witnesses within forty years.——The Lords did repell the first defence, and found the whole remaining sum of the tocher to bear annualrent, in respect of the fitted account, and subscribed ticket produced, which were far stronger obligations than was naked use and custom; and likewise found, that the last 1000 merks, payable after Omachie's decease, should bear annualrent, as being a part of the total for which he had acknowledged annualrent to be due, as likeways because it was a part of the tocher contracted ad sustinenda onera matrimorii, for which the law allows annualrent ex mora. As to the second, the Lords did sustain the pursuit probable prout de jure, the delivery being long before the late act of Parliament, which they found was correctory of the common law, allowing always before that time, probation of such bargains by witnesses, and declaring that it should only extend ad futura.

Fol. Dic. v. 1. p. 37. Gosford, MS. No 925.