Scottish Court of Session Decisions

Subject_1 USURY.

Geddes
v.
Budge

1675. July.
Case No. No. 16.

Usury upon the usurper's acts.

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Geddes, as having right to the gift of usury granted to the Earl of Glencairn, having obtained decreet against William Budge of usury upon two bonds, containing more annual-rent than six per cent.; in anno 1656 he suspends on these reasons, 1mo, That usury being a crime, behoved to be founded upon an express law as to any criminal effect, which cannot be in this case; for it cannot be founded upon the act of Parliament 1649, reducing annuals to six per cent. because that Parliament is rescinded as null ab initio, without authority and without any salvo, and the act of Parliament 1661, restricting annuals to six per cent. doth not bear as in other cases to take effect from the act of Parliament 1649, 2do, That albeit these bonds bear an obligation to pay more annual-rent, they cannot instruct usury, unless, it were proved that more annual-rent was actually taken. It was answered to the first, That crimes may be founded not only upon statute, but upon custom, and it is in contraverse that it was the constant custom since 1649 to allow only six per cent. for annual; and albeit that Parliament be rescinded, yet seeing it was submitted to by the whole kingdom, as a law for the time, those who took more annual than six per cent. are no less culpable than those who take it now, and the rescissory act doth not annul that Parliament and all its acts ab initio. To the second, the old act of Parliament 1594, Cap. 222. against usury, bears expressly, “That the party payer, or obliged for unlawful profit, is liable.”

The Lords repelled both the defences, and found that usury inferring but a pecunial pain, might be sustained, notwithstanding of the rescissory act, and that the obligation to pay the same was sufficient by the old act.

Stair, v 2. p. 359.