Scottish Court of Session Decisions

Subject_1 USURY.

Stevenson
v.
Wilkison

Date: 30 July 1673
Case No. No. 15.

Retention not allowed.

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In a supension betwixt Martin Stevenson and Wilkison, the debtor having alleged for a reason of suspension, that the creditor had not allowed the last term's retention, conform to the act of Parliament, but had taken full annual-rent according to the six per cent and thereby had committed usury, and so lost the benefit of the sum; it was answered, That usury being a crime, is never inferred but where it is expressed; and this act of Parliament doth only allow the debtor that he may retain, but doth not retrench the annual-rent, even for that year, to five per cent. and that in the retentions in former acts of Parliament, sometimes it is appointed under the pain of usury, and sometimes not, which shows that usury should not be inferred but when it is expressed; and it would be a great inconvenience in such a dubious case to infer usury upon the not allowing of the retention, and that the most in justice that can be done, is to appoint repetition, if there were the least insinuation by the creditor of any inconvenience to the debtor, if he craved retention. It was replied, That usury is incurred when more annual-rent is taken than the law allows, whether there be mention in that law of usury, or not; for if the terms of this act had been to retrench the annual-rent to five for a year, or to discharge one, there can be no question of usury, though the act bore no certification of usury; so that the mind of the law-giver being clear, that in consideration of the burden of lands with a great assessment, the debtor should have retention of one of six, it were to enervate the intent and reason of the law, et fraudem facere legi, to suffer the creditor to take six upon the pretence of the debtors willingness, it being beyond doubt that debtors would not throw away their money to their creditor, if it were not upon apprehension that he would be rigorous to them, and would charge them for the principal sum; and though he should make no such insinuation, inest in re ipsa, and by this means the poorest debtors who durst least withstand the creditor, and for whom it was most intended, should have no benefit of it.

The Lords found that seeing creditors might doubt whether the not allowing of retention inferred usury, that whosoever had taken the full annnal, if they allowed or repaid the same within the year of retention, that it should not infer usury, otherwise that it should infer the same; for they found that if the certification were only repetition, it would not be effectual, and the debtor might certainly renounce the same.

Stair, v. 2. p. 226.