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Scottish Court of Session Decisions >>
Henderson v Graham of Kilmardinny. [1722] Mor 127 (20 December 1722)
URL: http://www.bailii.org/scot/cases/ScotCS/1722/Mor0100127-037.html Cite as:
[1722] Mor 127
Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Henderson v. Graham of Kilmardinny
Date: 20 December 1722 Case No. No 37.
Usurious stipulation.
An adjudication restricted, as to bonds, on which more interest than appeared to be due, was charged; and yet sustained in full effect, as to other bonds.
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An adjudication being led upon several grounds of debt, it was objected against some of the bonds, That they were null, upon the head of usury, in regard annualrent was pactioned, from terms prior to the dates of the bonds, and yet no evidence given, that the debtor received the money at these terms; on the contrary, the bonds bearing the receipts of the money indefinitely, the present time only could be understood.—The Lords found the objection against the bonds, not sufficient to annul them, as usurious; but sustained it, to open the legal of the adjudication, and cut off the penalties and accumulations of the said bonds; and sustained the adjudications for the principal sums, penalties, and accumulations of all the bonds whereon the adjudication proceeded, except the bonds quarrelled.
*** Here the case was cited, determined a year or two before, betwixt Halyburton of Newmains, and the Lady Monboddo; where an adjudication having been led upon a bond, without deducing the retention, betwixt Martinmas 1672 and 1673, which was a trifle, and by oversight; the Lords did reduce it to a security, for principal, annualrents, and necessary expences, not only as to that debt, but as to several others, against which no exception could be made.
