Krassaw — Petition, 7 Feb 1769

February 7. 1769. Unto the 7. 1 6 9 U n t n o h e T L O The L O R D S of C O U N C I L and S E S S I ON, / C ' ‘- O ' # 4— /" 1_ \ T H E P E T I T I O N OFr- ^ ^ * / X » » " * p T « | L ' ^ J OHN K R A S S A W Merchant in Edinburgh; A Humbly Sheweth, T- HAT Lieutenant General George Preston having pur-. chased, from Archibald Earl of Roseberry, the lands of Innerkeithing and others, which were affected with certain liferent annuities, L. 40,000 Scots of the price was retained by the General; and it seems the method devised to settle the matter was, that the General granted an heritable bond for the said L. 40,000 upon the lands sold, the capital payable to the Earl at the deaths of the respective annuitants upon which heritable bond the Earl was insest. In September 1723, the Earl granted a general disposition of all his subjects, heritable and moveable, (excepting his entailed estate), to Mr John Primrose his youngest son. and to the Ladies Mary, Margaret, and Dorothea Primroses, his daughters. Earl Earl Archibald having died soon after granting this deed, he was succeeded by his son Earl James, who, in the year 1724, entered into a transaction with his brother Mr John, and h e r Lady Mary, whereby they conveyed to him all right compe­ tent to them in virtue of the general dis posi tion of Earl Archibald their father, above mentioned. In consid eration whereof, Earl James granted bond to Mr John for L. 1800, and to Lady Mary for L. 900 Sterling; and Earl James ha­ ving obtained from General Preston a precept of Clare constat, was thereupon insest; and thus estab lished proper feudal ti* tles in his person to the foresaid heritable bond: And, in cor­ roboration. and for further security to Mr John and Lady Mary of the sums due to them, he assigned and disponed L. 24,460 Scots, as a part of the said sum of L. 40,000, which had then fallen due through the death of certain of the annui­ tants, with annualrent and penalty effeiring thereto, with a proviso, that the saids Mr John and Lady Mary should only be holden obliged to impute what they should happen to re­ ceive, in virtue of this disposition and assignation, in pay­ ment pro tanto of the sums contained in Earl James’s bond; but should not be liable for omissions of any sort. Upon this disposition Mr John and Lady Mary were insest; and soon thereafter received a payment from General Preston to the amount of L. 12,460 Scots, viz. L. 8306: 1 3: 4 by Mr John, and L. 4153: 6: 8 by Lady Mary. The said Mr John being debtor to the petitioner in certain sum of money, did assign and dispone him in and to the fore- said heritable bond granted by General Preston, disposition and assignation granted thereof by Earl James to Mr John, in security and for payment to the petitioner of L. 43 Ster­ ling, and annualrents thereof from the 20th day of Novem­ ber 1724, and in time coming till payment; upon which, disposition and assignation the petitioner was insest. That several years ago a process of multiple-poinding and declarator was brought before this court, at the instance of Sir George Preston of Valleyfield, the heir of General Pre­ ston, ston wherein all parties having interest as heirs, creditors or disponees. were called, in order to have the balance as certained upon the foresaid heritable bond and to have it found and declared to whom such balance did belong. That after various interlocutors pronounced in this pro cess, it was at last, in the year 1766, ended, and the decree textracd; niwhsfouMJPm rose, L, 2201: 8: 7 o f principal, and L. 9 7 8: 0: 5 o f Neil Earl o f Roseberry, Alexander Earl and Margaret Coun- tess of Caithness, and to John Krassaw the petitioner accor- ding to their respective interests, derived under or relative to the share o f the said John Primrose. The petitioner cannot account how it happened that in this multiple poinding the particular interests o f parties were not determined upon this sum found due to Mr John Primrose; so that altho' the petitioner had been put to a good deal of expence in the ranking, yet when he came to draw his payment from Sir George Preston, it appeared this m at- ter had not been fully ended; for although the money dueto MrJhnadigelbsc the prsnEalofRby,LdCi- titioner, yet their several rights and interest s therein were not fixed, or how they should draw the same This occasioned a second process o f multiple-poinding at the instance of Sir George Preston, against the petitioner and the present Lord Roseberry, in order that their rights and interests to the share o f the foresaid heritable debt, found dueto hesaidJnPrm,gby ranked thereu p o n. This process came before Lord Montboddo as Ordinary in the outer-house, in which the petitioner produced as his interest the foresaid disposition granted by Mr. John Prim- rose, with the insestment following thereon. Com- Compearance being likewise made for the present Earl o f Roseberry; the title which he founds upon, is as executor to Earl James his father; hut he does not pretend to con­ nect any title with Mr John his uncle; and contends, al­ though the sum, as due to Mr John by General Preston, was ascertained in the former multiple poinding to amount to L 2201:8:7 of principal, and L. 978: 0: 5 Scots of an- nualrent, yet that this sum was by no means due to Mr John, for he was paid of all his claim against Earl James to about L. 30 Sterling; so your Lordships see the plea of the present Earl resolves into a virtual reduction of the former decreet of this court, and that Mr John had not right to the tenth part of the sum thereby ascertained; so he was paid the most of the debt due by Earl James; consequently the present Earl, as the heir of Earl James, is intitled to draw all the money formerly ascertained as the debt of Mr John, from Sir George Preston. This must appear a plea not in ordinary form. The pe­ titioner understands, that in competitions of this sort, par­ ties may mutually propone objections to each others inte- rest, as in a reduction; but it is not understood that this can extend so far as to cut down the ground of debt, or the fund in medio; and more especially in this case, when this ve­ ry sum was ascertained as a fund due to Mr John in the former multiple poinding, and in which process the Earl was a party; so that it appears clearly a res judicata. This will fall to be taken notice of more fully in the sequel; but the petitioner will now proceed to state the particular grounds upon which Lord Roseberry’s plea is founded, and by which he means to show, that this balance ascertained to Mr John is extinguished and paid.. * The first is a discharge by Mr John Primrose to James Earl of Roseberry his brother, for L. 365 Sterling; a copy of which discharge, as it is both curious and not very intel- legible, is hereto subjoined; from which your Lordships will observe, observe, that a bill for L. 600 Sterling granted at the same time by Mr John to the Earl is also mentioned in this dis- charge; and it is declared that Mr John shall not use any diligence real or personal against the Earl until this L. 600 was paid. And this discharge also contains sundry other conditions for a supersedere to the Earl, together with the following clause: ‘ And in case the said bill shall remain unpaid, or be lost, then thir presents shall remain and be a sufficient discharge pro tanto of what is owing by the foresaid heritable bond, or other bonds whatsoever.' The second article founded on is a registrate protest for the above bill of L. 600, and another of L. 200; for the bills themselves are not produced. That for the L. 600 appears to have been of the following tenor: ' Bambougle, 12. No­ vember 1724. Sir, Four months after date, pay to us or our order, at our house of Barnbougle, the sum of L. 600 Sterling money, with the due and ordinary annualrent from the date hereof to the said term of payment, and thereaf­ ter while payment, and with a proportional penalty in cas e of failzie, make thankful payment, and oblige, (Signed) Roseberry. To Mr John Primrose, Esq; (Signed) Ac­ cepts John Primrose.' The third article founded on is the said said registrate pro- test for a bill of L. 200 of this date, granted by Mr John to the Earl, which, from articles of agreement of the same date relative thereto between the parties, appears to have been an account of pictures sold by the Earl to Mr John, and which were to be delivered. This bill is made payable at the term of Candlemas after the date And the articles of agreement contain a clause much in the style of that in the discharge. ' And in case the above named bond or bill of L 200 Sterling be lost or unpaid, these presents shall be a sufficient discharge pro tanto, due by the said Earl to the said Mr Primrose by an heritable bond.’Thes These several writings appear all to have been put into the general register at Edinburgh upon the 18th day o f June 1 7 2 5. # These are the grounds of debt upon which the Earl en­ tered the present competition with the petitioner, and upon which it was contended for his Lordship, that the right granted by Earl James to Mr John Primrose of a part o f the said heritable debt due by General Preston, in further corro­ boration and security of the debt due by the Earl to Mr John; and seeing Mr John’s debt is by the above vouchers all extinguished and paid, except a balance of about L, 30; therefore the petitioner’s right, which is founded thereon must fail to the ground.' When this matter came into court, Lord Roseberry ha­ ving given in a condescendence of his grounds of debt and payments alledged made to Mr John, and answers and re­ plies having followed thereon, the same came to be advised by the Lord Ordinary, and he was pleased of this date to sustain the payments condescended on in the condescend- ence and replies made by the deceased James Earl o fRosebry ftd in question due to John Primrose and ordains the doer for the Earl to make out a calcul o f these payments, in order to ascertain the balance of the debt in question.’ Against this interlocutor the petitioner having represented the Lord Ordinary appointed the same to be answered, and the Earl at the same time to produce his vouchers of payments bove taken notice of; which being obtempered, the Lord Ordinary was pleased of this date to refuse the desire of the representation, and adhere to the former interlocutor. The petitioner must beg leave to lay this matter before your Lordships for review, and to crave your determination thereon; and he must be pardoned for saying, that he hum ' bly apprehends there are various points in this cause, any, ■:/. one one o f which is sufficient to his purpose for obtaining a pre­ ference in the present competition. For, in the first place your Lordships will observe, that in the first process of multiple-poinding L. 2201:8:7 Scots of ca­ pital, and L 978: o: 5 o f bygone annualrent was found ‘ to be due to the said Neil Earl of Roseberry, John Krassaw, and Alexander Earl of Caithness, and the said Lady Margaret Primrose then Countess of Caithness, according to their re- spective interests derived under, or relative to the share of the said John Primrose ’ So that here was a clear balance fixed, and the matter as to this point is undoubtedly a res ju ­ dicata, or there is no such thing in law. It is very true, that in this first multiple-poinding, there was produced for the present Earl o f Roseberry those very odd grounds of debt now founded on, and which the peti­ tioner shall examine by and by. But this could only be in the character of creditor to Mr John Primrose; for if the Earl could have maintained that the whole of this debt was extin- guished, or could be extinguished till the petitioner’s debt was paid, it ought to have been pleaded in that process, and i f the plea was tenible, no other balance could have been ascertained but what was properly due; for supposing the Earl’s ground of debt to have been ever so unexceptionable, he could only claim in the character of a creditor to Mr John Primrose, and the validity of his debt came to be tried in competition with those of other creditors. This is the ground which the Earl must now take; and in this view, let us inquire, 2do, How his debt stands in com­ petition with the petitioner; and we will suppose, that he had produced all the bills founded on good and unexceptionable writings; yet the petitioner does humbly maintain, that ac­ cording to every rule, principle, and "practice of the law of Scotland, the Earl would not be intitled to draw one pen­ ny of this money till the petitioners debt was wholly paid and discharged. For, For, what is the case? The Earl’s debt could be no more than a personal debt of Mr John’s, which has no sort of at­ tachment or nexus whatever upon this money; on the o- ther hand, your Lordships see, that the money in the hands of Sir George Preston was heritably secured, and the peti­ tioner stands vested therein by proper feudal titles derived from Mr John; so that it was not in the power of Sir George Preston to pay this money to the Earl, Mr John, or any person whatever, nor was his estate ever disburthened there­ of, without obtaining a discharge and renunciation of the pe­ titioner’s insestment. The petitioner must own, that he does not underhand Lord Roseberry’s argument upon this point, which is some- what to this purpose; that as Mr John had a conveyance f rom Earl James to so much of the debt due by General Pre- ston only in further security of the debt due by the Earl to Mr John; that therefore so soon as the Earl could shew that Mr John had either discharged the principal debt, or contracted debts with the Earl his brother equivalent thereto, that then the debt conveyed in security was eo actu virtually loosed and discharged by Mr John; and consequentlv, every subaltern security derived from him also fell to the ground. The petitioner apprehends this doctrine has no founda­ tion in law, even taking it according to this state of the mat­ ter; but your Lordships will observe, that the disposition f rom the Earl to Mr John was corrobation of the L.1800 bond; and for further s ecurity anent the payment thereof Mr John s conveyance was absolute; he had a power to up­ lift and actually did uplift a great part of the sum conveyed.-And with respec t to the remaining sum, the petitioner was put in Mr Johns place, in security and for payment to him of the sum above specified, all which was established by pro- per feudal investitures. How then, w ith subm ission, is it possible to argue, that any personal creditor has the least title to compete with the petitioner anent this money thus heritably heritably secured in his person; or that even a discharge or renunciation thereof from Mr John, if not duly recorded prior to the petitioner’s right, could operate an extinction or cut down the ground of debt? But, 3dly, The petitioner apprehends, that, abstracting from the discharge for the L. 365, the present Lord Roseber- ry has not produced any legal or satisfying evidence to show, that Mr John was ever paid one penny further of his L. 1800, than the foresaid L. 365, and the money which he recovered from General Preston; because the money claimed as due upon the two bills of L 600 and L. 200 is noways intrus t ed; for no such bills are produced in process; and the only foundation for the claim is an extract of the protest from the record in the 1725. With submission, the petitioner cannot comprehend the least foundation in law for this claim, or how such a voucher can be sustained as a ground of debt. At this rate, every bill that has been protested and regi- strate, though it might thereafter be paid, retired, and dis- charged; yet it might be reared up at an after period mere­ ly upon an extract of the protest from the record, when the bill might be cancelled as useless and not in existence: This cannot surely be supported. How then does the Earl pretend to support this claim? By the very odd clauses in the deeds above mentioned, whereby it is provided, ‘ That in case the said bill shall remain unpaid or be lost, then thir presents shall remain, and be a sufficient discharge pro tanto of what is owing by the foresaid heri­ table bond, or other bonds whatsoever. ' Yet this would by no means do, even in a question with a person claiming as the heir and representative of Mr John; nor could it o- perate any extinction either of the L. 1800 bill, or of the debt due by General Preston: For it is evident, that if these sums upon the bills were ever ju st and proper debts, of which there is great suspicion; yet your Lordships see, that Earl James never intended that they should anyways impute in extinc­ tion tion of his debt due to Mr John; and his very protesting of these bills shows, that he was urgent for payment; and this clause thrown into the discharge for the L. 365, and to the articles of agreement, was no more but by way of a further and unnecessary security, that if he did not get payment o f the bills, he should be at liberty to impute them in extinc­ tion pro tano f Mr John’s debt. The condition is, That if the bills were not paid, or should be lost, then they were to be imputed in payment pro tanto of Earl James’s bond. The discharge, of which this clause is a part, seems indeed altogether a very igno­ rant production, and this clause of a piece with the rest. For, no doubt, if the bills remained unpaid, and tho’ they should be lost, if the facts could be instructed, and the te­ nor proved, it would have been a claim of compensation against Mr John, and would have operated ips o jure, as ef­ fectually as any such clause or obligation could do. For as Lord Roseberry is not now possessed o f the bill, and has only got the registrate protest produced from the record, the presumption of law surely is, that the bills were paid and retired by Mr John: Nor can his Lordship derive the least aid from this clause in the discharge, or afford any evidence that the bill remained unpaid, or was lost. This cannot be instru cted by a mere averment: For, at this rate, no discharge, nor no retiring of the bill to Mr John, could have ever procured him an exoneration. The petitioner, therefore, apprehends, that in order to give the least force or effect to this clause, it would be incumbent on the No­ ble Lord to instru ct habile modo that this bill never was paid, but that it was lost; and the cas us amissionis also behoved to be proved; so it is evident from the words of this clause, according to any rational interpretation thereof, the Earl could not derive any further benefit than he would have done by the mere operation of law, if no such clause had existed. But, But, 4to, With respect to the L. 600 b ill: Supposing it to have been produced, and in process, the petitioner hum­ bly maintains, that it is not worth one farthing; and that, abstracting from all the suspicious circumstances attending it, that it was not a fair bill, nor for a ju st cause. But, ju st ta­ king it as it stands, it labours under intrinsic nullities, and is absolutely void and null in law. For, Your Lordships see, that this bill bears to have been granted on the very same date with the discharge for the L. 365, and by which deed there is a sort of ill worded pro­ vision, that in case Mr John did not quarrel the payment of the said bill, but should pay the same, that the Earl Should have a supersedere of payment for two years thereafter. But ex facie of the writings, and from the transaction as it ap­ pears, no rational construction can be made thereof. Now, to the bill itself, your Lordships see it cannot with any propriety be denominated such. It is an anomalous sort o f deed or obligation for L. 600, payable four months after date, with the due and ordinary annualrent from the date, and thereafter while payment, and with a proportional penalty in case of failzie. It is addressed after the form of a b ill; but the body of the writing is precisely in the Stile of a personal bond; so that it can never be considered as a bill, the form and tenor of it being so directly contrary to the nature and intention of bills; and if it is not a bill, it is, in terms of the act 1579 and 1681, void and null, wants all the requisites necessary for constituting a valid obli­ gation, and can bear no faith in judgement. The petitioner need not quote authorities to prove what he here maintains. For he considers it as trite law, and has uniformly been followed in the practice of the court in every question that occurred of that Sort, and for these 30 years bygone, even a simple clause of annual- rent in a bill is an intrinsic nullity, and renders it abso- lutely void. To this purpose, there is a decision directly in point in the late faculty collection, 15th November 1757, Douglas Douglas and Lindsay against Alexander Brown; where a bill dated in the 1725, upon which inhibition and adjudication had followed, and tho’ it appeared to have been granted for value, and as the amount of goods discharged at the time; yet, merely because it contained a stipulation for interest from the date, your Lordships found the bill void and null It is therefore submitted, tho’ this bill had been in the field* it your Lordships would have sustained it as any ground o f competition, or as a discharge or extinction of a debt con- stituted by a proper and valid obligation. From all which it is demonstrative that instead o f the money in the hands of General Preston being any ways extinguished by vouchers of payments made to Mr John, that besides that debt, Lord Roseberry must at this day be owing a very considerablepart of the L. 1800 that was due to Mr John. May it therefore please your Lordships, to alter the in­ terlocutor of the Lord Ordinary above mentioned, and i n consideration of the premis,to find that Lord Roseberry has no title to compete with the petitioner for the money in the hands of Sir George Preston, to pre- fer the petitioner thero, and remit to the Lord Ordi- nary to proceed accordingly. According to Justice, &c. D. A R M S T R O N G. F O L L OW S the R.DS6eh1O referred to in the foregoing P E T I T I O N. ' ° If h CNUI PRIMROSE, Esquire, do, by these presents,grant me to have received from the Right Honourable James Earl of Roseberry, all and hail the soume of L 365 Sterling money, being in part payment of a greater soume resting by the said Earl to me, by heritable bond, for about L. 1800 Sterling, affecting Brigadier Preston’s or Pitravie's estates. or both or either of them, and the lands of Nivans- green, bringing to his Lordship, or any personal bond for the likesoume; and therefore I, for me and my heirs, exoner and discharge the said James Earl of Roseberry, his heirs, and all others whom it doth or may concern, of the said soume of L.365 Sterling, pro tanto, and as in part of the said principal soume, as said is, and of the said herita­ ble bond, or any other personal bond or security by his Lordship to me, with all that is any ways competent to me thereupon, in so far allenarly as concerns the said soume hereby discharged; declaring hereby, that the said soume of L. 365 Sterling hereby discharged, is instantly received by me from the said Earl himself, and is over and above all sums received by me from the said Brigadier, or any other persons whatsoever, by virtue of the saids bonds, upon ac­ count of the said Earl: Likeas, I the said Mr John Primrose do hereby prorogue and supersede any demand whatsoever of the payment of any sums o f money due by the said Earl to me, and that whether by heritable bond or any other personal bond or security by his Lordship to me; and de- clare, that I shall not use any diligence, whether real or per- sonal in any sort, against: the said Earl, upon any of the said bonds, or any other security by his Lordship to me, and that ay and untill I do pay to the said Earl the soume of L 600 Sterling contained in ane accepted bill of the date of of thir presents by me to him, for the said sum, payable in four months after the date thereof above mentioned, and even furder for the space of one full and compleat year af- ter I do pay him the foresaid sum of L. 600 Sterling con­ tained in the said bills above mentioned, it being so express- lv condescended and agreed upon betwixt his Lordship and me; and in like manner, furder for the full and compleat space of another or second year after the said first year, and that onlv in the case that I shall happen to make any profit: of a bargain of pictures sold by his Lordship to me, conform to a disposition thereof by him to me of the date of these presents; and according the said demand of payment before narrated is prorogated and superseded for two full years after the payment of the said bill as said is, in case I do not, upon the payment o f the said bill, quarrel the same, by my alledging myself to be a looser in the said bargain of pictures, which shall be pro­ ven by my oath; and in that case, thir presents shall be and become void and null, in so far as concerns the said proro­ gation; and I superceden as to the said fond or last year thereof, and in case the said bill shall main unpaid, or be lost, then thir presents shall remain and be a sufficient discharge pro tanto of what is owing by the foresaid herita­ ble bond; or other bond whatsoever. Registration, &c.