John Krassaw v. Neil Earl of Roseberie — Answers, 21 Feb 1769

February 21st 1769. r V • / • J w • \- **t * > •-. * * 1-• * v ^) ^ l f 4 > il* 1 t A,,. / > * r 'd i t f i '- / a f g r. * i StLtA., f ^ f r "> (' / f l Y a. ^ ': 4 r A N S W E R S ‘ *- V l * •) « *,^ f A <> w 1.& >. * r 1 5 F F Fe b r u N E I L Earl of a by212rs2 u T O T H E P E T I T I O N of t b76 9 r. y y. d u Merchant in Edinburgh. G E N E R A L P R E S T O N was Debitor to Archibald Earlof Roseberie n the Sum of 40,000 l. Scots, by an heri­table Bond. The Earl, before his Death, made a Dis position of this Bond to his four younger Children, v iz. the Honourable John Primros e and Ladies Mary, Marget, and Dorothea Primroses. After the Death of Archibald Earl of Roseberie, Earl James, his eldest Son, obtained a Precept of clare constat from General Preston, and was thereupon insest in the whole of the said heretable Debt o f 40,000 l. Scots, and thereafter his Lordship made an Agree­ ment with John and Lady Mary, his Brother and Sister, by which they renounced, in favour of the Earl, their several Shares in the aforesaid Debt. This appears from a Renunciation upon Record. The Earl, at the same Time, granted to the said John Primose, a Bond for 1800 l. Sterling, and to Lady Mary, a Bond for the Sum of 900 l, Sterling; in Security of which two Debts, due by the Earl to his Brother and Sister, he conveyed to them his Share of the foresaid Bond due by General Preston.Of Of this Date. John Primrose and Lady received from Ge­ neral Preston, to extinction, pro tanto, of their Claims, the Sum of 12,460 l. Scots, as appears from their Discharge and Renuncia­ tion, produced in Process, bearing, that John Primrose had re- ceived Two-thirds, i. e. 83061. 13s. 4d. Scots, of the above Payment, and Lady Mary, the other Third, being 4 15 3 l. 6 s. 8 d. Scots. Further, it appears, that upon the 12th of November 1724, there was paid to John Primrose, in Part of the Debt due by the Earl of Roseberie to him, 363 l. Sterling, for which he granted a Receipt, which is registrate in the Books of Session. An Extract of the Dis- charge is likewise produced in Process. James Earl of Ros eberie also sold certain Pictures in Barnbougle- house, to his Brother John; in consideration of which, John grant­ ed his Bill to his Brother the Earl, payable at Candlemas 1725, and an Agreement relative thereto, was entered into between them, an Extract of which is produced, containing the following Declara­ tion: “ And in Case the above named Bond, or Bill, of 200 l. Sterling be lost, or unpaid, these Presents shall be a sufficient Discharge, pro tano, due by the said Earl to the said Mr. Prim­ ros e, by an heretable Bond.” Lastly, of this Date, Mr. John Primrose received from the Earl, the Sum of 600 l. Sterling, for which John granted his Bill, pay­ able in four Months. Both this Bill, and the other Bill for 200l. Sterling, were protested and registrate in 1723, as appears from the extracted Protest produced. That this 600 l. was also meaned to be in Payment of the above Debt, appears from a De­ claration contained in the above mentioned Discharge of the 365 l. Sterling, in these Words, “ Likeas I, the said Mr. John Primrose, do hereby prorogue and supersede any Demand whatsoever, of the Payment of any Sums of Money due by the said Earl to me, and that, whether by heretable Bond, or any other personal Bond, or Security, by his Lordship to me, and declare that I shall not use any Diligence, whether real or personal, in any sort, against the said Earl, upon any of the said Bonds, or any other Security by his Lordship to m e; and that ay, and until I do pay to the said Earl, the Sum of 600 l. Sterling, contained in an accepted Bill, of the Date of thir Presents, by me to him, for the said Sum, payable in four Months after the Date thereof, above- abovesaid.” And it appears still more from the following Clause, also contained in this Writing, “ And in Case the s aid Bill shall remain unpaid, or be lost, then thir Presents shall remain, and be a sufficient Discharge, pro tanto, f what is owing by the fore- said heretable Bond, or other Bonds whatsoever.” There was also paid to Lady Mary in the Year 1724, 200 l. as appears from her Receipt produced; and she received other Pay­ ments out of the Price of Dairy, sold by the Earl. From the Account hereto annexed, in which these several Pay­ ments are stated, your Lordships will see that the whole Debt due to John Primrose, was paid on the 12th March 1725, excepting only a Balance of 10 l. 8 s. 10 9/12 d. which, with Interest down to Whits unday 1767, amounts, at the last mentioned Period, to 32l. 9 s. 4 d. This is the only Sum to which the Creditors of Mr. John can have any Claim: Neither is it certain, that they will have a Right even to this Balance, as John Primrose being appointed Facto r on the Estate of Ros eberi y the Court of Sesio n, acted for some Time in that Capacity, and it does not appear that his Accompts were ever cleared. Till this Matter therefore is settled, the Earl ought to be allowed to retain the above mentioned Balance in his Hands, as it may possibly appear upon the whole, that the Balance is against Mr. John, not for him. Sir George P reston, the Heir of the General, several Years ago, brought a Process of Multiple-poinding against James Earl of Rose- berie, and others, pretending Right to the said Bond. In the Course of this Process, it was contended for Sir George, that by the Disposition of Archibald Earl of Roseberie to his four younger Children, the Debt of 40,000 l. due by General Preston, had been split into four several Parts, and that the Payment made by him to John and Lady Mary, fell to be taken out of their respective Shares of the said Debt, and not out of the Debt in cumulo. In this Question Sir George prevailed, and thereby the Debt came to be considerably lessened, as the Principal was much encroached upon by this Application of the Payments. The Litigation upon this Question lasted a considerable Time, and at last the Parties were willing, at any rate, to recover so much of the said Debt as was uncontroverted, and to reserve the Questions relating to the Shares of John, & c.till afterwards. Accordingly, a Decreet was obtained, decerning Sir George P res- ton to pay the uncontroverted Sums, and by this Decreet, the Share which which stood in the Person of John was ascertained to be 2201 l. 8 s. 7 d. Scots o f Capital, and 978 l. 5 d. of bygone Annual- rents, which Sums were found to be due “ to the said Neil Earl of Roseberie, John Krassaw, and Alexander Earl of Caithnes s, and the said Lady Margaret Primrose, then Countess of Caithness, accord­ ing to their respective Interests, derived under, or relative to the Share of the said John Primrose. But there is no Determi­ nation in the said Decreet as to what interests these several Persons had in these Sums: Every Thing of this kind was left open, and though the Grounds of the Earl’s Preference were produced in the Course of the Process, no Interlocutor was thereupon pronounced: On the contrary, it appears, that the last Step was to allow John Krassaw's Procurator to see the Writs then produced for the Earl vide Page 168 of the Decreet. Matters being left, therefore, in this Situation, Sir Georg brought a second Process of Multiple-poinding. The Petitioner produced his Claim, and the Respondent having given in a Con­ descendence of the Payments made by the deceast James Earl of Roseberie, to Mr. John Primrose, the Lord Ordinary, of this Date, pronounced the following Interlocutor: “ The Lord Ordinary having considered the Condescendence for the Earl of Answers thereto for John Krassaw, and Replies for the Earl, sus- tains the Payments, (condescended on in the Condescendence and Replies) made by the deceast James Earl of Roseberie, of the Debt in question, due to John P rimrose, and ordains the Doer for the Earl to make out a Calcul of these Payments, in order to ascertain the Balance of the Debt in question.” The Lord Ordinary, upon advising a Representation, pronoun­ ced the following Deliverance: “ The Lord Ordinary having con- sidered this Representation, appoints the same to be answered and at the same time renews the Appoinment upon Lord Rose- berie's Doer, to give in a Calcul of the Payments made to Mr. John Primrose, and ordains him likewise to produce the Vouchers of said Payments. A Calcul of the Payments, and the Vouchers thereof, with An- swers to the Representation having accordingly been given in, his Lordship was pleased to adhere to his former Interlocutor. From the above State of the Facts the Respondent is hopeful,tha yourLdsipwlfnDeg to the LordOrdinary's interlocutors. The The first Plea offered by the Petitioner, in support of his Claim, is, that the Matter has already been determined in the former De­ creet. But this Plea, your Lordships will perceive, is founded upon a very erroneous Representation of the Case. The Meaning of the above Decreet has been already explained; and the sole Intention of it appears to have been, to fix what Balance was due by Gene­ ral Preston, and not to determine the Interest which the several Parties had in this Balance. Accordingly, by the said Decreet, the Share of the Debt standing in the Person of the said John Primrose was found to be 2201 l. 8 s. 7 d. Scots of Capital, and 978 l. 5 d. of by­ gone Annualrents. To which Sums the said Neil Earl of Roseberie, John Krassau, and Alexander Earl, and Margaret Countess of Caith- ness were found to have Right, according to their respective Interests, derived under, or relative to, the s hare of the said John Prim­ rose. Here, therefore, the Matter is left entirely undecided; and it is undoubtedly competent for the several Parties to produce their re- spective Claims. This, indeed, is the only Intention of the pre- sent Process of Multiple-poinding; because, had Matters been settled in the former Process, there would have been no Occasion for this present Competition. The Respondent, therefore, is at present entitled to produce his Interest, and to shew what Right he has to the foresaid Balance. In order to this, it is not necessary for him to show that he derives his Title from John; though the Fact is. that his Predecessor, Earl James, did derive Right from John; but it is sufficient, if he can show that John's Interest in General Preston s Debt is extinguished, and that, of consequence, his Creditors can receive no Part of the foresaid Debt. If this is shown, what remains of this Debt unpaid by General Preston, must belong to the Representatives of Earl James, or his Creditors. The Respondent, however, claims upon both these Titles: He is confirmed Executor to his Father, and this gives him a Title to the Annualrent of General Preston s Debt, prior to Earl James's Death. He has likewise a Right to the Remainder of this Sum, as Credi­ tor to his Father. H e has paid several very considerable Debts of Earl James, to the Payment of which he was not subjected, as Heir of Entail; and, therefore, he is entitled to Relief out of this, and any other Funds arising from his f ather s separate Estate. The The second Argument used by the Petitioner is, that, as he is in- sest, upon a Conveyance made to him by John Primrose> of his Share of General Prestons Bond, he must be preferable to the Re- spondent, who cannot compete with him, as he has a real Ground of Insestment. Your Lordships will however perceive, that this Argument like- wise proceeds upon a Mistake in fact. The A ssignation to Mr. John bears, in the Body of it, that it is only in Security for the Payment of the 1800 l. The Petitioner, indeed, has been at pains to dispute this; but, even taking the Matter as stated by himself, the Right to General Preston's Debt seems evidently to have been granted to Mr. John Primrose, for no other Purpose than a Secu­ rity. This indeed appears, in the clearest M anner from the As- signation itself. The Words are: “ And seeing that the facts Mr. John and Lady Mary Primros es desire to be further and better secured, anent the Payment to them of the Sums in the before- mentioned Bond (viz. the Sums of 18000 l. and 900 l.) there­ fore, wit ye us, the said James Earl of Roseberie, in considera- tion of the saids Bonds, and without Hurt or Prejudice thereto, sed accumulando jura juribus, for a further Security of the Payment of the Sums therein contained, to have asigned and disponed, as we, with and under the Provisions and Declarations expressed in the Procuratory of Resignation under written, assign and dispone, to and in favours of Mr. John and Lady Mary Primros es, their Heirs and A ssignees, proportionally, effeiring to the Sums due by us to them, by the several Bonds before mentioned, respec­ tively.” Then follows an Enumeration of the Sums so assigned. From these Words, therefore, and indeed from the whole Tenor of the Deed, it is clear, that this Right was granted merely in Security of the foresaid Debt. As the Respondent, therefore, maintains, that the whole Debt, excepting the small Balance of 3 2 l. is paid up, the Right of Security which John had, upon the Debt due by Ge­ neral Preston, must fall of course. This Debt due by the General did not belong to John, but to the Earl; and the Conveyance in Security which John had from the Earl, cannot possibly subsi st, after the Debt for which the Security was given has been extin- guished and paid. As John himself, therefore, could have no Claim upon this Debt, so neither can the Petitioner have any Claim, in consequence of the Conveyance to him. For it is hardly necessary to trouble your Lordships with observing, that the Con­ veyance veyance of an heritable Bond, though compleated by Insestment, must be liable to every Condition that the original Disponer was subject to, and that no Person could convey to another, a better Right than what he himself has. It ought further to be observed, that the Nature of the Petition­ er's Security must have been well known to him at the Time he ob­ tained it, because he must have known the Nature of Mr. John's Right, not only from the Tenor of the Earl’s A ssignation to John, but likewise from John's Conveyance to himself, as it is there ex­ presly taken notice of, that John's only Right to any Part of Gene­ ral Preston's Debt, was for Security of the Payment of the foresaid Sum of 1800 l. The Petitioner, therefore, must be understood to have taken this Right, under those Qualities and Conditions which naturally attended it, and he cannot complain of its eventually having become of no Effect. The Respondent will only further observe upon this Head, that though he has stated the Titles which he has to General Prestons Debt, that this is more than he was bound to do, because, as Johns Claim upon this Debt is extinguishcd, and, of consequence, that of the Petitioner’s along with it, the Petitioner has no Title to enquire who has now the Right to the aforesaid Debt. The Petitioner, as if sensible that what has been already advan­ ced by him could have no Effect, proceeds to cavil about the Do­ cuments of the Extinction of the Debt. Your Lordships will per­ ceive, that the Articles condescended on as Proofs of Extinction of the Debt, are the four following: 1st, The Payment of 8306 l. 13 s. 4 d. Scots out of General P reston’s Debt, 2d, A Discharge of 365 l. Sterling, granted by John to the Earl. 3d The Bill of 200 l. And, 4th, The Bill of 600 l. As to the first two Articles, the Petitioner seems to make no Objection. As to the other two, however, he ob­ jects to the Bills not being produced in Process, but only Extracts of them. As to this it is true, that the principal Bills have been mislaid, as well as many other important Papers belonging to the Family, their Writings having been very ill taken care of during the late Earl's Illness. But this, as the Matter now stands, cannot possi- bly avail the Petitioner. There is produced in Process, an Extract of a Protest taken on these Bills for Not-payment. And there is likewise produced an Acknowledgment of these Bills, as to their being b J being really due, so that there can be no Doubt as to the Reality and Authenticity of the Debts. It is said, indeed, that, though these Bills may have been just and proper Debts, that yet there is no Evidence of their having re­ mained unpaid. The Proof of this Allegation, however, in the present Case, must fall upon the Petitioner. From the Discharge annexed to his Petition, and the Declaration at the Foot of the 200 l. Bill, it evidently appears, that these Bills were intended to be ap­ plied to Payment of the Debt due by the Earl. The Words of the Discharge are very express, as Mr. Primrose binds himself not to demand Payment from the Earl, till two Years after the Payment of these Bills. Nay, further, the very Circumstance which has happened, has been expresly provided for. In the Minutes of A- greement, it is stipulated, that, in case the said Bills shall remain unpaid, or be lost, then thir Presents shall remain, and be a suffi­ cient Discharge, pro tanto, of what is owing by the foresaid heri­ table Bond, or other Bonds whatsoever. I f therefore it be alledged, that these Bills have been really paid, the Proof of this must lie up­ on the Petitioner, as claiming in Mr. John's Right. As the contra­ ry would be going in direct Opposition, not only to the evident In­ tention of these Bills, but likewise to the Articles of Agreement produced. If, indeed, there had been no such Articles of Agree­ ment, the Petitioner’s Plea might have had some Appearance of Reason; but at present the Plea, used by the Petitioner, cannot be sustained in opposition to the Article of Agreement, entered into between Mr. John and the Earl, and in express Contradiction to what is provided by them. The Respondent shall suppose, that, instead of the present Peti­ tioner, Mr. John was the Person who was bringing a Claim before your Lordships for Part of the General’s Debt, would it not, in this Case, have been competent for the Earl to have produced these Mi­ nutes, as a Discharge pro tanto, and to have refused Payment, till Mr. John could show, that the Debts upon his Side had been real­ ly paid up? And before Mr. John could remove this Bar, would it not have been necessary for him to have produced Discharges of the above Sums? The Right, however, of the present Petitioner, is in no shape better than that of Mr. John as it has been already observed, that any Objection competent against Mr. John's Right is in this Action competent against the Petitioner. The The Respondent must further observe, that, independent of the above Articles of Agreement, as John was Creditor to the Earl in greater Sums, it is by no means probable that these Bills were e- ver meant to be paid insested, and this seems to have been the Rea- son why they were not paid when due, as appears from the Pro- test. In the last place, the Petitioner objects to the Form of the Bill for 600 l. as containing Annualrent and Penalty from the Date. This Objection, however, admits of the two following Answers: 1st The Respondent is not insisting in a Process for Payment of this Bill, he only founds upon it as an Evidence of a Fact, viz. that a Payment to this Extent was made by Earl James to his Brother; this Objection, therefore, cannot posib ly apply to the present Que- stion. And, 2d This Objection is not applicable to the present Case, because there is produced an Acknowledgment of the Reality of the Debt, by John Primros e, the Accepter of the Bill; and this has been found sufficient to remove an Objection of the present Kind to the Form of a Bill, by a Decision, January 1760, Mac- lachlan contra Maclachlan. Upon the whole, it is hoped your Lordships will have no Diffi­ culty in adhering to the Lord Ordinary’s Interlocutor. The Re­ spondent is, in reality, contending against double Payment of a Debt, which his Predecessor owed to John Primrose; and the Peti­ tioner cannot complain, that he is disappointed of his Payment out of a Fund, which did not belong to his Debitor, but in which he saw in gremio of the Right itself, that John had only a Conveyance in Security.... In respect whereof, & c. WI L L. C R A I G. A C C O M P T A C C O M P T of the Debt of 1800 l. Ster­ ling, contained in James Earl of Ros eberie's Bond to Mr. John Primros e, his Brother, shewing the* Balance remaining thereof, after deducing the sundry Payments, received by Mr. Primose. 692 4 5 4/12 1107 15 6 8/12 55 10 9 4/12 1163 6 4 365 0 0 798 6 4 8 19 4 807 5 8 £• s. d. 1800 0 0 Principal Sum in the Bond, bearing Interest from Martinmas 1723 Mr. John and Lady Mary Primros e, in virtue o f a Conveyance from the Earl to an heritable Debt, due by General Preston, received from the Ge­ neral 12,460 l. Scots of the Capital of that Debt, as at Martinmas 1723, as per their Dis- charge and Renunciation, dated 27th May 1724, which mentions that Mr. Primrose received two Thirds of said Sum, being 8306 L 13 s. 4 d, Scots, inde in Sterling. Balance of Principal at Martinmas 1723 £ Intcrest from Martinmas 1723 to 12th November 1724.. Sum £. Deduct, then paid by the Earl, by Dis- charge of that Date Rests £ Interest: from 12th November 1724, to 2d February 1725 Carried over £. Brought over, Sum at 2d 1725 De-dud, paid then by Mr. Primrofe s Bill to the Earl, dated 20th Oct. 1724, payable at Candlemas 17 • • Refts £. Intereft from 2d February to 12th March 1725 • Sum £. Dedud then paid by Mr. Primrofe's Bill to the Earl, dated 12th November 1724, payable four Months after Date, for Balance only retting at 12th March 1725£ Intereft of the Balance, from 12th March 1725, to Whit/undayO. S. 1767 Sum at Whit/unday 1767 £. 807 5 8 2GO O O 607 5 8 3 3 610 8 6 9 t9£ 600 O O. 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