Kressau — Petition, 7 Mar 1769

Unto the Right Honourable the Lords of Council and Sesion TH EP E T I T I O N O F * J O H N K R E S S A U merchant in Edinburgh, Humbly sheweth,T H AT Archibald Earl of Roseberry stood insest in an annualrent-right of L. 2000 Scots, corresponding to the principal sum of L. 40,000 Scots, out of the lands of Innerkeithing, Spittlefield, and others, the property of Brigadier-General Preston. That upon the death of Earl Archibald, his son Earl James obtained from the General a precept of Clare constat as heir to his father in the said annualrent, and was thereupon in- sest..4; > That Earl James having transacted with his younger bro­ ther Mr John Primrose, and his eldest si ster Lady Mary, their claims to their father’s whole succession, excepting his tailzied estate, comprehending inter alia the aforesaid annualrent-right affecting the lands of Innerkeithing and others, granted bond to Mr John, his heirs, executors, or asig n s, for the sum of L. 1800 Sterling, with annualrent and penalty; and a bond to his si ster Lady Mary, her heirs, executors, or assigns, for the sum of L. 900 Sterling, with annualrent and penalty; and for their further security, by deed, of this date, dis- poned to them and their aforesaids, a yearly annualrent of L. 1223 March 7. 1 769. L. 1223 Scots, part of the greater annualrent of L. 2000 Scots, contained in the aforesaid heritable bond by General Preston; and by virtue of the precept of seisin therein con­ tained, Mr John and Lady Mary were, of this date, insest in the aforesaid annualrent forth of the lands of Innerkeithing, and others. That, of this date, General Preston made a partial payment of L. 12,460 Scots to Mr John and Lady Mary, whereof L. 8306: 1 3:4 Scots, or in Sterling L. 692: 4: 5 1/4, to Mr John, and obtained from them a discharge and renuncia­ tion of the aforesaid annualrent-right, corresponding to the payment made. And, upon the 24th November 1724, Earl James himself made a further partial payment to Mr John of L. 365 Sterling; whereby there remained due of the aforesaid original principal sum of L. 1800 Sterling, at the term of Martinmas 1724, a capital of L. 798: 6: 4, bearing interest. That, of this date, Mr John Primrose, upon a recital of his right to the aforesaid annualrent secured upon the lands of Innerkeithing, and others, and of the petitioner’s having then advanced to him a certain sum of money, disponed and transferred to and in favour of your petitioner, his heirs and assigns whatsoever, L. 43 Sterling, as part of the aforesaid sum of L. 1800 Sterling, due by the Earl of Roseberry to him, and annualrent thereof since the 22d November 1724; and for your petitioner and his foresaids their further security, and more sure payment thereof, disponed and transferred to your petitioner and his foresaids, an yearly annualrent of L. 25, 1 6 s. Scots, as part of the greater annualrent to which he had right in manner abo entioned; and upon the pre­ cept of seisin therein contained, your petitioner was, of this date, duly insest in the aforesaid annualrent, upliftable forth of the aforesaid lands of Innerkeithing, and others. That as your petitioner had been induced to advance the aforesaid sum of L. 43 Sterling to Mr John Primrose, upon the faith of the public records, where in Mr Primrose’s insest- ment in the aforesaid annualrent, corresponding to the princi­ pal pal sum of L. 1800 Sterling, stood duly recorded, and nothing appearing upon record to restrict or diminish the same, other than the partial discharge and renunciation which he had granted to General Preston upon the payment which the Ge­ neral had made of L. 682: 4: 51/2 Sterling, he did, with rea- son, consider himself to be undoubtedly well secured in that sum by the disposition from Mr John Primrose to the afore- said annualrent-right, and his own insestment thereon. That Sir George Preston of Valleyfield, the heir and repre- sentative of General Preston, brought a process of multiple­ poinding and declarator, wherein he called as defenders all parties supposed to have an interest, either as heirs, creditors, or disponees in the aforesaid annualrent-right affecting his e- state; the scope and tendency of which process was, to have it ascertained what balance was due by him, and to which of the defenders that balance was payable; and after various proceedings unnecessary to be stated, it terminated in an ex- tracted decreet in the 1766, whereby there was found due to Mr John Primrose L. 2201: 8: 7 Scots of principal, and L. 978, 5 s. Scots of bygone annualrents, which sums were thereby declared to belong to Neil Earl of Roseberry, Margaret Countess of Caithness, and to the petitioner John Kressau, accor­ ding to their respective interests derived under or relating to the share of the said Mr John Primrose, but neglecting to ascertain what shares of the aforesaid sum found to be st i ll due to Mr John Primrose, did belong to the several parties found to have an interest therein. To supply this defect, a second process of multiple poind­ ing was therefore brought, at nstance of Sir George Preston, wherein he called as defender the present Earl of Roseberry, and the petitioner, in order that their interests and prefer­ ence upon Mr John Primrose’s share of the aforesaid annual­ rent-right, and sums thereby secured, might be ascertained. This last-mentioned process came, by course of the rolls, before Lord Monboddo; when the petitioner, for instru cting his 200 * 0 0 600 0 0 his interest in the premisses, produced the aforesaid dispos- tion granted to him by Mr John Primrose, with the instru- ment of seisin following thereon. Compearance was also made for the Earl of Roseberry, who produced an account, (a copy of which will be hereto subjoined), whereby, taking credit for sundry alledged partial payments to Mr John Primrose, he brought out a balance due to Mr John at Whitsunday 1767, of no more than L. 32, 9 s. 4 d. Sterling; whereby, inter alia, he took credit for the two following articles. Deduct paid then by Mr Primrose’s bill to the Earl, dated 20th October 1724, payable at Candlemas 1725,-- L. Deduct then paid by Mr Primrose’s bill to the Earl, dated 12th November 1724, payable four months after date, There will be occasion, in the sequel, to consider the vouch­ ers produced for astructing these two articles; and supposing them to be properly astructed, how far they are relevant in a question with the petitioner, a purchaser of the aforesaid an- nualrent-right pro tanto, upon the faith of the public records. At present it shall justice to observe, that it is by means of these two alledged partial payments of L. 200 and L. 6oo, that the balance due to Mr John Primrose is reduced so low as not to leave a sufficiency for your petitioner’s payment. The petitioner acquiesced in the other two payments stated in said account, viz. the L: 4: 5 paid by General Pre- ston, and the L. 365 paid b y the Earl himself, though he is advised, that the last of these might ju st ly have been object­ ed to, in so far as his interest was thereby meant to be af­ fected: but as, allowing these, there would still remain suf- ficiency of fund for his payment, he confined his objections to the other two articles of L. 200 and L. 600, which, though stated stated in the form of partial payments, did in reality resolve into articles of compensation; though, in whichever of these views they should be considered, the petitioner was advised, that they could not affect his interest, and consequently that there would remain of balance much more than sufficient to answer his claim. But the Lord Ordinary was pleased, by interlocutor of this date “ to sustain the payments condescended on in the con- descendence and replies made by the deceased James Earl of Roseberry, of the debt in question due to John Prim- rose.” And upon advising a representation and answers, his Lordship, by interlocutor of this date, “ refused the desire of the representation, and adhered to the former interlo­ cutor." And upon advising a reclaiming petition and answers, your Lordships, by interlocutor of this date, were pleased not only “ to adhere to the Lord Ordinary’s interlocutor, and refuse the desire of the petition; but found expences due, and or- dained an account thereof to be given in. The petitioner takes the liberty of submitting this interlo- cutor to your Lordships review; and whatever shall ultimate­ ly be the judgement of the court upon the merits of the que stion itself, he will be pardoned, with all due deference, to say, that he is yet at a loss to conceive, upon what grounds your Lordships found him liable in expences. He was called into process by the multiple-poinding at Sir George Preston's instance, to debate his preference, upon the acknowledged balance due to Mr John Primrose; and so far as your peti­ tioner knows, or is informed, is unusual for your Lord- ships, in a ranking or competition of creditors, to await ex­ pences against the party who is found to be postponed, it his conduct in that competition has not been uncommonly li­ tigious. The vouchers produced on the gait of the Earl for astructing the two articles above mentioned, of L. 20 and L. 600, were of so singular a nature, that they could not possibly be past over without objection: And the petitioner isnot not without hopes, that, upon reconsidering these, the excep­ tions will be found relevant to throw them entirely out of theJ account in the questions with him, supposing them to be ever so effectual against Mr John Primrose himself, which, for the reasons to be hereafter stated, may ju stly be doubted. There was but one very short representation preferred to the Lord Ordinary against his first interlocutor, which the forms of court required before any application could be made to your Lordships; so that litigiosity cannot, with any justice, be charged to his account. He has indeed been told, that ex­ ception was taken to some expressions in the reclaiming peti­ tion, as not sufficiently respectful to the Lord Ordinary; which, if true, the petitioner is most heartily sorry for He had no knowledge of, nor gave authority for any disre- spectful expressions either to your Lordships or the Lord Or­ dinary; and if the counsel intrusted to draw the petition u- sed too strong expressions with respect to the points of law which were the subject of argument, he can scarce allow him­ self to think, that your Lordships would, on that account, subject him in expences to the other party, if these would not otherwise have been ju stly due. He is at the same time aware of the bar that stands in his way from the rules of court, in reclaiming against an inner-house interlocutor, finding expences due; but as he is hopeful, in the sequel, to show cause why the interlocutor upon the merits of the cause itself ought to be altered, that part of it which respects the expences will of course fly off. And, in the f irst place, he will examine the vouchers pro­ duced for astructing the tw articles above mentioned of L. 200 and L. 600, upon supposition that Mr John Primrose himself was the party to this question. 2dly, Supposing these two articles to be so well astru cted as would intitle the Earl to have credit for these in accounting with Mr John Primrose, he will submit to your Lordships those grounds upon which he proposes to maintain, that they cannot be allowed in a question with him. And And to begin with the article of L. 200, which, as stated in the subjoined account, is said to have been contained in Mr John Primrose’s bill to the Earl, dated 20th October 1724 payable at Candlemas 17 2 5, th e following observations are humbly submitted. 1st, That supposing such a bill to have been granted by Mr John Primrose to the Earl, it is of so old a date, beyond the years of the long prescription, and no do- cument taken upon it during that whole space, further than as it is said to have been protested, and the protest register- ed, as far back as the 1 8th June 1725, as, agreeable to your Lordships practice in similar cases, would be sufficient to cut down any instrument of debt of this nature. Nor will it vary the case, that it is now obtruded, not as a voucher of debt due by Mr John to the Earl, but as com- pensation or payment pro tanto of the greater debt due by the Earl to Mr John; because however the present Earl may find it for his interest now to found upon it as a partial payment, it is clear as any thing can be, that such was not the mean­ ing or understanding of parties. The presumption of law is, that the bill was granted for money advanced by the Earl to Mr John, not as a payment of the greater debt due by the Earl to Mr John, but in the way of loan, to be repaid against a short day; and therefore it was, that instead of taking a receipt, as for a partial payment to account, he took from Mr John an accepted bill, bearing value received, and pay­ able at a short day: and accordingly it appears, that how soon the term of payment was come, he caused protest the bill, and registrate the protest; and thereupon applied to your I.ordships by bill in common form, for letters of horn­ ing, for charging the said Mr John Primrose for payment of the contents of said bill, and obtained a deliverance thereon, F i a t u t petiur, 5th November 1 725; upon which horning was immediately raised. From which the petitioner draws this consequence, that immediate personal diligence being raised upon this bill as. s o o n soon as due, and so far back as the year 1 725, the bill itself not being now extant, the presumption of law is, that pay­ ment was made of the contents of said bill, and the bill re­ tired, upon this established principle of law, Quod instrumen- tum apud creditorem non repertum, praesumitur solutum. It is in no case sufficient to say, that such an instrument of debt appears once to have existed. There are thousands of protested bills to he found in the register; but from thence to presume, that these are all outstanding, after so many years have elapsed, where the bills themselves are not extant to be produced, would be of most dangerous consequence; as the simple retiring of a bill has always been deemed suffi- cient to extinguish the same; and the presumption of law is, that it was retired upon payment, where the creditor is nei­ ther possessed thereof, nor undertakes to prove the tenor thereof, and casus amissionis; and if so many years taciturnity, joined with the non-appearance of the bill itself, is not suffi- cient to establish this presumption, the petitioner will be par­ doned to say, he is at a loss to conceive what will be effectual for that purpose. The only document referred to for astructing this article, are certain articles of agreement, of date the 20th November 1724, between James Earl of Roseberry and the said Mr John Primrose his brother, relative to a most extraordinary purchase of a parcel of pictures, which it would seem the Earl had prevailed upon his brother to purchase, at the price of L. 200 Sterling, for which Mr John was to grant bond or bill to the Earl, payable at Candlemas thereafter, whereby they obliged themselves to implement the premisses to one another, under the penalty of L. 20 Sterling, with this de­ claration, “ That in case the above bond or bill of L. 200 Sterling be lost or unpaid, these presents shall be a suffi- cient discharge pro tanto due by the said Earl to the said Mr Primrose, by an heritable bond;” and supposing the bill of L. 200 to have been granted by Mr John, in im­ plement of these articles, as the price of the aforesaid trash of old old pictures, it is clear as any thing can be, from the afore- said articles of agreement, that the price of these pictures was not meant to go in payment of the L. 1800 due to Mr Primrose, heritably secured upon the lands of Innerkeithing; but that Mr John was to grant bill or bond for the same, payable at a short day; and that it was only in default of such payment, or of the bill’s being lost, that it was to be applied in payment pro tanto of the heritable bond; and the question thereupon arising is Whether the bill that appears to have been granted for the L. 200, in implement of these articles, payable at so short a day, is to be presumed to have remained unpaid, or to have been lost, and consequently to impute in payment pro tanto of the heritable bond? or, Whe­ ther, e contra, it ought not to be presumed to have been paid and retired, in terms of the obligation for that special pur- pose, when no casus amision s so much as alledged, or offer­ ed to be proven? And when to this is joined the protesting and registrating the bill so soon after the term of payment, and raising horn­ ing thereon, which indicate so strongly the Earl's intention to force payment of the contents of that bill, instead of al­ lowing it to go in payment pro tanto of the heritable bond, and never more heard of from that day, downwards, till the first-mentioned process of multiple poinding brought by Sir George Preston, when the bill itself, if extant, was upon the point of being cut off by the long prescription, it is submit- ted to your Lordships, if there is not the strongest ground to presume that this bill was paid and retired, especially when your Lordships are informed, that before these grounds of debt produced by the Earl made their appearance, Mr John Primrose was dead. And if your Lordships shall be of that opinion, it puts an end to the cause, as that sum added to the acknowledged balance will be much more than suffi- cient to answer the petitioner’s claim. He cannot, however, conclude his observations upon this article, without remarking, that in the account exhibited by the Earl, this bill of L. 200 is said to have been dated 20th October 17 24, whereas in the registe red protest it bears to be dated 20th November 1724, and in the bill of horning it is sa id to b e d ated th e day of December 1724, whereby it is made to bear three different dates. The other bill, of L 600, is in so far in pari casu with the bill of L. 200, that neither of them appear to have been intended a s partial payments to account of the heritable bond or in- sestment of annualrent, wherein Mr John stood secured up­ on the lands of Innerkeithing and others, but as an indepen­ dent constitution of debt, due by Mr John to the Earl, pay- able at a precise day; that both are contained in one and the same protest, and in the same bill for letters of horning; that they are both equally ancient in point of date; that no document appears to have been taken upon either from that day to this; and that neither bills are now extant: So that every argument and presumption pleaded in the one case ap- plies to the other, with this remarkable difference, that the bil of L. 6oo, as contained in the registered protest, and bill of horning, being conceived in the following terms “ B arn- bougle, 12th November 1724. Sir, Four months after date, pay to us or our order, at the 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 pay­ ment and thereafter while payment; and with a propor- tional penalty in cafe of failzie; make thankful payment and oblige was intrinsically void and null, neither pro­ bative nor obligatory. For though bills of exchange, whe- ther foreign or inland, when kept within their proper sphere are exeemed from the legal solemnities of other writings; yet where they deviate therefrom, and contain clauses contrary to and inconsistent with the nature of bills, such as clauses for payment of annualrent from the date, and penalties and are thereby converted into securities of a different form,’ they can plead no exemption from the general rules prescribed to render render any writing probative and obligatory, and cannot be sustained to any effect whatever. This is so much triti juris and has been s o repeatedly judged by your Lordships, as renders it unnecessary to be confirmed by precedents or au­ thorities. But this bill is endeavoured to be astructed by the receipt and discharge, dated 12th November 1724, granted by Mr John Primrose to James Earl of Roseberry, for L. 365 Ster­ ling, as a partial payment then instantly received, to account of a greater sum resting by the Earl to him, by heritable bond secured upon the estate of General Preston. What follows in the aforesaid receipt and discharge for the L. 365, is of so singular a nature, and so perplexed, as to be scarce intelligible, and is conceived in the following 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 heritable 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 me, and that ay and un­ till I do pay to the said Earl the soume of L. 600 Sterling, contained in ane 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 mentioned, and even furder. for the space of one full and complete year after I do pay him the foresaid sum of L. 600 Sterling contained in the said bills above mentioned, it being so expressly conde- scended and agreed upon betwixt his Lordship and me; and in like manner, furder, for the full and complete space of another or second year after the said first year, and that only 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; presents; and accordingly 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 of the said bill, quarrel the same, by my alledging myself to be a loose r in the said bargain of pictures, which shall be proven by my oath; and in that case, thir presents shall be and become void and null, in so far as concerns the said prorogation; and I superceden as to the said second or last year thereof, and in case the said bill shall remain unpaid, or be lost:, then thir presents shall remain and be a suff i cient discharge pro tanto of what is owing by the foresaid heritable bond, or other bond whatsoever. Registration,” &c. If the L. 365, contained in the receipt, and the L. 6oo for which the bill was granted, had both been advanced in cash upon the said 12th November 1724, it is not easy to conceive for what reason a receipt and discharge should have been taken for the one, and a bill for the other, if both sums had been intended to be applied in payment of the heritable debt due to Mr Primrose, secured upon General Preston ’s estate; and therefore res ipsa loquitr, that by taking a receipt and dis­ charge for the one sum, and a bill for the other, hocagebtur, that the L. 365 was to go in payment pro tanto of the greater heritable debt due to Mr John, and that the L. 600 for which the bill was taken, was to be repaid to the Earl: And ac­ cordingly your Lordships perceive, that how soon the bill be­ came payable, it was protested and registered, and horning passed upon it; and therefore, though it is qualified with the like condition, “ That in case the said bill 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 aforesaid heritable bond, or other bonds whatsoever,” when your Lordships perceive the Earl so intent upon forcing payment of the L. 600, as to protest and register the bill so soon after it became due, and immediately after to raise horning there­ on, on, and this bill never once more made mention of, or ap­ pearing from that day to this, the bill itself not now extant, nor any cas us amissionis so much as alledged, it is submitted to your Lordships, whether the presumption does not greatly preponderate, that payment of this, as well as of the o- ther bill, had truly been made, agreeable to the intend­ ment of parties when these two bills are s aid to have been granted. The writing last above mentioned, however singular and perplexed the tenor of it is, may give satisfying evidence, that a bill for L. 600, of the tenor above recited, had in fact been granted; but as such an acknowledgement cannot alter the form and tenor of the bill, it does not occur how it should render that deed to be probative and obligatory, which the law has declared to be void and null. But allowing it to be e- ver so valid and effectual as a bill, as it has never once been heard off from the time it was protested, and the horning in the year 1725 obtained, till of late, that it was produced in the multiple-poinding, after the death of Mr John Primrose, and no casus amison much as alledged, the question is, Whether it ought to be presumed to have been paid and reti­ red, agreeable to what was manifestly in the view of parties when the bill was granted payable at so short a day? or, e contra, that the bill, though not extant, should still be presumed to be outstanding, though never once heard of for such a course of years? Which of these presumptions ought to be taken, is humbly submitted. But allowing, for argument’s sake, both bills to be extant, as proper legal vouchers of debt, or as sufficiently astructed, and that in a question with Mr John Primrose himself they might be admitted either in payment or compensation of the greater debt due to him, heritably secured by insestment of annual- rent upon General Preston’s estate, the question remains. Whe­ ther these two articles can be sustained in competition with the petitioner, a purchaser of this annualrent-right pro tanto upon upon the faith of the public records? And as this question w as very slightly treated in the petition reclaiming against the Lord Ordinary's interlocutors, from the apprehension concei- ved, that the exceptions taken to the articles themselves would be found sufficient to have them rejected, and which the petitioner is hopeful, will be so found upon review, the o- ther question is of such importance to the law, as well merits your Lordships particular attention. The intendment of the law, in appointing public records for the registration of seisins of all heritable rights completed by insestment, whether rights of absolute property, redeemable rights, or as heritable securities, and the conveyances dis- charges, and renunciations of such of these as were o f their nature redeemable, had manifestly in view this great and capital object, that the lieges might, by means thereof, have certain notice, both of the rights of those with whom they contracted, whether as purchasers or creditors, and whe- ther such of the rights as were of their nature redeem- able or extinguishable, were, de fa cto, redeemed or extin- guished. 1 Upon the faith of this, the lieges have been taught so far to rely upon these public records, that they are in safety to contract, either as purchasers or creditors, with those whose insestments, whether of absolute property, redeemable rights or heritable securities, particularly annualrent-rights stand upon the face of these registers without any discharge or re­ nunciation thereof; as indeed it would be of the most dan- gerous consequence, if either personal conveyances of these heritable subjects, or latent discharges and renunciations of redeemable rights no wise published, were to enervate the rights, eofpuca creditors, contracting upon the faith of these records. It has been indeed disputed, whether an actual resignation was not necessary to extinguish the insestment in those re- deemable or extinguishable rights, upon this principle, Quod unum- unumquodque eodem modo dissolvendum quo collig atum; and that as seisin was requisite to constitute the real right, disseisin by resignation was necessary to extinguish it. But it does not occur in any case to your petitioner known, that latent per- sonal deeds, whether obtruded by way of payment or com- pensation, were available against purchasers or creditors con- tracting upon the faith of the public records; and as it seems highly expedient, that the law should be maintained invio­ lable in this particular, the petitioner, in lieu of all further argument, will state to your Lordships the following authori­ ties and precedents upon this point. That a renunciation unregistered is not sufficient to ex- tinguish an annualrent-right, estab lished by charter and seisin in prejudice of a singular successor thereafter ac­ quiring right from the annualrenter, is estabhished by a judgement of this court, as far back as the 23d No­ vember 1627, in the case of Dunbar contra Williamson. It came thereafter to be disputed, whether a registered re­ nunciation without resignation, extinguished an insestment of annualrent against a singular successor? T hat it was effec­ tual against the creditor who granted the renunciation, and his heirs, could admit of no doubt; but whether actual resig­ nation was not necessary to extinguish the insestment of an- nualrent in competition with a singular successor, was matter of doubt. And though by the judgement of this court, in the case of Maclellan contra-Mushet, 7th January 1680, and in the case of heirs of Learmonth contra Gordon, 2d January 1705, the registered renunciation, without actual resignation, was found insufficient to extinguish the insestment of annual- rent, even against a singular successo r, It is therein neces- sarily supposed, that a discharge and renunciation not regi­ stered, would not be effectual against singular successors; or, in other words, that it is the public records that purchasers or creditors contracting with those whose insestments stand recorded even in redeemable rights, are to rely upon for their security. Upon Upon this principle was the decision in the case of Oli- phant contra Hamilton, 2d January 1667, founded; where Oliphant pursuing a poinding of the ground upon an annual- rent-right; and an absolvitor being pleaded for bygones be­ fore the pursuer’s right, because his author was debtor to the defender in an equivalent sum; and it being answered for the pursuer, That he was a singular successor, and no per- sonal debt of his authors could infer compensation of a real Aright against him, the Lords found, That the bygone an- nualrents were moveable, and compensable with any liquid debt of the pursuer’s authors. This is a judgement directly in point: For though the bygone annualrents, as moveable, were found compensable by the debt of the pursuer’s author, neither the principal sum itself, nor the annualrents that be­ came due after the purchase, were found to be compensable. Another decision to the s ame purpose is that of 2d Fe­ bruary 1705, Sir William Hope and the heirs of Mr Mark Learmont, against Mr William Gordon of Balcomie, obser- ved by Lord Fountainhall, too long to be here transcribed; but which merits your Lordships perusal, as the arguments pro and con are therein fairly stated. The case was, That Mr Robert Learmont having right to several insestments of annualrents out of the lands of Balco­ mie, to which Sir William Hope came to have right by pro- gress; for which Sir William Hope, in the ranking of the creditors of Balcomie, having craved preference, it was plead­ ed by Mr William Gordon, T hat Sir William Hope could not compete with these insestments, because his author, by progress, Mr Robert Learmont, had possessed and intromitted with the rents for many years, by which, not only his cur­ rent annualrents, but even the principal sums in his insest­ ments of annualrents, are more than paid; which therefore must not only extinguish against him the intromitter, but also against Mr Mark Learmont and Sir William Hope, though singular successors for onerous causes. It It was, on the other hand, pleaded for Mark Learmont’s heirs and Sir William Hope, That however Mr Robert Lear­ mont’s superintromisio n s above his annualrents might ope­ rate against himself, it can never meet the defenders, who are his singular successors, and assignees for onerous causes; and states a number of arguments and precedents for establishing this general propos i t i o n. The judgement upon this debate is rem arkable. "The Lords considered this case had not been in terminis decided, and therefore laid down those points that were uncontro­ verted, that they might come to the precise and neat que- stion. 1 mo, It was yielded, that a registered renunciation, without necessity of resignation, extinguished an insest ment of annualrent quoad omnes effectus, et contra omnes mor- tales, as well singular successors as others. 2do, It was also conceded, that superintromission was relevant to extinguish against the party himself, and his heirs. 3tio, The question here was not where one insest in an annualrent gets payment out of an extrinsic subject, but the precise case, Whether intromission of an annualrenter with the mails and duties of the lands wherein he stands insest, more than pays his current annualrent, will be imputed to absorb and exhaust his principal sum against a singular successor? for that it will extinguish his annualrents even in a com­ petition with his asignee for onerous causes, was yielded. The case was so much stronger than the present, that the overpayments were, by the creditors intromissions with the rents of the lands out of which the annualrent was uplift- able, more than paid his annualrents: And the judgement of the court was, That such superintromission above the annualrents was not imputable in s ortem, in prejudice of a singular successor: for some thought it hard, that private latent discharges, whereof there was no known way to bring them to the knowledge of purchasers of such insestments of of annualrent, should extinguish the right when it came into their persons.” So also in the case of Lord Whitekirk contra Ednam, Fe­ bruary 1 662, observed by President Gilmour, Lord White- kirk, as having right from the Laird of Lugton to a wadset uPon Ednam, containing a reversion and back-tack, it be­ ing objected by Ednam, That Lugton, the cedent, was satis- fied of a part of the sums; which was instantly verified; not­ withstanding whereof he had discharged a part of the sums. It was answered, 1mo, Contra s ingularem s uccessorem a per- sonal debt, by way of retention or compensation, without a valid renunciation and discharge, cannot so denude the party insest, as that a singular successor may not acquire the right thereof, 2dly, This ground of compensation is not liquid nor constant. The Lords repelled the alledgeance in respect of the first answer chiefly; that is, in other words, that a singular s uccessor, acquiring from the party insest a right to any heritable, but redeemable right, cannot be pre­ judged of that purchase without a valid discharge and renun­ ciation. And though Lord Stair talks more doubtfully upon this point, under the title Inses tments of annualrent, the principle is not only estab lished by the repeated judgements of this court in the cases above referred to, but is confirmed by the fol­ lowing authorities. Sir George Mackenzie, in his commentary upon the 16th act, parl. 22. James VI. respecting the registration of seisins, &c. states it, in observation 4. as a determined point, that an insestment of annualrent could not be taken away by dis- charges granted by the debtor, nor by compensation of his debts, in prejudice of a singular successor who had acquired right to said annualrent; and this he confirms upon the seve- ral grounds therein specially set forth. The same doct rine is laid down by Lord Bankton vol 1 p. 6 5 0. § 13. His words are, “ An insestment of annualrent is is extinguished by renunciation thereof, duly registered in the register of seisins or even by payments instru cted by unregistered discharges; but such discharges or receipts will be effectual against singular successors only as to bygones before their right; and as to these, they are compensable likewise by the personal debts of the author in prejudice of his singular successor, but not as to subsequent annualrents of the principal sum. The present case is so much stronger than any of those a- bove referred to, that there was here not only no discharge or renunciation of the insestment of annualrent, but no actual payment to account of the sum secured by that insestment. For allowing all that the Earl contends for, it amounts to no more than this, that Earl James lent to his brother Mr John L. 6oo and L. 200, upon two different bills, payable at short days; so qualified by relative writings, that in case said bills should remain unpaid, and be lost, the sums therein contain­ ed should be a discharge pro tanto of what was owing by the heritable bond. It is imposib le to characterise this an ac- tual payment; as, independent upon after events, whether it should be applied in payment of the sum secured by the in­ sestment of annualrent or not, there is the highest probability from the facts above mentioned, that the sums in both bills were paid; but whether paid or not, as there was nothing up- on record to interpel purchasers, these two bills unapplied, supposing they were liable to no other objection, cannot stand in the way of the petitioner’s purchase, by which Mr John Primrose being divested pro tanto or th is annualrent-right, it is humbly thought that these two bills, were they now ex­ tant, could not possibly stand in his way. May it therefore please your Lordships, to alter the former in­ terlocutor; and, in the 1st place, to find, That the documents referred to for astructing the two alledged partial payments of L. 200 and L. 6oo, arc insufficient to that purpose, in competition competition with the petionr, aurchaser of this annual- rent pro tanto, upon the faith of the public records. 2dly, et separatim, T o f i n d, T h a t Mr John Primrose's insestment in this annualrent-right standing upon record the pu­ blic register, and no discharge, renunciation, or other extinc­ tion appearing upon the face of thes ecords, the petitioner, a s ingular succesor, purchaser of said annualrent-right from the only person standing insest therein upon record, cannot be prejudged by any such latent personal right as is here plead­ ed, in consequence of the aforesaid two bills of L. 200 and L. 600. 3dly, And upon suppos ition of the petitioner s pre­ vailing upon either of the grounds above mentioned against one or other of the aforesaid bills, or both, to find him pre­ ferable for the debt due to him upon the balance in General Preston's hands. 4thly, And in either of thes e events, to find, That your petitioner ought not to be liable in any ex­ pences of proces s to the Noble Lord, his party in this caus e. According to ju stice, &c. A L E X. L O C K H A R T. % Account Account of the debt of L. 1800 Sterling, contained inJames Earl of Roseberrie's bond, to Mr. John Primrose, his brother, shewing the balance remaining thereof, af ter deducing the sundry payments, received by Mr Primrose. £ s. d. 1800 0 O >) 692 4 0 5 4/12 1107 15 6 8 / 1 2 55 10 9 4/12 1163 6 4 365 0 0 798 6 4 Principal sum in the bond, bearing interest from Martinmas 1723 Mr John and Lady Mary Primrose, in virtue of a conveyance from the Earl to an herita- table debt, due by General Preston, recei­ ved from the General L. 12,460 Scots of the capital of that debt, as at Martinmas 1723 as per their discharge and renunciation, da­ ted 27th May 1724, which mentions that Mr Primrose received two thirds of said sum, being L. 8306: 13: 4 Scots, inde in Sterling--- Balance of principal at Martinmas 1 7 2 3 £ Interest from Martinmas 1723 to 12th No­ vember 1724- Sum £. Deduct, then paid by the Earl, by discharge of that date- V I Rests £. Carried forward, Sterling Brought forward, Rests £ Interest from 12th November 1724, to 2d February 1725.-_ Deduct, paid then by Mr Primrose’s bill to the Earl, dated 20th October 1724, payable at Candlemas 1725 Rests £. Interest from 2d February to 12th March 1725 Sum £ Deduct, then paid by Mr Primrose’s bill to the Earl, dated 12th November 1724, payable four months after date, for Balance only resting at 12th March 1725 £. Interest of the balance, from 12th March 1725 to Whitsunday O. S. 1767 Sum at Whitsunday 1767 £. 798 6 4 8 19 4 807 5 8 200 0 0 607 5 8 3 3 2 9/12 6 10 8 10 9/12 600 0 0 10 8 10 9/12 22 0 6 3 2 9 4 9/12