Fisher — Petition, 14 Nov 1769

November 14, 17 69. Unto the Right Honourable th e Lords of Council and Session, T H E P E T I T I O N O F J A M E S F I S H E R of Duren, Humbly S h ew e th T HAT the Estate of Innishconel, in the Shire of Ar- gyll, belonged antiently to a Family of the Name of Macrthu, of whom the Petitioner is lineally descended. A Charter, dated 8th September 1573, from the Earl of Argyll to Patrick Macrthu, Captain o f Innishconnell, is still extant, and is mentioned in an Inventary of the Rights of said Estate, produced in this Process. Duncan Macarthur, the Son of Patrick having been deprived of his Estate in Times of Trouble, the same was gifted by the Argyll Family about the Y e a r 1 6 1 3 t o Person of the Name of Macl- chlan, under the Burden of maintaining the Castle of Inn isconnell, keeping a Ferry-boat for the Convenience of the Superior, and sundry other Conditions. The Petitioner’s Grandfather, Provost Fis her of Inveraray, after- wards puuchased back a Part of the Eslate from the Maclhns, but they still continued in Possession of the C a s t le of Innishconnell, with the Lands of Ardchonnell, and Coulchonnell, and the Half- merk Land of P ortincherrich, amounting all together to about 30 l. Sterling yearly of Rent; and, in 1722, these Lands were disponed by Angus Maclachlan, then of Innishconnell, to his Son Lachlan, in Fee. reserving his own Liferent of the whole, and an Annuity of 3oo Merks out of them, to Jean Maclachlan, his Wife, in case she should survive him. The The said Lachlan, the Fiar, having married Anne Smollet, Niece, or otherwise nearly related to Sir James Smollet of Bonhill, it ap- pears, that Sir James prevailed upon him and his Wife to sign a Bond of Interdiction, conceived in a very peculiar Stile, obliging them, “ That they should neither sign nor subscribe any Bonds, Bills, or other Writs whatsomever, nor yet contract or take on any Debts, or Sums of Money, whereby their Persons or Lands would be anywise affected or burdened, without the express Ad- vice and Consent of Sir James Smollet of Bonhill, and, failing of him by Decease, of Mr. George Smollet of Inglistown, which failing, to the Heirs succeeding to the said Sir James, and spe- cially obliged themselves, that they should not engage for Angus Maclachlan of Innishconnell, or his Spous e, or any of his Family, either as Principal or Cautioner, in any Sort, without the Ad- vice and Consent foresaid: And, further, that they should live frugally, virtuously, and s oberly, upon what they had already, or might thereafter have, of their own proper Means and Estate; and, if they should fail, and do in the contrary, they should utterly re- nounce and dis claim all Favour and Kindness that the s aid Sir James, Mr. George Smollet, and the Heirs succeding to the s aid Sir James, could do unto them, and did thereby interdict themselves to the said Sir James and Mr. George Smollet, and Heirs succeed- ing to the Estate of Bonhill, and declared, that, if any Deed done by them to the contrary, it should be, ips o fa cto, become void and null, as if the same had never been done. ” The declared Purpose of this Bond, to prohibit Lachlan from joining in any Engagement with his Father and Mother, after they had done him the Favour to put him in the Fee of their small Estate was a very extraordinary one, and the Certification directed both against Husband and Wife, “ That they should renounce all Fa- vour and Kindness, that Sir James Smollet or his Heirs could do to them, if they act ed in the contrary,” has more the Appearance of an Injunction or Threatening, than of any serious Intention to interdict them. Accordingly, this Bond, though executed at Sir James’s Desire, in order to humour him, never was published or registred during his Life. It bears Date, 22d March 1722, and lay latent till the Year 1739, after Sir James's Death, when his Heir Mr. George Smollet, thought proper to produce and publish it, for what good Reason does not appear, other than that being a Law- yer yer by Profesio n, he perhaps thought it material, that a Paper of this Kind should be cloathed with the Formalities of Law. Though Lachlan was by no means of a profuse Disposition, he was necessarily involved in great Difficulties, by the Debts with which his small Subject was incumbered, and by the total Life- rent which his Father enjoyed. From a State of said Debts, here- to annexed, it appears, that the heritable Incumbrances affecting the Estate, as at Martinmas 1742, independent of the Father’s Liferent, and Mother's eventual Annuity, amounted to no less than 659l. 1s. 8 1 / 6 d. Sterling, a Sum considerably beyond the real Va- lue of the Fee in Lachlan's Person; and there were also some per- sonal Debts owing by him, to the Amount of 150 l. Ster- ling. Such were Lachlan's Circumstances, when, in December 1742, he was taken by Caption, upon a Debt due by Bill, to Dougal Campbell of Ederlin, and no other Method occurred of relieving him but a Sale of his Estate. Accordingly, when, in the Hands of the Messenger, he applied to the Petitioner’s Father, Duncan F isher, Writer in Inveraray, requestin g him to purchase the Fee of the above mentioned Lands, which after some Communing was agreed to. The Transaction was executed at the Sight of Mr. Campbell of Clochombie, Deputy-chamberlain of Argyll, and Factor for Edderline, a Gentleman of known Character and Probity, nearly related to Lachlan Maclachlan, and who would not have witnessed any Trans- action in the least Degree improper. Mr. Fisher joined with La- chlan in a Bond of Presentation, narrating the Debt due to Eder- line, which amounted to 58 l. 3 s. 12/1d. Sterling; “ And feeing that John Campbell, Deputy-chamberlain of Argyll, as taking bur- den on him for the said Dougal Campbell, has agreed to allow me, the said Lachlan Maclachlan, to go about my lawful Affairs, and not incarcerate me, by virtue of the said Caption; THERE- FORE WIT YE ME, the said Duncan Fisher, to be bound and obliged, as I hereby oblige me, my Heirs and Successors, to pre- sent the Person of the said Lachlan Maclachlan, within the Tol- booth of Inveraray, upon the 12th Day of January next to come, betwixt the Hours of T wo and Three in the Afternoon, and to be disposed of, as the said John Campbell, or Archibald Campbell, Messenger in Inveraray, or any having Power from them, or ei-""ther ther of them pleases, wherein, if I, the said Duncan Fisher, tailzie, I bind and oblige me, and my foresaids, to pay to the said John Campbell, upon the said 12th Day of January next, the foresaid Sum of 5 8 l. 3s. 12/3d.Sterling Money, with 10 l. Money foresaid of Penalty, in case of Failzie, together with the Annualrent of the said accumulate Sum thereafter, while Payment; and I, the said Lachlan Maclachlan, oblige me to re- lieve the said Duncan Fis her of his Cautionry for me in the Pre- misses, &c.” Of the same Date, a Minute of Sale was entered into between the said Duncan Fisher and Lachlan Maclachlan, whereby, on the one hand, the said Lachlan bound and obliged him, his Heirs, &c. “ to make, grant, subscribe, and deliver to, and in Favours of the said Duncan Fisher, his Heirs-male and A ssignees, be- twixt and the 12th Day of January next, an abs olute and irre- deemable Right and Disposition of the Lands and others after- mentioned, containing Procuratory of Resignation, A ssignation to Mails and Duties, and Writs and Evidents, both old and new, of the said Lands, Precept of Seasine, and all other Clau- ses and Conditions necessary for effectually denuding the said Lachlan Maclachlan of, and investing the said Duncan Fisher and his foresaids, with the absolute and irredeemable Right and Pro- perty of ALL and HAILL the five Merk-land of old Extent of Ardchonnell, & c. and, in the mean time, and until the foresaid irredeemable Right and Disposition is made out in Manner fore- said, the said Lachlan Maclachlan hereby fells, annalzies, and dispones, to and in favours of the said Duncan Fis her, and his foresaids, all and haill, the Lands, Mill, and others, both Principal and Warrandice, above mentioned, with the Pertinents, to be holden either of him blench, or from him, in like Manner as he holds the same himself of his lawful Superiors, and that, either by Resignation or Confirmation, or both, in the option of the said Duncan Fisher, and his foresaids, the one without Prejudice of the other." ’ Then follows a Clause, conveying the Writs and Evidents, and an Assignation to the Mails and Duties; “ which heritable Right and Disposition to be granted, as aforesaid, the said Lachlan Maclachlan binds and obliges him, and his fore- saids, that the same shall be granted with Consent of his Inter- dictors, and with Consent of, and judicially ratified by Anne Smollet, his Spouse; or, that the shall, betwixt and the said 12th “ Day Day of January next, sufficiently discharge and renounce any Liferent-right, or other Right whatsoever she has to the whole, or any Part of the Lands, Mill, and others, above disponed. And further, the said Lachlan Maclachlan binds and obliges him, and his foresaids, that he shall either pay himself, or ap- ply,’ at the Sight of the said Duncan Fisher, and his foresaids, so much of the Price after mentioned, as will be necessary for freeing and relieving the said Lands of all Cesses, Feu and Tiend Duties, and other publick Burdens whatsoever, payable forth of the said Lands, at and proceeding the said Term of Whitsunday next, and of all Debts and real Incumbrances, any- ways affecting the same, excepting the Liferents provided to the said Angus Maclachlan, his Father, and Jean Maclachlan, his Mother, with the Payment of which the said Duncan Fisher is to be burdened in Manner after mentioned. For which CAUSES, and on the other Part, the said Duncan F isher binds and obliges him, his Heirs and Successors, that, how soon the said Lachlan Maclachlan shall make and grant to him the foresaid heritable Right and Disposition, with Consent foresaid, that he, the foresaid Duncan Fisher, shall make, and grant to, and in favours of the said Lachlan Mac- laclan, a Bond, or other sufficient Security for the Sumof6172l. Scots Money, bearing Annualrent from Whitsunday next, and payable at Martinmas thereafter; which Sum, together with the Liferent Right affecting the said Lands, in favours of the said Angus and Jean Maclachlans, whereof the said Duncan Fis her becomes bound to relieve the said Lachlan Maclachlan, is hereby declared to be the full, adequate, and agreed Value and Worth of the Lands, Mill, and others above disponed; which Bond to be granted, as aforesaid, shall expresly bear, that the Sum therein contained, or so much thereof as is necessary, shall be applied, at the Sight of the said Duncun Fisher, and his foresaids, for paying any Incumbrances affecting the said Lands; and both Parties oblige them to perform the Premisses hinc inde, to others, under the Penalty of 1oo l, Sterling Money, to be paid by the Party Failer to the Party Performer, or willing to perform, by and attour Performance; and they content to the Registration hereof in the Books of Council and Session, Sheriff Court-books of Argyll, and others competent, that Letters of Horning, on six Days Charge, and other Executorials needful may pass, & c..T his This Minute of Sale bears to have been wrote by Alexander Shearer, Writer in Inveraray,and the Witnesses to it are Mr. Camp- bell of Clochombie, Archibald Campbell, the Messenger, and the said Alexander Shearer. Though the Lands were thus sold to Mr. Fisher, for a full and adequate Price, it appears, that, out of Favour and Friendship to Lachlan Maclachlan, with whom he was connected by Relation, he agreed to vacate the Transaction, in case Lachlan could fall up- on any Method of satisfying Ederlin, between and the Time spe- cified in the Bond of Presentation. With this View, the Minute of Sale was in the mean time deposited in the Hands of Mr. Campbell of Clochombie, together with a Note of Depositation, signed by the Par- ties, and by Mr. Campbell, narrating the Bond of Presentation and the Minute of Sale, and specifying, that the said Minute is “ by them both deposited in the Hands of the said John Campbell, upon- this Condition, that, in case the said Lachlan Maclachlan does himself, against the said 12th Day of January, pay the said Sum, and retire the said Duncan Fishers Bond of Presentation, then the said Minute of Sale is to become void and null; and failzying of the said Lachlan Maclachlan's paying the said Su m on the 12th Day of January foresaid, then the said Minute of Sale is to stand and subsi st, as fully, as if it had not been de- positate, and the same is to be put into the Register of the She- riff-court of Argyll, for the U se of both Parties.” By the Terms of this Note, your Lordships will observe, that, as on the one hand, Lachlan Maclachlan had it in his Power to de- feat the Sale, by presenting himself, or paying the Debt to Edder- line, between and the 12th January 1743; so, on the other hand, i f he did not present himself, or pay the Debt, the Minute, which in the mean time lay deposited in the Hands of Mr. Campbell of Clochombie, was by him to be put into the Register, for the Use of both Parties, as an Evidence, that the Sale was then compleat. Lachlan had sufficient Time, between and the 12th January, to advise concerning the Transaction, and to deliberate, how far the Sale was proper or not. It would seem, that he continued satif- fied with it, as he neither presented himself, nor paid the Debt. Accordingly, upon the 13th of January 1743, after an Instru- ment had been taken upon the Bond of Presentation, the Minute of Sale was delivered in to the Sheriff-court by Mr. Campbell of Clochombie, and registered in the Books of that Court, for the Be- hoof hoof of both Parties, as appears from the Extract produced, and Duncan Fishcr was some time after obliged to pay the Debt to Ed- derline, who gave him a Discharge and A signation, of Date 16th M arch 1743, also in Process. Mr Fisher could not obtain immediate Possesio n, upon account 0f the reserved Liferents; and, therefore, it was unnecessary to be in a n y great Haste to press Lachlan for Implement, by granting a Disposition. It was a Matter of greater Consequence to him to ob- tain some proper Security for the Debt which he had paid to Ed- derline in terms of the Bond of Presentation; for, as the Subject was burdened to the Value, with preferable Debts, as already men- tioned, he had little or no Chance of indemnifying himself, by re- taining it out of the Price. Accordingly, of this Date, he raised a Summons, and obtained Decreet against Lachlan before the Court of Session, for Payment of said Debt, upon which he raised Dili- gence and apprehended Lachlan, but consented to his being libe- rated, upon obtaining a Bond of Presentation from him, and from the Laird of Maclhn, as his Cautioner. Upon this Bond he afterwards obtained Decreet of Constitution, against the Heirs and Executors of the Laird of Maclachlan, for the Sum in question; which Steps it was necessary for him to take, in all Events, in or- der that he might have proper Security for this Advance which he had made for Lachlan; but, after having got this Security, he proceeded no farther to operate Payment of the Debt, till he should come to a Count and Reckoning with Lachlan upon the Minute of Sale. What shows that he did not thereby mean to pass from the Mi- nute of Sale, is, that, on the 10th July 1744, the very Day be- fore raising the above Summons for Payment against Lachlan Mac- lachlan, he took out Letters of Horning against Lachlan upon the Minute of Sale, upon which Letters he charged him to implement the said Minute, and, of this Date, he executed Letters of Inhibi- tion against him, upon the same. Lachlan died soon after; and Duncan Fisher, still anxious to have the Matter concluded, did, in 1746, raise a general Charge and execute a Summons of Adjudication in implement, against Colin Maclachlan, Lachlan’s Brother and Heir, in order to oblige him to fulfil his Brother’s Minute. Duncan Fisher himself, how- ever, died a few Weeks after, and was succceded by his Son Angus, a Minor, who was likewise prevented, by Death, from tak- ing any Steps in the Allair. When When the Petitioner, James Fis her, succeeded to his Brother, he was an Infant, under the Care of Tutors; These Tutors, though they took the Charge of what was absolutely necessary, did not, it would seem, incline to enter into the Prosecution of a Sale, which might wait till their Pupil was of Age; more especially, as Angus, the Liferenter, was s t ill alive, and likewise Lachlan’s Widow, who had an eventual Liferent. But the Petitioner, as soon as he became of Age, began to think of the necessary Steps for that Purpose. He found it impossible, however, to bring the Matter to an Issue soon, on account of a Competition which had arisen between two Persons claiming to be served Heir- male to the deceased Lachlan Maclachlan; the Succession being de- stined to Heirs-male, and both of them being connected in a very remote Degree. All that he could do, therefore, was to raise a general Charge against these two Competitors: This accordingly was done; and the present Process was also brought against them in the Year 1764. At length, Donald Maclachlan, Taylor in Inveraray, one of the Competitors, having prevailed against Duncan Maclachlan, the other Competitor, the Liferenters being also dead, and all Obstructions removed, this Cause was brought forward against the said Donald, and against Colin Maclachlan of Craiginterive, who, during the Competition between Donald and Duncan, found means to purchase Donald's Right from him, for no other Price than relieving him of the Debts, and fulfilling the Obligements which affected the E- state. In order to meet the Process at the Petitioner’s Instance, a Re- duction of the Minute of Sale, ex capite interdictionis was raised at Donald's Instance against the Petitioner; and these mutual Pro- cedes having come before Lord Elliock Ordinary, the Argument on the part of Donald Maclachlan was at first laid entirely upon the Interdiction, which he contended was a sufficient Bar against the Sale made by his Predecessor Lachlan. To this it was answered, That the Interdiction in this Case was somewhat particular in its Circumstances; but, supposing it to have been compleat and for- mal in every respect, an Interdiction had no Effect in Law to bar a Sale for an adequate Price: That there was no room for the Reduc- tion ex capite interdictionis, without proving Lesion; and that here there was sufficient Evidence, from the whole Circumstances of the Transaction, that the Bargain was fair and onerous, and that the Price given was the full Value of the Subject, as burdened with Liferents, & c. at the Time. The Lord Ordinary, of this Date, pronounced the following In- terlocutor: “ Having considered the foregoing Minute of Debate, with the Writs produced by both Parties, in respect the Minute of Sale, for implement of which the original Process was brought, was an onerous Deed, and that Donald Maclachlan, De- fender, does not qualify Fraud or Lesion at the Time the same was executed, therefore, repels the Reasons of Reduction ex ca- pite interdictionis, assoilzies, and decerns; and finds the Defen- der, Donald Maclachlan, as representing Lachlan Maclachlan of Innishchonnel, is bound to implement the said Minute of Sale to the Pursuer, James Fisher, who has Right thereto, as Heir of the deceased Duncan Fisher, the Party-contracter with Lachlan Mac- lachlan." Against this Interlocutor, a Representation was given in for the Defender; and as he found it necessary to change his Ground, he applied for Letters of Diligence to recover the Note of Deposita- tion, which, till then, had been unknown to the Parties, but was, about that Time, discovered accidentally in the Register-office at Inveraray, having been given in by Clochombie, by way of a Wrap- per to the Minute of Sale and Bond of Presentation, but not regi- stered along with them. The Note having accordingly been reco- vered and produced, the Defender insisted, that the Minute of Sale was thereby explained and qualified, and that the Irritancy con- tained in said Note might still be purged, by paying the Debt which Duncan Fisher had undertaken for L.achlan Maclachlan. The Petitioner, on the other hand, insi sted, that the Note of Deposita- tion served rather as an additional Proof of the Fairness and One- rosity of the Transaction; and that, as the Sale was from the Be- ginning absolute, with an Option only to the Seller to resolve it within a certain Time, which he not only failed to do, but allowed the Minute to be registered, after the Elapse of said Time, as a com- pleat and absolute Deed, it was imposib le now, upon any Ground of Law, to vacate the Transaction. The Lord Ordinary pronounced the following Interlocutor: " Having considered the Memorial for Donald Maclachlan, with the Answers made thereto for James Fis her, together with the Re- port of the Act and Commisio n, and Writs produced, particu- larly the Note of Depositation lodged in the Register of the She- “ riff-court riff-court of Argyll, along with the Minute of Sale, for implement of which this Process is brought, from which it appears, that no true Sale of the Lands was intended to be made by the Minute, but that the same was only intended as a Security to Duncan Fisher, for Relief of the Obligation he had come under for the said Lachlan, by the Bond of Presentation, of even Date with the said Minute and Note of Depositation; and, in respect that no Claim appears to have been made, for Implement of the said Minute, from the Year 1742, when the same was entered into, till the Commencement of this Process, long after the Death of the Parties-contracters; therefore, finds, that Donald Maclachlan, now of Innishconnel, is not bound to make over the Lands to the Pursuer, in terms of the said Minute of Sale, but that it is com- petent to him, the said Donald, to demand up the said Minute, or, at least, a Discharge and Renunciation of the same, from the said James Fisher, upon the said Donald his making Payment to him of the Debt for which Lachlan Maclachlan was under Cap- tion at the Time of granting the said Minute, and which Debt Duncan Fisher was subjected to pay, in consequence of the foresaid Bond of Presentation.’ ’; And, upon advisin g a Representation, with Answers, of this Date, adhered, superseding Extract till the third Sederunt-day of November then next. The Petitioner takes the Liberty of applying to your Lordships for a Review of this Judgment. The Ground upon which it pro- ceeds is, That no true Sale of the Lands was intended; but that the only thing in view was, to give a Security to Duncan Fis her, for Relief of the Obligation he had come under to present Lachlan Maclachlan, or to pay the Debt for him; and the Lord Ordinary seems to have been of opinion, that though Lachlan failed in pre- senting himself, whereby Duncan Fis her was made liable for the Debt, yet it is still in the Power of Lachlan"s Heir to implement that Condition, and to vacate the Sale, by repaying the Debt to the Petitioner. But, with Submission, the whole Circumstances show, that the chief thing in view was to make a Sale of the Estate, and that this Sale was a proper and salutary Measure for Lachlan, in his then in- volved Circumstances; while at the same time it could be of little or no U se to Duncan Fisher, as a Security for the Debt undertaken by by him, the Value of the Subject being in reality exhausted by prior and preferable Debts. Had it been intended only as a Security, why was the Transac- tion executed in that Form? A Disposition ought rather to have been granted, bearing expresl y to be in Security of the Debt or some Clause ought to have been inserted in the Minute itself, speci- fy ing what was meant. But your Lordships see, that an absolute, irredeemable Minute of Sale was entered into, bearing no Refe- rence to the Bond of Presentation; and even the Writing, upon w hich it was deposited in the Hands of Mr. John Campbell, does not say that Edderline's Debt is to be in any shape secured by the Minute of Sale. All that appears from the whole Transaction taken together is that Lachln, on the one hand, agreed to sell his Land, absolutely and irredeemably, to Duncan Fisher, for an agreed Price reserving his Father and Mother’s Liferent; that Mr. Fisher, on the other hand, agreed to pay this Price, but consent- ed, a t th e s am e t im e that it should be in the Power of Lachlan Maclachlan. between and the 12th January then next, to make void the Transaction, by Performance of a Condition specified in the separate Note of Depositation. What shows the clear Intention and Understanding of the Par- ties, that there should be no after Indulgence allowed, either to the one Party or to the other, to depart from this Bargain, is, that the final Completion of it at that Period was entrusted to a third Per- son, Mr. Campbell of Clochombie, chosen as Trustee for both Parties and vested with Powers by the Note of Depositation, either to void the Sale altogether, or to make it compleat and irrevokable by Re- g istration, as the Condition should be performed or not, between and the 12th January. The Minute was in the mean time to lie in his Hands, as a Deposit for both. If Lachlan chose to present him- self, 0r to satisfy Edderlin's Debt before the 12th January, the Sale was to be void. If he did not incline to do so, Clochombie was spe- cially authorised by both Parties to put the Minute of Sale in the Register, as a Declaration to all the World, that Lachlan Macla- chlan had made an absolute Sale of his Estate to Duncan Fisher. Had Lachlan repented of the Sale, or thought it any way unequal, it was easy for him to have avoided it, by satisfying the Bond ofPresntaion, but he rather ch se that the S le should take place and accordingly the Minute was registred. After After this, the Note of Depositation was no longer of any use; the Purpose of it was fulfilled by Clochmbie's retaining Possession of the Minute till the 12th January, and he might then have thrown the Note into the Fire, because he had executed the Trust commit- ted to him, by preserving the Minute in his Custody, for the be- hoof of both Parties, and by not making it a compleat delivered Deed, till the Condition had existed, under which he was to do so. Put the Case, therefore, that the Note had not now appeared, what Evidence would there have been of any Condition whatever, rela- tive to the Minute of Sale? Or what Pretence could Lachlan, or his Heirs, have had to plead, that the Transaction was intended as a Security for Debt, and not as an absolute Sale? By Accident, the Note which was intended only for Clochombie's own U se and Direc- tion, has been preserved; but this Accident cannot alter the Na- ture of the Transaction, or convert what the Parties themselves declared to be an absolute Sale, into a conditional or defeasible one. The Matter falls to be determined, in the same Way, as if nothing appeared but the recorded Minute of Sale, and as if Clochombie had destroyed the Note of Depositation, after the Purposes of it were fulfilled. The Parties indeed seem to have meant, that this should be the Case, and that nothing should appear after the Sale took effect, (in case it was at all to be effectual,) except the absolute Minute upon Record; otherwise, why did they trust all to a third Party, as Trustee for them, without any Back-bond or Obligation, in the Hands of Lachlan himself? When this Process began, neither of the present Parties had ever heard of this Note of Depositation, and why the Recovery of it would make any Difference, the Petitioner does not, with Submission, see. But, in the next place, suppose the Terms of Depositation had been in gremio of the Minute of Sale, the Petitioner does still ap- prehend, that Lachlan Maclachlan having failed in Performance of the Condition incumbent on him, and Matters being not now en- tire, he cannot be allowed, at this Distance of Time, and after so many Steps have been taken, to vacate the Transaction. The De- fender has all along argued, as if the Condition, specified in the Note of Depositation, was of the Nature of a penal Irritancy, like the pactum legis commissoriæ in pignoribus, which may be purged be- fore Declarator. But the Petitioner submits to your Lordships, that this is by no means a just View of the Cade. There was here no no Wadset entered into between the Parties, but an absolute fair Sale for an adequate Price; and your Lordships know, that, in such Cases, the Rule of Law is, to follow the precise Terms of the Contract, without allowing any Latitude of Redemption, after Ex- piry of the Time limited for that Purpose. No Declarator is neces- sary, because there is neither creditum nor pignus, nor any thing penal or irritant in the T ransaction. Agreeable to these Principles, your Lordships have decided in many Cases. In that of Beatdon against Harowe, observed by Lord Stair, 17th January 1679, certain Tenements in Kirkcaldy had been disponed, under Condition that they should be redeem- able within five Years, for Payment of 700 Merks, being the Dis- poner’s proper Money. It was objected, that this was a Wadset- right, a pactum legis commissoriæ in pignoribus, and a penal Irritancy, which is always purgeable before Declarator. It was answered, that a Reversion may be where there is no pignus, but a true Ven- dition for a competent Price, and then there is nothing penal, but favourable, as in this Case, where there is no Requisition. The Lords found, “ That, if there was no Requisition, but a Sale for a competent Price, the Lands are not redeemable, but within the Time, and on the Terms in the Reversion.” Another Decision, observed by Lord Prefident Dalrymple, 4th No- vember 1718, Cutler against Malcom, is as follows: Lands had been disponed, irredeemably under Back-bond, obliging the Purchaser to denude, on Payment of the Price, at any Time within three Years. The Seller, after the Lapse of that Time, pursued a De- clarator of Redemption against the Purchaser: The Defence was, that the Lands were irredeemably sold for a ju st Price, and the Pur- chaser, at the Desire of the Seller, had granted a qualified Rever- sion, but the Lands not being redeemed within the Time limited, the Sale was now become absolute. The Pursuer, on the contrary, alledged, that the elapsing of the Time limited in the Reversion be- ing penal, was purgeable at any T ime before Declarator. To which it was answered, that there was a very clear Difference be- twixt a Sale and a Wadset. In Sales, the Purchaser designs to ob- tain the Property of the Subject sold, for such a Sum as the Parties agree to be the Value. In a Wadset, the Design of the Wadsetter is to secure his Money, and, in the mean time, to have the Profit of the Wadse t; and, as the Reverser may redeem, fo the Wadsetter may call for his Money; and, though the Reversion may be limit- ed ed to a certain Time, yet, to take advantage of the running of the Time is penal, the Land being generally and always presumed a- bove the Value of the Sum advanced, and therefore the Lords have taken great Latitude with such penal Irritancies; but a conditional Sale for an adequate Price is quite different. The Lords “ allowed a Probation for clearing, if the Price was adequate and, upon its appearing to be so, “ affoilzied from the Declarator." And in a Case still later, between the Earl of Balcarras and Scotstarvit, where it appeared that the Transaction was of the Na- ture of a Sale, not of a Wadset, and the Term of Redemption had for a considerable Time been elapsed, your Lordships found that the Reversion could not now take place. The present Case is, in the Petitioner’s humble Apprehension, in- finitely more favourable for him, because not only was a Sale in- tended, but carried into Execution, in the Form of an absolute Minute, and the Qualification contained in the private Note of De- positation, was never meant to be heard of or used after the 12th January 1743, in case Lachlan Maclachlan did not before that Time perform the Condition therein specified. The Registration of the Minute, in consequence of an Authority given to that Pur- pose by both the Parties, was equivalent to a Decree of Declarator, finding and declaring the Sale to be from that Time absolute and compleat, and all private Qualifications and Conditions to be at an end. The Petitioner shall suppose, that after the Minute of Sale was rendered effectual by Registration, Duncan Fisher had repented of the Transaction, and required a Discharge of it from the other Party, can there be any Doubt that Lachlan could have forced him to implement it, by taking a Disposition of the Lands, and by paying the Price? and if so, would it not be most incongruous to suppose that Lachlan himself was not also bound? No Justice will permit that one Party should be tied by a T ransaction while the o- ther is free. And if such was the Case immediately upon the Registration o f the Minute, much more must it be so now, after so many Steps have been taken, and when things are no longer entire. The De- fender all along supposes in his Argument, that the cautionary Obli- gation which Duncan Fisher came under to Edderline, was the Cause of entering into the Minute of Sale; and he says, “ Whatmore can Duncan Fisher, or his Heir, in Justice, demand, than to be repaid the " whole whole Money fo advanced, with Interest? If he gets back his Money, he is no Loser, whereas, by askin g the Land at an Un- der-value, he is in lucro captando.” To the first Part of this Observation it is answered, that suppos- ing the cautionry Obligation to have been the Cause of the Mi- nute of Sale, this affords no Argument in favour of the Defender, but the other Way, for it is an acknowledged Fact, that the cau- tionry Obligation took effect against Duncan Fis her, that he was forced to pay the Money to Edderline, and that as he cannot be re- stored in integrum against the said cautionry Obligation, so neither ought Lachlan Maclachlan to be restored against the Bargain of Sale.It is not enough to say, that Duncan Fisher 's Heir may now get back the Money then advanced, with Interest; for, in the first place, Duncan Fisher was put to the Distress of raising that Money at the Time. And, 2dly, the simple Repayment of a Sum of Money, with no more than the legal Interest, at the Distance of twenty-se- ven Years, is by no means an Indemnification. Had Duncan Fis h- er bestowed the same Sum upon Land at that Time in Argylls hire, it would have been worth three or four times the Value now; or, had he been paid the Interest punctually every Year, or even once in two Years, the Interest growing on said interest in the Course of twenty-seven Years would have amounted to a considerable Sum. Besides, he was obliged to raise the other Sum stipulated by the Minute, and to hold it in his Hands, in order to be paid whenever the Sale was implemented. But, independent altogether of the cautionry Transaction with Edderline, the Petitioner does say, that the Bargain of Sale was ad- equate, and that so far from being in lucro captando, he has sustain- ed Loss by being kept out of Pos ession of the Lands for so long a Time, and by being obliged to keep his Money in Readiness for near thirty Years, when it might have been otherways profitably employed. The Reasons of this long Delay have already been ex- plained; Angus Maclachlan, the Liferenter, who survived his Wife, did not die for many Years. He was alive in 175o, and how long after, the Petitioner cannot exactly say. Anne Smollet the other Life- renter, also lived till within these few Years; and a Variety of Steps were taken to procure Implement of the Minute from the Year 1744 downwards, as already explained; and, with Submission, there is a Mistake in that Part of the Lord Ordinary’s Interlocutor, which sup- poses that no Step was taken for Implement of the Minute from the Year 1742 till the Commencement of this Process. The contrary appears from the Deduction above given, and from the Evidence produced. A ll necessary Steps have been taken both by the Petitioner and his Father, to procure Implement, though, during the Existence of the Liferenter, it was to little Purpose. On the other hand, neither Lachlan nor his Friends ever took the smallest Step indicating an Inclination to void the Minute. T hey saw it put into the publick Register without any Challenge. They allowed Lachlan to be distressed with Diligence upon the Minute, and like- ways for Payment of Edderline's Debt. Had the Interdiction ever taken effect, and had the Interdict or imagined the Transaction to be unfavourable to Lachlan, why did he not object to it in Time? The Truth is, that neither Lachlan nor his Friends thought of chal- lenging a Transaction which they knew to be equal, nor did they so much as attempt to vacate or disappoint it either by his pre- senting himself on the Day appointed, or by making a Tender of Edderline's Debt recently after the Registration of the Minute, though it is now pleaded that they might have done so. The Defender was pleased to found much on the Diligence done against Lachlan, and the Decreet taken against the Laird of Mac- lachlan' s Heirs, for Payment of Edderline's Debt, as a presumed Dereliction of the Minute of Sale. But this Matter has already been explained. Duncan Fisher could not mean to desert the Mi- mate of Sale, when he was at that very Time prosecuting for Im- plement of it, by Horning, Inhibition, &c. but whether he re- ceived Implement of it or not, he surely was well intitled to take all necessary Steps for securing his Indemnification of the Advance he had made for Lachlan. At the same T ime the Defender argues against himself, when he suppofes that Duncan was backward in insisting for Implement of the Minute of Sale; for this, if it were true, would only tend to show that the Bargain was not so benefi- cial for Duncan as the Defender now endeavours to make it. Much hold was also taken of a Letter wrote by the Petitioner him- self in 1 7 68 to Maclachlan of Craiginterive, demanding Payment of his Debt against Innishconnell Estate, which, says the Defender, was, in other Words, passing from the Minute of Sale. Your Lordships will not easily believe that the Petitioner meant to pass from the Minute of Sale at the very Time that the present Process for Imple- ment of it was depending. The Fact is, that he is Creditor to In- nishconnell in another Debt, and being at that Time about to go a- broad, he was in general calling in all the Debts due to him; and though it were to be supposed that he had in view the very Debt now now in question paid by his Father to Edderline, this would not infer any passing from the Minute of Sale. He was then entirely ignorant of the Note of Depositation, or of any Connection what- ever between said Debt and the Minute, and even if he had known of the Note of Depositation, he knew also that there were preferable Debts which might exhaust the Price of the Lands to be paid by him in case he prevailed in this Process. The Lord Ordinary’s first Interlocutor repels the Ground of Re- duction ex capite interdictionis, “ in respect the Minute of Sale, for Implement of which the original Process was brought, was an onerous Deed, and that Donald Maclachlan, Defender, does not qualify Fraud or Lesion at the Time the same was executed.” This Interlocutor stands in so far unaltered by the subsequent one, which proceeds entirely upon a different Ground; and therefore it might seem unnecessary to follow the Defender in the Allegations which he has been pleased to make, of Facility, Lesion, and un- due Advantage supposed to be taken in this Transaction. At the same time, as these Topicks may tend to create Prejudice, the Pe- tioner shall beg leave to say a few Words upon them. And, first, as to the alledged Facility, it has no other Founda- tion than the Narrative of the bond of Interdiction above set forth. The Petitioner is well informed that Lachlan Maclachlan was a Man of good Sense, and of sufficient Capacity to manage his A f- fairs; and it is not probable that he would have been married to so near a Connexion of Sir James Smollet's, had the Fact been other- ways. T he Cause of the Interdiction could not be very urgent, when Sir James kept it by him till his Death, and it lay unpub- lished for seventeen Years. Even after it was published, he was allowed to manage his own Affairs himself, and the Interdictor never interfered. The Defender, in his last Paper to the Lord Ordinary, was pleased to take notice of a Scroll o f a Letter, which he appears ei- ther to have wrote, or intended to write to some Person, for the Loan of a Dog and a Net, and in which some Mention is made of a Piper, from which he was pleased very wittily to figure Lachlan equipt with his Gun, his Dog, and his Net, attended by his Pi- per, and at the same Time doing Business. But this is rather too trifling, to enter into an Argument before your Lordships. There were few Highland Lairds in the Days of Lachlan Maclachlan, who had not a Piper for one of his Domesticks, and fewer still, who were were not provided with the necessary Implements of Fowling and Fishing. It might as well be offered as a Proof of Facility, that he wore a Filabeg, or spoke the Erse Language. There are Letters in Process, under the Hand of this very Lachlan, particularly one to John Campbell of Dana, upon his own and his Father’s Busi- ness, most dist in ctly wrote, and which show him to have been attentive to his Business. Vid. Appendix, No. II. It was next said, That Duncan Fis her was Lachlan's ordinary Agent; that it was improper, therefore, in him, to make this Transaction with Lachlan, when under the Terror of Diligence, having been brought from his own House in the Country by a Messenger, to be incarcerated in Inveraray. From the Letter last mentioned it appears, that Mr. Campbell of Dana had done Business for Lachlan, though, as Mr. Campbell was then Sheriff-clerk, it is not improbable, that Duncan Fisher may also have assisted him in agenting any little Process he had before the Sheriff-court. But, how this Matter stands, does not appear, nor is it material; neither does it appear, whether he was acci- dentally at Inveraray, when the Diligence was executed against him, or if he was brought from his own House for that Purpose. There is not the least Ground for supposing any Thing fraudulent or unfair in the Transaction; it was carried on under the Eye of Mr. Campbell of Clochombie, a Gentleman of Honour, the Cousin of Lachlan, as appears from one of his Letters in Process, and un- connected with Duncan Fis her. As this Gentleman was perfectly unconcerned, and was a Man of unexceptionable Character, it is impossible to imagine, that he would witness an unfair, or an unequal Bargain between them. And the same Thing is to be said of Mr. Shearer, who was employed by them mutually to write the Deeds. The very Note of Depositation shows, beyond Dispute, that there was no Advantage taken in the Transaction. In the same way, as to the Lesion, it is clear, that there is no Pretence for any such Allegation. The true Fact is, that the Price agreed to be paid by Duncan Fis her, upon a ju st Computation, a- mounted to about 26 Years Purchase of the Rental at the Time, as appears from a Scheme formerly exhibited, and now annexed to this Petition; and the Petitioner believes, upon Enquiry, it will be found, that no Land in Argylls hire had ever, before that Time, fold at so high a Price. The The Rental upon which this Calculation is made, is taken from the belt of all Evidence, viz. a s worn Rental, taken up in the Year 1750, upon occasion of the Valuation of the Shire, from which it appears, that the free Rent at that Time, viz. eight Years after the Sale, was juft 30 l. 9 s. 4 d. It was said, that this Rental, though taken up in the 1750, referred to the Years 1747, 1748, and 1749, immediately after the Rebellion, when many of the Lands in Argyl- sh ire were waste. It is true, that, for a Year or two, about the Time of the Rebellion, there were Lands in Argyllsh ire waste, but when- ever that was the Case, express Mention was made of it in the sworn Rentals, given in to the Commissioners, and the Lands were not valued. Sundry Instances of this can be condescended upon; among others, the Defender will see it noticed in the Valuation- rental of the Estate of Askomill. This being the Case, there is no Doubt, that, had any of the Lands of Innis hconnell been waste for these Years, the Proprietor would have mentioned it in his Oath; but he swears the direct contrary. He tells, that the Lands were all let for these Years, and that they paid such and such Rents. The Defender, therefore, must either acknowledge this Rental, swore to by his Predecessor, to be a ju st Rental, or he must alledge, that his Predecessor has been guilty o f Perjury. But if this last was the Case, and if the Lands did really yield a higher Rent, at, or prior to, these Years, how will the De- fender account for their afterwards falling down to the Rent gi- ven up at the Valuation, and continuing at that Rent for twenty Years, till the Commencement of this Process; for the Petitioner does offer to prove, that, during the Period now mentioned, the Lands did pay little or nothing more than that given up at the Valuation. It was also said, that the T iends were wrongfully deduced, in the Scheme exhibited by the Petitioner, being paid by the Tenants, o- ver and above the Rent payable to the Master. But this Remark is also founded on a Mistake, for your Lordships, by perusing the Scheme, will fee, that, in the first place, the Rent, payable to the Master, is stated as per Valuation. 2 dly, To this is added the T iend payable to the Duke of Argyll, amounting both together to 38 l. 1 s. 8 d. from which again is deduced One-fifth for the T iends, to which the Heritor has no Right, and which are not saleable. This is undoubtedly the proper Method of Computation, as the Price paid by Dungan F isher, was merely for the Stock, ha- ving ving no Possibility of ever getting the Tiends. Vide Appendix, No. III. The Defender was also pleased to produce another Rental, of what he calls the Rents in the Year 1736, amounting to 60 l. 4 s. 4 d. Sterling, which however turns out to be an imaginary Ren- tal, composed by himself, in order to be produced in this Process, not authenticated in any shape, and composed chiefly from erro- neous Data. It is contradicted by the Oath of his own Predeces- sor, and by the Rentals for twenty Years back, and therefore can- not be allowed the smallest Credit. It would break the Thread of the Argument too much to enter into a Dissection of this false Rental here, and therefore the Petitioner has thrown his Observa- tions upon it into an Appendix hereto annexed, No. IV. to which he begs leave to refer. And to put an end to this Matter, of the Lesion, the Petitioner does aver, that there was none, but, on the contrary, that the Bargain was fair and onerous, and that a full, and even a high Price was given; and, upon this Fact, he is willing to enter into Proof. Your Lordships will not certainly suppose Lesion, without any Evidence of it; you will allow Parties to instruct and prove how the Fact stands. The Petitioner does aver, not only that there was no Lesion, but that the Transaction was advantageous and salutary for Lach- lan Maclachlan. Indeed, it is surprizing how the Defender should venture to dispute this, when he knows, that the Debts, which then affected this small Subject, are still a Burden upon it, and that they have kept Pace with its Value so well, that he himself has actually sold the Land to Craiginterive, the other Defender, without any other Consideration than the Burden of these very Debts, and Implement of the Deeds and Obligations of his Predecessors. Upon the whole, as the Minute in question has stood on Re- cord, as an absolute and compleat Deed, since January 1743, and as every Step necessary for rendering it eff ectual has been used by the Purchaser, such as Horning, Inhibition, Process of Implement, &c. and, as nothing has been done, on the Part of the Seller, during all that Time, to challenge or depart from it, nor any Reason can yet be assigned, why this fair and onerous Tranfaction should not be effectual, it is hoped your Lordships will have no Doubt o f returning to the first Interlocutor of the Lord Ordinary, decerning in terms of the Petitioners Libel. May May it therefore pleas e your Lordships to alter the last In- terlocutors of the Lord Ordinary above recited and to find, in terms of the Interlocu, 30t h November 1768, that the Minute of Sale is binding, and that the Defender, Lachlan Maclachlan, is obliged to imple- ment it. According to Justice, &c. I L A Y C A M P B E L L. A P P E N D I X._.. N-U- M B E R I. S T A T E of the N ovem heritably affecting the Lands belonging to b r 1 4, r 7 6 r 1, r 1 4, r 7 o f ln n ish- connel. T O Mr. James Getty, by a wadset or heritable bond upon Coutchonel, resting unpaid, o f principal Twelve years annualrents from Whitsunday 1730 Inde in Sterling To Provost Fisher, as assignee from John Shaw, per de- creet of adjudication, for the accumulate sum of Annualrents, from 26th January 1732, to 24th November 1736, that it was assigned to Provost Fisher Expences determined by said assignation Paid to John Shaw. Carried forward S co ts. S ter ling. £. s. d. £. s. d. 56 0 0 2 8 0 0 34 0 0 • • 7 0 0 603 19 0 145 15 0 30 0 0 7 7 9 1 4 0 779 14 0 7 0 0 Brought over Annualrents of this sum, from November 1736 to No- vember 1742, being six years A proportion of Provost Fisher’s charges at Edinburgh, transacting this debt.... Inde in Sterling money To Provost Fisher, by bill and diligence Four years annualrent due thereon Protesting, registration, and precept In Sterling To Craignish, by decreet of adjudication, dated 20th June 1733, for the accumulate sum of Ten years annualrents due thereon In Sterling To James Campbell, Writer, by bill, dated 6th April 1737, payable a month after date, for the sum of Six years annualrent thereof To him, per another bill, dated 30th December 1737, payable at Whitsunday thereafter Five years annualrent thereon To raising and executing horning and inhibition, and for registrating the same, and for postages To Shirvan’s executors, by bond, dated 26th April 1727, granted to Archibald Campbell in Kilmun, and assign- ed to Shirvan, principal sum... Inde in Sterling Sixteen years annualrent thereof Penalty, in place of expences, being 100 merks Penalty of the tack granted to the said Archibald of the lands of Coulchonnel, which was incurred by not ad- mitting him to possession, and horning and caption raised therefor. Shirvan’s executors having led an adjudication in win- ter 1740 on this debt, and reckoning the above to be the accumulate sum, there will be owing besides, two years annualrent thereof Inde To Maclachlan, or Colin Maclachlan in Jamaica, per heritable bond, attour annualrents and penalty To Duncan Fisher, per heritable bond and infeftment To Duncan Fisher, as distressed cautioner by Edderline, per bond of presentation, for the sum of Penalty Total debts 779 14 0 7 0 0 233 18 0 7 2 8 0 i o 8 6 0 0 • • 90 10 0 187 5 8 37 10 0 1 10 0 2 26 5 8 • • 18 17 12/3 1396 0 0 77 0 0 0 • • l80 0 0 1 2 12 8 3 18 61/2 20 0 0 5 0 0 3 10 0 45 1 2 1/2 500 Marks. 2 7 1 5 6 2/3 22 4 5 1/3 5 11 11/3 9....TH 61 2 22/3 6 1 11/3 IOO O O 150 O O 658 11 82/3 58 3 12/3 IO O O 68 3 1 /3 726 14 9 10/12 7 E P v o I OOF N orI JF S I NCE the time I was for letting the lands to roup, the clerk has my papers; you will please show him my letter, and he will give you my father’s precept of clare-constat, that was granted by the managers, and my grandfather’s charter, which all you write fo r; if he scruples it, you may give him your receipt. I pro- mised Maclachlan to be over on Monday last; left he take it amiss, I have gone this day. If it be needful to write to me, send the boy to Castlelachlan, by way of the house; if not, order him home. As for my father’s business, I must pass it, till we meet. I cannot think your papers will be ready before Monday. I have returned the buttons; for I am of opinion I can be better served when your boat comes home; and I do not like them with timber bottoms. This, till meeting, is all from, Dr. U. Eriden, Your affectionate nephew and servant, 14th Oct. 1739. L A C H. M A C L A C H L A N. Addressed, T o Provost Fisher, at Inveraray. Inveraray, October 15th, 1736. Received from Archibald Campbell, Sheriff-clerk, seasine in favours of Colin Maclachlan of Innishconnel, dated 25th, 26th, and 27th day s of October 1658, registrate at Inveraray, the 30th November 1658; and fea- sine in favours of Lachlan Maclachlan of Innishconnel, in the lands of lnnishcon- nel, dated 21st day of June 1672, and registrate at Edinburgh, 5th July 1672. (Signed,) J A. F I S H E R. Inveraray, 2d December 1742. A M IS PLEASE deliver to Duncan Fisher, Writer in Inveraray, an charter granted by the Earl of Argyll, in favours of Lachlan Maclachlan, my grandfather, which lies in your custody, and take his receipt on the back of this for it. In this doing you will oblige,J A M IS Your humble servant, (Signed) L A C H L A N M A C L A C H L A N. Addressed on the back, To Archibald Campbell of Dana, Esq; N U M B E R I I I. N U M B E R III. R E N T A L of Ardchonnell and Coulchonnell, within the parish of Dalaich division, and sheriffdom of Argyll, gi- ven up by Angus Maclachlan of Innishconnell, liferenter thereof. For the year 1747, paid fix pounds (Terling of rent, includ- ing casualties, and for the year 1748 and 1749, pounds money foresaid yearly of silver-rent, attour casualties for the years 1748 and 1749, paid two old wedders yearly, or three shillings and four pence for each. Inde for both years, thirteen shillings and four pence; one-third where- of is to be charged here, by reason the casualties of the first year is included in the silver-rent above named For the years 1748 and 1749, paid yearly one stone of but- ter, or six shillings and eight pence. Inde for both years thirteen shillings and four pence; one-third whereof is to be charged here, in the same manner as the money for the wedders were, inde L. s. d. L. s. d. 6 0 0 R f 9.TH R f 9.TH 6 8 102/3 15 11 11/3 0 13 4- 16 4 52/3 4 17 92/3 21 2 2/3 6 8 102/3 Pavs also two bolls tiend-meal, and five shillings vica- rage, to the Duke of Argyll For the years 1747 and 1748, paid yearly sixteen pounds, thirteen shillings and four pence, including casulalties; and for 1749, paid thirteen pounds si x shillings and eight pence, attour casualties. he three years foresaid of silver-rent, amounts to forty-fix pounds thirteen shil- lings and four pence. Inde for one year, at a medium For the year 1749, paid four old wedders, thirteen shil- l ings and four pence, and four stone of butter, twen- ty-si x shillings and eight pence; one-third of both sums is only to be charged, by reason the casualties of 1747 and 1748, is in the silver-rents of these two years The mill paid for the said three years eleven bolls meal yearly, at eight stone in the boll, reckoned at eight shillings and ten pence, two-thirds sterling per boll Carried over Brought over An old wedder, at three shillings and four pence, and half a stone butter, at three shillings and four pence Ardchonnell pays also six bolls tiends to the Duke of Argyll. and ten shillings of vicarage to the minister Signed, ANG. MACLACHLAN. Signed, PETER LINDSAY. L. s. d. L. s. d. 21 2 22/3 6 8 102/3 0 6 8- 21 8 102/3 L. 27 17 91/2 A T A R D C H O N N E L L, the 6th day of January, 1750 years, IN P R E S E N C E of James Fisher, Merchant in Inveraray, Justice of Peace within the shire of Argyll, Angus Maclachlan of Innishconnell, maketh oath, that the within is a just and true rental of the Lands of Ardchonnell and Coul- chonnell as has been payable out of them, for the years 1747, 1748, and 1749, extending, at a medium, to the within sum of 27 1. 17 s. 91/3 d. Sterling money; that the tenants pay the tiends and vicarage, as is within mentioned, as also the cess attour the foresaid rent; also that there are woods on the foresaid lands, suffi- cient for upholding the biggings thereof. And this is truth, as he shall answer to God. (Signed, ANGUS MACLACHLAN, jurat coram JAMES USHER, J. P. N. B. This is certified by the clerk to the valuation. R E N T A L of the lands under written, lying in the parish of Dallavich pertaining, in property, to Angus Maclachlan of Innishconnel, given up by Donald Campbell, present posses- sor thereof. PORTINSHIRRICH for the years 1748 and 1749 paid yearly of dil- ver-rent, including cadualties. • •. L. 5 o o N. B. The farm was set to the said Donald Campbell, by James Campbell, Writer in Inveraray, to whom he paid the above yearly rent. A T A T I N V E R A R A Y, the 28th day of August, 1750 years. IN P R E S E N C E of Archibald Campbell of Inverliver, one of his Maje- sty ’s Justices of the Peace for Argyllshire, COMPEARED Donald Campbell in Portinsherrich, who being solemnly sworn and interrogate, DEPONES, that he was possessor of a fourth part of Portinsherrich for the year 1749, and paid a pro- portion of the above rent, that there is a ferry change-house and smithy upon the lands, which pay a considerable part of the five pounds. Depones, that, according to his judgment, the whole arable and pasture grounds of the said farm, if separated from the liberty of the Ferry change-house and smithy, would be worth no more than forty pounds Scots yearly, and he believes no higher rent would be expected for it from tenants. And this is truth, as he shall answer to God. (Signed,) DON. CAMPBELL, ARCH. CAMPBELL, JOHN CAMPBELL Clk. That what is above written, is a just: and exact copy of the real rental of the lands of Portinsherrich, and deposition emitted thereon, given in to the Commis- sioners, nominated and authorised by A ct of Parliament, for making an authentick roll of valuation of the shire of Argyll, IS CERTIFIED and A TTE STED AT INVERARAY, the 25th day of October, 1768 years, by me, Deputy-sheriff Clerk of the said shire. (Signed,) PETER LINDSAY. S C H E M E of the rental and price of the lands of Ardchon- nell, & c. purchased by Duncan Fisher o f Duren, from Lach- lan Maclachlan. R E N T A L of Ardchonnell, Coulchonnell, and the mill, for the years 1747, 1748, and 1749, as given up on oath, by Angus Maclachlan of Inshconnell, the liferenter, and Lachlan’s father, in the valuation of the Shire of Argyll, anno 1750, per certificate. Add tiends payable to the Duke of Argyll, per fame ren- tal, viz. out of Culchonnell, money Meal, 2 bolls, at 10 merks... Out of Ardchonnell, money Meal, 6 bolls, at 10 merks... Caried ov Sterling. Sterling. L. s. d. L. s. d. 27 17 91/3 0 5 0 1 2 22/3 0 10 0 3 6 8 5 3 102/3 33 1 8 /N U M B E R IV. R E N T A L exhibited by the defender, with O B S E R V E S thereon for the pursuer. I. F arm of Ardchonnell, paid in 1736, as appears by Innishcon- nell's discharge to Neil Macarthur, Brought over Item the rent of Portinshevich, per separate certificate, al- so taken from that valuation Total rent stock and tiend Deduce 1-5th for tiends, to which the heritor hath no right, and which are not aaleable... Rests for Rock Twenty-seven years purchase of this, is Deduce 10 years purchase for the burden of the two liferents, which affect ed the lands, and were a burden on the purchase, which is a moderate computation, especially as the above certificate affords evidence, that Angus Maclachlan, one of the liferenters, ac- tually lived, and was in possession, as far down as the 1750, eight years after the purchase Rests Sum agreed to be paid by Mr. Fisher 6 172 l. Scots Short of twenty-seven years purchase only L. s d. L. s. d. 33 1 8 5 0 0 38 1 8 7 1 2 4 30 9 4 822 12 0 304 13 4 5 17 18 8 5 1 4 4 0 3 14 8 Silver-rent of his quarter.,.. A stone of butter, 27 lib. per stone,.. Two wedders •. A two year old goat. A veal..... Thirty loads of peats, at two pence per load The three other quarters were possessed by Innishconnell himself, and are computed at the same rent with the above quarter, Inde... Carried over L. s. d• L. s. d 5 0 0 0 8 0 0 8 0 0 4 0 0 2 6 0 5 0 6 7 6 19 2 6 25_ 10 0 Brought over 2. The acre of Tayimuich in said farm. Silver-rent An old wedder.. One-fourth stone of butter.. Three fowls and three dozon of eggs 3. M I L L of A R D C H O N N E L L. Silver-rent, twenty merks • • V ictual-rent, eleven bolls oat-meal, nine stone per boll, at twelve merks An old Wedder One-half stone of butter j. Twenty-four fowls, and twenty-four dozen eggs 4. C O U L C H O N N E L L. Silver-rent, per young Innischonnell s discharge to Carsail Two stone butter Four wedders Sixty loads rental peats. Twelve fowls, twelve dozen eggs. Four veals.. 5. P O R T 1 N S H E R R I C H. Silver-rent of one-half, forty merks One-half stone butter An old wedder. An year old wedder Half a gallon aquavitæ The other half paid the same, excepting the aquavitæ. Inde The smiddy and acre of said farm. Silver-rent... A wedder.. Three fowls, and a dozen eggs. N. B. In the above rental, nothing is stated on account o f services, which, supposing twelve days service of ten tenants, each computed at 1 s. man and horse per day, will amount to Add four goats and four kids... OBSERV L. s. d. L. s. d. 25 10 0 2 0 0 0 4 0 0 2 0 0 1 6 •1 7 6 1 2 22/3 7 6 8 0 4 0 0 4 0 0 12 0 9 8 10 2/3 3 0 0 0 16 0 0 16 0 i 0 10 0 0 6 0 0 10 0 10 18 0 2 4 9.TH0 3 4 0 3 4 0 1 8 0 6 8 2 19 51/3 2 12 91/3 1 222/30 4 0 0 1 6 1 7 82/3 54 4 4 L 6 0 0 60 4 4 1 12 0 O B S E R V E S. W I T H regard to the f irst Article, 6 l. 7 s. 6d. fo r a Quar- ter of Ardchonnel. It no doubt appears from the Receipt produced, that that was the Rent for the Stock and Tiend of that Quarter f or the Year 1736, converting the Casualties at the high Prices in the Rental; but at the same time it appears, from the Articles of Agreement betwixt Innishconel and Macniven and Macarthur for a Half of that Farm, that they thought that Rent so high, that they were in doubt whether they would continue in it for more than three Years, and, therefore, take it only upon Condition, that they were to be free at the End of the third Year; and, in fact it would appear that Macniven had resiled from the Bargain, and never taken Possession of his Q uarter at all. But this is only one Quarter of the Farm; there is no Evidence of the Rent of the other three Quarters. The Defender indeed pre- tends, that they were in the natural Possession of Innis hchonnel, and reckons them at the same Rate. But it is clear they were not pos- sessed by him, from the third Article of this very Minute of Agree- ment, in these Word: “ I am to have the Acre of Tainroich, with the Grass of two Cows, and ten Sheep, and a Cow’s Grass in the Bark, with her Follower, and my Ride-horse, when their Plough-horses is in the Park.” This shows, in the first place, that Innis hchonel was not in the natural Possession of Three-fourths of this Farm, as alledged by the Defender, otherwise he would have had no occasion to burden these poor People with Grass to his Cow and Horse. It therefore follows, that the Farm must have been in Tenandry; and it is incumbent on the Defender to show what Rent was really paid for every Quarter of it, before he can pretend to dispute the Rental exhibited by the Pursuer. 2dly, It is clear, from this Minute of Tack, that the Half of the Farm there- by set had been in the natural Possession of Innishchonnel, Part of it inclosed; and as he appears to have had no Cattle upon it of his own, but a Cow and Horse, it has probably been lying in Grass for a Number of Years. This accounts for the high Rent given by these People for three Years, and their Doubt of continuing it longer. longer. It is very common for Tenants to give a most exorbitant Rent for Liberty to plow such Ground as this for a few Years, because the Ground, being in good Heart, yields plentifully for the first two or three Years. This, however, is a most fallacious Meith in ascertaining a fixed Rental, and one never followed. At the same time, when this Article is more nearly examined, and compared with the judicial Rental 1750, the Difference will be found to be inconsiderable. For Example: These Conversions, however, are too high. It is true, they are the present Conversions, but, in the 1736, they were uniformly thus: Sterling. £ s. d.The Rent 1736, o f a Quarter of in Mo- ney, is---- 5 0 0 Sterling. £ s. d. A Stone of Butter-- 0 8 0 Two Wedders--- 0 8 0 A Two-year old Goat- 0 4 0 A V eal--- 0 2 6 Thirty Load of Peats-- 0 5 0 1 7 6 Scots. £ s. d. A Stone of Butter- 3 6 8 Two Wedders-- 3 o o A Two-year old Goat-- 1 1o o A Veal--- o 13 4 Thirty Load or Peats- 3 0 0 Scots £. 11 10 R Starling £.--------------- 0 19 2 5 19 2 Carried forward 5 19 2 Now, Brought over 5 19 2 14 17 11 20 17 1 20 1 11/3 0 15 16 4 51/3 0 10 0 3 6 8 Now, as this Quarter which was partly inclosed and improved must have been the best, suppose the other three Quarters set only One-sixth cheap- er, inde the Rent of these three Quarters will be Total Rent of Stock and Tiend The Rent of the Stock of this Farm, as given up at the Valuation, is, Add Tiends, viz. Money M eal, 6 Bolls, at 10 Merks, Difference only But as the Allowance made betwixt the Quarter inclosed and improved by Innis hconnel himself, and the other three Quarters, is evidently two small, as it might safely be reckoned One-fourth, in p lace of One-sixth, so, in reality, there is no Difference betwixt the two Rentals, the one now exhibited by the Defender, and the judicial one1 750, at least, no Difference worth noticing. Article 2d.. lF t hF 6d. as the Rent of an Acre called Tain- roich, shall not be disputed, as it is of small Value; only the Pur- suer must observe, that this is also a conjectural Rent, as there is not the smallest Evidence produced of its real Value. Article 3 d, Mill of Ardchonnel. The only Difference betwixt the Rental sworn to by Innis hconnel himself, and the one given in by the Defender, arises upon the Conversions of the Meal. Innis h- connel converts it at 8 Merks, which, to be sure, was the common Conversion in these Days, and still continues the Conversion in many Parts of the Highlands. The Defender however states it at 1 2 Merks, a Conversion by far too high. The Tack o f the Mill, produced, bears the Payment too of 20 Merks in Money, more than mentioned in the Valuation-rental; but for that the Miller ap- pears to have had Grass for six Cows, a Mare, and ten Sheep, from the Farm of Ardchonnel; consequently, it cannot come into the Rental Rental under this Article of the Mill, as the Farm is rentalled by itself. Article 4th, Coulchonnel. There is a Tack produced of the Half of this Farm, bearing the Silver-rent to be four Pounds Sterling, besides Casualties; and from this a Conjecture is made, that the o- ther Half was set at the same Rent; But this is too vague to cut down the judicial Rental produced by the Pursuer, which says, that the whole Farm was set for 6 l. 8 s. 102/3d. Sterling; especially that it is notour, that, till within these few Years, it never paid more. The Casualties are over-rated here, in the same Proportion as shown under the Article of Ardchonnel. Article 5th, Portinsherrich. 5 l. 12 s. 2 2/3d. is 12s. 2 2/3d. Ster- ling more than it pays at this very Time, and only a Trifle more than the Valuation-rental, and can make little Odds on the Equa- lity of the Bargain, suppose it were to be allowed. The Tenant who possessed it in 1750 swears, in the judicial Rental, that he reckoned this Farm, independent of the Ferry and Smiddy, worth no more than 40 l. Scots. Article 6th, the Smiddy and Acre. As no such Subjects are mentioned in any of the Papers, nor by any of the Parties, either at the T ime of making up the Valuation 1750, or at any other Period, the same cannot be sustained ass et separately from sherrich, as it is a Part of it, and so set at this Day, at the Rent a- bove mentioned. Article 7th, is 6 l. Sterling charged for Services, upon what Me- dium is not known; as there is not the smallest Evidence, that any such were either due, or exacted out of this Estate.