Petition 1766

*Jk \ s * * '. r ‘ Unto the Right Honourable the Lords of Council and Sessiony_______ —, f T H EP E T I T I O N % O F The Representatives o f r T H E O r F h e T of Potterflat, late factor on the se- questrate E state of Crieve and Moss- know; % I * O i a-• m 4, Humbly Sheweth, T H A T the lands of Crieve having been sold j udicial- ly in this court, yielded so high a price, that there was a prospect of a considerable reversion, after paying all the debts that affected them: In conse- quence of which, the heirs appeared in court; and some disputes having arisen between them and the petitioners, the Lord Coalstoun Ordinary, on the 15th November 1 7 65, pronounced the following interlocutor; “ The Lord Ordi­ nary having considered the memorials for both parties, condescendence and additional memorial, observes on the accompts, and answers thereto, finds, that the creditors, tacksmen of the lands o f Howdales, and o f part of the lands of Newlandhill, were by their tacks obliged, not on­ ly to pay a certain tack duty, but also, to relieve John “ Armstrong A rmstrong of Criev, the reverser, of all public burdens, imposed or to be imposed upon the lands during their possession: And finds it proved, that before the commence­ ment of the factory granted to Bryce Blair the said credi­ tors were accordingly in use of relieving the reverser of the stipends imposed upon their respective lands, amount­ ing to the sum of 4 /. 1 8 s. 10 d. Sterling yearly, Finds, That recently after the commencement of the factory grant­ ed to Mr. Blair, it was made known to him, that such was the nature of the rights granted to these creditors, and such the nature of their possesi o n: And therefore, and in re- spect that Mr. Blair failed to give in his accompts during the whole period of his factory, which subsi sted from the 1742 till the 1761, by which these who had right to the reversion were kept in ignorance, of the manner in which he accompted with the creditors in possession, finds, that his representatives are not entitled to take credit for the stipends which ought to have been paid by the creditors in possession; and susta ins the objection to that article, reserving to them to operate their relief as they best can against the creditors, by whom these stipends ought to have been paid: Sustains also the objection to the feu-du- ties of Mossknow, in respect that nothing has been pro­ duced, to show' that these feu-duties were paid to the su- perior, reserving to the representatives to produce a pro­ per voucher that these feu-duties were truly paid: Re­ pels the objection to the articles charged in name o f inci­ dents, amounting to the sum of 30 Stcrling yearly: Finds, That the facto r was obliged to use diligence against: the tenants of the sequestrated estate, for payment of the rents due by them: But, before answer to the question, how far his representatives are intitled to take credit for the arrears mentioned in the discharge, ordains both par­ ties to give in a more particular condescendence, concer­ ning the present sta te and condition of the tenants, and how how far Mr. Blair was culpable or not, for not using di- ligence The petitioners preferred a representation to his Lord- ship, craving an alteration of this interlocutor, so far as it re­ lated to the stipends and the feu-duties. T he representation was appointed to be answered; and answers were given in, and his Lordship, on the 16th January last, pronounced the following interlocutor: “ The Lord Ordinary having again considered this representation, with the answers thereto, refuses the desire of the representation, and adheres to the former interlocutor.” The petitioners did formerly apply to your Lordships by a reclaiming petition, on which you were pleased to pronounce the following interlocutor, l st February 1766: “ The Lords having heard this petition, they adhere to the Lord Ordi­ nary’s interlocutor, and refuse the desire of the petition.” The petitioners humbly submit this case again to your Lordships review; and they hope, on reconsidering it, you will be inclined to alter your last interlocutor. And they will beg leave to lay before your Lordships, a more full and par­ ticular state of facts than was under your consideration when the cause was formerly before you. The points in dispute are two: The f irst is, whether the factor should be annually charged with a proportion of sti- pend, due out of the farm of Howdale, and the half of New- landhill This is stated at no less than 4 l. eR ps 10 d. year­ ly. And as the factory continued for a period of 20 years, this article amounts to within a trifle of 100 /. sterling, besides the interest that may be dated thereon progressively. The o- ther point is, whether the factor shall be allowed to take credit for 1 l. 2 s. 2d. annually, as the feu duty payable to the Marquis of Annandale. T hese two articles are matters of ve­ ry considerable importance to the petitioners, as they amount to a very great sum, when stated with interest, charged pro- gresiv e ly, during the whole period of the factory. Mr. Mr. Blair was appointed facto r on this estate on the 10th February 1742, with power to uplift the crop of that year, and all preceeding arrears, and he held this office till his death which happened in January 1762. Immediately on the com­ mencement of this factory, he brought an action before the she- riff of Dumfries, for proving the rental and the extent of the arrears, in order to recover decreet for them for the current p year’s rents, and for the rents that should fall due thereafter, In this process he called the whole tenants on the estate; the whole compeared (excepting only the possessor of Howdale), and he recovered decreet on the 5th August 1742; so that surely he cannot be accused of being dilatory or negligent as to this step of procedure. The extracted decreet of the sheriff is produced, and the petitioners will take the freedom to state the particulars of the rental of the estate, from the oaths of the tenants, as in- grossed in that decreet. “ William Scott of Meikledale deponed, That he possessed the lands of Capplefoot and Crieve for the crops and years 1729, 1730, 1731, and 1736 years, at the yearly rent of 5 0 l. Sterling, in name of rent and teind, payable at Mar- tinmas yearly; and the deponent was moreover obliged to pay the land tax, and other publick burdens, without any allowance: That he paid the first three years rent, & c. and acknowledged, that the whole rents, since the said dis- charge granted by Mr. Corrie, except 7 l. 10 d. Sterling yearly, as the teind or stipend due out of the lands o f Crieve to the minister of Tunnergarth, conform to receipts thereof to be produced for the deponent were resting un­ paid.” “ Thomas Little in Newlandhill deponed, That he had been tenant upon a part of the lands of Newlandhill these 26 years bypast, and is tenant there at present, and was to pay 3 l. 12 ss n d. Sterling of yearly rent and teind to the master for his said possession, besides payment of publick burdens, & c. &c. Deponed, That to the best of his knowledge, he was owing the said rent and teind of his possession for the crops 1729, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, and 1742, except the s um of e t p s 6 d. Sterling of stipend, paid by him yearly for all the said crops and years, except the years 1741 and 1742, and exhibited the last three discharges granted by Mr. Andrew Clark ministe r of Tunnergarth, to whom he paid the said stipend. " “ William Graham deponed, That he had possessed, as te­ nant, a part of the lands of Newlandhill, for upwards of 30 years, and was tenant there at present, and paid 7 l. 5 s. sterling of rent and teind, and had paid the said rent and teind for the years 1728, and proceedings, &c. Deponed, That he w as owing the rent and teind of his possesi o n for crops 1729, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, and 1742, except 1 l. 1 s. Sterling of stipend paid by him yearly to Mr. Andrew Clark minister at Tunner- garth, for all the said years, except the year 1742, and shall procure the said Mr. Clark's discharge therefore.” “ John Graham in Newlandhill deponed, That he entered to the possession of that part of Newlandhill, formerly pos- sessed by the deceast Thomas Graham his father, at Whit- sunday 1734, and was to pay 3 l. 12 s. 6 d. Sterling of year­ ly rent and teind, and had continued the possessi o n of the said lands ever since, and was owing the foresaid yearly rent and teind for all the years he had possessed the s aid lands, except 1 9 l. 6 d. sterling, paid by him to the purs u- er, and I o s. 6 d. Sterling paid by him yearly to the mini- ster of Tunnergarth, as the proportion of Stipend. payable to him out of the deponent's possession, for all the years he has possessed the said lands, except the year 1741 and the current year 1742, and should produce the said Mr. Clark's discharges for the same.” In conference of these depositions, “ The sheriff de­ cerned and ordained the haill forenamed persons, defenders, “ to to make payment to the pursuer Bryce Blair, o f the several sums of money under written, as after follows, viz. The defender William Scott of Meikledale of the sum of 250 l. Sterling, as the silver rent and teind due for his said posses- sion of the lands of Capplefoot and Crieve, for the crops 1737, 38, 39, 40, and 1741, at 50 l. Sterling per year; and also of the sum of 50 l. Sterling as the current year’s rent, for his possesion of the said lands, that will be due against Martinmas next, the said term being always first come and bygone; he, the s aid defender, always having allowance of 7 l. 10 d. Sterling yearly for each of the said crops and years, as the stipend payable forth of his s aid pos- session to the minister of Tunnerg arth, upon his producing to the pursuer discharges thereof from him.” “ Item, The defender Thomas Little in Newlandhi, the sum of 39 l. 14 s. 5 1/2 d. resting of his rent and teind due for his said pos- session for the crops and years 1729, 30, 31, 32, 33, 34,35, 36, 37, 38, 39, 4 0, a n d 1 7 4 1, a n d o f the sum of 3 l. 12 s. 6 d. Sterling, as the current year’s rent of his pos- session, that will be due at Martinms ext. He a lw ays having allowance out of the said sum of 1o s. 6 d. Sterling, as the current y e a r ' s s tipend due to the minister of Tuner- garth. Item, The defender William Graham in Newlandhill, of the sum of 78 l. 8 s. 11 d. sterling, as the rent and teind of his said possesio n, due by him for the crops and years from the year 1729 to 1741, both inclusive; and of 7 l. 5 s. Sterling, as the current year's rent of his possession, that will be due at Martinmas next, he having allowance of 1 l. 1 s. S t e r ling, as the current year's stipend payable to the mi- nister of Tunnergarth. Item, The defender John Graham in Newlandhill, of the sum of 5 l. 14 s. 5 1/2 d. Sterling, as the rent and teind of his said possesion, resting by him for the crops from the term of Whits unday 1734, when he entered to the possession of the said lands, to the term of Martin­ mas 1741; and of the sum of 3 l. 12 s. 6 d. as the current “ year’s year’s rent and teind that will be due by him at Martinmas next, for this present crop 1742, he always having allow- ance of 10 s. 6 d. as the current year's stipend due to the minister of Tunergarth." F rom the procedure that has been stated above, the follow­ ing observations occur, 1mo, T hat all those tenants paid a sum in name of rent and teind, and were all bound to relieve the proprietor from pub- lick burdens. 2do, T hat this notwithstanding, they were not considered to be liable in Stipend over and above their rent, but whate­ ver payments they made of Stipend, it was apprehended these fell to be deduced from the rent. 7,tio, That the sheriff, by his interlocutor, gave authori­ ty to this opinion, and found the tenants intitled to deduce from their arrears o f rent and teind, what sums they had paid to the minister in name of stipend. 4to, That by this decreet, this method of accompting was chalked out to the factor in his subsequent transact ions with the tenants, and he was in bona fid e, not only to ap­ ply this rule to those against whom this decreet was given, but to any others who were in the same circumstances. And indeed it is humbly apprehended, the principles up­ on which the sheriff proceeded, in allowing the tenants to retain the stipend they had paid to the minister out of their rents, were well founded in law; for they could never be construed into publick burdens on the lands, stipends being a burden on the teinds, and the teinds not being a burden on the land itself, but on the fruits of the land; hence, while the publick burdens of the lands were under consi- deration, the minister’s stipend could appear no part there­ of, a rent being paid for the teinds nominatim, as well as for the stock, tho the tenant was bound to relieve the maste r only of those burdens which were payable out o f the lands, not of those which were payable out of the teind. And, And, indeed, the reversers have not pretended to impugn the authority of this decreet, or to alledge, that the factor ought to account in any other form than it points out; but they contend, that as to one half of the lands o f Newland- hill, and as to the farm of Howdale and Glaisters, a diffe- rent mode of accounting ought to take place, and that the factor ought to have exacted from the tenants of these lands their stipend, over and above their rents. It remains, therefore, to be considered what room there is for making any dist in ction with respect to the mode of accounting be­ tween those tenants, and the other tenants on the estate. And, first, with respect to the one half of Newlandhil. Robert Armstong, who was tenant of this farm, was also examined in the course of the procedure before the sheriff of Dumfries, in the year 1742, and deponed, “ That at Wbits unday 1730, he entered to possession of part of the lands o f New landhill libelled, as tenant to the now de- ceast James Johnston, clerk to Baron Page, eldest lawful son and heir served and retoured to the deceast Thomas Johnston in Castlehill, who had an heritable debt or wad- set right of the said lands granted by John A rmstrong of Crieve, dated 9th April 1701, registred in the books of session, 24th May 1726, for security of the principal sum of 3750 merks Scots of principal, and annualrents there of; That the rent the deponent agreed to pay the said James Johnston, was the neat annualrent of the said prin­ cipal sum, and besides, to relieve him of all public bur­ dens, imposed or to be imposed upon the said lands: That the deponent possest the said lands, in virtue or the set thereof foresaid, from the said James Johnst to him, till the said James Johnston s death, which was in or a- bout the month of March 1740; and since that time, had possest the said lands in right of J anet Johnston his spoufe, sister to the said James Johnston, and heir in general, cum benefico nventarii, served and retoured to him h im: That the inst r u ctions of the said debt, and the de­ ponent’s wife’s right thereto, were then at Edinburgh, produced in the ranking and sale o f the lands and e- state of Crieve, pursued by Mathew Sharp of Hod- dam." No decreet whatever is pronounced by the sheriff with respect to this Armstong, he being totally omitted in the de- cerniture; a clear demonstration, that the sheriff was of o- pinion the factor had no claims against him, but that, on paying the public burdens imposed on the lands, i. e. land- tax and schoolmaster’s salary, he was intitled to retain pos- session of his whole rent. The consequence which follow­ ed was. that b y means of the sheriff ’s decree, the factor had it not in his power to recover either rent, stipend, or a- ny thing else. And in the course of the ranking, there was produced the tack above mentioned between Johnston and Armstrong o f Crieve, which is dated 9th April 1701, and is for six years, and ay and while payment of 3750 merks Scots, and annnalrent thereof, contained in an heritable bond, and whereof the annualrent was upliftable out of the said lands: An d it bears, That for which tack, and on the o- ther part, the said Thomas J ohnston binds and obliges him, his heirs, &c. to grant yearly a discharge of the annualrents of the said sum of 3750 merks to the said John Armstrong and his foresaids; he or they always granting discharge to the said Thomas Johnston of the yearly rent and tien d of the said lands: As also, the said Thomas Johnston obliges himself to pay yearly, during his possession of the said lands, to the said John Armstrong, his heirs, the sum of 3 l. Scots, in full for all casualties, and that at Martinmas or Whitsunday yearly, when the same shall be demanded; and to free and relieve John Armstong f all public burdens im ­ posed or to be imposed on the said lands during his posses- sion of the same: And, lastly, to be accountable to the said G John John A rmstrong, and his foresaids, for what retention money shall be imposed by the laws of this kingdom, during the not redemption and payment of the said 3750 merks Scots money.- From this tack it is clear, that all that could be demand­ ed by the master, was a discharge of the annualrent of the sum of 3750 merks from Thomas Johnston, to whom he was bound, in return, to grant a discharge of the rent and teind o f the lands: He therefore was bound, under the denomination of teind, to discharge him of stipend, that being included in teind; and it is humbly apprehended, that if at any time he had been obliged to pay the stipend to the minister, he might have refused to discharge the annualrent of his debt, till such time as he was refunded of this stipend; for, as has been above observed, the expression of public burdens, imposed or to be imposed on the lands, does not seem to include stipend. Besides, it must be observed, that altho’ by the minist e r ’s decreet of modification and locality, the sum of 1 4 l. 1 s. 8 d. is localled upon the whole lands of Crieve, yet that stipend was not subdivided among the farms, nor was it by any means ascertained what proportion each ought to pay. The factor, therefore, had he attempted it, must have found it utterly impracticable to levy any stipend from the possessor of this farm: In the first place, he had no compul- sitor by which he could inforce payment, for the sheriff had not decerned the possessor o f this farm to pay him any thing; and, in the next place, there was no data on which such a decerniture could have proceeded; for the stipend being localled on the whole lands of Crieve, in cumulo, it was altogether uncertain what proportion each of those farms ought to pay. And indeed the factor did his utmost to recover payment of these stipends; but what he did, will fall to be more particularly taken notice of by and by. The The other farm for which it is said stipend ought to be charged against the facto r, is the farm of Howsdale; con­ cerning which it is to be observed, that tho’ the tenant and possessor was called in the action brought by the factor be­ fore the sheriff of Dumfries, yet he did not compear, and of consequence, emitted no deposition in that process. It was known, indeed, that he was an heritable creditor, and had a tack of part of the lands, the rents of which he was to retain in payment of his annualrents; and this perhaps made them the less anxious in insisting on his deponing in the action before the sheriff. But the tenant C h r i stopher Armstongwas called as a wit- ness in the sale, in order to prove the rental of the lands; and accordingly, he depones, “ That he possesses the lands of Howdales, alias Glaisters, for which he pays 318 merks of money rent yearly for his possesi o n: That the same rent was paid by his father several years ago for the said lands; and that, beside the said rent, there is payable to the minister of the parish fifty si x shillings Sterling o f stipend, since Mr. Andrew Clerk the minister obtained a decreet of modification and locality; but the deponent is not positive, whether he ought to have allow­ ance of any part of the said stipend from the matter, or not, in regard the tack betwixt the deceast John Armstong and the deponent’s father, has been for some time at E- dinburgh: Depones, That he is obliged to pay supply con­ form to the valuation of the said lands, which is 100 merks; and that he is bound to pay no more on account of his said possession, than what is above; and further adds, That the deponent's father was creditor to the said John Armstrong, in an heritable bond and insestment up­ on the said lands; and that by the foresaid tack, he was allowed to retain the rent for payment of the said annual- rent in the heritable security.’ An An extract of th e said tack is produced, granted by the said John Armstrong o Wilam Arstongin Cartertown; the tack is dated 4th March 1699, and bears the rent to be 3 18 merks yearly; and the said William Armstrong is there­ by obliged to pay the teind furth o f the said lands yearly, and haill publick burdens whatsoever, imposed, or to be imposed upon the said lands during the tack, by and attour the yearly rent above mentioned. The reversers insist, that in consequence of this oath and tack produced, it was the duty of the factor to uplift the stipend annually from Christopher Armstrong, he being ex- presl y bound to pay the same by his tack; and not having done it, that he ought to be accountable therefor, in the same way as if he had uplifted it. But to this the petitioners answer, that he did his utmost to make this stipend, as well as the stipend out of that part of the land of New landhill, possessed by Robert Armstong ef- fectua l; and that, from the particular situation of these te­ nants, it was an absolute imposib i l i t y for him to effectuate payment of any part of that stipend, supposin g even it had been due by both tenants, which, it is humbly apprehend­ ed, was not the case with the tenant of New landhill; and this will appear from the following state of facts. Sometime before the heritable debts of these tenants were satisfied out of their intromissi o n s, viz. in the year 175 0, the factor did bring an action against these tenants in the court of session, concluding for a sum against each of them, from the year 1710, and downwards, which was more than sufficient to include both rent and stipend: The summons in this action subsumes, “ That there was resting the sums of money following, by the persons after mentioned; viz. by Janet Johns on, relict of Robert Armst r ong in Hol- house, for herself, and as representing Jamesohnt, clerk to Baron Page her brother, and Thomas Johnston in Castlehill her father, and by James Armstrong in Hollhouse, “ for for himself, and as representing the said Robert Armstrong his father, tenants and possessors of the ju st and equal half of the lands of New landhill, the sum of 16 l. Ster­ ling, as the rent thereof, for the crop and year 1710; and of the like sum of 16 l. yearly, for all the crops and years sincesyne, to the crop 1749, inclusive. Item, By Christopher Armst r ong in Howdale, for himfelf, and as re­ presenting William Armstrong in Howdale, his father, te­ nants and possessors of the said lands of Howdale, the sum of 26 l. Sterling, as the rent of the same, for the crop and year 1710, and of the like sum of 26 l. said money yearly, for each year sincesyne, to this present crop 1749, inclusiv e." And the summons concludes for payment, in terms of this subsumption. The rent payable by the tenant for the half of New- landhill, was the interest of 3750 merks; which being sta­ ted at 6 l. per cent. the legal rate of interest in the year 1701, when his tack commenced, amounts to 1 2 l. 9 s. 5 8/12 d. Sterling; to which being added 2 l. 2 s. said to be the teind due out of that land, the sum total is 14 l. 11 s. 5 8/12 d. In like manner, the tenant in Howdale paid of rent 318 merks, which being reduced into Sterling money, together with 2 l. 16 s. of teind, amounts to 20 l. 9 s. 4 d. so that the conclusions of this libel were broad enough to comprehend rent and stipend, together with the other publick bur­ dens. The defences returned by the tenants to this summons, were, 1mo, They deny the terms and extent of the rents libelled. 2do, They bruick and possess the lands upon heritable rights and tacks from the common debitor, at, and long before the pursuer’s factory, which are produ­ ced in the ranking of the creditors of Grieve, and any claim for rents must be discussed in the ranking, where their interests are produced, to which this process falls to be remitted.” And, accordingly, the Lord Murkle, before whom this process originally came, “ Remitted the said process to the, “ process process of ranking of the creditors of Grieve and Mos- know, depending before Lord Dun, ob contingentiam. ” The factor's process being thus remitted to the process of ranking, was no longer under his care, but fell under the care of the agent in the ranking; and, accordingly, the ex­ pence of it was defrayed by him, and is to be found in his accompts: It was, indeed, no longer insisted in as a process for rent; but Lord Dun having, soon after this remit, re- signed his feat on the bench, a new Ordinary was appoint­ ed; and, without delay, objections were given in, to the interest s of these tenants produced in the ranking; and the dispute between those tenants and the other creditors, pro­ ceeded afterwards on the footing of objections made to their interest in the ranking, upon account of their debts being extin- guished by intromissions; and, of consequence, the factor was never furnished with a decreet, whereby he could make ei­ ther rent, stipend, or any thing else, effectual against those te­ nants. This, however, can never be imputed as a fault to h im; he did all that was incumbent on him to do, he raised an action against the tenants; by the defence re­ turned, that action became necessarily a coincident process with the ranking, and, for that reason, was remitted to it. After this, the factor had no farther interest to insist, and he had it not in his power to compel the tenants to make any payments whatever, till the effect of their possession of the lands, and intromissions with the rents thereof, were discussed, and it was determined, whether they were still intitled to retain possession in virtue o f their heritable rights, or not. With respect, therefore, to these several claims o f stipend, viz. 2 l. 16 s. out of the farm of Howdale, and 2 l. 2 s. out of the farm of New landhill, it is humbly apprehended, as to both, that the factor did his utmost to make both ef­ fectual, and, therefore, can be liable for neither, supposing them both due. But, besides, he apprehends, that no stipend could be exacted for the farm of Newlandhill; and, with respect to that, that, the tenant would ultimately have been found intitled to an exemption from payment of all stipend. The petitioners have already stated to your Lordships the grounds of law on which they apprehend this would have been found; and what they have maintained to be law in this point, has been, in effect, authorised by that interlocutor of your Lordships, whereby the value of these lands of Crieve are ascertained in the sale; for the method of calcu­ lating the value of the lands, is, by fixing the gross amount of the rental of each farm for stock and teind, at the spe- cified sum which every tenant paid, exclusive of any consi- deration of stipends, there being nothing added on account of stipend to the rent of any of the farms, excepting Ncw- landhill The sum total of all the rents thus computed, is taken as the gross rental of stock and teind; a fifth part of that is computed as the value of the teind; and from that teind is deduced the sum total of stipend payable to the minister; so that it is pretty clear in making up the rental of this estate, your Lordships considered the stipend as payable by the master, and not by the tenant, and, of con- sequence, proceeded on the same footing on which the pe­ titioners now claim an exemption from any charge on ac­ count of the stipend of Newlandhill. This point of the stipends, the petitioners never would have struggled, had they had the smallest reason to believe that any part of them ever was recovered by the factor from the tenants, but on the contrary, they are fully con­ vinced that they were all paid by him bonafide to the mi­ nister, without one farthing being received from any te­ nant on this account: For it is a fact that will not be deni­ ed, that in order to ascertain this matter, an express was sent, at the mutual expence of both parties, to Mr. Wright writer in Langholm, a man of accuracy, desiring him to make a search among the papers of the whole tenants in possession, in order to discover whether any receipts grant­ ed ed to them for stipend, could he found: Accordingly, Mr. Wright did spend above eight days in examining the papers of the tenantry, and returned for answer, that he could discover no papers of that so r t: So that, in fact, the factor has here paid the whole stipends out of his own pocket, and his representatives are now called on to accompt for these stipends, upon a footing which it appears was not un- derstood they were to be accounted for at the time the va­ lue of the estate was proved in the sale. It has been a great disadvantage to the petitioners, that Mr. Blair died before the expiry of his factory, and without making up accompts himself, in consequence where­ of, a great many facts which might have been explained by him, must remain uncleared up, and the petitioners must state themselves as liable on account o f many omisi o n s and neglects, which perhaps, had he been alive, he might have cleared himself of. Thus they have been obli­ ged to charge themselves with very near 800 l. of ar­ rears, on account of their not being able to show ultimate diligence therefor, whereof between 500 l. and 600 l. were arrears outstanding at the commencement of his fac­ tory: And indeed, the whole balance of reversion that is now claimed by the Reversers, arises intirely from the sums chargeable on the factor, and which perhaps, had he lived to give in his own accompts, might have been accounted for, to the satisfaction of the court. The Lord Ordinary has laid great stress on the factor’s not giving in his accompts annually, in terms of the act o f sederunt, whereby thole who had right to the reversion were kept in ignorance of what way he accompted with the creditors in possession. But the petitioners humbly apprehend, that this is no solid ground of finding the factor himself liable in these stipends, far less of subjecting the petitioners to i t: For, in the firs t place, the petitioners humbly contend, that the factor factor did all he could, to certiorate to all concerned the manner in which he accompted with the creditors in posses- sion, for before their debts were at all satisfied by their intro- missions, and of consequence, when the Reversers and all concerned might have rendered them liable, he called them into this court by an action, wherein he stated them in ar- rear for every thing for 32 years preceding the commence­ ment of his factory; which action, from the nature of the defence that was returned, was removed from his care, to the immediate care and inspection of the creditors them- selves, and their common agent, who were thereby suffici- ently certiorated of what they had to expect from the factor with respect to those tenants. And with respect to the factor not giving in his accompts annually, the consequence that is attempted to be deduced from that, it is humbly apprehended, is by far too heavy. Your Lordships act of sederunt, 22d November 1711, § 8. provides, “ That the said factor shall, once every year, give in a scheme of his accompts, charge and discharge, to the clerk of the process, so that the creditors may have access yearly to see them, and provide themselves with proper means of checking them, certifying such factors, that if they fail in any part of the premisses, it shall be a ground of removing them.” This certification of the act of sederunt is penal, and as such, will fall to be strictly interpreted, insomuch as to be held the only consequences a factor incurs, by not giving in his accompts annually: But he ought not on that ac­ count to be charged with intromissions which he never had, and be obliged to account on the same footing as if he h ad received them: The act has nowhere said so, and most cer­ tainly, had no such act been made, as the common princi­ ples of law did not require a factor to give in his ac- compts within any limited time, so his not giving them in E when when they never were called for, could not have produced any changes in his manner of accompting: And if that was the law before the was made, it does not appear that the act has made any change in it. Besides, it is believed this act is in a great measure in de- suetude, and is punctually observed by very few factors on sequestred estates; so that whatever might once have been the consequence, it is humbly apprehended that at this time of day, a factor’s giving in his accompts annually, cannot be made the ground of any penal conclusion against him, unless he should contumaciously neglect so to do, after be­ ing required. The reversers in the present case, have endeavoured to aggravate the factor’s neglect in not giving in his accompts annually, from the knowledge which they alledge he had of the situation of the tenantry on this estate, and also to blame him for not pushing on the process which he had raised against those tenants, even after it was remitted to the ranking, which they alledge he might have done in the character of a creditor, which he appears to have been, from the decreet of ranking, in which he is marked depon­ ing on the verity of a debt. * But with respect to any knowledge he had of the tenan- dry, that is a matter of which there is not the least evi- dence. The estate lay at a very considerable didance from him, and the only knowledge he had of the conditions on which they held their farms, was derived from the proceedings in the action before the sheriff of Dumfries; but whatever his private knowledge might have been, that could not have availed in making these stipends effectual against the te­ nants: He took every step that was in his power for this purpose; but the peculiar situation they were in, rendered it impossible to levy those rents from them. And with respect to any interest he had as a creditor, that had no neces s ary connexion with his factory: Suppo- sing sin g it had been true, that he had had it in his power in the character of a creditor, to push forward the action he had raised against the tenants; yet still it will not affect his con­ duct as factor, that he did not take every step in the cha­ racter of a creditor which he might have done; but in rea­ lity, his interest as creditor was not such as to have made him take any particular concern in that process. It was a process which fell to be carried on for behoof of the whole creditors, not of any one; or consequence, the common a- gent in the ranking was the person whose duty it was to look after it, and who ought to have born the expence of it, not any particular creditor: Besides, your Lordships must be informed, that Mr. Blair was no creditor on this estate himself; he was only what is commonly called a ri­ ding creditor; that is, he was ranked upon the interest of a creditor who was primarily ranked upon the estate; and it was only in the character of a riding creditor that he de- poned in the ranking; and accordingly, he deponed to the verity of that debt before a ju stice of peace in the country, which surely gave him no particular access to know the terms of the lease of the farm of Howdale) which was at that time produced in the process of ranking at Edinburgh, and h ad continued there produced, almost from the begin­ ning.. & Besides, in reality, there seems to have been no delay with respect to the process that had been raised by the fac­ tor against the tenants o f Newlandhill and Howdale; tho' after it had been remitted to the ranking, it was not insisted in, in the original form of an action for payment of rent; yet it was followed out in the form of objections to the in- terests of these tenants, produced in the ranking. Soon af- ter it was remitted to the ranking, the Lord Ordinary re- signed; the very next step after the remit, was an applica­ tion for a new Ordinary, and immediately after a new Or­ dinary dinary is appointed, objections are given in to the interest s o f those tenants as creditors. It is assigned as a ratio decidendi in the Lord Ordinary’s interlocutor, “ That before the commencement of the facto­ ry granted to Bryce Blair, the said creditors were in use of relieving the reverser of the stipends imposed upon their respective lands, amounting to the sum of 4 l. 18 s. 10 d. Sterling yearly, and that recently after the com­ mencement of the factory granted to Mr. Blair, it was made known to him, that such was the nature of the rights granted to these creditors, and such the nature of their possession.” O f these facts, however, the petition­ ers can see no evidence whatever; on the contrary, the on­ ly knowledge that the factor seems to have had of the na­ ture of the possession of these creditors, was in consequence of the process brought before the sheriff of Dumfries, from which he had reason to apprehend, that the practice had been quite the contrary of that here mentioned. With respect to the feu-duties, it is to be observed, that the factor on the sequestrated estate, was factor likewise to the Marquis of Annandale, to whom these feu-duties were payable; he could not therefore, give himself a discharge, being the person who both paid and received; all that he could do, was to state the feu-duties as paid in the Mar­ quis’s books, and to account for them accordingly, which he did. Enquiry has been made concerning this fact at the Earl of Hopeton, in whose hands, as tutor for the Mar­ quis, these accompts are, and an answer has been received from his Lordship’s secretary, bearing, that from the Mar­ quis’s accompts, no feu-duties appear to be resting owing for these lands during Mr. B l a i r ' s factory; which, it is humbly apprehended, must take away all claim on the past of the reversers, on this head; more especially, as the pe­ titioners are willing to become bound to free and relieve the reversers of Crieve, o f any claim that may be broughtagainst against them for feu-duties, during the period of Mr. Blair's factory. But if any difficulty shall remain on this point, the factor’s accompts of the estate of Annandale, may be re­ covered by a diligence, and from them this matter of the feu duties will be cleared up. The petitioners are very unwilling to trouble your Lordships with any objections that do not appear to be ne- cessary and material; they have not therefore, said any thing with respect to the title of the reversers in this process, tho’ that being only a general service, they apprehend is not sufficient, in a case like the present, to entitle them to insi st; yet one thing they cannot help observing, and they men- tioned it before the Lord Ordinary, viz. that altho’ these points with regard to the stipends and feu-duties are plead­ ed against them in the name of the whole three reversers of Crieve; yet in fact, there is one of those reversers who gives no authority to insist on these points; and tho’ this has been denied to be the case before the Lord Ordinary, yet the petitioners do aver, that the fact so stands, and they can bring evidence of it before your Lordships i f necessary, for the third reverser does not employ the same doer with the other two, nor does the gentleman whom he employs, at all concur in this process. Upon the whole therefore, in the particular circumstan- ces of this case, the petitioners humbly apprehend, that neither the stipends nor feu-duties in dispute, ought to be made articles of charge against them, but that the factor having done his utmost to recover the first from the tenants, and failed in doing so, not from any neglect of his, but merely from the circumstance of their being heritable cre­ ditors themselves, and holding their lands for payment of their annualrents, and till s uch time as their debts should0 be extinguished, he, and his representatives, as coming in his place, ought to be exonered. And as to the feu-duties, as they are actually paid, and the reversers may easily satisfy E % fy themselves, that no claim can lie against them on that head, it ought to be found sufficient that the petition­ ers are willing to come under an obligation to indemnify them of any such claim. May it therefore pleas e your Lordships, to alter your for m e r interlocu adf d that the reversers of Grieve have no claim against the petitioners, either on account of the stipends, or the feu-duties; at least, before ans wer with re- spect to the feu-duties, to grant diligence for recovery of the fa c to r 's accompts with the Marquis of Annandale. According to ju stice, A N D R E W C RO S B I E..