Answers 1766

a n s w e r s' F O R F ORand o dOtOhn e and others, Heirs- portioners of John ArmstongfCrieve a n a s w P E T I T I O N of the Representatives of Bryce B lair of Potterflat, late Factor on the estate of Crieve and Moss-know. T H E respondents apprehend, that the petitioners have endeavoured to darken and perplex this matter, by in­ volving it with sundry things noways material to the issue, and by not fully explaining the facts that are of consequence for your Lordships decision. But it shall be endeavoured to set this affair in its proper light in the following answer. Mr Bryce Blair was appointed factor by your Lordships in February 1742, upon the sequestrated estates of John Armstrong of Crieve, and William Grahame of Moss-know; and Mr Blair continued in that office down to January 1762, when he died; and, during the whole time of his factory, he never gave in his accompts to the Court, nor a rental of the estate, as ordered by the act of sederunt; so that no creditor nor reverser upon these estates, had the least access or occasion to know of his proceedings with the tenants, or how or in what way the rents were paid to him. A That That, in the 176 2, the estates of Crieve and Moss-know were sold before your Lordships; and having yielded a high price, it appeared that the creditors of Crieve would not only get payment of their debts, but that there might be a considerable reversion for the respondents the heirs. But if the plan of accompting, which is now contended for by the factor’s representatives, shall be held by your Lordships to be the rule, that reversion will be very considerably diminished. In the accompts produced by the petitioners, they take credit for the sum of L. 14: 1: 8 yearly, paid as the stipend of the estate of Crieve, but do not charge themselves with L. 4: 8: 10, as the proportional part of this stipend, which ought to have been paid by, or uplifted from the tenant of Hawdale, and the possessor of one half of the lands of New- landhill; and, in their accompts, they pretended to take credit for L. 1: 2: 2 8/12 annually, as the feu-duty payable to the Marquis of Annandale, tho’ they produce no voucher to show that ever this feu duty was paid. To render this matter intelligible, it is necessary to explain particularly to your Lordships how the fact stands. The e- state of Crieve consisted of three farms, the farm of Capplefoot or Crieve, which was possessed by W illiam Scot; and being the one half of the estate, the tenant paid the half of the sti- pend, L. 7, 1o d. to the minister of Tunnergarth, and got allowance for it out of his rent; because, by the tack, the heretor was bound to relieve him of it. The second farm called Hawdale was possessed by Christopher Armstrong, who had an heretable security upon the farm, and a tack relative thereto, whereby he was allowed to retain the rents in payment of the annualrent of the money. But, over and above the rent, the tenant is taken bound, by the tack, “ to pay the teind furth of the said lands yearly, public burdens whatsoevr, imposed or to be impos ed upon the said lands during the tack, by and attour the yearly rent abovemn- tioned. ” tioned.” And, in the course of the process of sale of the lands, a proof of the rental is brought; and the same Christopher Armstrong depones, “ That he possesses the lands of Haw- dales, alias Glaister,for which he pays 3 18 merks of mo­ ney-rent yearly for his possession: That the same rent was paid by his father several years ago for the said lands; and that, besid e the said rent, there is payable to the minister of the parish, fifty si x shillings Sterling of stipend, since Mr Andrew Clerk (the minister) obtained a decreet of modification and lo­ cality” So this stipend is accumulated with the rent in the decreet of sale, making altogether, what was payable out of this farm, L. 2 0: 9: 4 Sterling. Here is irrefragable proof from the tack, That, besides the rent, the tenant of Hawdale was bound to pay the teind or stipend; and the tenant swears, That the stipend in use to be paid was fifty-fix findings Sterling yearly. So this fact is indisputable. The third farm is Newlandhill. This was possessed by two sets o f tenants; one half of it was possessed by William Grahame, and other two tenants, who, in the process pursued by Mr Blair the factor, depone, That they pay L. 14, 10 s. Sterling of rent and teind; but it does not appear they have been examined as to what casualities they paid; and out of this rent, they are allowed two guineas yearly for the stipend, which, prior to the commencement of Mr Blair’s factory, they were in use to pay to the minister; because such was the nature of their set from the heretor, in the same way that the farm of Criev was. The other half of Newlandhill was set by tack to Thomas Johnstone, who came afterwards to be succeeded by Robert Armstrong. He had also an heretable bond upon this half of Newlandhill for 3750 merks, and a tack relative thereto, whereby he was allowed to retain the rents in payment of the interest of his money. T he tack is not accurately digested, but but wrote in a confused sort of stile. However, the obliga- tion as to the rent is, That the tenant was bound “ to grant a discharge o f the annualrent of the said sum of 3750 merks money foresaid to the said John Armstrong, and his foresaids, yearly, he or they always granting dis­ charge to the late Thomas Johnstone the creditor, and his above written, of the yearly rent and teind of the saids lands of Newlandhill, with their pertinents. As also the said Thomas Johnstone binds and obliges him and his foresaid to pay yearly, during his possesio n of the said lands, to the s a i d John Armstrong, his heirs, & c. L. 3 Scots money in fu ll for all casualities, and that at the term of Martinmas or W h it s unday yearly, when the same shall be demanded. Then follows this clause, And also, to free and relieve the said John Armstrong of all public burdens imposed or to be impos ed upon the said lands, during his possession of the same.” With respect to the import of this clause, there can be no doubt, that it comprehended all public burdens whatever im­ posed upon this half of New landhill set to Johnstone. And accordingly Robert Armstrong, who possest Johnstones part deponed, in Mr Blair’ s process against the tenants in the 1742, "That the rent the deponent agreed to pay the said James Johnstone, was the neat annualrent of the said prin- cipal sum; and beside, to relieve o f all public burdens impos ed, or to be imposed upon the sa id lands.” And it is a fact well known, that prior to Mr B lair's entry as factor upon the estate of Crieve, Johnstone’s ub-tenant of his half of Newlandhill, was in use to pay the half of the stipend pay­ able out thereof, and the other public burdens, such as the half of the cess, and the reparation of the kirk. And to render this fact indisputable, the respondents recovered three receipts in the 17 36, 17 3 7, and 17 38, granted by the mi- nister of Tunnergarth to Robert Armstrong the sub-tenant one of them for three years stipend, the other two for two years stipend; stipend; to one of which is subjoined a receipt for L. 3: 1 6 s. Scots, “ being his part of the money due for building the manse and it is not pretended, that at Mr Blair's entry there was any arrears due by any of the tenants, according to the proportions which the minister was in use to levy the stipend by. The tenant of Hawdale, and the tenant of the half of New- landhill, who were bound to pay the stipend and other pu­ blic burdens, died sundry years ago, both in bankrupt circum- stances, and their whole money which they had upon Haw- dale and Newlandhill, was in the course of the ranking found extinguished, and a great balance over due by them, near L. 1 oo Sterling, each, of which never one farthing will be re- covered. It was never dreamed, but that these two tenants, accord- ding to the obligations in their tack and heretable rights, and their former ordinary method, had continued to pay their quotas of stipend to the minister of the parish; and when Mr Blair's accompts were given in, the respondents were sur- prised to see such articles charged in these accompts. The tenant of Hawdale, and the tenant of the half of Newland- hill had been long dead, and had left their families in poor circumstances; so that not a shilling could possibly be reco­ vered from them; and, as these articles were a great deduc­ tion from the reversion which the respondents were intitled to draw from their predecessor’s estate, they objected to al­ lowing Mr Blair these two articles of stipend; for, if thro’ his neglect or fault, that stipend was not uplifted by him, or paid by the tenants to the minister, it was more confident both with law and equity, that the factor should sustain the loss than the poor reversers. Another article in the accompts was also objected to, viz. the feu-duties payable for the lands of Moss-know, being 20 merks yearly for the whole years of Mr Blair's factory, in B regard regard no sort of voucher was produced that they ever had been paid by Mr Blair, and consequently might many years hereafter be demanded against the purchaser of the estate, who would have recourse against the respondents. This matter was debated at great length before Lord Coalston; in which his Lordship was at the greatest pains to examine every particular in the cause, and who, on the 15th November last, pronounced the interlocutor recited in the petition, which the respondents will take the liberty a- gain to insert in this answer, because the interlocutor is so ac­ curate and well digested, and in a most compendious manner points out the whole facts necessary in the cause, and founda­ tions in law upon which the judgment proceeds. " The Lord Ordinary having considered the memorials for both parties, condescendence and additional memorial, observes on the accounts, and answers thereto, finds, That the creditors, tacksmen of the lands of Hawdale and a part of the lands of Newlandhil, were by their tacks ob­ liged not only to pay a certain tack-duty, but also to re­ lieve John Armstrong 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 com­ mencement of the factory granted to Bryce Blair, the credi­ tors were accordingly in use of relieving the reverser of the stipends imposed upon their respective lands, amounting to the sum of L. 4: 1 8: 10: Sterling yearly: Finds, That recently after the commencement of the factory granted to Mr Blair, it was made known to him, that such was the nature of the rights granted to these credi­ tors, and such the nature of their possession; and there­ fore, and in respect that Mr Blair failed to give in his ac­ counts during the whole period of his factory, which sub- si sted from the 174 2 till the 17 6 1, by which these who had right to the reversion were kept in ignorance of the “ manner manner in which he accounted with the creditors in pos- session: Finds, That his representatives are not intitled to rake credit for the stipends, which ought to have been paid by the creditors in possession; and sustains the objec­ tion to that article; reserving to them to operate their re­ lief as they bell can against the creditors, by whom these stipends ought to have been paid: s ustains also the objec­ tion to the feu-duties of Moss-know, in respect that no­ thing has been produced to show that these feu-duties were paid to the superior; reserving to the representatives to produce a proper voucher that these feu-duties were truely paid: Repels the objection to the articles charged in name of incidents, amounting to the sum of 30 Sterling yearly: Finds, That the factor was obliged to use dili­ gence against the tenants of the sequestrated estate for payment of the rents due by them, & c.” The factor’s heirs represented to the Ordinary against this interlocutor; but which his Lordship, upon considering the same with the answers, refused, and adhered again. The factor’s heirs reclaimed to the whole Lords by petition, which your Lordships refused without answers. Again, the factor s heirs have preferred another petition, now to be answered; in which there appears nothing new, only it’s more voluminous and involved, and a great deal of pains taken to perplex the matter. The respondents are unwilling to trouble the Court, or to confuse this matter, by entering minutely upon all the extra­ neous matters set furth in the petition. T he obvious answers will occur from a true state of the facts, which the respondents have endeavoured to set furth as briefly as possible. And your Lordships will take as certain facts, that the tenant of Hawdale was specially taken bound in his tack to pay the stipend, and, in consequence thereof, he had ever been in use to pay the ministe r of Tunergath L. 2: 16 s yearly; so he has deponed in in the proof of the rental. That Johnstone, the principal tacks- man of Newlandhill, was also bound by his tack to pay all public burdens imposed, or to be imposed upon the half of that farm set to him; and it is instru cted by the ministe r ’s receipts, that Robert A r mstrong, subtenant, was al­ ways in use to pay the half of the stipend, payable out of the farm o f Newlandhill, with the cess and other public bur­ dens. Upon the 7th page of the petition, four observations are made from the procedure therein stated, every one of which the respondents do controvert, as not founded in fact. It is said, 1mo,“ That all the tenants upon this estate of Crieve paid a sum in name of rent and teind, and were all bound to relieve the proprietor from public burdens.” This is not fact, because the tenant of Grieve, and the te­ nants of the one half of Newlandhill, were bound to pay a cer­ tain specific rent; and tho’ the minister of the parish local- led the whole stipend upon the several tenants proportionally effeiring to the rents, and with a view that A rmstrong in Haw- dale, and Jo hnstone the other half of Newlanhbill, should only pay the proportion of stipend they were bound to by their tacks; yet it was only these two last tenants who were bound to relieve the proprietor from public burdens; for the other tenants, by the terms o f their sets, were not made liable for public burdens, and accordingly always got allowance out of their rents for all the stipend they paid, but which was never the case of Hawdale or Jo hnstone’s half of Newlandhill. This shows, that the petitioners are in a mistake in their first ob- servation, intending only to perplex the matter, by m istating facts. 2do, It is said, “ That the tenants were not considered to be liable in stipend over and above their rent; but what­ ever payments they made of stipend, it is apprehended, these fell to be deduced from the rent.” This This is already answered in the first, and it is obvious, that the position here laid down is not fact; for, the petitioners always endeavour to confound one part of the estate with ano­ ther. It is true, as before said, that as to the tenant in Crieve and the three tenants in one half of Newlandhill, whatever st i- pend they paid was allowed to them our of their rent, in terms of their sets; but the tenants who had heretable securities, by the express terms of their sets were strictly bound to pay the stipend and public burdens, and had been in the constant use of doing so, without the least pretence to any allowance there­ for, as it was impossible to make any such demand, these te­ nants being so explicitly bound by their tacks so to do. It is said, 3tio, “ That the Sheriff, by his interlocutor, gave authority to this opinion, and found the tenants inti- tled to deduce from their arrears of rent and teind, what sums they had paid to the minister in name of stipend.” Neither is this fact; and here again the petitioners want to perplex the matter, by substituting one set of tenants for ano­ ther. The Sheriff found, That these tenants, who, by the particular terms of their set, were not bound to pay public bur­ dens, should get allowance out of the rent of what stipend they paid; but with respect to the tenants who had heretable secu- rities, the Sheriff finds nothing at all about them; there is no decreet as to them, no determination, what or how they should pay; nor does the factor seem to have given himself the least trouble about them. F or, in this process before the Sheriff in the 1742, he does not so much as call the tenant of Hawdale therein. He indeed calls Robert Armstrong, who first was sub-tenant to Johnston the principal tacksman of the half of Newland-hill, and, after Jo hn- ston's death, succeeded as heir to him in that farm; and he is libelled for the rents of the half of New land-bill, at the same rate as the tenants who possest the other half were. And Ro- bert Armstrong honestly depones, That the rent which he had C agreed agreed to pay Johnston, was the neat annualrent of the princi­ pal sum for which he stood insest; “ and besides, to relieve him of all public burdens imposed or to be imposed upon the said lands.” Here the matter is allowed to rest. No inquiry is made as to what public burdens he paid: He is not ordered to produce his right, nor further insit e d against: But, from the deposi- tion of Robert Armstrong, the factor must have been convin­ ced, that the tenant was bound to pay the minister ’s stipend; and the factor had the greater reason to think so, as the mi- nister made no demands against the factor for any arrears, and he has produced no document that he paid them to the mi­ nister. It is said, “ That no decreet whatever is pronounced by the Sheriff with respect to Armstrong, he being totally omit­ ted in the decerniture. A clear demonstration the Sheriff was of opinion the factor had no claim against him.” As to the Sheriff’s opinion, he gave none in the matter, nor does it appear that the factor ever insisted for i t; and that is a very material ground of complaint against him, and a clear demonstration of the factor’s neglect: For when the te­ nant had acknowledged that he was obliged to pay all public burdens, had he been asked, he would have told the quantum; but by the most supine negligence that can well be figured, no further attention is given to the matter, no decreet is sought against Robert Armstrong, and this for a course of twenty years, i f the factor did not uplift that stipend from the te­ nants, it is allowed to ly over, they are dead and become bankrupt, and not only this stipend, but a considerable sum of arrear of rent, is every shilling lost by them. It is said, “ That altho’, by the ministers decreet of modi­ fication and locality, the sum of 14: 1: 8 is localled upon the whole lands of Crieve, yet that stipend was not subdivided among the farms; nor was it by any means as- “ certained certained what proportion each ought to pay:” So that it was impracticable for the factor to levy that stipend. Here again the petitioners wilfully err, in order to perplex the matter. But the fact is, that the stipend was localled to the satisfaction of all the tenants, and the locality is particu- l a r l y ascertained by their oaths, and the receipts o f stipend produced, and behoved to be so for conveniency both to master and tenant, as some of them was to get their propor­ tions allowed them by the factor, and others not: But at any rate, that was an easy matter tho’ the tenants had objected; because, in virtue of the minister ’s decree, they could have been immediately forced to pay the whole if demanded; and if they had opposed paying their due share, that could instant- ly have been discussed. Now, with respect to the lands of Hawdle,Christop Armstrong the tenant in that farm, by his tack, was specially bound to pay the teind and all other public burdens imposed or to he imposed on the lands. And in the process of sale, as a witness, he depones, That, bes ides the rent, the stipend payable for Haw- dale was 56 shillings. From a variety of circumstances, it is impossible but Mr Blair knew, and it was his duty to have known, and to have made proper inquiries as to both these tenants of Hawdale and half of Newlandh ill, being bound to pay, and in the use of paying the stipend. If creditors or re- versers can be put off with sham excuses, and a factor upon a sequestrated esta te can exoner himself by pretending ignorance of certain facts, which were of the most easy investigation, cre­ ditors and reversers are in a very pitiful situation. But how is it possible that any person can believe the factor was not ac­ quainted early with the nature of these creditors rights, when it is considered, he was not only factor, but all along versant in the proceedings in the sale and ranking, so far as he is com- missioner appointed by the Lords for taking proof of the ren- tal, Vid. page 178, decreet 0f ranking early in 1 7 4 1, and page pages 1 88. and 189. he acts as commissioner in taking said Cbristopher Armstrongs oath on the verity of his debt; who depones, it was a just and true debt, all resting, except it may be found extinguished by his possession. And also Janet John- stone, the widow of Robert Armstrong, (her husband being then dead) appears before Mr Blair, and depones, That her debt is ju st, and all resting, except in so far as the same may be paid and extinguished by possession o f Newlandhill. This proof is taken in consequence of an act and commission so early as June 1749. And 3 tio, Mr Blair is also, upon this commission, de­ poning on the verity o f his debt. Let us shortly take a view what excuses are pretended to be offered for Mr Blair’s not uplifting these stipends, and what diligence he used to make them effectual. It in sum a- mounts to this, that, in the 1742, he brought a process against Robert Armstrong he tenant in Newlandhill, and all the o- ther tenants except Christopher A rmstrong, before the Sheriff- court of Dumfries, but that he did not push this process a- gainst Robert Armstrong, or got it ascertained how or what he ought to pay. That matter then lay over for eight years; then he brings a second process before this court against Christopher and Robert Armstrongs, which, after being called, not one material step was taken upon it; it was thrown into the mass of the ranking, and never more heard o f; it was never noticed by the agent in the ranking and sale; he was easy about it in behalf of the creditors, because, by this time, he saw they would be all paid of their debts; nor could any creditor or heir possibly know any thing how matters stood between Mr Blair and these tenants, till his accompts were produced by his representatives, no sooner than the 1 7 6 3; for, as before mentioned, he never gave into process, either his accompts, o r a rental of the estate, as particularly directed- by the act of sederunt, 22d Nov. 1 7 1 1. Thus every person was kept in ignorance, and in the end all the loss must fall upon upon the poor reversers, by negligence of their factor; but, it is hoped, they will, by your Lordships justice, be redressed. But, in order to have enforced the payment of this stipend, there was no sort of occasion for a process to that purpose, as it could so easily have been effected upon the ministers de­ creet of modification and locality: But, in short, through the whole of the matter, Mr Blair has shewn such inatten­ tion and unconcernedness about the affairs of this estate, that more supine negligence can hardly be figured; and the respon- dents will venture to say, that, if such conduct shall be con- sidered as confident with his duty, they have no conception for what omisions a factor will be subjected. It has ever been considered, that your Lordships factors are subject to very str ict regulations; and, in order to their exoneration, they must comply with their duty in every par­ ticular, plainly laid down to them by your salutary acts of se- derunt. Mr B lair’s proceedings in this matter, cannot so much as be put upon the footing with what any prudent per- son would have acted in their own affairs; and it is apprehend­ ed, that such actings or management in any person for ano­ ther, would have subjected the manager at common law, up­ on the medium of supine negligence, quod fraudi aequiparan- tur. By the act of sederunt before mentioned, § 6. 7. 8. made for the benefit of creditors, “ That they may be ac­ quainted with the state of accompts of factors upon estates sequestrated,” it is enacted, That factors shall, within si x months after extracting of the factory, make up a rental o f the estate, to be reported to the Lords, and lodged in the hands of the clerk to the process; and when any alteration happens, that shall also be reported within three months: And, that he shall once every year, give in a scheme of his accompts, charge and discharge, that the creditors may have access yearly to see them, and provide themselves with D “ the " the proper means of checking them.” For such failure they may be removed and decerned in the double of what is found deficient and concealed, or any addition omitted to be eiked: And if they shall neglect yearly to give in a scheme o f their accompts in manner foresaid, they shall be liable in such a mulct as the Lords shall please to modify.” Your Lordfhips considered these things of such conse- quence, that you ordered these regulations to be complied with under certain penalties, and which, it is apprehended, could be exacted by any person interested complaining, though no damage could be qualified in the matter. But when your Lordships factors do not comply with this table of their duty, and when thereby a certain loss doth arise to the creditors or reversers, can they think it hard, that parties concerned should at least insi st for indemnification for what loss hath been su- st a ined through the factors fault? In a case of this sort, law and material equity go hand in hand. It is further said by the petitioners to this purpose, that, in making up the rental of this estate, your Lordships consi- dered the stipend as payable by the master, and not by the tenant; “ for the method of calculating the value of the lands, is by fixing the gross amount o f the rental of each farm for stock and teind, at the specified sum which every tenant paid exclusive of any consideration of stipends, there being nothing added on account to the rent o f any of the farms excepting New landhill. ” T his is an absolute mistake, because the L. 2. 16 s payable by the tenant of Hawdale, is also in the decreet of sale added to the rent; and excepting that farm and the half of New- landhill, the tenants of the other parts of the estate paid a certain rent without any distinction. The petitioners have struggled and quibbled much with an argument to support their presumed payments to the minister of this quota of stipend for Hawdale, and half o f Newlandhill, as as well as the rest o f the estate; their argument is curious; they say, that the tenants, creditors in these two farms, had the same set to them at a certain rent fo r stock and teind; and from this they would infer, they were not liable for any st i- pend; because say they, teind is not stipend: But this is quib­ bling with a witness, and must fly off, when it is consi- dered, that there is nothing more ordinary for landlords, to set their lands for stock and teind, which are words of stile, and there is nothing inconsistent in the same tack, to take the tenant bound to pay the stipend to the minister; which is precisely the case here, as is before said and explained. As to the feu duties for which the factor took credit with­ out any voucher, that was reserved to the petitioners, by the interlocutor of the Lord Ordinary’s to produce vouchers of payment; and when that is done, no objection shall be made; and, without more words, it is s ubmitted to the Court, if the judgment reclaimed against is not founded on the most solid principles of law and equity. In respect whereof, & c. DAVID ARM STRONG