The Representatives of John Armstrong v. The Representatives of Bryce Blair — Information, 11 Aug 1766

~ F O R *The T heohfh, la l tRhf of John A rm-s trong, late of Grieve, AG A INs T The Representatives of Bryce Blair, late f actor onthat Estate. LO R D Coalston Ordinary hath made avisandnm with this cause to the Lords, and ordered parties to give in infor- mations; in obedience to which, this is humbly offered on the part of the representatives of John Armstrong, the reverser of the estare of Crieve: The facts which gave life to this dis­ pute being as follows: John Armstrong became bound in sundry debts, as cauti­ oner for William Graham of Mossknow; and Mr Graham be- coming totally insolvent, th e estates of Mossknow and Crieve were adjudged for payment of his debts; and being sequestra- ted by your Lordships, Mr Bryce Blair was appointed factor thereon in February 1742, and which office he held down to January 1762, the time of his death; and during all the time A of of his factory, which lasted for 20 years, he never gave in his accompts to the Court, nor a rental of the estate, as ordered by the act of sederunt. In the 1762, the lands of Mossknow and Crieve were sold: and it appeared, that, from the proceeds of the estate of Crieve, all the cautionary obligations which John Armstrong had come under for William Graham might be discharged, and there would stil l be a reversion for the representatives of John Atmstrong, upon clearing accompts with the factor; but, till the 1763, when the accompts were given in by his heirs, nei­ ther creditors nor reversers could know how these accompts stood, because, for the space of 21 years, from the commence­ ment of Mr Blair’s factory, it was not known to any mortal how Mr Blair had proceeded in the management of that estate. In the accompts produced by Mr Blair’s representatives, they take credit for the sum of L. 14: 1: 8 yearly, as the stipend payable out of the whole estate of Crieve, conform to decreet of modification and locality, during the factory; to which the reversers object, that L. 4: 18: 10 yearly of this sum should be charged against the factor, because two of the tenants upon this estate, were bound, and had ever been in the life of paying so much of the total stipend, and if Mr Blair had omitted to cause these tenants pay that stipend, as they were now dead insolvent, whereby, not only the stipend could not be recovered against them, but if Mr Blair was not made fur- ther liable to the reversers for some rents of their possessions, which had not been made effectual, and will fall to be ex­ plained in the sequel, the reversers would lose by these te­ nants upwards of L. 200 Sterling more: So that joining what the factor now claims as stipend, which ought to have been paid by these tenants, with what is lost by them otherways, would at this day be a sum above L. 300 Sterling. But, in order that this matter may be perfectly understood by your Lordships, it is necessary particularly to explain how the fact s stand. The estate of Crieve consi sted of three farms, viz. 1st Cap- plefoot or Criev; 2d, Ncwlandhi l l; 3d, Howdale r Glaisters. The farm of Capplefoot or Crieve was possest by William Scot, and being the one half of the estate, the tenant paid L 7: 1 0 d. to the minister o f Tunnergarth, being the one half of the total stipend; but then the tenant got allowance for this stipend out of his rent, because, by the tack, the here- tor was bound to relieve him of it. The second farm Newlandhill, was possest by sundrv te­ nants; the one half thereof by Thomas Little and others, who paid a proportion of the stipend; but, in terms of their set, in the same way as Capplefoot, they also had allowance for what stipend they paid; but what is particularly to be t a k en notice of, the other half of this farm was set to ThomasJohnst, w came afterwards to be succeeded by Robert Armstrong and Janet Johnston his spouse. This Thomas Johnston had an heretable bond upon the half of Newland- hill f or 3 750 merks and a tack relative thereto, whereby he was allowed to retain the rents in payment of the interest of his money, The obligation as to the rent is, that the tenant was bound “ to grant a discharge of the annualrent of the said sum of 3750 merks money foresaid, to the said John Armstrong and his foresaids yearly, he or they always want­ ing discharge to the said Thomas Johnst the creditor and his above written, of the yearly rent and of the said lands of Newlandhill, with their pertinents; as also, the said Thomas J ohnst bids and obliges him and his f oresaids, to pay yearly during his possession of the said lands, to the saidJohn Armstrong, his heirs, & c. L. 3 Scots money, in fa ll fo r all casualties, and that at the term of Martinmas or Whits un- day yearly, when the same shall be demanded. T hen fol­ lows this c lause, and also to f r ee and relieve the s aid John Armstrong of all public burdens imposed or to be imposed upon the s aid lands, during his possession of the same." With With respect to the import of this clause, there can be no doubt, that it comprehended all public burdens whatever, im- posed on this half of Newlandhill set to Johnston; and ac­ cordingly, Robert Armstrong, who possessed Johnston ’s part, deponed, in a process raised by Mr Blair against the tenants in the 1742, which falls afterwards more fully to be taken no­ tice of, “ That the rent the deponent agreed to pay the said James Johnston, was the neat annualrent of the said prin­ cipal sum; and beside,to relieve him o f all public burdens im- posed or to be imposed on the said lands.” But, supposing there had been any doubt as to the import of this tack, this was fully obviated by the use and custom of the possessor of Thomas Johnston ’s half of Newlandhill al­ ways paying the stipend prior to Mr Blair’s factory, and to render the fact indisputable, the reversers recovered three receipts in the 1736, 1737, and 1738, granted by the mini- ster of Tannergarth to Robert Armstrong, for five years st i ­ pend, to one of which is subjoined a receipt for L. 3: 16 Scots, “ being his part o f the money due for building the mans e." So there can be no doubt as to the agreement of parties; and that it was well understood, that, by this tack, Johnston was bound over and above the rent, to pay a proportion of the sti­ pend, reparation of kirk and manse, and every other public burden, and had accordingly done so from the 1701 till the 1 742, when Mr Blair’s factory commenced. The third farm of this estate is called Howdale or Glaisters, and was possessed by William Armstrong, to whom succeeded his son Christopher,-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 o f the said lands yearly, and haill public burdens whatsomevr, imposed or to be imposed up­ on the said lands during the tack, by and attour the yearly rent " above- “ abovementioned. ” 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 Howdales, alias Glaister, for which he pays 31 8 merks of money rent, yearly, for his possession: That the same rent was paid by his father for the said lands; and that, be- side the s aid rent, there is payable to the minist e r of the parish, fifty si x shillings Sterling of stipend, since Mr Andrew Clark, [the minister) obtained a decreet o f modification and locality” Here is irrefragable proof from the tack, that, besides the rent, the tenant of Howdale was bound to pay the teind or pend; and, by the tenant’s oath, the stipend in use to be paid was 56 shillings Sterling yearly. This is a general view of the facts upon which the objec­ tion is founded against allowing the factor’s representatives credit for this L. 4: 18: 10 Sterling, which ought to have been paid by the tenants of Howdale, and half of the lands of Newlandhill; and its believed, they did pay their several propor­ tions to the minister, tho’, by reason of the bankruptcy of these two tenants, the reversers have not been able to recover any receipts except one in the 1744 (aft e r Mr Blair’s factory) from the minister t o Susannah Hall, for a guinea, as her proportion of stipend for Newlandhill. We shall now shortly state what is founded on by Mr Blair’s representatives, in order to exoncr them of this part of the stipend, and which is to the following purpose. That in the 1742, immediately after the factory was grant­ ed by your Lordships to Mr Blair, he brought a process a- gainst the tenant of Crieve or Capplefoot, and against the te­ nants and possessors of Newlandhill, for payment of their rents, and for the arrears of rent as far back as the 1729, but he did not call Christopher Armstrong the tenant of Howdale in this process.! r ' 15 The The arrears and rents were instructed by the oaths of the tenants; and the tenant of Crieve, and the tenants of the one half of Newlandhill, depone to a certain sum paid by them in name of rent and teind; and they are accordingly decerned against for the rents, deducing the stipend paid by them to the minister. But Robert Armstrong, who was then subtenant to John- ston, the heretable creditor on the other half of Newlandhill, he depones as before taken notice of. That the rent the deponent agreed to pay James Johnston, was the neat annualrent of his heretable bond; “ and besides, to relieve him of all public burdens imposed, or to be im- posed on the said lands.” The sheriff decerned against the tenant of Grieve, and Lit- le’s half of Newlandhill, for payment of their rents, deducing the stipend paid to the minister. But as to Johnston ’s half, no interlocutor whatever is given; nor is any inquiry made at Robert Armstrong the subtenant as to the extern of st i ­ pend, which he was in use to pay, or the other public bur­ dens, which his oath naturally led the factor to inquire into. Thus matters went on for eight years, down to the 1750, when a process is brought before your Lordships, in the factor’s name, against the said Christopher Armstrong possessor of the lands of Howdale, and Robert Armstrong possessor of the half of the lands of Newlandhill, wherein random sums are libelled to be owing by them in name of rent; and which pro­ cess was remitted to the mass of the ranking of the creditors, and was never more heard of, or proceeded in for twelve years thereafter that Mr Biair’s factory subsi sted; nor could they know any thing of the state of the matter between the factor and these tenants, as the factor never gave in a rental, o r a scheme of his accompts. These appear to be the plain facts upon which Mr Blair’s representatives found their defence. The material arguments deduced deduced from them, will hereafter come to be considered. A good deal of litigation was had before the Lord Ordinary, both with respect to this article and feu duties, alledged to have been paid for Mossknow, and for which no voucher was produced. Mutual memorials were given in by the parties; upon advising of which, his Lordship, of this date, pronounced the follow- ing interlocutor: “ The Lord Ordinary having considered the memorials for both parties, condescendence, and addition­ al memorial, observes on the accounts and answers thereto, Finds, That the creditors, tack smen of the lands of How- dale, and a part of the lands o f Newlandhill, were, by their tacks, obliged not only to pay a certain rack-duty, but also to relieve John Armstrong of Grieve, the reverser, of all public burdens imposed, or to be impos ed upon the lands, during their possession: And finds it proved, That before the commencement of the factory granted to Bryce Blair, the creditors were accordingly in us e of relieving the the stipends impos ed upon their respective lands, amounting to the sum of L. 4: 18: 10 Sterling ya:Fds, T h a t, re­ cently 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 creditors, and such the nature of their possession; and therefore, and in respect that Mr B lair failed to give in his accompts during the whole period of his factory, which subsisted from the 1742 till the 1761, by which thos e who had right to the reversion were kept in ignorance of the manner inwhich he accounted with the creditors in possession, Finds T hat his representatives are not intitled to take credit for the stipends, which ought to have been paid by the creditors in possession; and sustains th e 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-duties of Mossknow, in respect that no- thing- thing has been produced to show that these feu-duties were paid to the superior, reserving to the representatives to pro­ duce a proper voucher, that these feu duties were truly paid: Repels the objection to the articles charged in name of inci­ dents, amounting to the sum of 30 s. Sterling yearly: Finds, That the factor was obliged to use diligence against the te­ nants of the sequestrated estate, for payment of the rents due by them.” Mr Blair’s heirs represented against this interlocutor: But the Lord Ordinary, upon advisin g the same, with answers, re- fused the representation, and adhered. They then reclaimed to your Lordships by petition, which was also refused without answers. They gave in a second reclaiming bill, which was ordered to be answered: And upon advising the petition and answers, the cause was remitted to the Lord Ordinary to be further considered. New papers were again given in to his Lordship; and the other party having produced a certificate, under the hands of Mr Williamson, manager for Lord Hopeton, that there did not appear to be any charge for feu-duties, against the lands of Mossknow, during Mr Blair’s factory; the reversers, as to this, want nothing more than to be secured against any after­ demand; and they imagine, if these feu-duties had been charged by Mr Blair, in his accompts with the Marquis of Annandale, this might have been cleared up by producing his settled accompts with the Marquis, or Lord Hopeton: But if Mr Williamson’s attestation shall be thought sufficient by the Court to exoner the reversers, they shall drop all fur­ ther plea on this point, upon the factor’s heirs being bound in warrandice against any after demand for these feu duties. In comparing the different factory accompts, it appeared from the decreet taken by Mr Hay, the succeeding factor to Mr Blair upon the estate of Crieve, that by some mistake, the tenants of the one halt of the Newlandhill were charged at seven seven shillings yearly, less than what they paid to Mr Blair: And as this is a fact agreed by the agents for the parties, this seven shillings yearly falls to be stated against Mr Blair’s re- presentatives, during his factory. The reversers also objected to the allowance of thirty shil­ lings yearly, given by the Lord Ordinary, to the factor, in name of incidents, because none such were instructed, and, it is believed, not one penny incurred: And as your Lordships factors are allowed five per cent. Besides the rents of the lands, for twelve months, after being due, the reversers know of no rule for allowing factors vague sums, in name of incidents, when they cannot condescend upon, or instruct one half pen­ ny of expence in that way incurred; nor could the factor be at any charge that way, as he lived in the neighbourhood with the tenants, and in the neighbourhood of tenants of the Mar­ quis of Annandale, over whose estate Mr Blair was also factor. But, separatim, the negligence of the factor in not giving in his accompts, with a rental of the est a te annually, as required by the act of sederunt, is sufficient ground for disallowing of these charges. The reversers did also insi st before the Lord Ordinary, that the factor’s heirs must be liable for th e stipend, which the te­ nants were in use of paying; and which, if it was not paid to the factor, could not now be recovered, as these tenants be­ came bankrupt, and are now dead: And did further insi st, That as, thro’ the inattention of the factor, the stipend had not only been lost, but also the two tenants of Howdale, and Johnston’s half of Newlandhill, had been allowed to possess for some years, after their heretable debts were extinguished by their intromissions, that the factor must even be liable for all these rents. Such being the general state of this matter, your Lordships are now to consider, and determine these different points, be­ tween the reversers of Crieve and Mr Blair’s representatives and the reversers will only trouble your Lordships with the ar-C guments guments used pro and con, as to the two last points, 1st, The stipend payable by the two tenants, who were heretable cre­ ditors. And 2dly, Whether the rents for the possessions o f these two tenants, which is lost by the factor’s omission or ne­ gligence, ought to fall upon the reversers, or the representa- tives of Mr Blair? With respect to the first it is apprehended, that the interlo­ cutor of the Lord Ordinary, as to the stipend payable by the tenant of Howdale, and the tenant of Johnston's half of New- landhill, stands upon the most so l id basi s; and the of the interlocutor, is founded both in law and material equity. "That Mr Blair knew the nature of the rights of these cre­ ditors, that he did not give in his accompts during all the time of his factory, whereby both creditors and reversers were kept in entire ignorance as to his management, or in what way he accompted with these creditors in possession.” It is pleaded for Mr Blair’s heirs, That he did every thing incumbent upon him by the foresaid process, raised immedi­ ately after the commencement of his factory, against the te­ nants; for, say they, the factor took from the tenants every thing that the sheriff decerned against them, and we can be liable for no more. But there are various answers from the state of the facts, will occur to your Lordships as to this. For, in the f irst place, it is no excuse, if either an improper process is brought, or not properly conducted; no process was at all brought by the factor before the Sheriff against Christopher Armstrong, the tenant of Howdale, and although Robert Armstrong subte- nant to Johnston in the half of the lands of Newlandhill was called, and swears, That, besides paying the rent to the prin­ cipal tacksman, he was bound to pay all public burdens what­ ever, imposed or to be imposed on the said lands; yet he is not interrogated as to any thing with respect to the extent of the public burdens in use to be paid by him; so no decreet is asked asked, or could pass against Robert Armstrong the subtenant, because nothing is ascertained again# him; and, in fad, he was not owing any of the stipend payable by him at that time, as it was all paid up to the minister. But indeed, it was not at all the proper way to recover the stipend payable by those tenants and heretable creditors, by a process before the Sheriff: The minister of the parish had a decreet of modification and locality, and had been alwysin use of receiving his stipend from all the tenants of this estate of Crieve, effeiring to the rents paid by them, and the parti­ cular stipend in use to be paid for Johnston ’s half of Newland- hill is ascertained by the receipts produced in process; and as before set forth, the stipend in use to be paid by the tenant of Howdale is ascertained by the tenant’s oath in the pro- c ess of ranking of the creditors, and by receipts from the ministe r for the stipend to the tenant, now recovered and produced. It is said for the factor’s representatives, that tho’ the mi­ nister had a decreet of locality for a certain sum over the whole estate, yet that was no evidence of what every particular farm ought to pay, nor could the factor have compelled those he­ retable creditors to have paid any share of the stipend upon this decreet of locality. In answer to this, it is instructed beyond doubt, the use and custom of the lands, and what every tenant did pay to the minister; and it is not pretended, that ever the tenant of Howdale, or the tenant o f Johnston ’s half of Newlandhill, objected to the payment of the stipend charged: It is no more than the true proportion of stipend effeiring to their rents with the reft of the estate; so it was impossible, that these tenants could object to it; and if the factor chused to pay the whole stipend, the ministe r ’s decreet of modification and lo- cality would have afforded to the factor the best compulsitor in the world against these tenants, if they had refused to pay their just proportion of stipend, and was better than any other decreet whatevr. Mr Blair’s representatives do next attack the leases granted to to Johnston of the half of the lands of Newlandhill, and to Armstrong of the lands of Howdale, and pretend to say, that by the tacks, the tenants were not bound to pay any stipend to the minister; and very many learned arguments are stated, which it does not appear necessary to trouble the Court with any particular answer to. And 1st, With respect to the lands of Newlandhill, the tack indeed appears to be the operation of an unskilful writer: At the same time, the general clause adjected is broad and ex- pressive enough of the agreement of parties, particularly joined to the constant use that had ever followed upon it; and that Mr Blair was well acquainted with this use, shall be explained hereafter; for, besides the specific rent stipulated, the tenant becomes bound “ to free and relieve the said John Arm- strong of all public burdens imposed or to be imposed on the said lands during his possession of the same.” Can there be any doubt of the import of this clause, or the intention of the parties, that Johnston, when he took the- tack of the half o f Newlandhill in 1701, became bound to pay a proportional part of the stipend? For, even reckoning the interest of his money at the ordinary rate of 6 per cent, at that period, and adding thereto the stipend now demanded, did not make his rent s o high as what the tenants of the o- ther half of Newlandhill paid; but it is not left to intention or dubious conjecture, as the matter was fully cleared by the constant usage and custom: For from the 1701 down to the 1742, when Mr Blair’s factory commenced, Johnston ’s pos- session of Newlandhill always paid a proportion of the stipend, and every other public burden, though the reversers have not been able to recover any receipts of stipend from Johnston ’s heirs, except those above mentioned, for the years 1736, 37, and 38, before the sequestration, and a single one in 1744, after the sequestration. Mr Mr Blair’s representatives assert, that he paid the whole stipend to the minister after his factory commenced: But it must be observed, this is not properly instructed; and to vouch this fact, they have been obliged to have re- course to a declaration from the ministe r ’s daughter, set- ting forth, that it consisted with her knowledge, that Mr Blair always paid the stipend to her father; so that, if this fact was anyways material, it does not appear properly instructed. But supposing it was granted, that this was the fact, yet that does not say but that Mr Blair might have re­ ceived the proportions payable by Howdale, and the half o f Newlandhill, from the possessors thereof; and the preemp­ tion is, that he either did receive them, or they paid their quotas to the minister; for it does not appear, that he ever made any demand against these tenants for the payment o f stipend. The processes in the 1742 and 1750, libel only random sums in name o f rents; and though the reversers can­ not instruct that he actually did receive the stipends, that is a matter noways incumbent upon them. He surely knew, or ought to have attended, that such were exigible from these tenants; and as thes e tenants are dead ins olvent, and no per- son to represent them, the reversers cannot possibly learn how matters were conducted between them and Mr B lair; but it is a very probable conjecture, that the minister might de­ mand the whole stipend from Mr Blair, and that he attain would uplift the share payable by those heretable creditors, and that the receipts or discharges granted by him to them there­ for are not now in being, as these creditors left no represen- tatives, who had any interest to take care of any vouchers or instructions of payment. In the second place, With respect to the lands of Howdale, Though the clause in the tack to the tenant of that farm, is as express as words can make it, that the tenant, besides the rent, became bound to pay the teind forth o f the said lands yearly, and haill public burdensimpofed, or to D be be impos ed upon the said lands during the tack, by and attour the yearly rent above mentioned." And though the tenant of Howdale himself in the process of ranking and sale, depones, p. 40 and 4 1, decreet of sale “ That, beside the said rent, there is payable to the minister of the parish 56 shillings Sterling of stipend,” yet even this is controverted; though, if there is a fact and obligation in the world that can be clearly ascer- tained, and free from objection, this appears to be one. It will be observed, that the Lord Ordinary, in his interlo­ cutor, gives as one of his reasons for subjecting Mr Blair to that stipend, that Mr Blair was made acquainted with the nature of the rights and possession of these creditors. In this position, his Lordship is evidently founded in fact; for abstracting from the opportunities, Mr Blair, as a gentleman o f business, had to know every thing relative to this estate, there is real evidence contained in the thing itself, which shows that he well knew, and behoved to know every circum- 1 stance relating to these tenants. Bur, with great great submission, the reversers apprehend, that they have no occasion to plead their cause so high, as to take it upon them to shew what Mr Blair knew, or did not know. It is surely sufficient for their purpose to say, that it was Mr Blair’s duty to make inquiries, and to know such things, and that they were of the easi e st investigation; for these facts, as to the tenants paying the stipend, were known to the whole country, and might have been discovered by an utter stranger in one day’s time. The minister, and every tenant upon the estate could, and no doubt did tell the factor how matters stood, and the use of payment; nor was it in his power to settle with the minister, or to know what stipend was due him, without knowing this fact. The minister behoved to show the factor, how, and in what way the stipend had been paid, and what was due; and as it was his duty, no doubt he made the proper inquiry at the ■the tenants, and took up from them the vouchers of payment to the minister. ' But the reversers do not understand, that a factor on a se- questrated estate is to expect that every thing is to drop in­ to his mouth, or that he is to sit down with his arms across, and let every thing run to ruin, and then excuse himself by saying, I did not know of such things, or I was led to believe them otherways. That does not appear to be the intention of such factors; nor does your Lordships act of sederunt seem to give them any such indulgence. They are surely, at least, bound to do every thing that an active and frugal man would do in his own affairs. He had not much to do in respect o f this article; the whole stipend was L. 1 4: 1: 8. He saw from his own decreet, that the farm of Crieve paid one half of it, being L. 7: 10 s. and that the tenants of one half of Newlandhill paid L. 1: 1 d. of i t; both which, by the nature of their set, they were to be allowed out of the tent: And as to the remaining L.4: 18: 10, it was to be paid by the te­ nants o f Howdale, and the other half of Newlandhill over their rent. This was all he had to inquire. But was it incumbent upon the reversers to show, that Mr Blair was perfectly acquainted with every circumstance anent this estate, they could point out sundry circumstances, which could leave no doubt of the fact. He was a creditor on the estate. He was Commissioner in taking the proof of the rental of the estate, and the oaths of the creditors upon the verity of their debts; and in particular, the two tenants, who were heretable creditors, deponed in his presence, That their debts are ju st, and truly resting, except in s o far as the s ame may be found extinguished by their sa id res pectiv e possessions o f Howdale, and half o f Newlandhill. And it is evident to demonstration, that he was particu­ larly acquainted with the method that the stipend had been localled localled and levied from the tenants upon the eftate, from this fingle circumftance, That by the factor’s decreet before the inferior court in the 1742, by which the tenant of Crieve or Capplefoot, and the tenants of the one half of Newlandhill, are decerned for their arrears of rent front the 1729, deducing L. 9: 2: ro, as paid by them of ftipend yearlv to the minifter of the parifh, from the time that the ftipend was modified and localled; fo that there remained L. 4: 18: 10, the direct fum now in debate, to complete the whole ftipend localled upon the ellate, and which behoved necejfarily to have been paid by for the other half o f Neu landhill, and Chriflop her Annflrong for the lands o f How- dale. For it is not pretended, that there was any arrears o f sti­ pend due, and Mr Blair paid none; nor did the tenants of Cap­ plefoot or Crieve, and the one half of Newlandhill, pay more of that stipend than their proportion, being L. 9: 2: 10. Could the factor then miss seeing, that the remaining L. 4: 18: 10 behoved to be paid by Johnston' s half of Newlandhill, and the tenant of Howdale; and that they must have been in the constant use of doing so, as, for 13 years backward before the sequestration, he saw that no more stipend had been paid but L. 9: 2: 10 yearly, by the other tenants? Any thing may be denied; but, from every circumstance, and from this piece of real evidence, there cannot be more direct proof of the po­ rtion upon which the Lord Ordinary’s interlocutor is founded, That, before the commencement of the factory granted to Bryce Blair, the said creditors, tenants of half of Newland- hill and Howdale, we re in use of relieving the reverser of i J the stipends imposed upon their respective lands, amounting to L. 4: 18: 10 Sterling yearly; and 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 rights granted to these creditors, and such the nature of their possession.” Mr Blair's representatives find themselves extremely pinch’d upon this point. The obligation in the tacks to pay, over their rents, all public burdens, which includes stipend, being so express, they seem to have no back-door but this, that the st ipend was not localled upon any particular farm. This has been already obviated. Where could th e question ly, if these tenants had even disputed it? These tenants, who had here- table securities, were bound to pay stipend and other publick burdens for their possessions, effeiring to the rest of the estate. Where then was there the least difficulty to have got this as- certained? or, How could it have been disputed? as the st i ­ pend was only to proportion on the different farms, according to their payable rents; and which in fact was so done: And the minist e r had ever been in use of levying from the tenants their different proportions of stipend, to the day that Mr Blair’s factory commenced. The factor’s representatives have indeed taken upon them very boldly to deny this fac t; for, say they, “ The reversers have always talked as if these farms, (viz. Howdale and Johnston ’s half of Newlandhill) had been in use to pay st i ­ pend to the minister at a certain rate before the entry o f the factor; tho’ this fa ct has been contravened from the begin­ ning, and is contravened stil; and the reversers are called on to produce evidnc, that ever this was the cas e: They produce no evidence, and yet they persist in their averment. As no evidence appears however, your Lordships w ill not pre- sume that ever such payment was made; and therefore, it is plain, the factor had no rule for uplifting the stipend.” To this call the reversers answer, That never any fact was bet­ ter instructed, than that the minister was in use of uplifting the stipend from all the tenants of the est a te, according to a proper locality agreed among them, effeiring to their payable rents;E for for there is real evidence of the fact arising from the na­ ture of the thing. It is proved by the testimonies of witnesses, and it is instructed beyond the power of contradiction by the writs produced in process. From the depositions of the tenants in the factor’s decreet, particularly the tenants of Caplefoot and the tenants of Little’s half of Newlandhill, it appears, that they had been in the constant use of paying stipend to the minister i n proportion to their rents, with the other parts of the estare; and Christopher Armst rong, in proving the rental, depones, That Howdale or Glaisters paid fifty six shillings of stipend, besides the rent. The reversers have pointed out above the evidence arisin g from the whole res gesta, to show, that Howdale and half of Newlandhill, necessarily behoved to pay this L. 4: 1S: 10, as it is not pretended, that either the factor or any other of the tenants paid it for 13 years, at least prior, to the date of his factory. Add to all this, that the reversers have produced ’ sundry receipts, that they recovered by accident, by the mini- ster to the tenant of Howdale and Johnston ’s half of New­ landhill for this sum, and specifying it as the teind due out of their respective possesions, viz. three receipts for half of Newlandhill, 1736, 1737, and 1738, and four receipts in 1731, 1732, 1733, 1734, for Howdale. Against all this posi tive evidence, the factor’s heirs would presume, that the master was liable for the whole stipend, and bound to relieve the tenants thereof, from this circumstance, that, at fixing the rental for the sale, no part of the stipend, excepting Johnston ’s share for Newlandhill, is added to the gross rent. But this is a very great mistake in fact, as appears from the prepared state in decreet of sale: For the 56 shi l l ings payable by Chistopher Armstrong for Howdale, is added to the rental also; and which, if there was any further occasion, is an additional proof, that the tenants were bound to pay that stipend over and above their rents. Thus far as to the stipend payable by the tenant o f How­ dale, and Johnston ’s half of Newlandhill, which, it’s alledged, ‘ Mr. Mr Blair did never uplift from these tenants; but whether he did so or not, ’ tis apprehended the loss must fall upon his re- presentatives, and not upon the poor reversers, who, at any rate, will but draw an inconsiderable pittance from the estate of their predecessor, after discharging the cautionary obligati­ ons for which he was bound with Grahame of Mossknow. The second point is, Whether Mr Blair’s representatives should be liable for the loss sustained by the aforesaid tenants, who were creditors for some years rents of their possessions af­ ter their debts were extinguis hed and paid? Your Lordships will observe, that the tenant of Howdale, and Johnston’s half of Newlandhill were heretable creditors for certain sums, and had tacks relative to their heretable bonds; whereby they were allowed to retain the rents of their posses- sions, in payment of the annualrents contained in their here­ table securities. At the time when their heretable bonds and tacks were granted, the legal interest of money was at the rate of 6 per cent; but from the year 1 7 14 and downwards, when money came to 5 per cent, there was a tack-duty of 20 s. yearly did arise, payable out of their farms, for every L. 100 contained in their hererable fecurities. This was never uplifted by the factor: So your Lordships s ee it was annually cutting down the capital sum; and, for some years before the end of Mr Blair’s factory, the whole capitals were extinguished, and the tenants allowed to possess their farms for nothing; whereby a loss of at least L. 200 Sterling, through the insolvency of these tenants, must either fall upon the reversers, or Mr Blair’s representatives. T o apologise for this matter, and likewise to lend some aid in the plea against the stipend, it is pleaded, That in the 1750, eight years after Mr Blair’s facto ry commenced, he brought a process before this Court against these tenants, con­ cluding for certain sums, in name of rents, from the 1710 and and downwards; and which process was only called, and re­ mitted to the process of ranking, and never more proceeded in, nor heard of, for the t welve remaining years of Mr Blair’s factory. But if such excuses for neglect as these will go down, or be admitted of in any court of law or equity, it may, with sub- mission, be affirmed as a proposition of the law, that the fac­ tors upon sequestrated estates are not liable for omissions, yea even for the most supine negligence. For the process brought in the 1750 libels a random sum due in name of rent; but it appears very s trange doctrine to maintain, that because Mr Blair just only raised a process, without minding or regarding it more, that this should be considered as a sufficient exoneration for twelve years there­ after. The reversers humbly apprehend, that this process brought in the 1750, instead of being an apology for Mr Blair, is an aggravation of his neglect. It is an addition­ al proof to what has been already observed, that Mr Blair was well acquainted with the nature of these tenants rights; that he knew the situation of these debts, and the nature o f the securities; and that the tenants were not exeemed from accounting for their intromissions with the rents, notwith- standing that they were heretable creditors. It is pleaded, That after Mr Blair brought this process in the 1750, and it was thrown into the mass of the ranking, that he had no further concern with it, but that it was the duty of the agent for the creditors to have pushed and set­ tled the matter. However the question might stand between the factor and the creditors, the reversers do not seem to have much con­ cern with that. The creditors and factor got this estate into their hands, and they must surely accompt to the reversers for the proceeds of it. If the factor employed an agent who did not not do his duty, let him answer for the consequences. But herein the factor’s plea against both agents and creditors seems defective, f or this special reason, that there was no sort of do­ cument in process to show either agent or creditors how mat­ ters stood between Mr Blair and t he tenants. Had Mr Blair given in his accompts to the ranking, to have shewn how he was proceeding with these tenants, and what was in their hands, there the agent might have been to blame. B u t, at the time, when the p roces was brought, the tenants were still creditors, and no loss could be sustained by them then. So, as Mr Blair made no stir ever after, or ever gave in his accompts, nor were such ever given in till after Mr Blair’s death, every person concerned in the ranking might reasonably conclude, that this matter was settled between Mr Blair and the te­ nants, and that he was regularly getting payment of these rents. This question with the tenants was quite independent o f the ranking, and might very easi ly have been adjusted, if Mr Blair had paid the least attention to it, as it required only an accompt of charge and discharge with the tenants, according to the nature of their own rights produced. But Mr Blair’s representatives do not only plead the effect of this process, as sufficient to exoner them for the loss arising to the reversers upon the rents, but they most extravagantly contend, that the sums libelled for as due were broad enough to comprehend both rents and teinds, tho’ they are libelled under the name of rents.f % ~ t * r v, • • * V * » **N- x. But as to the teind or stipend, that has already been obviated. How ridiculous would it have appeared, to have r aised a process for the stipend, payable by the tenants, when the minister’s decreet of modification was the best decreet that could be got for that purpose. And though it was not spe- cially divided, yet as the tenants had been in use each o f F them, them, of paying a certain sum, as it was divided by consent, and proportioned upon the several tenants according to their payable rent, the tenants could have been lawfully charged upon the minister’s decreet for payment of that sum; and i f they had chused to suspend, they must for that purpose have consigned or found proper security, which would, in every event, have secured their proportion of stipend to the re versers. And as to the rents loft through these tenants, though Mr Blair may be considered in a more favourable light as to these, yet what in law must ever hang as a dead weight upon his conduct is, that he never gave in his accompts to process of ranking for the space o f twenty years, during which time his factory continued. It cannot be argued, t hat all these mat­ ters might not have been properly adjusted, and the teinds and every shilling of the rents saved; for it is obvious, that the least care or attention might have saved them. But through these accompts not being given into the process o f ranking, as specially directed by law, not a person concerned in that process could possibly know one step of Mr Blair’s administration, or take any measures to obviate the loss and damage that has now ben incurred. And if a process raised eight years after the commencement o f Mr Blair’s factory, for an unintelligible alledged arrear of rent, and not a step but a mere calling taken in it for twelve years thereafter, shall be considered by your Lordships as a sufficient exoneration to Mr Blair’s representatives, and that his conduct in the matter was suitable to the duty that he owed the creditors and reversers, the reversers will, with sub- mission, venture to say, that they cannot figure a case where a factor can be supposed to have acted in so negligent a way, as thereby to subject him to the damage sustained; and here­ after, instead of thinking that your Lordships factors arc spe­ cially c ially bound by act of sederunt to exact diligence, if the plea maintained for Mr Blair’s representatives shall prevail, they must consider that salutary law to be altered, and instead of factors on sequestrated estates being under special limitations as to their conduct, that they are even loosed from the obli­ gations incumbent on every man at common law who pretends to act in or negotiate the affairs of another. In respect of all which, it is humbly hoped your Lord- ships w ill find, in terms of the Lord Ordinary’s in­ terlocutor, 1mo, That Mr Blair’s repres entatives can have no credit for the L. 4: 18: 10 of stipend payable annually for the lands o f Howdale, and Johnston’s half o f Newlandhi; 2do, To find Mr Blair’s repres entatives liable to the reversers for the rents not recovered from these tenants, upon which the Lord Ordinary has as yet given no judgment; 3t io, To alter the Lord Ordinary’s interlocutor, with respect to the allowance o f 30 s. yearly, given to the factor in name o f incidents; and to find, That as no instruction is produced o f any incidents incurred, that none s uch can be sustained; and, 4t o, To find, That as 7 s. yearly is stated the charge les s than the rental o f the estate, that this s um must be charged against the factor's repres en­ tatives yearly, sin ce the commencement o f his fac­ tory. DAV. ARM STRONG,• r