Representatives of Bryce Blair v. Walter Graham and others — Information, 12 Aug 1766

Lord L o r d R e o p Reporter.] I NF O RM A T IO N F O R The Representatives of Bryce Blair of P otterflatt, late Factor on the Seque- strated Estate o f Criev e and Mosknw; A G A I N S T W a l t e r G raham and others, Heirs Porti«oners o f John Armstrong o f Crieve. T h e Lord Coalston Ordinary hath taken to report a question occurring in the ranking of credi- tors on the estate of Crieve, between the re- presentatives of Bryce Blair factor on that e- state, while under sequestration, and Walter Graham one of the heirs portioners of John Armstrong of Crieve, who, along with his own, assumes the names of the whole heirs portioners of this estate: In obedience to his Lordship’s or­ der, this information is given in on the part of the represen- tatives of the factor on the sequestrated estate. Mr. Blair was appointed factor on this estate on the 1oth February 1742, with power to uplift the crop of that year, and all preceeding arrears, and he continued to hold this office office of factor till his death, which happened in January 1762. As soon as he was in possessio n of the office, he brought an action before the sheriff of Dumfries against the tenants, for payment of arrears then due, and to recover decreet against them for the then current year’s rent, and all rents that should fall due thereafter. In this process, the whole tenants of the estate were called, and all of them compeared, one only excepted; this tenant who did not appear, possessed the lands of Howdale; it was well known that he was an heritable creditor over the estate, and that he was in possessio n of the farm which he held in virtue of a tack, whereby he was intitled to apply the rents to the payment of his debt, and to continue in possessio n till such time as his debt was paid off. In such circumstances, there­ fore, it was not thought proper to proceed in any shape a- gainst him; a decreet in absence might indeed have been procured, but the only effect that could produce was a sus- pension; and as his rights and tack were already produced in the process of ranking, where the effect of his security, and right of possesio n, fell naturally to be tried, it seemed al­ together unnecessary to compel him to bring a process of suspension; no procedure, therefore, was held with respect to him; as to the other tenants, however, decreet was re-- covered against them on the 5th August 1742. The extracted decreet is produced in process; and as the proceedings therein, tending to ascertain the rental of the estate, and what prestations were due by the tenants, is ex­ ceedingly material in the present question, they shall here be stated pretty fully. The evidence brought, consisted of the oaths of the tenants themselves, which are as follow: " William Scott of Meikledale deponed, That he possessed the lands of Caplefoot and Grieve, for the crops and years 1729, 1730, 1731, and 1736, at the yearly rent of 50 l. Sterling in name of rent and teind, payable at Martinmas yearly; and the deponent was moreover obliged to pay the the land-tax, and other public burdens, without any al­ lowance: That he paid the first three years rent, &c. and acknowledged that the whole rents since the said dischar- ges granted by Mr. Carrie, except 7 l. 10 d. Sterling year­ ly, as the teind or stipend due out of the lands of Crieve to the minister of Tundergarth, conform to receipts thereof to be produced for the deponent, were resting unpaid.” " 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 s. 6 d. Sterling of yearly rent and teind, to the mailer for his said possesio n, besides payment of public burdens, &c. Deponed, That to the best of his know­ ledge, he was owing the said rent and teind of his pos- session for the crops 1729, 1730, 1731, 1732, 1733,1734. 1735, 1736, 1737, 1738, 1739, 1740, 1741, and 1742, except the sum of 10 s. 6 d. Sterling of stipend paid by him yearly, for all the said crops and years, ex­ cept the years 1741 and 1742; and exhibited the said three discharges granted by Mr. Andrew Clark minister of Tundergarth, 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 year 1728, and proceedings; and deponed, that he was owing the rent and teind of his possession, for crops 1729, 1730, 1731, 1732, 1733,1734, 1735, 1736, 1737, 1738, 1739, 1740, 1741, and 1742, except 1 l. 1 s. Sterling of stipend paid by him yearly to Mr. Andrew Clark minister at Tundergarth, for all the said years, except the year 1742, and shall procure the said Mr. Clark's discharges therefore.” John “ John Graham in N e w landhill deponed, That he entered to possessio n 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 yearly rent and teind, and had continued the possesio n of the said lands ever since, and was owing the foresaid yearly rent and teind for all the years he had possessed the said lands, except 19 l. 6 d. Sterling paid by him to the pur- suer, and 10 s. 6 d. Sterling paid by him yearly to the mini- ster of Tundergartb, as the proportion of stipend payable to him out of the deponent’s possession, for all the years he had possessed the lands, except the year 1741, and the current year 1742, and should produce the said Mr. Clark's discharges for the same.” “ Robert Armstrong deponed, That at Whitsunday 1730, he entered to possesio n of part of the lands of Newland- hill libelled, as tenant to the now deceast James Johnston clerk to Baron P a g e, eldest lawful son and heir served and retoured to the deceast Thomas Johnston in Castlehill, who had an heritable debt, or wadset right of the said lands granted by John Armstrong of Grieve, dated 9th A- pril 1701, registred in the books of session 24th May 1726, for security of the principal sum of 3750 merks Scots of principal, and annualrents thereof: That the rent the deponent agreed to pay the said James Johnston, was the neat annualrent of the said principal sum; and besides, to relieve him of all public burdens imposed, or to be imposed on the said lands: That the deponent pos- sessed the said lands, in virtue of the set thereof fore­ said, from the said James Johnston to him, till the said James Johnston s death, which was in or about the month of March 1740; and, since that time, had possessed the said lands in right of Janet Johnston his spouse, sister to the said James J ohnston, and heir in general, cum benficovta- rii, served and retoured to him: That the instructions of the the said debt, and the deponent’s wife’s right thereto, were then at Edinburgh, produced in the ranking and sale of the lands and estate of Crieve, pursued by Matthew Sharp of Hoddam.” Thus were the rents and prestations payable by the te­ nants fully before the sheriff, in consequence of the most unexceptionable evidence, viz. the oaths of the tenants themselves, and the tacks by which they held their lands, exhibited by them on oath. In consequence of all which, The sheriff decerned and ordained the haill forenamed persons defenders, to make payment to the pursuer Bryce Blair of the several sums of money underwritten, The defender William Scott of Meikledale, of the sum of 250 l. Sterling, as the silver rent and teind due for his said possessio n of the lands of Caplef oot and Crieve, for the crops 1737, 1738, 1739, 1740, 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 possession of the said lands, that will be due against Martinmas next, the said term being always first come and bygone, he the said defender always having allowance of 7 l. 10 d. Sterling yearly for each of the said crops and years, as the stipend payable furth of his said possession to the minister of Tundergarth, upon his producing to the pursuer discharges thereof from him: Item, The said defender Thomas Little in Newlandhill, the sum of 39 l. 14 s. 5 1/2 d. resting of his rent and teind for his said possession, for the crops and years 1729, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, and 1741, and of the sum of 3 l. 1 2 s. 6 d. Sterling, as the current year’s rent of his possession, that will be due at Martinmas next; he always having allowance, out of the said sum, of 10 s. 6 d. Sterling, as the current year’s stipend due to the minister of Tundergarth: Item, The said William Graham in New- landhill, of the sum of 78 l. 8 s. 11 d. Sterling, as the B rent rent and teind of his said possessio n due by him for the crops and years from the year 1729 to 1741, both inclu- sive; and of 7 l. 5 s. Sterling, as the current years rent of his possessio n, that will be due at Martinmas next; he ha­ ving allowance of 1 l. 1 s. Sterling, as the current year’s stipend payable to the minister of Tundergarth: 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 possessio n, resting by him for the crops from the term of Whits unday 1734, when he entered to the posses- sion of the said lands', to the term of Martinmas 1741; and of the sum of 3 l. 12 s. 6 d. as the current year’s rent and teind, that will be due by him at Martinmas next, for the present crop 1742 he always having al­ lowance of 10 s. 6 d. as the current year’s stipend due to the minister of Tundergarth.”. By this judgment of the sheriff, it was at the same time determined in what manner the factor was to account with the tenants for their arrears or bygone rents; and a rule was pointed out for him to follow in all subsequent clear­ ances, which was no other than this, that when they had paid the stipend before their rent was demanded of them, a deduction was to be made by the factor for the stipend so paid at accounting; but where no such payments, had been made by the tenants, the factor was to pay the sti­ pend that was due out of the rents that he received. It deserves likewise to be remarked of this sentence of the sheriff, that it contains no decerniture against Robert Armstrong; the reason of which is manifest: He was an heritable creditor, and intitled to retain his rents in pay­ ment of his debt: The sheriff, therefore, was of opinion, that the fact or could have no demands against him, and therefore, gave no decreet. This, at the same time that it served as a rule to the fact or with respect to Robert Arm- strong, was a rule also to him as to his procedure with re- “ spect spect to Christopher Armstrong, who being in the same situa­ tion with Robert, any question with him fell to be deter­ mined on the same principles. The factor, upon the principles pointed out to him by this decreet, instituted accompts with the tenants during the whole period of his factory, (which ended with his life in the month of January 1762,) receiving payments from the tenants of their rents, and paying himself the stipend to the minister. The estate has been sold, and the price being greater than was expected, the creditors were all of them paid their debts: The representatives, therefore, of Armstrong of Crieve came to have right to the balance; in consequence whereof, the representatives of the factor had to settle accounts with them; and all points are at an end between them, two only excepted; the one respecting the payment of stipends, the other the feu-duties of the lands. The reversers do not object in general to the rule that was followed by the factor, in accounting with the tenants on the footing of the decerniture of the sheriff, and pay­ ing the stipend to the minister out of the rents which he received from the tenants: It is only with respect to the stipends due out of the farm of Howdale, and the half of Newlandhill, that any difference occurs. This is stated at no less than 4 l. 18 s. 10 d. yearly; and as the factory con­ tinued for a period of 20 years, this article amounts to within a trifle of 100 l. Sterling, besides the interest that may be stated thereon progressive.— The other point is, Whether the factor shall be allowed to take credit for 1 l. 2 s. 2 8/12 d. annually, as the feu-duty payable to the Mar­ quis of Annandale.----- These two articles are matters of ve­ ry considerable importance to the informants, as they a- mount to a very great turn when stated with interest char­ ged progressively during the whole period of the factory. It It is these points which the Lord Ordinary hath taken to report. And as the lands of Newlandhill, and Howdale or Glisters, have been possessed upon somewhat a different footing, there are, properly speaking, three points under the consideration of your Lordships: The f irst respects the stipend payable out of the half of the lands of Newland- hill; the second respects the stipend payable out of the lands of Howdale, or Glisters; and the third the feu-duties due to the Marquis of Annandale; each of which points shall be considered separately. And, in the f irst place, with respect to the stipend pay­ able out of the half of the lands of Newlandhill: These lands are those which were possessed by Robert Armstrong. concerning whom your Lordships have been informed a- bove, that he appeared in the course of the procedure be­ fore the sheriff, deponed upon the nature of his possessio n, and no decreet was pronounced against him by the sheriff; a clear demonstration, that the sheriff was of opinion the factor had no claims against him; but that, on paying the public burdens imposed on the lands, (i.e. land-tax, and schoolmaste r ’s salary,) he was intitled to retain posses- sion of his whole rent. The consequence which followed was, that by means of the sheriffs decree, the factor had it not in his power to recover either rent, stipend, or any thing else. And in the course of the ranking, there was produced the tack above mentioned between Thomas Johnston and Armstrong of Crieve, which is dated 9th April 1701, and is for six years, and ay and while payment of 3750 merks Scots, and annualrent thereof, contained in an heritable bond, and whereof the annualrent was upliftable out of the said lands: And it bears, “ That for which tack, and on the other part, the said Thomas Johns on 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 said John Armstrong and his foresaids; he or they always granting discharge to the said Thomas Johnston of the yearly rent and teind of the said lands: As also, the said Thomas Johnston obliges himself to pay yearly to the said John Armstrong, his heirs, &c. the sum of 3 l. Scots, in, full for all casualties; and that at Martinmas or Whitsun- day yearly, when the same shall be demanded; and to free and relieve John Armstrong of all public burdens im posed or to be imposed on the said lands, during his pos- session of the same: And, lastly, to be accountable to the said John Armstrong, and his foresaids, for what re­ tention money shall be imposed by the laws of this king­ dom, during the not redemption and payment or the laid 3750 merks Scots money.” From this tack, it is clear, that all that could be de­ manded 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 of the lands: He therefore was bound, under the denomination of teind, to discharge him of stipend; 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 the ex- pression of public burdens impos ed or to be imposed on the lands, does not seem to include stipend. And, as this interpretation of the terms of the tack seems agreeable to law, so upon it expresly proceeded the decreet of the sheriff in other particulars; for in decerning for arrears, the sheriff always deduced the stipends out of the sums which the tenants were bound to pay in name of rent and teind, where there was evidence that the tenants had paid the stipend to the minister, and decerned always for the balance of the rent, after the stipend was deduct­ ed, as the arrear due; the factor had thereby this rule Cl pointed pointed out to him, that when a tenant is bound to pay a gross sum in name of rent and teind, the minister’s sti— pend must be paid by the master, and not by the tenant; and that, even altho’ the tenant is obliged to relieve the lands of all public burdens. He was thus taught to di- stinguish between stipends and public burdens of the lands, and to consider stipend, not as a burden on the lands, but as a burden on the teinds, which are only a part of the fruits of the land, and which the matter be­ came bound to give the tenant the free use of, without a- ny burdens at all, in consideration of the sum that was paid him in name of rent and teind. And indeed this method of accompting has been, in ef­ fect, authorised by that interlocutor of your Lordships, whereby the value of these lands of Crieve are ascertained in the sale; for the method of calculating the value of the land is, by fixing the gross amount of 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 of stipend, to the rent of any of the farms, excepting Newlandhill. 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 com­ puted 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 maste r, and not by the tenant. With respect, therefore, to this farm, of the half of Newlandhill, possessed by Robert Armstrong, it is humbly apprehended the factor could, on no footing whatever, compel the tenant to pay him any thing, either in name of rent or stipend; rent he could not compel him to pay, because he was intitled to apply his rents to the payment of an heritable debt, so that till that debt was thoroughly extin- extinguished and paid, nothing was exigible by the factor; and as the master, and, of consequence, the factor, as coming in his place, was bound to grant a discharge both of rent and of teind, the tenant could not be subject ed in payment of stipend, which is a burden upon the teind; or at least, if he was subjected in payment of stipend, as an intromitter with the teind, he must have had relief against the master and consequently against the factor, as coming in his place, for any s ums that he so paid. Thus the bur­ den of stipend fell ultimately, at all rates, upon the fac- tor. Besides, it must be observed, that altho’ by the mini- ster’s decreet of modification and locality, the sum of 14 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 fact or, 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 com- pulsitor by which he could enforce payment; for the she- riff had not decerned the possessor of 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 Crievncu- mulo, it was altogether uncertain what proportion each of these farms ought to pay. And indeed, the fact or did his utmost to recover pay­ ment of these stipends, but what he did will fall to be more particularly taken notice of by and by. The second point relates to the stipends charged against the fact or for the farm of Howdale or Glisters; concerning which it is to be observed, that tho’ the tenant and posses- sor was called in the action brought by the factor before the sheriff of Dumfries, yet he did not compear, and, of conse- 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 undoubt­ edly made them the less anxious in insisting on his depon­ ing in the action before the sheriff, especially as the debt was large, and payment, by application of the rents, could not be effectuated for a long course of years: There being, therefore, no other fund of payment, it became unnecessa- ry to hold any procedure against him, till such time as the debt should be near extinguished by possession. But the tenant, C hristopher Armstong,was called as a witness in the sale, in order to prove the rental of the lands; and accordingly he depones, “ That he possesses the lands of Howdales, alias Glisters, for which he pays 318 merks of money rent yearly for his possession. That the same rent was paid by his father several years ago for the same lands; and that beside the said rent, there is payable to the minister of the parish 56 s. sterling of stipend, since Mr. Andrew Clark the minister obtained a decreet of modification and locality; but the deponent is not positive whether he ought to have allowance of any part of the said stipend from the master, or not, in regard the tack betwixt the deceast John Armstrong and the deponent’s father, has been for some time at Edin­ burgh. 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 0n ac­ count 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 insest- ment upon the said lands; and that by the foresaid tack he was allowed to retain the rent for payment of the said annualrent in the heritable security." An An extract of the said tack is produced, granted by the laid John Armstrong to William Armstrong in Cartertown: the tack is dated 4th March 1699, and bears the rent to be 318 merks yearly; and the said William Armstrong is there­ by obliged to pay the teind forth of the said lands year­ ly, and haill public 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 expresly bound to pay the same, by his tack: and not hav­ ing done it, that he ought to be accomptable therefor in the same way as if he had uplifted it. But to this it is answered, that he did his utmost to make this stipend, as well as the stipend out of that part of the land of Newlandhill, possessed by Robert Armstrong, effectual; and that from the particular situation of these te­ nants, it was an absolute impossibility for him to effectuate payment of any part of that stipend, supposing even it had been due by both tenants, which, it is humbly apprehended, was not the case with the tenant of Newlandhill: And this will appear from the following state of facts. Some time before the heritable debts of these tenants were satisfied out of their intromissions, viz. in the year 1750, the factor did bring an action against these two te-. nants 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 the action subsumes, That there was resting the sums of money following, by the persons af- termentioned, viz. By 3456, Johnston relict of Robert Arm- strong in Hollhouse, for herself, and as representing James Johnston clerk to Baron Page, her brother, and Thomas Johnston in Castehill, her father, and by James Armstrong D in in Hollhouse, for himself, and as representing the s aid Robert Armstrong his father, tenants and possessors of the just and equal half of the lands of Newlandhill, the sum of 16 l. Sterling, 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, in- clusive. Item, By Christopher Armstrong in Howdale, for himself, and as representing William Armstrong in How- dale, his father, tenants 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 inclusive and the summons con­ cludes, for payment in terms of this subsumption. The rent payable by the tenant for the half of Newland- hill, was the interest of 3750 merks, which being stated at 6 l. per cent, the legal rate of interest in the year 1701, when his tack commenced, amounts to 12 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. s o t h a tin 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 compre­ hend rent and stipend, together with the other publick burdens. The defences returned by the tenants to this summons, were, 1mo, “ They deny the terms and extent of the rents libelled. 2do, They bruik and possess the lands upon he- ritable rights and tacks from the common debitor, at and long before the pursuer s factory, which are produced in the ranking of the creditors of Crieve, and any claim for rents must be discussed in that ranking, where their interests are produced, to which this process falls to be remitted.” And And accordingly the Lord Murkle, before whom this pro­ cess originally came, “ Remitted the said process to the pro- cess of ranking of the creditors of Crieve and Mossknow, 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 expence of it was defrayed by him, and is to be found in his accompts. It was indeed no longer insisted in as a pro­ cess for rent; but Lord Dun having soon after this remit, resigned his seat on the bench, a new Ordinary was ap­ pointed; and without delay, objections were given in to the interests of those tenants produced in the ranking, and the dispute between those tenants and the other creditors, proceeded afterwards on the footing of objections made to their interest in the ranking, upon account of their debts being extinguished by intromissions; and, of consequence, the factor was never furnished with a decreet, whereby he could make either rent, stipend or any thing else effectual against those tenants. This, however, can never be impu­ ted as a fault to him; he did all that was incumbent on him to do, he raised an action against the tenants; by the defence returned, that action became necessarily a coinci­ dent process with the ranking, and for that reason was remit- ted to it. After this, the factor had no farther interest to in­ sist, 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 entitled to retain possession in virtue of their heritable rights or not. The reversers complain much of the supine negligence, as they are pleased to call it, of the factor, in not insi sting in this action. The informants, however, apprehend they have shown that it was not in the power of the factor, to insist insist in the circumstances in which this act ion stood; the neglect truly lay on the part of those who complain so much of i t now. If the same attention had been shown for their interest formerly that is now shown, there would be no occasion for any complaints at this time of day; the re­ versers were parties to the ranking, they had it in their power to have discussed any question that occurred in the course thereof, tho’ the factor could not; they therefore might have called on the two tenants to compt and reckon concerning their intromissions with their own rents, and this might have saved any loss incurred, by suffering those tenants to continue in possession after their debts were ex- tinguished by those intromissions. If they did not do so, Sibi imputent; but it is hard to blame the factor where he is in no degree blame-worthy, and to attempt to load him with what is the consequence of the neglect of the reversers themselves: Perhaps indeed, the reversers did not then ex- pect, that the estate would have sold at such a price as to have paid the creditors, without exhausting what rents might be supposed to be in the factor’s hands; and con- sequently, they did not expect, perhaps, to have any inte- rest in the matter now in dispute: That, however, is the same thing in the end; still the neglect was theirs, in not bringing this point to a decision quam primum, and, there­ fore, instead of blaming the factor, they may blame their own agents or themselves. They alledge indeed, that as they did not see this process insisted in, they had reason to sup- pose, that the tenants had settled with the factor, and a- greed to pay him their rents; but this is absurd beyond measure. This process was taken out of the factor’s hands, therefore, he could not compromise or discharge it; it be­ came a question in the ranking itself, and as such, it cer­ tainly fell to be particularly enquired after by the reversers themselves, in the course of the ranking; it was there only, that any thing effectual could be done concerning it, and there there only the creditors or the revers ers could do any thing in it; and in fact, it was this process that furnished them with the objection of payment and extinction to these two heritable debts. T he revers ers have been pleased to argue, that because Mr. Blair was himself a creditor, therefore he had it in his power to push on this action which was raised against the tenants, and bring it to a conclusion, even after it was re- mitted to the ranking; and as he did not do so, he must be liable for his neglect. But with respect to any interest he had as a creditor, that had no necessary connection with his factory: Supposing it had been true that he had it in his power, in the character of a creditor, to push for­ ward the action he had raised against the tenants; yet still it will not affect his conduct as a factor, that he did not take every step in the character of a creditor, which he might have done: But in reality his interest, as a creditor, was not such as to have made him take any particular con­ cern in that process: It was a process which fell to be car- rial on for behoof of the whole creditors, not of any one, of consequence, the common agent 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, the interest of Mr. Blair, as "a creditor, was ex­ tremely inconsiderable; he was not primarily ranked as an original creditor upon the estate of Crieve he was only ranked as a creditor of a creditor, and upon the interest of that creditor. The revers ers may as well insist, that he should have been at the expence of discussing every quest i- on that occurred in the course of the ranking, (in which tale his factory would have been a most grievous burden to him indeed) as that he should have been obliged to dis- cuss the question with the tenants of Newlandhill and How- dale, after it became a part of the ranking. In those points where he acted in the character of factor, he had his ex­ igences allowed him out of the common fund, but in any case which he took up upon the footing of his being a cre- ditor. ditor, he must have paid the whole expence out of his own pocket. Besides, in reality, there seems to have been no delay with respect to the process that had been raised by the factor against the tenants of Newlandhill and Howdale; tho’ after it had been remitted to the ranking, it was not insi sted in, in the original form of an action for payment of rent yet it was followed out in the form of objections to the interests of those tenants produced in the ranking. Soon after it was remitted to the ranking, the Lord Ordi nary resigned; the very next step, after the remit, was an application for a new Ordinary, and immediately after a new Ordinary was appointed, objections are given in to the interests of those tenants as creditors. There is not the least reason to blame the factor for ne- glecting to make effectual the stipends due out of this farm of Howdale or Glisters: In the circumstances in which the tenant of that farm Hood, it was impossible for him to make effectual one shilling that that tenant owed, because he possessed by virtue of an heritable right; he did all that he could do, by bringing an action against the tenants for their rents before they were really paid: As to the stipend itself, he had no rule for ascertaining it, for it was not proportioned on the several farms. Tho’ the minister, therefore, might have levied it from the tenant, yet the factor could not; there was indeed a decreet of locality for the stipend, but that locality only extended to the subjects belonging to each herito,npaculfms within those subjects; so that the decreet of locality could give no assistance. The reversers have always talked as if these farms had been in use to pay stipend to the minister at a certain rate before the entry of the factor, tho' this fact has been controverted from the beginning, and is con­ troverted still; and the reversers are called on to produce evidence, that ever this was the case; they produce no e- vidence, vidence, and yet they persist in their averment: As no e- vidence appears, however, your Lordships will not presume that ever such payment was made; and therefore it is plain that the factor had no rule for uplifting the stipend out of these farms tho’ he had had it in his power: As for the minister, while he could demand it from the factor, which he might do in virtue of his decreet of locality, he never would betake himself to particular tenants. And tho’ the reversers are pleased to alledge, that the factor was in use to allocate the stipend himself among the tenants, and re­ fer to the receipts in process to prove that; yet these re­ ceipts prove just the reverse, for from them it appears, that the factor was in use to draw from any particular te­ nant for a whole or a half year’s stipend as the minister de­ manded it; and accordingly there are draughts in process upon a single tenant for the whole of a year’s stipend, pay­ able out of the whole estate, with the minister’s receipt on the back: And what the reversers would interpret to be a draught for a whole year’s stipend, payable out of a half of the land, is in reality a draught for a half year’s stipend payable out of the whole of the lands. This point of the stipends, the informants would never 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 bona f ide 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 de­ nied, that in order to ascertain this matter, an express was sent, at the common expence of the creditors, to Mr. Wright writer in Langholm, a man of accuracy, desiring him to make a search among the papers of the whole te­ nants in possession, in order to discover whether any re­ ceipts, granted to them for stipend, could be found: Ac­ cordingly, Wright did spend above eight days in exa­ mining;O mining the papers of the tenantry, and returned for an- swer that he could discover no papers of that sortt. o that in fact, the factor has here paid the whole stipends out of his own pocket, and his representatives are now called on to account for these stipends, upon a footing which it appears was not understood they were to be ac­ counted for, at the time the value of the estate was proved in the sale. It has been a great disadvantage to the informants, that Mr Blair died before the expiry of his factory, and with­ out making up accompts himse lf; in consequence where­ of a great many facts, which might have been explained by him, must remain uncleared up, and the informants must state themselves as liable on account of many omis- sions and neglects, which, perhaps, had he been alive, he might have cleared himself o f: Thus they have been obli— ged to charge themselves with very near 800 l. of arrears, on account of their not being able to show ultimate dili­ gence therefor; whereof between 500 l. or 600 l. were ar- rears outstanding at the commencement of his factory: 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. Great stress has been laid on the factor's not giving in his accompts annually, in terms of the act of sederunt, whereby those who had right to the reversion were kept in ignorance of what way he accompted with the creditors in possession. But the informants humbly apprehend, that this is no solid ground of finding the factor himself liable in these stipends, far less of subjecting the informants to it: For, in the first place, they humbly contend, that the factor did all he could to certiorate to all concerned, the manner in which 7 □ 'I ✓ which he accompted with the creditors in possession; for, before their debts were at all satisfied by their intromis- sions, and of consequence, when the reversers and all con­ cerned 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 preceeding 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 fac­ tor with respect to those tenants. And with respect to the factor not giving in his ac--compts 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, 2d Novem- ber 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 pro­ vide themselves with proper means of checking them; certifying such factors, that if they fail in any part of the premises, 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, in so much as to be held the only consequences a factor incurs, by not giving in his accounts annually: But he ought not on that account to be charged with intramissions which he never had, and be obliged to account on the same footing as if he had received them. The act has no where said so, and most certainly had no such act been made, as the common principles of law did not require a factor to give in his accounts within any limited time, so his not giving them in, when they never were called for, could not have pro­ duced any changes in his manner of accounting: And if k that that was the law before the act was made, it does not ap- pear t hat the act has made any change in it. Besides, it is believed, this act is in a great measure in desuetude, and is punctually observed by very few factors on sequestratred estates; so that whatever might once have been the consequence, it is humbly apprehended, that at this time of day, a factor’s not giving in his accounts an­ nually, cannot be made the ground of any penal conclusi- on against him, unless he should contumacioully neglect so to do, after being required. As to the third point in dispute, viz, t he feu duties of. the estate during the factory, it is to be observed, that the factor on the sequestrated estate, was factor likeways to the Marquis of Anadle, to whom these feu duties were pay­ able; he could not, therefore, give himse l f a discharge, be- ing 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. When this case was formerly before the court, en­ quiry had been made concerning this fact at the Earl of Hopeton, in whose hands, as tutor for the Marquis of An­ nandale these accounts were, and an answer was received from his Lordship’s secretary, bearing, that from the Mar­ quis’s accounts, no feu duties appeared to be resting owing for these lands during Mr. Blair's fctoy; and the re- presentatives of the factor did farther offer to become bound to free and relieve the reversers of Crieve of any claim that could be brought against them for feu duties, during the period of Mr. Blair's factory. The reversers, however, would not rest satisfied with this evidence Wherefore, in order to ascertain this point, the informants on the 11th March last, did take a diligence against the Earl of Hopeton, as tutor for the Marquis of Annandale, in order to recover the Marquis’s accounts; they hav e not, however, had it in their power to put that diligence in execution; for du­ ring ring the whole spring vacation, the Earl of Hopetn was in England: They have, however, procured a full and ample certificate of the fact, that these feu duties are all accounted for to the Marquis, from his Lordship's secretary, produ­ ced in process: If the reversers will acquiesce in this evi­ dence, it is well; but if they will not, there is a necessity that the diligence against the Earl of Hopeton should be re­ newed. In the last paper given in to the Lord Ordinary, the re­ versers of Crieve seem inclinable to stretch their demands against the factor’s representatives to a very great length, and to insi st not only for the stipends of the lands of Newland- hill and Howdale, concerning which only the litigation has all along proceeded, but also for the rents of those lands which have been lost thro’ the bankruptcy of the tenants. For the tenants of these lands, in virtue of their heritable rights, were allowed to continue in possession even after their debts were extinguished and paid by the application of their rents, and as they became bankrupt, nothing could be recovered from them in name of rent. This, say the re­ versers, was owing to the neglect of the factor, and there­ fore his representatives ought to liable. After what has been said, it will be unnecessary to spend many words on this point: The factor did all that was in his power, by raising an action against those tenants for payment of the rent, while it is confessed their debts were not extinguished and paid. From the nature of the defences returned, he was barred from following forth that action, it was remitted to the process of ranking, and there the tenants were brought to a compt and reckoning, by objections being made to their interests, on the discussing of which, it was found that their debts were paid..If therefore, there was any delay here, that must be imputed to the agent in the rank­ ing, for whom the creditors and the reversers, not the factor or his representatives, are answerable. It does not appear appear, however, that there was any culpable delay on any part; with submission, however, it is absurd to attack a man for rents lost by his neglect, when he did all he could to recover those rents, but had it not in his pow- er. In the last paper given in to the Lord Ordinary, the re- versers do likeways endeavour to come back on a claim long ago finally determined by the Lord Ordinary, viz. 30 s. of incidents stated in the factor’s accounts. This, it is apprehended, needs no other answer, than that it was de­ termined in favour of the factor’s representatives, by inter­ locutor of the Lord Ordinary, so long ago as the 15th of November 1765, which interlocutor never was represented against on the part of the reversers. ‘On the contrary, they have all along been defending it, in consequence of its having been represented against by the factor’s representatives; it has therefore become final, and this point of the incidents being a res judicata,cannot now be opened up. In respect whereof, & c. ANDREW CROSBIE.