Petition 1767

February 5. 176 7 % Unto the 1 7 6 G E O.W.ALC� � � � The L O R D S of C O U N C I L and S E S S I O N, * T H E P E T I T I O N. O F T H E Representatives of B R Y C E B L A IR of Potterflat, late Factor on the sequestrate Estate of Grieve and Moss- know, O A� � � � � G � � � E G � T H A T a process of ranking and sale of the estates be­longing to Armstrong of Crieve, and Graham of Mossknow, was many years ago brought in this court; and Bryce Blair of Potterflat, was, of this date, appointed by your Lordships factor on them, with power to uplift the arrears due by the tenants, as well as the rents for that current year 1742, and in time coming during the sub- si stence o f his factory. The proprietors o f both estates, or their representatives, were parties to that process; and as Bryce Blair was well known to than to be a person of unexceptionable character, and various questions equally tedious and intricate occurred in A the the ranking, they did not incline that he should, or desire him to, give in his accompts, (which he was always willing to have done), before these questions were determined; but the process was thought sufficiently involved already, and the parties were averse either to perplex it, or to divert their own attention, by introducing into it, without necessity, new matters which could easily be settled at any time. Therefore, it appears to have been understood, that Bryce Blair needed not give in his accompts till he should be de- sired, and it was become convenient for all parties, towards the conclusion o f the cause. But, in the mean time, he happened to die in, January 1762, after his factory had con­ tinued about twenty years; and as the ranking was conclu­ ded as well as the lands fold the same year, the petitioners, his representatives, anxious to clear and settle with the cre­ ditors and heirs, did directly and voluntarily give in the ac­ compts of Bryce Blair their predecessor’s intromissions in September 1762, which it is plain they could not have been compelled to do without a process, as their predecessor, the factor, was himself dead. With these accompts the creditors appear to have been per­ fectly satisfied. But the representatives of Armstrong of Crieve, not contented with the great reversion which it was now seen would accrue to them from the high price fetched by the lands, and was owing not a little to the prudence and care of the factor, have thought proper to object to one or two articles contained in them. For understanding which, it is necessary to premise, That by decreet of modification and locality, obtained at the in- stance of the then minister of Thundergarth, L. 14: 1: 8 Sterling is the total of the stipend payable in cumulo out of the w hole lands and estate of Crieve; and this sum is not by the decreet localled among the three different farms into which the estate is divided; nor was any usage of payment established, but the minister used often to draw any sum, not exceeding 5 ’ the the total L. 14: 1: 8, from any of the tenants; yet, it would nevertheless appear, that the stipend was most commonly paid in the following proportions, viz. by The farm of Caplefoot and Crieve- L. 7 0 10 The farm of Howdale--- 2 16 0 The farm of one half of Newlandhill- 2 2 5 The other half of that farm-- 2 2 5 L. 14 1 8 And Crieve’s reversers or heirs admit, that Bryce Blair is ju st- ly intitled to take credit for the L. 7: o: 10 payable out of Caplefoot, as well as L. 2: 2: 5: due for one of the halfs o f Newlandhill; but they insi st, 1mo, That he cannot be al­ lowed it for the sums of L. 2: 1 6: o payable out of Howdale, and L. 2: 2: 5 due for the other or Johnston’s half of Newlandhill, amounting together, not to L. 4: 18: 10, as is supposed by the reversers, but to L. 4: 18: 5 (for which sum credit is progressively taken in the factor’s accompts during all the years of his fact orship), Because these last stipends, it was said, fell to be paid by the tenants, and therefore the factor ought either not to have paid them, or at least to have recovered them in the way of relief from the tenants: 2do, It was insisted, That the petitioners fell to be charged with 7 shillings yearly additional rent for one half of Newlandhill, over and above the rent already charged in the accompts; be- cause Mr Hay, the factor who succeeded Mr Blair, had re­ ceived such additional rent for that farm from the tenants during the single year of his factorship. These questions, with certain others that occurred between the parties, unnecessary here to be mentioned, were taken to report by Lord Coalston; and your Lordships were pleased to pronounce the following interlocutor: “ On report of Lord Coalston,and having advised the informations given in hinc inde, the Lords find, That Mr Blair’s representatives can ‘‘ have have no credit for the L. 4: 18: 10 of stipend payable an­ nually, for the lands of Howdale and Johnston’s half of Newlandhill; but find the said representatives not liable to the reversers for the rents not recovered from these te­ nants; and in respect it does not appear, that there is any charge for feu-duties due to the Marquis of Annandale during Mr Blair’s factory, find, That his representatives ought to be allowed to take credit therefor, they always finding sufficient caution to the reversers to warrant them against any after demand for the same. And, in regard it appears, from the decreet taken by Mr Hay, the succeed- ing factor to Mr Blair, that the tenants of the one half of the Newlandhill were charged with, and counted to Mr Hay for seven shillings Sterling yearly, more than what these tenants are charged in the accompts now given in by the representatives of Mr Blair, the former factor; therefore find the said seven shillings yearly falls to be stated against Mr Blair’s representatives during his factory and remit to the Lord Ordinary to proceed accordingly.” This interlocutor the petitioners must humbly submit to be reconsidered in the three particulars above mentioned, re­ lating to the stipends alledged to be due for the lands of Howdale and Johnston’s half of Newlandhill, as well as to the additional rent of seven shillings yearly; and with re- spect to the petitioners being obliged to find caution for re­ lieving the reversers of the feu-duties above mentioned. And, in the first place, It is a certain fact, proved by the decreet itself produced, that Bryce Blair was no sooner ap­ pointed factor by your Lordships, than he brought a process against the tenants and possessors, for payment of the arrears and rents respectively due by them; which process was even brought the length of a decreet on the 5th of August 1742, within a few months of the time he was first appointed fac­ tor on the estate; and this is real evidence of the attention and vigilance with which he proceeded in discharging the duties thereby incumbent upon him. Indeed, as no rental was was given in at the time of his appointment, by which he undertook to accompt, it was the only proper method which he could follow on the occasion. All the tenants were made parties to the process, and de­ poned to the extent of the. rents, as well as arrears respec- tively due by them: And it appeared upon the whole, from their depositions and tacks, that they paid a rent for the teinds, as well as the lands, to the factor or heritor. This was indisputable with respect to the farm of Caplefoot, the farm of Grieve, and one half of Newlandhill; and, with respect to the other, or Johnston’s half, Robert Armstrong the possessor deponed, “ That, at Whitsunday 1730, he en­ tered to possession of part of the lands of Newland-hill libelled, as tenant to the now deceased James Johnston, clerk to Baron Page, eldest lawful son and heir Served and retoured to the deceased Thomas Johnston in Castlehill, who had an heritable debt or wadset-right of the Said lands granted by John Armstrong of Grieve, dated the 9th of April 170 1, registrate in the books of session the 24th of 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 John­ ston was the neat annualrent of the said principal sum, and besides to relieve him of all public burdens imposed or to be imposed upon the said lands: That the deponent possessed the said lands in virtue of the sett 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 Johnston, and heir in general cum beneficio in­ ventarii Served and retoured to him: That the instructions of the said debt, and the deponent s wife's right thereto were then at Edinburgh, ’ produced in the ranking and B “ sale sale of the lands and estate of Crieve pursued by Matthew Sharp of Hoddam.” The sheriff gave judgment against the other defenders, and particularly found the possessors of Caplefoot, Crieve, and one half of New land-hill, intitled to allowance of the stipends payable out of their respective possesions; but being of opinion that Robert Armstrong was intitled to retain his rents for the other half in payment o f his heritable debt, as well as to continue in possessio n till it s hould be cleared, he saw that the factor could not possibly have any demands upon him; because, with respect to the stipends, he and his farm were precisely on the same footing with the others al­ ready mentioned, which he had found intitled to an allow ance on account of them; and therefore he could not find him liable for them, at the same time that he must, to render his judg­ ment impartial and confident, have with the same breath found him intitled to allowance or relief from the heritor or facto r; s o he excepted him out of the decerniture. The reversers however insi st, “ That the possessor, being ta­ ken bound to pay the public burdens imposed or to be im- posed on these said lands, was therefore obliged to pay the stipend chargeable upon them; and that the factor or heritor cannot be allowed to take credit for them, as they were ultimately due by the tenant, and the heritor, on paying them, was intitled to recur on the tenant for his relief.” It is answered, 1 mo, That teinds or stipends are not com­ prehended under the expression of public burdens imposed on lands. Teinds, by the law of Scotland, constitute a se- parate estate, s eparatum tenementum, totally distinct from the lands, and being private rights of property belonging to those who have right to them, can in no proper sense be said to be public burdens, more than any other part of the pro­ perty of the leiges: Therefore stipends, which are in most cases only parts of the teinds, cannot be considered as pu­ blic blic burdens any more than their w ho le which is the teinds themselves, or than the free teinds payable to the proprietor or titular; and so it is believed your Lordships found in 1736, in a question that occurred between the York Building Company and Garden o f Troup. 2do, That appears to have been the sense put on the ex- pression by all parties concerned on the present occasion; for one William Scott, and the others, who possessed the farms of Caplefoot and Crieve and a half of Newlandhill, appear from their own oaths to have been specially obliged, over and above their rent, to pay public burdens without any allow­ ance; yet it is admitted by the reversers, and was found by the sheriff, that they were intitled to allowance and deduc­ tion o f the stipends respectively paid by them; which shows, that stipends were not in this barony or neighbourhood comprehended under public burdens, but understood to be totally distinct from them. This must have the more weight, when your Lordships consider, 3 tio, That they were so understood in this very farm of Newland-hill, about which the present question has arisen; for it was divided into two halves, and Little, G raeme, and those who possessed the one half, tho’ they, too, were liable to public burdens over and above the rent, were yet allowed credit for the stipends paid by them; which being the case, it will not be easy to satisfy your Lordships, that public burdens could possibly be understood in a different sense in the other half of the same farm, or that the pos- sessors should be intitled to allowance for stipends paid by them in the one, but not in the other case, without showing any reason for the dist in ction. Indeed, 4to, On considering the leases under which the different farms were possessed, your Lordships, it is hoped, will see good ground in law as well as ju stice for finding that the heritor, not the tenant, was ultimately liable in the present cafe for these stipends: for it appears from the oaths of of the tenants and their tacks, that in all the farms a joint rent was paid by the tenant for the teinds as well as stock or lands; and therefore, however the tenant, qua intromitter with the fruits, was liable to the minister, yet the heritor must be understood alone to have drawn the full teind, be- cause he received for it a rent, which must be presumed ad­ equate to its full value: So the tenant cannot be understood to have pocketed or levied a farthing of these teinds, as he did not draw a single sheaf for which he did not pay; and the heritor is the only person who can in ju stice be ultimate­ ly liable, a tacksman of tithes being never understood to be ultimately liable for stipends, unless the burden is specially imposed on him by his tack. 5t0, This must have the more weight in the present case, that by the original tack (above mentioned in Armstrong’s oath) of this half of Newland-hill, granted 9th of April 170 1, by Armstrong of Crieve to Thomas Johnston, Arm- strong the heritor was obliged to give Johnston yearly a dis- charge for the teind, as well as the rent of the lands; the heritor therefore must be alone understood to have drawn all the teind, and the discharge Johnston the tenant was to grant for the annualrents of his possession, falling to be con- sidered as his rent, mull be understood to comprehend both stock and teind: So the heritor fell ultimately to be charged with the stipends, and the factor could not be intitled to any relief from the tenant on account of them. It was indeed insisted for the reversers, That the meaning of Armstrong the proprietor, in giving the wadset or heritable right on Newland-hill, appeared to have been, that the te­ nant should bear every burden imposed on the lands, and that the rent should successively go for the annualrent of the money, so as the creditor or tenant should in all cases draw neither more nor less than the neat annualrents of his prin­ cipal sum. But, *But, with great submission, it is thought that on con­ sidering the terms of the tack this will by no means appear to be the case; for, besides that Armstrong the heritor, by receiving a rent for the teind, must thence be held to have actually drawn the full teind, and remained liable for the stipend on that account, it further appears, that L. 3 yearly for the casualties, was paid to the heritor over and above the interest o f the principal sum of 3750 merks, or dis charge granted therefor; which shows the transaction was more complex, and it was not understood that the tenant was merely to retain the rents for the annualrent o f his money; but the tack was a common tack, precisely like all the o- thers, with this only difference, that the rent, instead of be­ ing expressed in one simple sum, was partly described by ma­ king Some reference to a debt due by the master to the tenant. It is hoped therefore that your Lordships will be Satisfied the heritor or facto r was ultimately liable for these stipends. That must have been the judgment of the Sheriff, as no de- cerniture was given by him against the possessors, which could only be on that account; because the other tenantsJ acknowledged on oath they were equally liable to public burdens, and did not depone they were intitled to an allow- ance on account of stipends; yet the sheriff found them intitled to it. So his decreet, it is submitted, was suffi- cient authority to the factor to account in terms there­ of; and as nothing appeared therefrom to be due by the pos- sessor of Newland-hill, or was decerned to be paid by him, but he was, in the circumstances just mentioned, excepted from the decerniture, the factor was certainly in optima fide to pay the stipends in terms of that decreet, which, it is thought on that account, must afford a good defence against the present claim, as it would have done against bygones, in case it had at a distance of time been brought under chal­ lenge, and it had at last been found, on a review, that the-. G- tenants- tenants or possessors were ultimately chargeable with these stipends. The other farm of Howdale was possessed by Christopher Armstrong, and it appears from the extracted decreet pro­ duced (p. 4.) that he was one of the defenders summoned in the process 1742 before the sheriff of Dumfries-shire; he did not however appear; but he was an heritable creditor as well as Robert Armstrong, against whom the sheriff did not think it competent to pronounce any decreet: the factor therefore seems to have thought it unnecessary to involve him- self by insisting for decreet against him; and. it is submitted that he acted a prudent part in so doing, as such decreet could have served no earthly purpose but that of occasion ing useless expence; because Christopher Armstrong, being equally intitled with Robert Armstrong to retain his rents in payment of his debt, would have directly suspended on that medium. Indeed Christopher was in most respects on the same foot­ ing with Robert, and his heritable security, being on re­ cord, was equally known: therefore the factor would rather have been to blame for litigiousness and extravagance in throwing away the money of the creditors by taking de­ creets, which would have proved altogether useless, and might have occasioned them much expence, than for declin­ ing to take such decreet in these circumstances. The reversers have indeed endeavoured to infer, that Chri­ stopher Armstrong, the tenant, was ultimately liable for the stipends, because they say, by a tack granted i n 1 699 by John Armstrong of Crieve to William Armstrong Christo- pher’s father, William Armstrong the tenant, is thereby obliged to pay, over and above a rent of 318 merks yearly, the teind forth of the lands, as well as the hail public burdens imposed or to be imposed on them during the tack. But the tack is not produced: the petitioners believe in­ deed it was produced in the process of ranking; it may however however be erroneously recited, and the word teind may per­ haps be inserted from a mistaken extension of the meaning of the expression public burdens. Christopher Armstrong, who was examined as a witness in the fate for proving the rent of the lands, depones (p. 40.), “ That he possesses the lands of Howdales, alias G laisters; for which he pays 318 merks of money-rent yearly for his possesio n: That the same rent was paid by his father several years ago for the said lands; and that, besides the said rent, there is payable to the minister of the parish fifty-six shillings Sterling of stipend, since Mr An­ drew Clark the minister obtained a decreet o f modifica­ tion and locality; but the deponent is not positive whether he ought to have allowance of any part ofhe s aid stipend fromhe master or not, in regard the tack betwixt the deceased John Armstrong and the deponent’s father has been for some time at Edinburgh. Depones, That he is obliged to pay sup- ply conform to the valuation o f the said lands, which is 100 merks; and that he is bound to pay no more on ac­ count of his said possessio n than what is above. And fur­ ther adds, That the deponent’s father was creditor to the said John Armstrong in an heritable bond and insestment 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.” From hence and from the tack the reversers contend, that the tenant was obliged, over and above the 318 merks, to pay the teind as well as public burdens. But, 1mo, It is clear from Armstrong’s oath, that he was not positive whether or not he was intitled to any allowance on account of the st i- pend; and as it is certain that all the tenants, who were equally bound to pay the public burdens, were actually in- titled to such allowance, and the facto r appears uniformly to have accounted with them on that supposition, and it does not appear that either Christopher Armstrong or any of the the preceeding tenants in Howdale were obliged to pay those stipends during the sequestration, but they were uniformly paid by the heritor or factor; the natural and ju st preemp­ tion or inference is, that they were not due by the tenant, but ultimately by the matter: And, 2do, This shows a mis- take, on which the reversers argument proceeds from the terms of the tack, in supposing that the teind was thereby obliged to be paid by the tenant by and attour the yearly rent o f 318 merks, The tack is not perhaps accurately worded; yet its meaning seems plain enough to intend no more than that 56 shillings of teind was payable out of the lands; but it does not say that they were to be paid over and above the rent; it was probably only the public burdens which were agreed to be paid over and above it: And as the rent was paid for the teind as well as the lands, the former as well as the latter must be held to be included in the 318 merks received by the heritor. This construction may perhaps at first light ap­ pear a little forced, but will, it is hoped, be found ju st: e- very other tack on the estate was granted on terms precisely the same; and it cannot be believed that the uniform custom could be intended to be departed from in the tack of this little farm. But if it should be supposed that the heritor was not ulti­ mately liable for these stipends, and that on paying them he was intitled to be relieved by the tenants, the petitioners submit that the factor did all that was incumbent upon him to recover them both out of Howdale and Newland-hill; for in 1750, he brought an action of mails and duties in this court against these two tenants, the creditors who possessed the lands, concluding against them severally for payment of certain large rents libelled to be respectively due by them for their possessions from the 1710 downwards to the commence­ ment of the process, and these sums or rents thus libelled a- gainst them greatly exceeded the total amount of the st i ­ pends, pends, that make the subject of the present question, added to the other rents payable for their possessions. Here therefore was a proper process brought by the factor, in which all parties might have got ju stice done themselves; and the defences pleaded by the tenants were, 1mo, That they denied the terms and extent of the rents libelled; 2do. They said they possessed the lands upon heritable rights and tacks granted by the common debtor long before the pursuer’s factory, which were produced in the ranking of the creditors of Crieve; and therefore they insisted that any claim for rent could only be dis cussed in the ranking where their interests were produced, to which therefore that process behoved to be re­ mitted... c The argument appeared satisfactory to the Lord Murkle Ordinary, and his Lordship “ remitted the said process to the process of ranking of' the creditors of Crieve and Mossknow, depending before Lord Dun ob contingentiam By this process the factor did all which he could or was incumbent upon him, to obtain ju stice from these tenants, but he was stopped by the creditors and remit; and as the question concerning the rents, for which his summons was raised, resolved into a matter of accompt concerning the sum or balance due on the heritable debts standing in their persons, that was plainly a question in which the reversers as well as all the other creditors were chiefly and directly in- terested: therefore it fell necessarily, by the forms of court, to be both managed and discussed by their common agent, who, i f he neglected to bring it to a conclusion in time, those, for whom he acted, must bear the loss, and it cannot be thrown on the factor, who was not allowed to insist in it, any more than that of the rents themselves not recovered, from which your Lordships have found by your last interlocutor it suf- ficient to relieve him. Besides, the fact is, that the creditors did actu a lly take the management of that process, went into a compt and reckoning with these heritable creditors upon their debts, and on an accompting their debts either have, or at least will be found, D at at approving the scheme of division, satisfied and paid by their intromissions with the rents, and these, too, intromis- sions which they had posterior to the commencement of that process in 1750, for they were not then near extinguished. So that i f the creditors had then pushed the process, and got the debts declared extinguished debito tempore, they could have sustained no loss, as they would have been directly intitled to get the tenants removed; but they neglected to do it for many years; after which it is submitted to be equally in­ competent for the reversers and creditors, who were both parties to the process, to recur upon the factor or his repre- sentatives, and insist against them for articles which they might have either recovered, or at least got an accompt or credit for on settling with the tenants in time. The reversers pretend they were kept in ignorance by Mr Blair, as he gave no rental or accompt during his factorship. But this has been already obviated, and is indeed highly af­ fected; for the gentleman, who was common agent in the ranking, was also agent at Dumfries in the factor’s process 1742, and the creditors were thereby fully apprized of the state of the rental: He appears also to have conducted the process 1750, for the expence of it is stated and allowed in his accompts; and another gentleman, who is now agent for the reversers, was also agent for Johnston and Armstrong, the heritable creditors: So both revers ers and creditors were fully informed of every thing relating to these farms or te­ nants, the complaint made against the factor is without foundation. Indeed, the case of his representatives would be extremely hard, if they should be charged with these stipends, (which, stated progressively for nineteen or twenty years retro, do now amount to a very large sum), as it is certain fact, which cannot be denied, and is indeed proved by a certifi­ cate produced under the hands of Jean Clark, the ministe r ’s daughter and executor, the person alive who had best op­ portunity of knowing the facts, that the stipends were regu­ larly paid by Bryce Blair himself, during his factorship; ' which which indeed could not be otherwise, as the estate was bank- rupt, and the minister had most ready access to his payment by applying to him. On the other hand, it is equally cer­ tain that Mr Blair did never recover or receive a six-pence of these stipends from the tenants; one Mr Wright, a man accurate and intelligent in business, was employed by parties to go through all the receipts, and after the most narrow inspection he did not find a single one granted for those stipends, one only excepted granted by the minister, which was dated in 1744, but which was for stipend crop 1742, the very year Bryce Blair was appointed factor, before which time the minister had no other way of getting p ayment than by applying to the tenants, as the heri­ tor was bankrupt. Accordingly, two or three receipts have been produced, granted by the minister to the tenants or Newland-hill for a few terms previous to the 1742, from which the reversers would pretend to infer, that the tenants were understood by usage to be ultimately liable in payment of these stipends; but it is submitted, that the inference is by no means ju st, and that the presumption rather lies the o- ther way, as so few payments appear to have been made by the tenants; and those few that were made, were only made while the estate was bankrupt, and the minister could not get his payment any other way. Indeed, previous to the s equestration, the tenants were mostly in use to pay the st i ­ pends over all the estate, and many receipts anterior to 1742 are produced for the other farms as well as that of Newland- hill, which receipts are all in the same terms; but it does not thence follow that the tenants were not intitled and allowed to take credit for these payments at clearing for their rents: the contrary appears from the sheriff ’s decreet 1742, in which allowance or credit is regularly given for those very stipends to which these receipts refer; and therefore, if the petitioners s hall be obliged to repeat these stipends, it is plain they will thereby be obliged to pay a sum, which neither they nor their predecessor recovered, and which he honestly honestly believed himself intitled to disburse on the autho- rity of the sheriff. It only remains to take notice of the two other articles; f ir fi ' That relating to the seven shillings of additional rent for New- land-hill, found chargeable by the interlocutor, which addition is said by the reversers to be estab lished by the depositions of David Graeme and James Paterson. But as these depo- nents do not specify the time at which the addition was made, by a minute or answer in process signed by the agents for both parties, it was settled that this additional rent could only be charged from the 6th of July 1750, the day on which the witnesses emitted their depositions. And, last ly,' That by the same minute or answer in process, signed by the agent for the reversers, he agreed to sustain the decla­ ration of Mr Williamson secretary to Lord Hopetoun, as sufficient to give the factor credit for twenty merks of feu- duty, payable for the lands of Moss-know, if he would ex-. press in the declaration, that the feu-duty was twenty merks a-year, which was accordingly done; and likewise a dis­ charge for three years feu-duty since Mr Blair’s death has been shown to the agent for the reversers; besides, these feu- duties can never affect them; and therefore, the petitioners humbly submit to your Lordships, how far they are bound to find caution for relieving the reversers of Creive of these feu-duties, with which they have not the least concern. May it therefore pleas e your Lordsh ips to alter your aforesaid interlocutor, and to find, 1mo, That the pe­ titioners are intitled to credit for the L. 4: 1 8: 5 of stipends above mentioned; that the s even shillings of additional rent is only chargeable on the factor from the 6th of July 1750; and that they are not obliged to find caution to relieve the revers ers of Creive of the feu-duties above mentioned, in respect of the declaration produced and accepted of; and in all events, 2do, to find, That instead of L. 4: 1 8: 1 0, they are chargeable with L. 4: 1 8: 5 only. According to ju stice, &c. GEO. W A L L A C E.