Petition 1771

July 19. 1771. U n t o the Right Honourable, the Lords of Council and Sesion T H E P E T I T I O N O F Iso1 9. 7 I s o r e r e l relict of the deceased i r c 9 t f Ihd t urgeon in Glasgow, and of a. 9 u r e g 9 d l n o G c r t l i r fw,l T o d h t H h r e l and f r d A r d 9 H f I h d t l the children of t h e s aid deceased. i r c 9 t f I h d l Humbly Shew eth, T HAT Mary Muir, siste r o f the deceased James Muir sur-geon in Glasgow, was married, in November 1742, to James Taylor merchant in Glasgow; and by contract of marriage, of date 23d and 26th November that year, the said James Muir became bound to pay for her, in name of tocher, the sum of 2000 merks Scots, upon the first term of Whitsunday or Martinmas, after the death of Christian Hutchison their mother. Christian Hutchison died in March 1759; so that the above-men- tioned sum became payable at the term of Whitsunday 1759. Mr James Muir died in the end of the year 1764, five years after the sum in the contract of marriage had become payable. Immediately thereafter, in 1765, James Taylor brought an action before the magistrates of Glasgow, against the petitioners, as the re- presentatives of the said James Muir, for payment of the above-men- tioned sum of 2000 merks, together with 400 merks of penalty, and annualrent of the principal sum from Whitsunday 1759. The defences pleaded against this action were, That the debt pur- sued for had been greatly overpaid, by various sums of money ad- vanced at different times by the deceased M r Muir, for the pursuer and and his wife; and as the petitioners were libelled upon the pasive titles, it was farther pleaded, That the relict, as being decerned and confirmed executrix to her husband, could only be liable s ecundum v ires inventarii; and that the children, the other petitioners, being pupils, could not have incurred the passive tide of vitious intro- misio n. The petitioners, the widow, and infant-children of Mr Muir, were but ill able to produce pointed evidence of the various sums which had been advanced for the pursuer, or to defend themselves in a pro- per manner against this action. From an early period of life Mr Muir had been engaged in very extensive practice as a surgeon, in which employment he had been uncommonly successful, and by that means was enabled to give proofs of his attention and generosity to h is father's family. Amongst the rest Taylor and his wife, who were in very necessitous circumstances, were chiefly supported by h is bounty; but such advances, your Lordships will easily believe, would not often be very accurately vouched, and even when there were any vouchers, it was almost impossible to discover them, from the confusion in which Mr Muir had left his papers at the time of his death. As the facts however were perfectly notorious, it was not expected that the pursuers would deny them; and the petitioners did accor- dingly condescend upon various sums advanced, which they put to the pursuers to confess, ordeny; and among others in particular, I f or not they knew that Mr Muir paid to David Shaw L. 5: 11: 11/3, and to Robert Shaw L. 8 14: 2, both on account of the pursuers? And farther, Whether the pursuers had not possessed a house belong- ing to the deceased Mr Muir, for twelve years preceding Whitsunday 1764, at the agreed rent of L. 8 Sterling? To most of the particulars the pursuers gave an express denial; but with regard to the house, acknowledged that they had possessed it for eight years preceding Whitsunday 1764, at the agreed rent of L. 7 Sterling and no more: But for extinguishing the said rent pro tanto, produced two receipts subscribed by Mr Muir, the one dated 23d November 1753, for L. 10: 3: 6 in part of a year and a half’s rent of the said house, and another dated 11th November 17 5 4, fo r L. 4, 4 s. Sterling. And for farther extinguishing the said rent, pleaded recompensation upon a bill, dated 30th September 176 1, drawn by Alexander Parlane upon and accepted by the deceased James Muir, for the sum of L. 35 Sterling, payable at Martinmas 17 6 1; and which bill it was alledged had been paid by the pursuer s wife to the s aid Alexander Parlane, 9th November 176 1. The The petitioners, on the other hand, offered to prove that the rent of the house was L. 8 yearly; insisted, that from the receipts produ- ced by the pursuers, it appeared, that the house had been possessed by them for twelve and not eight years only, preceding Whitsunday 1764; and as to the plea of recompensation observed, that from the bill produced, it appeared that the money had been paid only by the hands of Mrs Taylor, and had been given to her by her brother Mr Muir for that purpose. The magistrates pronounced the following interlocutor: “ Finds the libel relevant, and the debt libelled instructed against the de- ceased James Muir by the contract of marriage produced, the pursuer proving the time of the death of Christian Hutchison mentioned in the libel, as therein narrated, and admits the time of her death to pro- bation prout de jure, and the passive titles in habile terms: Repels the defence of compensation, in respect the several articles men- tioned in the answers are not liquidate; but sustains the defence of payment, and admits the same to probation by the pursuer's writ or oath.” After some farther procedure in the inferior court, unnecessary to be mentioned, James Taylor the pursuer died, and the process stopped for some time; but thereafter, the widow having got herself decern- ed as executrix to him, the process was revived, and has been since carried on by her in that character. The petitioners, apprehending that the magistrates had improper- ly repelled their plea of compensation, brought the cause into this court by advocation, which came in course of the rolls before the Lord Barjarg Ordinary, when his Lordship appointed a special con- descendence of the particular grounds of compensation, founded up- on before the inferior court, to be given in by the petitioners. A condescendence was accordingly given in; and the Lord Ordinary having considered it, together with answers, did, of this date, pro- nounce the following interlocutor: " Having considered this conde- scendence with answers thereto for the pursuers, remits the cause simpliciter to the magistrates.,, Upon advising two successive representations for the petitioners, the Lord Ordinary adhered, by interlocutors, o f date the 20th De- cember 1768, and 25th January 1769, and found the defenders liable to the pursuer in the expence of extracting the remit, as the same shall be ascertained by the collector of the clerks dues, but in no farther expences. The petitioners reclaimed to your Lordships; and at advising the petition with answers, it having occurred to the Court, that some particulars particulars required farther consideration before the Lord Ordinary, you remitted the cause to his Lordship. The chief points which thereafter came to be discussed before the Lord Ordinary, were, 1mo, How far the short prescription cut off the defender’s plea of compensation, upon the article of the house- rents? And, 2do, How far the pursuer’s plea of recompensation was supported by Parlane s bill founded on? As these however are not the points in this cause which are now to be brought under your Lordships consideration, it is unnecessary to trouble you with men- tioning every step of procedure with regard to them. It is sufficient to observe, that the Lord Ordinary, before answer, allowed Alex- ander Parlane to be examined with respect to the bill for L. 35 Sterling, and thereafter pronounced the following interlocutor: “ Having con- sidered the mutual memorials, with the oath of Alexander Parlane, finds, That the said oath does not support the alledgeance made as to the bill of L.35 paid to him by the pursuer, and that the said bill remains a good ground of recompensation against the house- rent. And having also considered the petition to the whole Lords and answers thereto, and whole former procedure of the cause, finds, That the house-rents proponed as compensation, being rest- ing owing, are now only probable by the oath or writ of the debt- or, and are to be allowed as a ground of compensation to the ex- tent only of what shall thereby be found to be resting owing, but with deduction of the sums instructed by the partial receipts to have been paid, and of the above sum of L. 35 Sterling, contained in the bill paid to Mr Parlane: Finds, That the two bills of L. 5: 11: 11/3 and of L. 8: 14: 2 paid to David and Robert Shaws, for the pursuer, must be presumed to have been paid and accompt- ed for previous to or at the date of the contract of marriage pur- sued on, and cannot be sustained as grounds of compensation; and therefore adheres to the interlocutors of the 2 1st of July and 20th December 1768, remitting the cause to the magistrates, and finding the defenders liable in the expence of extracting the re- mit, but in no farther expence.” And, upon advisin g a repre- sentation, his Lordship adhered. The petitioners reclaimed to your Lordships; and, upon advising the petition and answers, you pronounced the following interlocutor: Advocate the cause, and find, That the petitioners are intitled to plead compensation upon the house-rents within mentioned, for twelve years, at the rate of L.7, 10 s. Sterling yearly, with deduc- of the within-mentioned partial payments, to the extent of L. 14: 7: 6 Sterling: And repel the recompensation founded on “ by by the pursuer, with regard to the bill for L. 35 Sterling, but adhere to the Lord Ordinary’s interlocutor reclaimed againist quoad ultra, and remit to his Lordship to proceed accordingly.” Thereafter, at a calling of the cause before the Lord Ordinary it having been set forth by the pursuer, that the house-rents for twelve years, at the rate of L. 7 Sterling yearly, amounted to 84 Sterling and the partial payments, to the extent of L. 1 4: 7: 6 Sterling, being deducted therefrom, there would remain the sum of L. 69: 12: 6, for which the defenders would fall to have credit, craved his Lord- ship to find the defenders liable for the sums libelled, after deduction of the aforesaid L.69: 1 2: 6; and likewise to find them liable in the expence of extracting the decreet. The Lord Ordinary pronoun- ced the following interlocutor: “ Finds the defenders liable to the pursuer for the sums libelled, after deduction of the aforesaid sum of L. 69: 1 2: 6 Sterling; finds the said defenders also liable for the expence of extracting the decreet, as the same shall be ascer- tained by the collector of the clerks dues, his receipt; and de- cerns.” As this interlocutor was pronounced in absence of the defenders, they represented and set forth, That, from an accompt therewith ex- hibited, it appeared, that at Whitsunday 1 7 59, when the tocher pursued for became due, the house-rents due by the pursuer amount- ed to L.37: 12: 32/3 Sterling, which consequently cut o ff so much of the pursuer’s principal sum; and as the rent subsequent to that term exceeded the interest of the remainder o f the tocher, and therefore cut off so much of the principal sum every half year, so, at Whit- sunday 1764, when the pursuer’s possession of the house terminated there remained only L. 55: 2: 27 of the tocher due. As therefore no more could after that period bear interest, and as these rents stopping the course of interest on the tocher, made a very great dif- ference in the balance, so it was most unfair in the pursuer to give credit only for the whole house-rents in a slump sum; and it was therefore prayed, that the deduction of the house-rents might be al- lowed progressively to extinguish the sums pursued for. 2do, it was represented that there were other articles o f compensa- tion which had formerly been found competent to be proved by the pursuer’s oath, and the representer therefore prayed to be allowed to exhibit a condescendence thereof. 3tio, It was insisted, That five was intitled to have the pursuer’s oath on the verity of her debt, before any decreet could be allowed to go out. 4to, As arrestments had been used by the creditors o f the pursuer in the representer’s hands, so it was insisted the pursuer should purge these. 5to, That as the representer Isobel Buchanan was an executor confirmed, she was intitled to have an extracted de- creet creet delivered to her by the pursuer, as her warrant for paying any balance that should be found due. 6to, It was prayed, that the Lord Ordinary would alter his interlocutor finding the defenders liable in the expence of extract; and, lastly, That he would find the pursuer liable to the defenders in the expences of process, or re- serve consideration of it till the conclusion of the process. Upon advising this representation with answers, the Lord Ordina- ry, of this date, pronounced the following interlocutor: “ Finds That the rents due at and preceding Whitsunday 1759, as well as those fallen due thereafter, must impute progresively in payment of the sum pursued for; but that no interest can be charged thereon preceding Whitsunday 1759, when the principal sum pursued for only began to bear interest: Finds, That the pursuer must depone on the verity of the debt; and grants commision to a person to be named by the defender’s doer before extract, and failing such nomination, to any of the magistrates of Glasgow for taking her oath, any lawful day betwixt and the first day of Au- gust next, to be reported to the Lord Ordinary: Finds, That the arrestments must be purged before payment; and finds the de- fenders liable in the half of the expence of extracting decreet, as the same shall be certified by the collector of the clerks dues; but finds no further expences due to either party; and with these al- terations refuses the desire of the representation, and adheres to the former interlocutor.” Against this interlocutor the defenders represented; insi sting upon the points formerly urged, in so far as not already granted b y the Lord Ordinary; and particularly praying, that they should be found intitled to prove all other articles o f compensation by the pursuer’s oath or writ, and to allow them accordingly a proof of ten different articles contained in a condescendence given in with the representa- tion. The Lord Ordinary pronounced the following interlocutor: “ Finds it relevant, of consent, for the defenders to prove by the pursuer’s oath the articles of compensation, particularly condescended on by them in the foresaid representation and condescendence relative thereto; and grants commission, &c. to take the purs u er's oath thereupon, and also upon the verity of the debt libelled,” &c. The condescendence consi sted of the following articles: 1mo, To an accompt of medicines, &c. furnished to the pursuer and her family, L. 7, 3 s. Sterling. 2do, To teaching the pursuer the art of midwifery, L. 2, 2 s. 3tio, To cash borrowed in 1759 by the pursuer from the represent- er Isobel Buchanan, L. 5. 4t0, To college-fees paid by the deceased Mr Muir for the pursuer’s son, L. 6,6 s. 5 to 5to, To a suit of mournings, bought for the pursuer’s son, from George Buchanan, as per accompt, L. 1: 9: 2. 6to, To money advanced by the deceased Mr Muir to the pursuer when she set up shop in the Bridgegate, G lasgow, 20 Sterling. 7mo, To cash paid by the deceased Mr Muir for carriage of salt &c. to the pursuer, at different times, amounting in all to L. 40 Ster- i ng. 8vo, T o cash borrowed from the representer Mrs Muir, by the pur- suer, L. 1 Sterling. 9no, To bill paid for the pursuer, by the deceased Mr Muir to Ro- bert Shaw, L. 104, 10 s. Scots. 10mo, To bill paid for the pursuer, by the deceased Mr Muir to David Shaw, 100 merks Scots. A commisio n having been extracted, the pursuer deponed upon the several articles of the condescendence, but not upon the verity of the debt libelled. The Lord Ordinary, upon advising the report of the act and com- mission, pronounced the following interlocutor: “ Finds the 3d, 4th, 6th, 7th, 9th, and 10th articles of the said condescendence are not proved by the said oath; and therefore repels the said articles. But finds, that the 1st, 2d, 5th, and 8th, are by the said oath proved to have been due, and that the qualities in the oath rela- tive to them being extrinsic, are not relevant to extinguish them; and therefore that they fall to be sustained as grounds of compen- sation of the sums before decerned fo r, and that the defenders must have a deduction thereof from these sums; and in so far alters the former interlocutor, and decerns. But refuses the desire of the re- presentation as to the other points.” Against this interlocutor both parties represented. T he defenders prayed, 1mo, That they might be assoilzied in re- spect the pursuer had not deponed upon the Verity of her debt; 2do That their claim for the 3d, 4th, 7th, 9th, and 10th articles of their condescendence might be sustained; at any rate the 7th, 9th, and 10th, and as to the 3d, to admit the defender Mr Muir’s oath in supplement thereto; and, 3tio, Insi sting again upon those points in their former representation which the Lord Ordinary had refused. The pursuer prayed a review of the interlocutor, in so far as it had found the 1st, 2d, 5th, and 8th articles of the condescendence proved. Upon advisin g the representation for the defenders, with answers, the Lord Ordinary pronounced the following interlocutor: “ Finds the defenders intitled to the oath o f the said Mary Muir, the pur- suer, on the verity of the debt pursued fo r; but in regard the de- fender’s commissioner neglected to take her oath thereon, by virtue “ of of the last act and commission for that purpose, grants com- mission, & c. to be reported to the Lord Ordinary: Finds, that the pursuer must confirm before extract, and before payment purge the arrestments laid on in the defender’s hands; and so far alters the former interlocutor, but refuses the desire of the representation as to other points.” In representing against the interlocutor, 1 1 th December 1770, the pursuer had insisted, in regard to the first article of the condescend- ence, viz. The accompt of medicines, that the defender should pro- duce a copy of the accompt, copied from the defunct’s books, in order to shew whether the articles were properly charged. In point of fact, it was answered by the defenders, That the only books kept by Mr Muir were day-books, in which the prices of the medicines fur- nished were not stated; but that in Glasgow the prices of medicines were fixed by regulations of the faculty of physic, and that in the ac- compt exhibited the articles were stated below the standard prices. With respect to the s econd article of the condescendence, viz. L. 2, 2 s. for teaching the pursuer midwifery, it was insisted, That the defenders should prove this to have been the ordinary fee, and that she agreed with Mr Muir to teach her upon these terms. It was answered, That Mr Muir’s usual fee was L. 3, 3 s. but, as the pursuer was his sister, L. 2, 2 s. was only charged. As to the fifth article, being the price of a suit of mournings to the pursuer’s son, it was insi sted, that George Buchanan, the person from whom they were purchased, should be examined, as it was said he would prove these mournings to have been a present to the pursuer; and that at any rate the defender s hould produce Buchanan's dis- charged accompt for these mournings. The Lord Ordinary pronounced the following interlocutor: Having considered the representation for Mary Muir, with the foregoing answers for Isobel Buchanan and children, and having again considered the oath of Mary Muir, in regard it is acknowledged by the defenders that the articles of the ac- compt of medicines are not liquidated to certain sums in Mr Muir’s books; finds it is incumbent on the defenders to exhibit an accompt, and to prove that the sums charged in said accompt, i f denied, are the current and ordinary prices for such articles: Finds, That unless the article for teaching the pursuer midwifery is charged in Mr Muir’s books, or an express agreement for the sum is proved, it is to be prefumed to have been done ex pieta: And in regard it is not alledged, that the said ar- ticle is charged in said books, and no evidence of any agreement is off ered, therefore repels the same as an article of compensation;and and decerns: Finds, That the defenders must produce the accompt for mournings alledged to be discharged by George Buchanan to prove the extent thereof, before they be allowed compensation for the same.” t Against both these interlocutors the defenders offered a representa- tion; which was of this date refused without answers. They offered another representation, still insisting upon the points formerly urged; and at the same time producing therewith an attestation by John Moore and Charles Wilson surgeons in Glasgow, certifying, that having inspect ed the accompt of medicines, they think the articles moderately charged; and likewise producing George Buchanan’s dis- charged accompt for the mournings, and they likewise produced some vouchers to instruct farther the 7th article of the condescendence viz. “ To cash paid at different times by the deceased Mr Muir for carriage of salt to the pursuer, L. 40 Sterling.” Upon advisin g this representation with answers, the Lord Ordinary, of this date, pronounced the following interlocutor: “ H avin" con- sidered the foregoing representation with answers thereto, and the documents now produced, sustains the accompt of medecines to the extent o f L.4: 3: 3 and the accompt paid to George Buchanan of L. 1: 9: 2 as articles of compensation, and decerns accordingly; but in regard the article of L. 40 claimed for carriage of salt is not supported by the documents produced, therefore repels the same, and refuses the desire of the representation as to it and the other points therein contained.” These interlocutors of the Lord Ordinary, in so far as they have repelled certain of their claims, the petitioners must humbly beg leave to submit to your Lordships review. They must be pardoned for observing, in the first place, That the claim of the pursuer comes before your Lordships under very suspi- cious circumstances. The deceased Mr Muir, as well as his brothers and si sters, were left by their father very poorly provided; but Mr Muir the eldest having been extremely successful in his business as a surgeon, he was thereby enabled to give great assi stance to his fa- ther’s family. He with-held from them no aid which it was in his power to be- stow; and amongst the rest, the pursuer, his si ster, received many proofs of his attention and generosity. In 1742 she was married to James Taylor, then in a rank no higher than that of an English ped- lar. As before that time she had been unsuccessful in the business of thread-making, in which her brother had set her up and supported her at a considerable expence; and as Taylor seemed to be in a pret- ty ty thriving way, the marriage was not opposed by her friends. Ve- ry s oon after, however, it appeared that Taylor was in very bad cir- cumstances. In a few months he became entirely bankrupt; his whole effects in Glasgow were poinded by his creditors; and he himself having been apprehended, was incarcerated in the prison of Carlisle. This happened in 1743, and Taylor remained in goal till spring 1748, when having been some how released, he skulked about from place to place, without any fixed abode. While their affairs were in this unhappy situation, Mr Muir took the pursuer and her family into his own house; and after having maintained her there for some time, he was at the expence of setting her up in business as a grocer. At length Mr Taylor, somehow or other, prevailed with his creditors to allow him to return to Glas- gow. He began to traffic in his old way; but his trade proved a- gain unsuccessful; he became a second time bankrupt, and was for- ced again to abscond. The grocer-business proved as unthriving with his wife; and at the end of four years she was obliged to give it up. I11 this distress, her brother again afforded her relief. He set her up in the business of tavern-keeping; and for that purpose put her in possession of a house which was his own property, and furnished it for her at his own expence. F or Taylor himself there was obtain- ed an office in the excise, which, besides the good offices of Mr Muir, proved the only fund of subsi stance for his family; the tavern-keep- ing having been unsuccessfully carried on by his wife, and at last given up. T hese particulars, which show the needy circumstances in which the pursuer and her deceased husband always lived, afford the strong- est suspicion against her present claim. The tocher, for payment of which she now pursues, became payable at Whitsunday 17 59, and her brother f d Muir did not die till five years thereafter, in the end of the year 1764. When their necesitous situation, during all this period, therefore, is considered, it seems hardly possible to believe that the pursuer and her husband would have neglected to demand payment of this tocher, if they had not been conscious that it was greatly overpaid. It has not been pretended, that, during all that time they ever once demanded it, although it is certain Mr Muir was in great practice as a surgeon, was in good circumstances; and indeed would never have delayed the payment of so small a sum, i f he had not considered it as already paid. While your Lordships consider the pursuer’s omitting to make this demand during Mr Muir s life, you will likewise attend to the time when when they first made it, and commenced the present action. It was immediately after the death of their benefactor that the pursuers brought this process against his widow and infant-children, when they knew how unable the defenders would be to oppose the de- mand, or to discover such documents as would be sufficient to in- stru ct the advances made by Mr Muir. They durst not make this demand against Mr Muir himself, because they well knew that he could easily prove the injustice of their claim, and expose their in- gratitude. But as soon as he was dead, and had left his papers in confusion, the pursuers, knowing they had then less formidable com- batants to encounter with, immediately commenced the present ac- tion. These particulars, of which, in the course of this cause, the peti- tioners have again and again offered a proof, will show your Lord- ships from whence these claims of compensation have arisen upon which they now insist: And will farther explain the difficul- ties under which they have laboured, in discovering proper vouchers to instru ct them. It was more particularly necessary to mention them, in order to confute an allegation upon which the pur- suer has been so hardy as to venture, of her having frequently ad- vanced money for her brother. This allegation she made with a view, that, in answer to the advances mentioned to have been made to her by her brother, she might pretend that they were out of mo- ney of her own, which she had put into his hands. Her assertions, however, will not have any weight with your Lordships in opposi- tion to the particulars above stated, of which a proof has been re- peatedly offered; and these circumstances will, it is hoped, have the effect of inducing your Lordships to sustain the defender’s claims of compensation, although, perhaps, not so accurately vouched as they might have been, if this action had been brought while Mr Muir himself was alive. It has been mentioned, that the petitioners have already finally prevailed in estab lishing against the pursuer their most important ground of compensation, the house-rents. The conduct of the pur- suer in the litigation upon that article was such as cannot gain much favour to her plea, or much credit to her most positive assertions. She was charged with rent for possesio n of the house for twelve, years preceding Whitsunday 1764: But although this was a fact which consisted with her own knowledge, and which it is difficult to imagine she should have forgot, yet she positively denied her having possessed the house for more than eight years preceding the term just now mentioned. At the same time, in order to extinguish the rents due due for these eight years from 1756 to 1764, she produced two re- ceipts for partial payments of rent for possession of the house in the years 1752, 1753, and 1754, which demonstrated that she had pof- sessed the house for twelve years, and not for eight only, as she had judicially averred. Notwithstanding this she still persevered in her denial of the fact; and it was not till after a great deal of trouble- some litigation that the defenders did at length prevail upon this article.- The other articles of compensation upon which the petitioners have founded, and have endeavoured to prove by the pursuer’s oath have been particularly set forth in the condescendence above recited: And the oath of the pursuer is printed and annexed to this petition for your Lordships perusal. The Lord Ordinary has finally sustained the defenders claims for the 5th and 8th articles of their condescendence, and likewise for the 1 ft article thereof, to a certain extent. All the other articles he has repelled, and these interlocutors, in fo far as they have not susta in- ed the 2d, 3d, 7th, 9th, and 10th articles of the condescendence, and the 1st article to the full extent claimed, the petitioners must humbly submit to your Lordships review. To begin with the most considerable article, being the 8th: “ To cash paid by the deceased Mr Muir, for carriage of salt to the pur- suer at different times, amounting in all to L. 40 Sterling.” The pursuer has deponed, “ That she does not doubt but that the de- funct paid that sum for salt; but depones, That from time to time, as she uplifted the price of salt, she put the same into her brother’s hands to a greater extent than L. 40 Sterling; and that she is in the belief, that what he so paid was forth of the money that was so put in his hands; and the deponent owes the defunct James Muir no sum on that account.” While the pursuer and her husband were in the distressed circum- stances which have been already described, Mr Muir was at great expence, as well as trouble, in setting her up in some business which might prove a means of subsi stence for her and her family. When in the grocer-business, she dealt pretty considerably in the article of salt; and Mr Muir asi sted her in procuring money for paying the price of the salt which she purchased, and the carriage of it to Glas- gow In particular, in 1756, Mr Muir borrowed from John Fairie the sum of L.23 8 s. Sterling, and the sum of L. 17 Sterling, which he gave to the pursuer, in order to pay for the carriage of salt; and he granted to Mr Fairie two obligations to be forthcoming for these sums, the one dated 2d, and the other dated 14th Ju ly 17 56. These sums sums having been afterwards paid to Fairie by Mr Muir, the obliga- tions were indorsed to him; and having been found amongst his pa- pers since his death, have been produced in process. Mr Muir’s having expended this sum for the pursuer, is therefore sufficiently instru cted, and indeed is not denied by the pursuer in her oath. That she never repaid him these advances, is evident from the above-mentioned notes, indorsed by Fairie, being found in Mr Muir’s possession: For if he had been repaid, or if the sums he paid to Fairie had been out of money of the pursuer’s in his hands, these indorsed notes would most certainly have been given up to the pursuer, and have been found in her possession. She has indeed deponed, “ That she is in the belief, that what her brother so paid was forth of the money she put in his hands.” But considering the circumstances ju st now mentioned, this seems hardly credible. And besides, it is humbly apprehended, that this quality which she has added to her oath is extrinsic. It plainly re- solves into the plea of compensation; for it is saying, That although Mr Muir did pay for her the sum above mentioned, yet he was then debtor to her to the same or a greater amount. It is incumbent, therefore, upon the pursuer to instruct that Mr Muir was then her debtor, which, if she cannot do, this article must necessarily be su- stained. The next articles to be mentioned appear to be in the same situa- tion with the former. They are the 9th and 10th articles of the con- descendence: The first of which is, “ To bill paid for the pursuer by the deceased Mr Muir to Robert Shaw, L. 104, 10 s. Scots; " and the other, “ To bill paid for the purduer by the deceaded Mr Muir to David Shaw, 100 merks Scots." As to these the pursuer “ depones and grants, that her brother paid the sums in these two bills to Robert and David Shaws forth of money which she the deponent put in his hands for that pur- pose ” These two bills have been produced in process, and expressly bear on the back, that the contents had been paid by Mr Muir. I f they had been paid by him out of money put into his hands by the pur- suer for that purpose, it cannot be doubted that they would have been delivered up to the pursuer; but as, on the contrary, they were found in Mr Muir’s possession, it must be presumed that his sister still remains his debtor for these sums. The quality which the pur- suer has added to her oath, which is an allegation, that at the time o f paying these bills her brother was her debtor, is humbly appre- hended hended to be extrinsic, and which, therefore, she must support by o- ther evidence. The first article of the condescendence being “ To an account o f medicines furnished to the pursuer and her family, L. 7, 3 s. Ster- ling," the Lord Ordinary has, by his interlocutor 5th July 1771, restricted to the sum of L. 4.: 3: 3. And the 2d article of the con- descendence being, “ To teaching the pursuer the art of midwifery, L.2, 2 s." his Lordship has altogether repelled. As to these the pursuer deponed, That she owes no part thereof, as the deceased James Muir her brother was owing her more than those sums, separate from the sums she now claims.” The quality here being clearly extrinsic, the Lord Ordinary at first sustained these articles as grounds of compensation. It afterwards appearing that the articles of the accompt of medicines were not li- quidated to certain sums in Mr Muir’s books, the Lord Ordinary found, that it was incumbent on the defenders to exhibit an ac- compt, and to prove, that the sums charged, i f denied, are the cur- rent and ordinary prices for such articles. The defenders did ac- cordingly exhibit their accompt, with an attestation by two surgeons of eminence in Glasgow, certifying that the articles were all mode- rately charged. The accompt of medicines amounted to L. 4: 3: 3, and there was added an article of L. 3, for Mr Muir’s delivering the pursuer of three children, at three different times, and for attend- ance upon her in child-bed. This last article, as well as the accompt of medicines, the above-mentioned surgeons, who examined and in- spected the accompt, attest to be moderately charged: And there- fore, upon the whole, it is submitted, if this accompt ought not to be sustained as a ground of compensation to its full extent of L. 7: 3: 3.. As to the other article o f L. 2,2 s. for teaching the pursuer midwifery, although the Lord Ordinary at first sustained it, yet he afterwards found, that unless the article was charged in Mr Muir’s books, or an express agreement for it should be proved, it must be presumed to have been done ex pietate. A s to this, the petitioners have carefully inspected Mr Muir’s books, but cannot discover that he has ever marked there, either the sums he received, 0r the sums due to him for teaching midwives; and therefore, no presumption can arise against this article from its not occurring in his books, as, upon the samefooting, it might be pre- sumed, that he taught midwifery to every one gratis. As to the ex- tent of the fee charged, the defenders are ready to prove, i f it is de- nied, that at the time the pursuer was taught, Mr Muir’s fee from o- ther ther persons was L. 3, 3 Sterling; but, as they have been willing to make their claims as moderate as possible, and as they were willing to suppose, Mr Muir might teach his sister at an easier rate than he did other persons, so they have limited their claim on this head to two guineas. As to his having taught her ex pietate, the petitioners with submission, cannot discover how that can be prefumed in the present case, when it is considered, that at the time when Mr Muir taught the pursuer he was her debtor. Quod debitor non pres umitur donare, is an established maxim; and, without any farther argument, it is sub- mitted to your Lordships, i f this article of compensation likewise, ought not to be sustained. The last article with which the petitioners shall trouble your Lord- ships, is the third in the condescendence. " To cash borrowed in 1759 by the pursuer from the petitioner Isobel Buchanan L. 5 Sterling.” As to this, the pursuer depones, She does not remember that she borrowed that sum from the defender; but i f she did, she account- ed to the deceased James Muir her brother therefor, and owes no- thing on that score.” As to the evasive uncertain manner in which the pursuer swears of her having borrowed this sum, it is submitted, I f the petitioner Isobel Buchanan’s oath in supplement, ought not to be admitted in support of this article? The pursuer’s endeavouring to cut off this ar- ticle, by saying, that she accounted for it to her brother seems to be, in effect, an admission of the charge; and ought to be considered as at least such a s emiplena probati s should make the petitioners oath in supplement admissible. As to the pursuer’s saying, that she accounted for this sum to her brother, the quality seems plainly to be extrinsic, and which the pursuer must therefore instruct by other evidence. These articles of compensation which have been above dated, being the 1st, 2d, 3d, 7th, 9th, and 10th of the condescendence, the peti- tioners humbly hope your Lordships will be pleased to sustain; and, with respect to the 4th and 6th, which the Lord Ordinary has likewise repelled, the petitioners, to avoid giving farther trouble, have acqui- esced in the interlocutors against them.- V * * < * * • But besides the articles of compensation, there are some other claims of the petitioners, which have been repelled by the Lord Or- dinary, but which it is humbly hoped, your Lordships will be plea- sed to allow. 1mo, The Lord Ordinary has found the petitioners liable in the hall of the expence of extracting the decreet. Your Lordships will observe however, that the petitioner Isobel Buchanan is confirmed executor executor to her husband, and has produced in process her confirma- tion. She cannot therefore safely pay to the pursuer any balance, which, at the final issue o f this process may be found due, without being authorized to do so, by having an extracted decreet delivered to her as her warrant; and this becomes the more especially neces- sary, as claims for payment of debts, either due or pretended to be due by her deceased husband, are daily making their appearance and made the foundation of actions against her. Unless therefore, she shall have a proper warrant for payment delivered to her, she can- not be properly exonered, in accounting for the executry subjects, which possibly may be very soon exhausted in payments to creditors: And the petitioner is advised, that there is no instance known in the practice of the Court, where it has been found, that a creditor, in such circumstances, was not obliged to furnish to the executor an extract of the decreet for payment of the debt. The Lord Ordinary has al- ready found, that the pursuer was obliged to confirm before extract; that is, to establish in her a title to claim this debt. And it is ap- prehended, that in like manner she must put the defender in safety to pay the debt, which can only be done by delivering to her an ex- tract of the decreet, the proper warrant to authorize her paying. It is therefore humbly submitted, if the defender should be found liable in the expence of any part of the extract, and, if, on the con- trary it be not incumbent upon the pursuer, to furnish to the defend- er an extract of the decreet, that she may be put in safety to pay any balance that shall be found due. 2do, The petitioners insi sted, That the pursuer should be found liable to them in the expences of this process; but the Lord Ordinary has found no expences due. It is humbly apprehended, however, that the following circumstan- ces will satisfy your Lordships, that this demand of the petitioners is ju st and well founded. For, 1mo, It will be observed, that the chief litigation in this que- stion, has been occasioned by the pursuer’s obstinately denying those article of compensation, which have been since proved and sustained against her. In particular, the great article in dispute wa s the house-rents for twelve years preceding Whitsunday 1764. The time she possessed the house was a fact which plainly consi sted with her own know- ledge; and as, wh en first put to her in 1765 to confess or deny it the fact was recent, the possession having commenced only in 1 7 52, and ended in 1764, her denying it, and judicially averring that she had had possessed the house for only eight years before Whitsunday 1764, was most unjustifiable. Besides, the very receipts which she produ- ced to instruct partial payments of rent, proved the falsehood of her allegations, and demonstrated that she had possessed the house for twelve years preceding Whitsunday 1764; and accordingly your Lordships found the petitioners intitled to a deduction upon that account, which, upon computation, restricted the pursuers claim to the amount of upwards of L. 100 Sterling. In the next place, your Lordships will not fail to remark, the eva- sive and uncandid oath which the pursuer has given, when examined as to the other articles of compensation. Some of them have been alrea- dy sustained; others of them it is hoped your Lordships will find proved likewise; and as to almost all of them, it will be observed, that the pursuer has endeavoured to cut them off', not by denying that these advances were made to her, but by alledging that Mr Muir paid them out of money of hers in his hands. How far this last can be believed, when the s i tuation and circumstances of the pursuer, as above explained, shall be considered, is submit- ted to your Lordships. In what manner the pursuer could find money to put in her brother’s hands, when it is well known, that she and her husband were living in constant want, and were shifting from one business to another, unable to find the means of bare subsistence, it seems difficult to conceive. I f she really deposited in her brother’s hands such sums of money, and such a number of bills as she has pretended, why, has she not his receipt’s to produce to vouch the fact, and to prove the extent of the sums with which she entrusted him? Can your Lordships believe that both she and her husband would commit so much to her bro- ther’s custody, without having even a scrap of paper to enable them afterwards to call him to account? And, in fine, i f the fact had truly been as the pursuer alledges, how came all the bills and notes which her brother paid for her to stand indorsed to him, and be al- lowed to remain in his possesio n? In the last place, Your Lordships will recollect the suspicious aspect which the pursuer’s whole claim bears, from the critical time at which she chose to commence this action. Although the tocher now claimed became due five years before the death of Mr M uir; and although the pursuer and her husband were in very needy cir- cumstances, yet, while Mr Muir lived they did not think proper to make any demand upon him. The injustice of their claim would have been then too easi ly detected; but the moment Mr Muir was laid in the grave, and had left a widow and six infant-children, inca- pable capable of making any proper defence, then this suit was commenced, and advantage taken of their helpless situation. All these are circumstances which, it is apprehended, must show that the pursuer has been litigating pessima fide, and that the defenders are ju st ly intitled to the expences o f this process. Even i f they should pre- vail no farther than they have already done in their grounds of compen- sation, the petitioners, with submission, apprehend they are sufficiently ju stified in their preseent demand. But i f in the event of this process it shall appear, that the claim of the pursuer has been totally e x t in- guished, and that no balance shall be found due, then it is hoped no doubt will remain, that the fulles t expences should be given. I f therefore your Lordships should at present entertain any difficulty with respect to this particular, it is humbly hoped that you will at least: supersede giving judgment upon it till all the other points in the cause shall be finally settled. There remains only one other particular, with regard to which the petitioner must beg to trouble your Lordships. The petitioners are unquestionably intitled to insi st for the pursuer’s oath, upon the verity 0f her debt; and accordingly the Lord Ordinary, by two interlocu- tors, 20th July and 14th November 1770, found so, and granted commission for taking the pursuer’s oath thereupon, as well as upon the several articles of compensation above mentioned. The pursuer, and her commissioner and doer, however, were pleased to neglect ta- king her oath on the verity of her debt; and therefore the question now is, Whether a new commission shall be furnished at the expence of the pursuer, or of the defenders. The Lord Ordinary has found, that the defenders must be at that expence: and indeed i f they had been guilty of any negligence; or if, through any fault of theirs, the pursuer's oath had not been taken, there would have been good rea- son for subjecting them. But it arose solely from the the negligence of the pursuer herself, and her doer who attended her. She, and her doer too, knew well that her oath was necessary to intitle her to any balance that might be found due, for the Lord Ordinary had found so; and a commission for her deponing had been twice grant- ed. It was therefore the business of her and her doers to take care that her oath should be taken; and if it has been omitted it is ap- prehended she must suffer the consequences of her own negligence. May it therefore pleas e your Lords hips, t o alter the above-men- t ioned interlocutors of the Lord Ordinary; and, 1 mo, To sutain the 1st, 2d, 3d, 7th, 9th, and 1 0 th articles o f compensationabove stfrh;wigd3,lmdefnr defender Mrs Muir' s oath in s upplement thereto: 2do, To find, that as the defender Is obel Buchanan is executor confirmed to her husband, the pursuer must deliver to her an extract of the decreet, as her warrant for paying any balance that s hall be be found due, and that the petitioners cannot be liable in any part of the expence of extract: 3tio, To find the purs uer liable to the defenders in the expences of proces s; or at least, to s upers ede determining this point till all the other points in the caus e shall be finally settled: And, last ly, To find, that the purs uer must depone upon the verity of the debt, i f any of it s hall, in the end, be found due, and must be at the sole expence of a commission for that purpose. According to ju stice, &c. R O B E R T C U L L E N. At Glasgow, the 26th day of November, 1770 years. Compeared f r d M f Ihd pursuer, who being solemnly sworn, &c. depones, as to the first article in the act and commisio n, being the accompt of medicines, That she owes no part thereof, as the deceased James Muir her brother was owing her much more than the sum in that accompt, separate from the sums she now claims, as mentioned in the act and commisio n. As to the second, viz. Teaching the deponent the art of midwifery, depones and grants, That the defunct taught her the art of midwifery, but, for the rea- son deponed on before, she owes him nothing on that account. As to the third, being L. 5 alledged borrowed from the defender Isobel Buchanan, depones, That she does not remember that she borrowed that sum from the defender; but if she did, she accompted to the de- ceased James Muir, her brother, therefor, and owes nothing, on that score. As to the fourth, being £ 6, 6 s. Sterling for college-fees, depones negative to her knowledge, that her brother paid any sum on that account. As to the fifth, being for a suit of mournings, depones, That upon her mother’s death, the defunct, James Muir, being debtor to the deponent for money she had advanced to him, she being then in want of money to purchase a suit of mournings for her son, demanded money from her brother, upon which he desired her to go to George Buchanan, where he was getting mournings for his his own family, and he would furnish her mourn mournings; and her bro- ther told her that he would pay them; and accordingly her son got the mournings: But depones, That upon her marriage with Mr Tay- lor, she gave the deceased James Muir, her brother, sundry bills, tothe extent of the above £ 70 Sterling, whch were owing her fr thred; all of which the said James Muir uplifted, but never accompted to the deponent therefor. Depones negative to the sixth article of £ 20 mentioned in the act and commission. As to the seventh arti- cle, being for £ 40 Sterling, depones, That she does not doubt but that the defunct paid that sum for salt; but depones, That from time to time, as she uplifted the price of salt, she put the same into her brother’s hands, to a greater extent than £40 Sterling; and that sheisinthe belif, tha what h so paid was forth of the money thatwas oput in hishands;and the deponet owes thedefunc JamesMuir no sum on hat count. Depones, and grants, That she bor- rowed from the defender, Isobel Buchanan, the £ 1 Sterling m en- tioned in the eight article o f t h e a c t a n d c o m m i s s i o n; b u t w h e t h e rshe borrowed that sum from the defender before or after the deathofthe sid Jams Muirshe canot now rcolct, se believes that the said Isobel Buchanan is fully satisfied for that 20 s. by a por- t e r- h o g s h e a d w h i c h t h e d e p o n e n t s e n t h e r i n t h e s a i d J a m e s M u i r ' s l i f e t i m e, a n d w h i c h n e v e r w a s retund oh;alsbypicfwx-k,v40.SgAmTRD itlG.