| Keltie v. Finlay |
1776
|
Bill (Financial Instrument), Mala Fides, Expenses, Fraud, Class |
In January 1770, John Finlay granted a bill to James Beveridge. Shortly afterward he made a partial payment to Thomas Beveridge, who had possession of the bill. A note of this partial payment was marked on the bill, but five years later David Keltie, the bill's endorsee, sued Finlay for its full amount. By this point the bill had been torn and the receipt of partial payment was disfigured. Finlay thus accused Keltie of bad faith ("pessima fide") and fraud, and petitioned the Court to exempt him from paying any additional part of the bill. After Keltie produced the torn-off section of the bill, Lord Barskimming decreed that Finlay would only have to pay the remaining balance, but that he was responsible for expenses. Finlay petitioned the court to overturn this ruling, arguing that Keltie was responsible for the court fees, having unjustly pressed him for more money than was due. Keltie in turn argued that Finlay's inconsistent testimony was to blame for the unnecessary expenses. He claimed that much of the confusion arose from whether the receipt was denominated in pounds Scots or sterling. Keltie argued that he was right to have insisted in favor of pounds Scots: likening the suspender to "the lower sort of people in this country," he claimed that "people of inferior rank in Scotland, to this day, generally count in Scots, and not in Sterling money." |
| Wood and Mason v. Skene |
20 Dec 1776
|
Extortion, Fraud |
In November 1776, James Robertson hired Alexander Morison to arrest James Wood, who owed him about £20. Morison later hired John Skene to retrieve the money, and Skene had Wood incarcerated in the Leith tolbooth. The next day Wood was released after conveying seven shillings to his jailor "for what was called jail-fees"; and to Skene £4 in cash and a conjunct bill with his brother-in-law, Andrew Mason, for £16. Wood also informed Skene that he had earlier paid Robertson about £1 for the expenses of diligence, and Skene answered that he would grant a receipt for this amount once a voucher was produced. Wood and Mason later brought a complaint against Skene before the Court of Session on the basis that he had requisitioned from them more than what was owed, and that he had failed to return the principal bill. Claiming that part of the money paid to Skene had been to cover his own fees, they accused him of transgressing an essential duty of his office as messenger-at-arms. To support this accusation they cited the Court's 1738 decision in Monro v. Ross, which had later been ingrossed in the books of Sederunt and of the Lyon-court, forbidding messengers from extracting their fees from the object of their diligence. Skene responded that none of the money he had extracted from the pursuers had been to cover his own fees, and that he had not returned the principal bill at the time because it was not in his possession. Handwritten marginalia on the Petition and Complaint observes "It does not appear how this case was disposed of, but the Answer to the Petition seems satisfactory." The Court's decision regarding the ten shillings paid to cover the fees of Alexander Morison are not brought up in these case documents. |
| McMinn v. His Creditors |
1777
|
Cessio Bonorum, Prisoner, Fraud |
Around June of 1777 John McMinn, late chapman in Kirkcudbright, was imprisoned in the Wigtown tolbooth for unpaid debts. He then brought a process of Cessio Bonorum to the Court of Session, and the Court granted him the benefit of the Cessio. In response, McMinn's creditors petitioned the Court to recall this interlocutor. They argued that there were a number of relevant facts that McMinn had withheld from the Court regarding his ability to pay his creditors. Furthermore, the petitioners argued against the supposed liberality with which chapmans were granted the Cessio. For example, while McMinn claimed to have lost his pocket-book in Ireland, the petitioners had recently discovered that while in Ireland McMinn had purchased 15 pounds worth of salt. For this reason, the creditors wrote, they decided to oppose McMinn's process of Cessio Bonorum. "Had the petitioners, upon looking into [McMinn's affairs], been convinced that the pursuer was a poor and unfortunate bankrupt, they would have been the last persons in the world who would have opposed his Cessio : But as this did by no means appear to them to be the case, they thought themselves bound to state those objections which occurred to his obtaining it.” |
| Walpoles v. John Walker |
10 Mar 1778
|
Reduction of a Trust Deed, Fraud, Commission of Bankruptcy In England |
This case concerns a trust disposition granted by William Alexander to John Walker in September 1775, shortly before an English commission of bankruptcy was awarded against the former. The largest English creditors of William Alexander held mortgages on two Grenada estates jointly owned by him and his brother. They brought an action to have the above-mentioned trust-deed reduced. In January of 1778 Lord Monboddo assoilzied (absolved) the defender. The pursuers petitioned the Court to alter this decision. They argued that the trust was voided by a petition for a sequestration brought before Lord Gardenstone by William Alexander in April 1777. In addition, the pursuers argued that the trust-deed failed under the statutes 1621 (relating to conjunct and confident persons) and 1696 (regarding diligence), "or, at least, that they ought, without hesitation, to be reduced, on the head of fraud, at common law." Regarding this charge of fraud, the pursuers claimed that they had an indisputable claim to the proceeds of the Grenada plantations, but that the Alexander brothers, aided by the defender, went through elaborate lengths to conceal these profits from their creditors. They further accused William Alexander of sending his trunk of papers to Edinburgh, so as to prevent the pursuers from discovering this fraud. The Court altered Lord Monboddo's interlocutor, sustaining the reasons of reduction. William Alexander then petitioned the Court to alter this interlocutor, which it refused. Similarly, the defender petitioned the Court to either allow the trust to subsist in the person of another trustee, or to declare as bona fide his prior actions as trustee.
The circumstances surrounding this case are covered extensively in Jacob M. Price, France and the Chesapeake. In particular, see volume 2, pages 691-700. |
| Robertson v. Gray |
1781
|
Fraud, Tack |
In this case, the trustees for the creditors of Richard Cameron asked the court to void a tack granted by Cameron to his brother-in-law Andrew Gray. The trustees alleged that Cameron had granted the tack while insolvent, and that he had agreed to a price that was lower than the land’s market value. Andrew Gray, the tacksman, disputed these points. He further argued that the tack was necessary because Cameron had planned to go to Virginia. Case documents include a proof containing numerous depositions. |
| Mrs Helen Scott v. Archibald and Jean Jerdons, and their Tutors and Curators |
1784
|
Curator Bonis, Factor Loco Tutoris, Fraud |
Helen Scott, the niece of Archibald Jerdon, asked the court to investigate whether a curator bonis or factor loco tutoris (i.e., a legal guardian) should be appointed for Jerdon. As a matter of law, Jerdon opposed Scott’s request, but Scott alleged that the opposition had really been coordinated by a man seeking to take advantage of Jerdon in his old age. After Scott’s petition was granted, Jerdon sought further review, arguing that a man could not be divested of his affairs without a more rigorous proceeding commenced by a “brief of idiotry.” |
