Answers 1771

A N S W E R S F O R Mary Muir, Relicft of J ames Taylor, Mer- chant in Glasgow, Pursuer; A UGUST 1. 1 7 7 1. T O T H E P E T I T I O N o f Isobel Buchanan, and her Chil- dren, Defenders. AL E X A N D E R M U IR, father to the respondent, died in 17 18, worth at least 20,000 merks: By his testa- ment, the respondent was provided in a portion of 2000 merks; but the liferent of his whole subject was left to Christian Hutchison, his wife. In 1742, the respondent was married to Ja mes Taylor now de- ceast; and by her contract of marriage, the deceast James Muir, the respondent’s brother, and husband to the petitioner Is obel Buchanan, bound himself, his heirs and successors, to pay the sum of 2000 merks, at the first term of Whitsunday or Martinmas that should happen after the death of Christian Hutchis on. Christian Hutchis on did not die till the year 1759, so that this sum did not become due till Whits unday that year. James Muir died in the year 1764; and sometime after his death, James Taylor having applied to the petitioners for payment of the above sum, which he had right to in terms of the marriage-con- tract, and having met with a refusal, he was obliged to bring an action against them before the magistrates of Glasgow. The petitioners have insisted on the circumstance of this action’s been so late in being brought, and have alledged, that this forms a presumption am a presumption against the ju stice of the claim: But this will not appear to your Lordships, when the circumstances of the case are attended to. The respondent and her brother Mr. Muir, lived always in good terms together, and with that affection which a brother and siser ought to have for one another. In the earlier parts of his life, Mr. Muir was but in narrow circumstances; and the re- spondent being uncommonly successful in carrying on the business of thread-making, to which she was bred, she was enabled from time to time to make advances to her brother. When he went abroad in order to push his business as a surgeon, she assi sted him in fitting himself out; and when he afterwards returned, and fol- lowed the business of a surgeon in the country, as his profits were inconsiderable, Mr. Muir did likeways at that time feel the effects of his si ster’s attachment: As, however, the advances which were made by the respondent for the behoof of her brother, arose en- tirely from her kindness to him; she did not think of taking re- ceipts from him, or preserving the documents of such advances. When the respondent married Mr. Taylor, he was a merchant of good character, and supposed to be in good circumstances; and, as such, all the respondent’s relations approved of the match. But sometime after the marriage, Mr. Taylor failed in his cir- cumstances, not from any fault of his own, but owing to a part- nership in which he was engaged with his brother, whose debts he was obliged to pay. Mr. Taylors circumstances were however soon put into order: By the interest of a friend, he obtained an office in the excise; and from this, and the industry of his wife, they supported them- selves in a very decent way. And it is not true, as alledged in the petition, that Mr. Muir made advances in money or otherways, in order to set up the respondent in business: The respondent has no reason to complain of want of regard on the part of her brother: Mr. Muir at that time not having come into the good business he afterwards arrived at, was not able to make such ad- vances; and the respondent and her husband could do without them. During Mr. Muirs life, the sum due by the contract of mar- riage was not demanded: The respondent and his wife were in circumstances which enabled them to live without it: They knew it was safe in his hands, and he persuaded them to allow it to re- main; main; but, after his death, it was not thought equally prudent to allow the money to ly in the hands of the petitioners. The action was accordingly commenced at the instance of Mr Taylor, and is now insisted on by the respondent in the charac- ter of executrix to her husband. The respondent, though she was in good circumstances while her husband lived, except during the short time of his failure a- bove mentioned, is now very much reduced. Being advanced in years, and deprived of the asi stance of her husband, who, as has been said, enjoyed an office in the excise, she has been very ill able to carry on this tedious process. The petitioners, sensible of this, have thrown in her way all the obstructions in their pow- e r: They have given in, in this cause, paper upon paper, reared claim upon claim; and when one point has been given against them, they have, with the same keenness, resorted to a new and different one. When the act ion was first brought before the magistrates of Glasgow, the defence of compensation was pleaded; but the ar- ticles dated by them not being liquidated, were repelled. The petitioners brought the cause into this court, by advoca- tion; and the Lord Barjarg, Ordinary, having advised very full condescendence and answers, remitted the cause, simpliciter, to the magistrates. Although the cause was exhausted in the condescendence and answers, the petitioners gave in a very long representation; which the Lord Ordinary having advised, with answers, replies, and a very short duply upon the part of the respondent, he was pleased to adhere, and to find the defenders liable in the expence of the remit. And thereafter, the petitioner presented a new representa- tion, which was refused. Upon this, the defenders applied to your Lordships by petition; which having been advised, with answers, you were pleased to re- mit the cause back to the Lord Ordinary: And the cause being afterwards called, his Lordship was pleased to appoint mutual memorials; upon advising whereof, with the oath of Alexander Par lane, his Lordship was pleased to pronounce the interlocutor of date 28th July 1769, recited in page 4th of the petition. The petitioners presented a new representation against this in- terlocutor; which his Lordship having refused, they applied a se- cond time, by petition, to your Lordships, when you were pleased to, to adhere to the Lord Ordinary’s interlocutors, with the altera- tions dated in the interlocutor, recited at the foot of page 4th of the petition. The petitioners, not satisfied with the application of this inter- locutor by the Lord Ordinary, represented of new; and in this representation they dated, That they had a number of new grounds of compensation, for which they were to claim deduction, and craved leave to give in an additional condescendence. This con- duct had very much the appearance of a determined design, to distress the respondent, and to weary her out, by stating new points, and, as it were, involving her in a new cause, after she thought she had brought the former to a conclusion; and there- fore, the Lord Ordinary paid no regard to this demand. The petitioners, still unwearied, presented a fresh. representa- tion, and with this gave in a condescendence of their new articles of compensation, and which they offered to refer to the respon- dent’s oath. Five sessions had elapsed, from the time that this process had come before the court, till now that this new conde- scendence was given in: And your Lordships, from this single circumstance, will be able to judge of the oppressive manner in which the petitioners have conducted their defence. And what will likewise appear very extraordinary, is, that the articles con- descended on in this new production (including what your Lord- ships had already allowed the petitioners), if found ju st, would not only exhaust the pus uer’s claim altogether, but do consider- ably exceed the sums due to her by the marriage-contract. But, notwithstanding these circumstances, as the respondent was unable to support the expence of struggling every point with the petitioners, and of following them through their various wind- ings; and as she was unwilling that any part of the truth should be concealed, she did appear by her procurator at the bar, and consented that her oath should be taken, on the articles of com- pensation claimed in this new condescendence, which is in erted in pages 6th and 7th of the petition. The respondent’s oath is annexed to the petition; and she hopes, upon an attentive perusal, it will afford the strongest evidence of her candour: Not only did she make no opposition to her oath being taken; but, your Lordships will observe, so careful does she appear to have been that no part of the truth should be conceal- ed, that, to all of the interrogatories put to her, she lays open the the whole fact as it stood, when, it is apprehended, she might with great integrity, have deponed negative to many of the inter- rogatories, and denied the subsi stence of the claim. It is this o- penness and candour of the respondent which has given occasion to the minute criticisms of the petitioners, and has afforded them a fresh opportunity of protracting this process. The Lord Ordinary, upon advising this oath, pronounced the interlocutor, of date 1 1 th December 1770, recited in the 7th page of the petition. Against this interlocutor, the respondent presented a short re- presentation of three pages, and the only one she has given in, in the whole course of this process. The petitioners likewise pre- sented a voluminous representation; and both these representati- ons being appointed to be answered, his Lordship was pleased to pronounce the two several interlocutors, of date 8th February 1771, which are likewise narrated in the petition, Against both these interlocutors, the petitioners again save in a representation. But your Lordships will be informed, that this representation was not presented till after the time fixed by your Lordships ad of sederunt for representing, was elapsed. The in- terlocutors, as has been said, against which it represented, were pronounced 8th February, and the representation was not present- ed till the morning of the 23d. The time of presenting this re- presentation, is not marked on the back thereof: But, for evi- dence of the fact, the respondent refers to the Lord Ordinary’s clerk. This representation his Lordship was pleased to refuse, without answers. Thereafter, the petitioners again represented, and there- with made a new production; and the Lord Ordinary having or- dained it to be answered, in so far as related to the new docu- ments produced in the answers, the fact as to the last represen- tation, being too late in being given in, was stated: And his Lordship, upon advising the representation and answers, pro- nounced his interlocutor, 5th July 17 7 1, recited in the petition, page 9th. The petitioners have reclaimed against these interlocutors; in which they pray, 1st, That your Lordships would sustain certain articles of compensation contained in the condescendence repel- led by the Lord Ordinary. 2 dly, To have it found, that they cannot be liable in any part of the expence of the extract. 3dly. That That the pursuer should be found liable in the expences of pro- cess; or, at least, that the determination of this point should be superceded till all the other points of the cause should be finally settled. And, lastly, That the pursuer must depone on the verity of her debt, and be at the sole expence of a commission for that purpose. In obedience to your Lordships appointment, these answers are humbly offered on the part of the pursuer. But before entering into an examination of the points stated in the petition, the respondent must submit, that, in point of form, the petition ought to be refused.- Your Lordships have been informed, that the representation, which was refused, with- out answers, by the Lord Ordinary, 26th February last, was not presented till the days were elapsed, within which, by the rules of court, a representation must be presented: The respondent does therefore submit to your Lordships, that the interlocutors pro- nounced prior to this date, must be considered as having become final. The Lord Ordinary was indeed pleased to appoint the re- presentation presented after this, to be answered, in so far as re- lated to certain new documents which he had ordered to be pro- duced, and, upon advising answers, to make a small alteration in his former interlocutors, on account of this new production; but though this alteration has been acquiesced in by the respon- dent, this can be no reason for the petitioner’s obtaining a fur- ther alteration of interlocutors, which they had allowed to be- come final. There are certain forms and rules of court, which the wisdom of your Lordships predecessors have found necessary to lay down, in order to prevent that endless litigation, which it would be in the power of parties otherwise to maintain. Of these rules, none appear more important than the one now under consideration, and it would be attended with the most fatal consequences, were it now, without any reason, to be broke through. It will make no alteration, that the representation in question was presented soon after the time prescribed by the act of sede- runt was elapsed. This act would be of no advantage, unless strictly adhered to. Before it was made, there seems to have been no more reason for fixing the time for representing, to ten than to eleven, or to eleven than to nine sederunt days: But af- ter the rule is made, the smallest variation from it ought not to be be allowed. If once it be departed from in one instance, there is no saying to what length such a departure may lead. If the rule be departed from for one hour, it may be departed from for twelve; and if it is not regarded, if a representation is presented upon the 1 1 th sederunt day after an interlocutor is pronounced, it may be departed from, when not presented, till the 1 2th. The respondent is hopeful, therefore, that your Lorships, up- on this ground alone, will refuse this petition. She would not, in an ordinary case, have laid any stress upon the present plea: But when the conduct of the defenders, through the whole of this cause, has been considered, she hopes she may be forgiven for endeavouring, in any shape, to get this process, in which she has been so much distressed, brought to an end. But, left the respondent should be unsuccessful in this plea, she shall now proceed to consider, more particularly, the several points stated in the petition. The petitioners first insist, That the 7th article of their conde- scendence, repelled by the Lord Ordinary, should be allowed them. The charge is, “ To cash paid by the deceast Mr. Muir, for car- riage of salt to the pursuer, at different times, amounting in all to 4 0 l. S t e r l i n g." To this article, the respondent has depo- ned, “ 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 l. Sterling; and that she is in the belief, that what he so paid, was furth of the money that was so put into his hands; and the deponent owes the de- funct, James Muir, no sum on that account.” T his answer is so full and explicit, that, it is hoped, your Lordships will have no difficulty upon this point. The petition- er has indeed alledged, that what the respondent has said in her oath, that the price of the salt was paid forth of the money which she had put into her brother’s hands, is extrinsic, and resolves into a plea of compensation, and must therefore be proved aliunde. But the respondent does, with submision, maintain, that this part of the oath is intrinsic in every legal sense of the word: What she says amounts to direct payment of the sums charged for, and Mr. Muir's having been paid this sum forth of the money put into his hands, must be considered as operating an ips o jure extinction of the debt. This is not like a plea of compensation, where the existence_ existence of the debt is acknowledged, and payment not alledg- ed, but a separate claim reared up, in order to extinguish i t: Such a separate claim does not, ips o jure, extinguish the debt, but a proof of the existence of the separate claim must be brought: And therefore, your Lordships have always found, that a quality of this kind annexed to an oath, is extrinsic, and must be pro- ved aliunde; but where the quality of the oath amounts to pay- ment, and where the debt must be considered as extinguished, independent of any separate claim, this your Lordships have always found to be intrinsi c; and such, it is apprehended, is clearly the nature of the respondent’s oath now under considera- tion. The respondent shall not, therefore, trouble your Lord- ships with authorities upon this head, but shall beg leave to re- fer to the Dictionary, title Qualified Oath, p. 300, where are col- lected a number of cases decided upon the above principle, and where the qualities in oaths have been found intrinsic, though, in the respondent’s apprehension, attended with much more dif- ficulty than the present. With regard to what is said in the petition, that there are two obligations in process by Mr. Muir to John F a iry, promising to be forthcoming to him for the price of the carriage of salt, and that these obligations were afterwards indorsed by Fairy to Mr. Muir, this is perfectly consi stent with the respondent’s oath. It is acknowledged, that Mr. Muir paid the money, and it does not signify whether he paid it to a man of the name of Fairy or not as by the oath it appears, that Mr. Muir has been paid by the respondent, and the debt extinguished. This production, there- fore, does not alter the matter in the least; and as to these obli- gations to Fairy not being got out of Mr. Muir's hands, this can- not move your Lordships. The respondent had no interest to have them cancelled, as they constituted no obligation upon her but were merely obligatory upon Mr. Muir to be forthcoming to Fairy for the price of the salt. The respondent cannot, howe- ver, help here complaining again of the petitioner’s conduct, in being so late of producing these obligations by Mr. Muir to be forthcoming for the price of this salt to Fairy: To conceal them till the respondent had sworn upon this article, and afterwards to found upon them, was surely highly improper. It seems, in- deed, to have arisen from no other view, than to get a new handle for protracting the cause; and it is evident, the petitioner had had no expectation of succeeding in these articles, otherways the production would have been made long ere now. The next article which the pursuers insi st for, is 9th and 10th of their condescendence, viz. for the value of two bills paid by Mr. Muir to Robert and David Show.—Had it not appeared to be the uniform design of the petitioners, to involve and protract this cause, in every case where they possibly could, the petition- ers would not have insisted upon this article; for your Lordships will particularly observe, that the question with regard to these bills, was determined by the Lord Ordinary’s interlocutor of date July 8th 1769, in the following words: “ Finds, That the two bills of 5 l. 11 s. 11/3 d. and of 8 l. 14 s. 2 d. paid to David and Robert Shaws, for the pursuer, must be presumed to have been paid and accounted for, previous to, or at the date of the contract of marriage pursued on, and cannot be sustained as grounds of compensation.” "When this interlocutor came, by petition on the part of the de- fenders, before your Lordships, though you altered the Lord Or- dinary’s interlocutor in some other particulars, yet you expresly ad- hered with regard to these bills to Robert and David Shaw s. This interlocutor was not reclaimed against; and as it has there- fore become final, as certainly as any interlocutor of your Lord- ships can posib ly become so, the respondent apprehends, it is not necessary to repeat the grounds which moved to this deter- mination. In general, it may be observed, it was argued that these bills were presumed paid, both on account of their ancient date, and because they were prior to the contract of marriage upon which the present pursuit is instituted: That the indorsa- tions upon which the petitioners found, was procured, pendenti lite, and that the sum due, upon these bills, even upon the sup- position that they were still unpaid, could not enter into the pre- sent question, they being due by the respondent alone; and compensation upon them could not be pleaded in the present case, where the action is carried on in the right of James Taylor, in virtue of the obligation in the marriage-contract in his fa- vour. It is true, that though the claim of compensation upon these two bills was repelled by your Lordships, and the interlocutors suffered to become final, the respondent, as she was unwilling that any part of the facts condescended on, should not be fully explained, explained, did depone with regard to these two bills, as well as to the other articles of the condescendence: And this affords ano- ther proof of the candour and unsuspicicus conduct of the re- spondent, and of her unwillingness to take advantage of those legal defences which she might have laid hold of. But the oath emitted by the respondent, cannot avail the petitioners in the smallest degree: For your Lordships will observe, she swears ex- presly, that the sum in these bills was paid forth of money which she put into her brother’s hands for that purpose. This there- fore must, in every view of the matter, prevent any claim against the respondent upon this head. The next article taken notice of by the petitioners, is the 1st of their condescendence, being an account of medicines furnish- ed to t he pursuer and her family, amounting to 7 l. 3 s. Ster- ling. As to this, the respondent does not deny that her brother did attend her and her son, when sick. But had Mr. Muir been now alive, she is certain that he would never have asked any pay- ment from her on this head. Indeed, as she has said in her oath, Mr. Muir was owing her much more than the sum in the account, and she doubts not, he would have acknowledged the truth of this; the respondent did therefore insi st, that her bro- ther’s books should be produced, in order to see whether this ar- ticle was therein charged against her or not. And though the pe- titioners have said, that the furnishings were charged in Mr. Muirs books, it being natural that he should therein insert any drugs that were taken out of his shop, that the balance of what was received and given out might be kept Square; yet the peti- tioners have been obliged to confess, that the prices were not marked, and no particular sum charged against the respon- dent. This account, however, as now exhibited, contains a charge of 4 l. 3 s. 3 d. said to have been given to the respondent and her son, and of an additional article of 3 l. for delivering her of three children, at three different times, and attendance in child- bed. The Lord Ordinary has restricted the account to 4 l. 3 l. 3 d. and it is hoped, your Lordships will think, with reason. The respondent was indeed delivered of three children; but her cou- sin Mrs. Janet Naesmith, midwife at Hamilton, attended her at one of them; and as to the other two, it is very true, that Mr. Muir Muir did attend her; but this he did of his own proper motive because he had but lately begun business, and said he was de- sirous that people should know he practised midwifery: And accordingly, it is not alledged, that there is any thing marked in Mr. Muirs books on this head: And as it is not, or cannot be al- ledged or proved, that the respondent desired her brother to at- tend her, or agreed to pay him on that head; so she cannot at any rate, be liable for such extravagant charge. The next article which the petitioners insi st for, is, two gui- neas for teaching the respondent midwifery.—As to this, the pe- titioners do not pretend to say, that this article is stated in Mr. Muir's books; nor do they alledge there was any express agree- ment for payment of the same. The Lord Ordinary has there- fore, on this account, most ju stly found, it is to be presumed, this was done ex pietate; and the respondent can have no doubt, that your Lordships will adhere to this part of the Lord Ordi- nary’s judgment. The next article which the petitioners mention, is the 3d, viz. To cash borrowed in the 1759, by the pursuer, from the peti- tioner Isobel Buchanan, 5 l. Sterling.—Here, surely, the respondent’s oath is sufficiently clear. In the first place, It was incumbent on the petitioners to prove the contraction of the debt, which is clearly not done: In the s econd place, Nothing can be supposed more decisive than the respondent’s answer, that she owes no- thing on that score. The next thing which the petitioners claim, is, that the re- spondent should be found liable in the whole of the extract, and the whole expences of process.—The respondent hopes, she need not use many words upon this head. The conduct of the peti- tioners in this process, has been stated; and she apprehends, it w ill not be much approved of by your Lordships. From first to last, it seems to have been the petitioners design, to involve and lengthen out the cause. Y our Lordships in particular have been informed of the tedious litigation that has happened since the caufe was last before the whole court, when the interlocutor of the 2d February 1770, was pronounced. An additional conde- scendence, mostly of new articles, has since that time been gi- ven in, the respondent examined, and a variety of voluminous representations presented; and, after all, the whole that has been gained by the petitioners, amounts to no more than 6 l. 12s. 5 1/2 d. All the other articles claimed by them, have been repelled; and the respondent may with safety say, that what has been gained, gained, does not amount to one fourth part of the real expence depursed by the petitioners, in maintaining that litigation: And from this, your Lordships will judge of the pertinacious obstina- cy of the petitioners, and with how bad a grace they now think proper to insist upon expences. The petitioners have said, that the respondent should be found liable in expences, because of her conduct in the dispute about the house rents.—But the respondent does submit to your Lord- ships, that, in this particular, as well as in every other, her con- duct, and that of her husband, was fair and candid. When the petitioners proponed their plea of compensation for the house- rents, they insisted, that the pursuer Mr. Taylor, should appear before the magistrates, and make answer, by a writing under his hand, “ Whether or not he possessed a house belonging to the defunct James Muir, for eight years preceding Whitsunday 1764, at the rate of 8 l. y e a r l y." Mr. Taylor accordingly compeared, and acknowledged, that he possessed a house of the defunct’s, for eight years preceding Martinmas 1764, at the agreed rent of 7 l. Sterling yearly, and no more; but, at the same time, he found- ed on certain claims of compensation, in order to show that no- thing was due by him upon that head, and as to any possesio n for more than eight years prior to 1764, receipts were produced, in order to show, that payments to the amount of 14 l. 7s.6d. had been made for his possesio n of the house, in the years 17 5 1, 1752, 1753, and 1 7 5 4; and the question came to be, whether the whole rents for these years being of an old date, and these discharges being produced, was not to be considered as wholly paid and extinguished: The Lord Ordinary, by several interlocu- tors, found this to be the case; and it was not till the matter was two several times before the court, that the petitioners were able to procure an alteration of this judgment. So far, therefore, from there being any thing unfair or uncan- did in the respondent’s conduct, or that of her husband, with re- gard to this matter, your Lordships will see, that the only evi- dence of this house being possessed for more than eight years, arose from the production made by Mr. Taylor himself, of the re- ceipts prior to that period. The petitioners, as appears by the ex- tract of the process before the magistrates, insisted only, that this house had been possessed eight years before Martinmas 1764; and any evidence that it was possessed longer, wa s produced by Mr. Taylor himself. It is therefore improper in the petitioners, to to accuse the respondent of having emitted any thing unfair or uncandid, in her declaration upon this head. With regard to the plea of recompensation upon the bill of 35 l. due by Mr. Muir to Alexander Parlane, the respondent, in her declaration before the magistrates, averred, That it had been paid out of her own money. It was not denied, that it was paid by her hand; and the circumstance of the bill’s remaining in the respondent’s hands after it was paid, and its not being taken up by Mr. Muir, it was argued, was direct evidence of the truth of what was asserted. When, in order to have this matter more fully explained, it was proposed that Mr. Parlane himself should be examined, the respondent most cheerfully agreed that his oath should be taken; though, it is submitted, that his examination, without this, would have been incompetent, as the right upon the contract of marriage could not be cut down by parole evi- dence. And after Mr. Parlane was examined, the Lord Ordi- nary adhered to his former judgment (though it was afterwards altered by your Lordships) that this article of 35 l. was a clear ground of recompensation in the respondent’s favour. The re- spondent, therefore, can have no doubt that your Lordships will be of opinion, there is not any thing in her conduct in this cause, from first to last, which ought to subject her in expences. As this, therefore, the respondent apprehends, will appear to be a very clear point, she humbly hopes your Lordships will not think it presumptuous in her, if she in her turn should claim from your Lordships, that, instead of one half of the extract that has been allowed her, she should be found intitled to the whole, at least from the last interlocutor of the inner-house, of date 2d Febru- ary 1770, and to the expences of process, at least from the 20th of July. The Lord Ordinary has indeed, by his interlocutor of 20th July 1770, finding the petitioners liable only in one half of the extract, found no further expences due: But though this inter- locutor has been acquiesced in, it can only aff ect the procedure prior to the pronouncing it; and the manner in which the liti- gation has been conducted by the petitioners since, it is humbly hoped, will make your Lordships think the respondent lias a ju st title to the expence incurred after that time. The respondent is a widow, in low circumstances. The petiti- oners, acquainted with this, seem to have availed themselves, in this process, of their superior wealth. Your Lordships have been informed. informed of the obstinate manner in which they have litigated every point, and of the volumes of representations with which the Lord Ordinary has been troubled: And though the respon- dent has acquiesced in every interlocutor the moment it was pro- nounced; yet, since the time the cause was last before your Lordships, as has been observed, the whole that the petitioners have gained by means of the new condescendence, and of their numerous long representations, amounts to no more than 6 l. 12 s. 5 d.; and unless your Lordships shall give the respondent some relief, the whole of the sum pursued for, will be exhausted in the charges necessarily laid out in recovering it. The petitioner pleads, that, in the quality of executrix, she cannot be liable for expences. But it would be an extraordinary thing, were it to be understood as a rule, that because a person appears in a court of ju stice in the character of executor, he may for that reason carry on the most vexatious and oppressive defences, and the other party be in- titled to no relief, but, on the contrary, should be obliged to be at the expence of extracting a very large decreet, which has been swelled by the conduct of his opponent. The law under which we live is not so unjust: It has established, that the con- duct of every litigant, is that which is singly to be regarded in the matter of costs. It only remains to consider the last prayer of the petition, viz. That a new commission should be extracted for the respondent’s deponing on the verity of the debt; and that she should be at the sole expence of the new commission for that pur- pose.—Your Lordships will be informed, that two commissions have been already granted for the respondent’s deponing on the verity of her debt, and she was always, and is still willing to con- firm the claim by her oath; and the only reason why she did not depone, was because the verity of the debt was not doubted; and the petitioners doer, who took her oath, for that reason, did not infill upon it, or indeed mention it, otherways it would have been done. And as the omission was wholly owing to the petiti- oners and their doer, the Lord Ordinary found they ought to be at the expence of a new commission; and it is hoped your Lord- ships will be of the fame opinion. In respect whereof &c. W I L L. C R A I G.