John Low v. The Deacon and other Managers of the Weaver-trade in Brechin — Answers, 20 Dec 1766

D E C E M B E R 20. 1 766.A N S W E R S F O R The Deacon, and other Managers o f the Weaver-trade in Brechin. T o T H E P E T I T I O N of John Low, desi gning him- self Weaver in B r e c h in residing in Dundee. T HE Managers for the Weaver-trade in Brechinhave been in use for some time to purchase Victual by Contracts from the Gentlemen in the Neighbourhood, which they distribute among the Members of the Trade, in Proportion to the Necesit ie s o f their Families. It is a constant Rule, which has been always observed by the Managers of this Trade, not to give any of this Victual to any Person who does not reside within the Parish of Bre­ chin; and though the Widows of deceased Members of this Trade are in use to receive the Quantities o f V ictual which their Husbands had formerly received during their Lives, yet this Privilege has always been withdrawn from such of these Widows as afterwards intermarry with Persons who are not Freemen of the Trade. The Weaver-trade o f this Burgh made an Act upon the 13th October 1757, by which they impowered the Deacon of the the Trade for the Time being, and his Successors in Office, together with certain other Members of the Trade therein named of which the Petitioner is one, to contract with Sir Alexander Ramsay-Irvine of Balmin, Broetfor 400 Bolls of his Farm-victual in the County of Kincardine, in name, and upon account, of the Trade, and to bind the Community and its Funds, for Payment thereof. On this Occasion, a List was made up, asc e r ta in g the Proportions of the V ictual, which the different Members were to receive; which List likewise fixes in what Proportion the Trades were to distribute to the different Members, such Quantities of the Victu a l as should fall in the Trades Hands, by the Death of any of the Members; and in case of the whole V ictual not being delivered, a proportional Abatement was to be made from the different Shares; Security was or­ dered to be taken by the Managers, from the Members of the Trade who received the Victual, on Bill, with a sufficient Cautioner, which, if the Managers neglected, they were to be liable themselves for any Deficiency. But, if the persons granting such Security, should afterwards become insolvent, the Loss was to be made up out of the. publick Funds of the Trade. And, lastly, upon the Death of one or more of the Managers, the Survivers were impowered to make Choice o f' others to supply their Place. Of this Date, a Contract was executed betwixt Sir Alexander Ramsay, and the Managers of the Weaver-trade, whereby Sir Alexander became bound to deliver at Brechin, to the said Trades, yearly, for the Space of seven Years, 300 Bolls Oat- meal, and 150 Bolls Bear, at the Rate of 10 s. per Boll. The counter Obligation is in these Words:" For the which Causes, and on the other Part, the said John Souter, Dea- con, James Middleton, Treasurer, David Duncan, James Smith, John Low, Alexander Wis hart, Alexander Smith, James Duncan, James Smith, arid James Blackie, Counsel- lors, for themselves, and in Name of the Deacon and Trea- surer surer, and present Council, and their Successors In Office, as Managers aforesaid, and representing their said Incorpo­ ration, bind and oblige themselves, their Heirs, Executors and Successors-whatsoever; a s a l s o, their Successors in Office, and Managers o f the said Incorporation for the Time being, thankfully, to content and pay to the said Sir Alexander R a m s a y, & c." By the List above mentioned,, the Proportion which the Petitioner was to draw yearly of this Victual, was 28 Rolls- of Meal, and 14 Bolls of Bear; but he having become bank­ rupt in February 1763, his Creditors received from the Pro­ duct of his Effects, only 10 s. of the Pound. He never af- ter that Period came to any Meeting of the Weaver-trade, and about August 1763, he removed with his family to Dundee, where he still lives. The Weaver-trade annually meet about the End of October, or Beginning of November, to distribute the Victual among the different Members. Upon the 6th December 1763, the Petitioner wrote a Letter (to be afterwards more particularly noticed) to the conveened Members of the Trade, begging to have out of their Victual, 8 Bolls Meal and 4 Bear; but, as this was contrary to U sage, the Petitioner having taken up- his Residence in another Town, at sixteen Miles Distance, the Trade refused to give him any of their Victual., From this Period the Petitioner never made any Demand, until the Year 1765, when the Prices being much higher, the Petitioner then endeavouring to avail himself of this Rise of the Price of Grain, wrote several Letters to the Trades, threatening them with Processes, unless they should agree to deliver him the annual Quantity he had formerly received, of 28 Bolls Meal and 14 Bolls Bear, and this not being com­ plied with, he soon thereafter put his Threats in Execution,' by commencing a Process before this Court against the Mana- gers of the Trade, concluding for Payment of the Price and- Value of the said 28 Bolls Meal, and 14 Bolls Bear, for the a a» Years- Years 1763 and 1764, conform to the current Prices of that Grain for these Years, and for Delivery of the like Quantity annually, during the Years that were to run of the Contract, upon the Petitioner’s making Payment, as the same fell due, of the Price thereof, at the Rate of 10 s. per Bo ll; and his Summons likewise concluded for 30 l. Sterling, nomine damni, and for other 30 l. as Expences of Plea. T h i s Action having come before the Lord Hales, Ordina- ry, his Lordship, of this Date, having heard Parties, as- soilzied the Respondents and decerned; and his Lordship af­ terwards refused two Representations for the Petitioner, on the 14th and 26th November last, both without Answers. After these repeated Judgments of the Lord Ordinary, the Respondents did not imagine your Lordships would have had any further Trouble with this small Cause. The Petitioner, however, has thought proper to reclaim; and his Petition having been ordered to be answered, what follows is humbly offered on the Part of the Respondents. The Respondents cannot avoid taking Notice of the Title of this Petition, which is pretty curious, viz. The Petition of John Low Weaver in Brechin, residng at Dundee. This is a Designation which the Petitioner has assumed only in this last Stage of the Cause; for both in his Summons, and in the two Representations, which were refused by the Lord Ordinary, he designs himself l ate Weavr inBrechin, and now residing in Dundee. But perhaps he now imagines that it will strengthen his Claim to keep up the original Character of a Weaver in Brechin. It seems, however, a little inconceivable how the Petitioner could carry on Business as a Weaver in Brechin, when he lives at the Distance of sixteen Miles, in the down of Dundee, with his whole Family, and does not. pretend to lay, that any Person carries on the Business at Brechin in his Name, or for his Behoof. This Scheme of Trade seems as chimerical as the Designation of the Petitioner is ridiculous. Neither Neither can the Respondents help complaining of the Pe­ titioner, for not laying fully before your Lordships the Con- tents of the Letter wrote by the Petitioner to the Respon- dents in the Year 1763, which is but very slightly mentioned in the Petition, although, the Respondents had, in the Pro­ ceedings before the Lord Ordinary, founded upon it, as a De­ fence relevant, p e r se, to set aside this Action. This Letter is dated at Brechin, 6th December 1763, and is in these Words: “ Gentlemen, as I have, for my Proportion of the Victual bought from Sir Alexander Ramsay of Bal­ main, for the Weaver-trade of Brechin, the Quantity of twenty-eight Bolls Meal, and fourteen Bolls Bear, and as I am now removed from this Place, I do now see I have not Use for that Quantity; but I hope you will be so good as allow me eight Bolls of the Meal and four of the Bear, for which I shall give you sufficient Security, and I expect that you will grant my above Desire, or relieve me of the Security I am engaged in to Sir Alexander. As I am ob­ liged to leave this Place soon, I hope you’ll not delay the giving me an Answer once this Day; and I am, &c." When this Letter was delivered to the Trade, they were clear they 'could not, with Ju stice to the other Members, communicate any Part of this Victual-contract to a Person who was no longer a Member of the Community, and who was living in another Town, at the Distance of sixteen Miles, especially as the constant U sage had been to refuse this to any one of the Members who went to reside out of the Parish o f Brechin. And the Demand appeared still more extraordi­ nary, when it was considered that, upon former Occasions, this very Petitioner himself had most strenuously opposed, with Success, every Application of the like Nature. As to the relieving the Petitioner of the Obligation to Sir Alexander, the Members of the Trade, neither then nor now would have opposed it; they always considered that Obliga­ tion as binding only upon the Managers of the Incorpora­ tion tion for the time being, as the Contract Itself shows, with- out any breach of Grammar; for it is declared to have been entered into solely on account of the Incorporation, and the Act of the Trade expresly authorises the Managers, who were to eater into that Contract to bind the Funds of the Com­ munity for Payment; at the same Time, it did not appear so extremely obvious, how a Person who was no longer a Mem­ ber of the Trade, and who was utterly insolvent, could run any Risk from such Engagement, even supposin g him to have been personallv bound in the strongest Manner the Law could devise: But if the Petitioner has any Dread on this Account, he shall have most ample Relief from the Engagement he en­ tered into with Sir Alexander. The R espondents apprehend they might rest their Defence upon this Letter alone; for, in it, the Petitioner fully gives up any legal Claim or Pretension to the Victual he now de­ mands before your Lordships; he was sensible he had no just nor legal Title to demand it; he therefore comes as a humble Suitor, begging a small Quantity of the V ictual en­ tirely ex gratia, he never dreamed he had any legal Claim; and the present Action was an after Scheme, calculated, as it is believed, solely with a View of extorting from the Responr dents a Piece of Money by way of Competition. But this is not all; it will not be denied, that constant Usage may regulate a Matter of this Kind, joined to the Pe­ titioner’s being barred, personali exceptione, from challenging i t; for, when he was a Manager himself, he always insisted •upon abiding by this Custom, which confined the Distribu- tion of the V ictual to those Members who lived within the Parish of Brechin, and he ever strenuously opposed any Appli­ cation to the contrary. It may be said by the Petitioner, that there is no Evidence before your Lordships of this Usage, but that is not Fact, for the Respondents transmitted up to the Process, a Copy of the original1 l i st of t he Distribution of this Victual, since since the Commencement of the Contract, (though the Peti­ tioner has not chosen to take Notice of that Circumstance) from which this Usage evidently appears. Thus, the Peti­ tioner himself was struck off the List of Distribution, upon his removing to Dundee, and these Words are subjoined to his Name in the List, fallen, for going out of Town, and this likewise added after the Names of Mrs. Duncan, John Cra- mond, junior, James Downie, and John Strachn as the Cause o f their being cut off the List. And, in a Word, all the Al­ terations in the original List, are accounted for in the same Manner. Thus, William Webster and William Shiris have no Quantity of Victual marked opposite to their Names, and on the Margin, the Word Dead is added after each of their Names; the Quantity payable to John Stewart is left blank for the Year 1765, and there is subjoined on the Margin, gave it up. John Reid’s, Quantity is likewise blank for the Year 1765, and on the Margin there is added, fallen, by Defi­ ciency in Payment. And, lastly, Robert Innerrarity's Quantity o f Victual, is blank for the Year 1765, and there is added on the Margin, fallen, fo r his Widow marrying an Unfree- m an. It is argued for the Petitioner, that though it does seem, the Contract for this Victual was intended to be confined to the U se of the Weaver-trade 0f Brechin, yet the Petitioner does not cease to; be a Member of the Incorporation, by hav­ ing changed his Place o f Residence a few Miles, and, what­ ever might have been the original idea of the Contract, it •was not so confined when it came to be execute, but seems to have been intended for the personal Advantage of those who entered into the Contract, seeing they bind themselves, and their Executors and Successors whatsoever, for the Pay- ment of the Price. But to this it is answered, that U sage is the best Interpre­ ter of the Intention of Parties, and the Respondents have al­ ready shown, that the Defence they here offer, is supported.-- ' 4 • S: hy by the constant Practice in this Incorporation. The Victual is deliverable by the Contract at the Town of Brechin only, which shows the Intention of confining it to that Town; and as to the binding of the Executors and Successors of the Ma­ nagers for this Incorporation, it is to be observed, that the Con­ tract is wrote by one of Sir Alexander Ramsay's Servants, who could not be supposed to be a very able Stilist; and it has already been said, that if the Petitioner dreads any pander from that Clause, he shall be relieved thereof. The Petitioner says, that if Sir Alexander Ramsay had pur- sued him for Implement of the Contract, his having re­ moved to Dundee would have been an unavailing De- fence. It seems very irrational to imagine, that Sir Alexander Ram- s ay would have singled out this Bankrupt as his Paymaster, when he had the whole Funds of the Community bound. But even supposing such an Action to have been brought, the Petitioner would have had undoubted Relief from the Community, in whose Name, and for whose Behoof, he en­ tered into the Contrac t; and, who, by the Act of the Trade, had impowered him to bind the Funds of the Community f or Payment. The Petitioner next puts the Case o f the Victual having fallen below the Price contained in the Contract, and says, that, in that Event, the Respondents, it is thought, could have compelled the Petitioner to accept of his Quota. In the first Place, this was an Event not likely to happen, and, secondly, the Respondents can see nothing in the Con- tract or Act of the Trade, that could have compelled the Pe- tioner to accept of the V ictual; the Respondents rather ap­ prehend, that if any of the Members had refilled their respec- tive Quotas, the Corporation behoved to have fold the Victual at what it would bring, and if there was any Deficiency in the Price, it must have been made up out o f the Community- • funds, f u n d s, a s i s p r o v i d e d i n t h e A c t o f T r a d e, i n t h e C a s e Insolvency of any of the M e m b e r s. Last ly, the Petitioner supposes the Case of the whole Ma nagers who are bound in the Contract, removing from and says, that that could not have hindered Sir Alexander from demanding the Price. But the Answer is, that if such a Case can be supposed, there is an obvious Remedy pointed out in the Act of Trade, which, in case of the Death of Managers, impowers the sur- v iving Managers to make Choice of Persons to fill the Places o f the deceased; and it would have been no unnatural Ex- tension of this Power in the Managers, to make choice gra­ dually, as the Event happened, of other Managers, to supply the Place of those who had abandoned the Incorporation, and had removed into another Country. Upon the whole, it is plain, from the res gesta, that the Community had it only in view, when they entered into this Contract, to accommodate therewith the Members: of their own Incorporation, who resided in this Town, the constant U sage has been agreeable to this Plan, it has had very salu- tary Effects, by this proper Application, which, it is hoped, your Lordships will support, discouraging such an undue Advantage as the Petitioner here endeavours to take, by ad­ hering to the Lord Ordinary’s Interlocutors, and finding Ex- pences due. In respect w hereof, etc. J O H N D O U G L A S S,