Low — Petition, 4 Feb 1767

February 4. 1767. Unto the 4. 1 7 6 U n t n o h e TLO R The LO RD S o f COUNC IL and SESSION, i * 7 ' ■' T H E * Mj/ * '# P E T I T I O N O F JOHN LOW Weaver in Brichen, residing at Dundee, Humbly Sheweth, THAT, in the year 1757, a proposal was made by Sir Alexander Ramsay-Irvine of Balmain, Bart. to the weavers in Brichen, to give them 400 bolls victual two thirds oat-meal, and one third bear, of his farms in the county of Kincardine yearly, for seven years, at L. 6 Scots per boll. In consequence of this proposal, the weaver-trade had a meeting on 13th October 1757, at which they did unani- mously agree to accept of the said bargain, in name and for behoof of the incorporation: And they did nominate and appoint the deacon o f the trade, together with several of their members, and, amongst others, the petitioner, in name and upon account of the trade, to enter into contract with Sir Alexander Ramsay for the said victual at the price fore- said, and to bind the community and its funds for payment thereof. This * m This act of the weaver-trade further bears, That “ the members of the incorporation do unanimously statute, e- nact, and ordain, that the said victual shall be yearly di­ vided amongst, and delivered to the several members of the incorporation, in the several proportions annexed to each member’s name contained in a list subscribed by the deacon and clerk of this date, and herein particularly re­ ferred to: And it is also expressly and unanimously enacted and ordained, That if, by the death of any of the present members during the subsistence of the contract, any victual shall fall into the trade’s hand, the same shall be divided and proportioned amongst the surviving members, in the manner also contained and particularly distinguished in the said list; and each person standing on the said list be­ ing first preferred, according to the quantity annexed to his name, of what may so fall as he stands in the order of the said list, and that before any person who may, after this date, enter freeman, shall be intit led to any share thereof.” Altho’ it appears to have been the intention of this act, that all the members of the incorporation should be contain­ ed in the list thus appointed to be made up, and that each of them should receive a proportion of the victual, yet this was not done; the list was made up at the pleasure of the mana­ gers, and some members of the trade were left out of it and never received any share. The proportion allotted to the pe­ titioner, by the division specified in this list, was 28 bolls of oat-meal, and 14 bolls of bear yearly. In consequence of the above act and resolution, a contract was executed, on 10th October 1758, betwixt Sir Alexander Ramsay on the one part, and, upon the other part, the dea­ con and treasurer, together with several members of the in­ corporation, and amongst others the petitioner, “ for them- selvs, and as managers, for the use and behoof of the said weaver-trade;” whereby Sir Alexander sold, and became bound to deliver to the deacon, treasurer, and other persons therein therein named, “ counsellors, or any one of them, or their successors in office, managers in the affairs of the said in­ corporation for the time being, for the use and behoof of the said weaver-trade,” yearly, for the space of seven years, 300 bolls oat-meal, and 150 bolls bear, at the burgh of Bri- chen, with the common weight and measure thereof, begin­ ning the first year’s delivery for crop 1760, in the months of January, February, and March 1761. On the other part, the deacon and treasurer, the petitioner and other persons therein mentioned, “ as managers foresaid, bound and obliged themselv, their executors and suces- sors whats oever, and also their successors in office, as mana gers of the said incorporation for the time being,” to pay to the said Sir Alexander Ramsay, the sum of L. 225 Ster­ ling yearly, during the term of the contract. For the three first years of the contract, viz. the years 1760, 1761, and 1762, the petitioner received his proportion of the victua l above mentioned, and was obliged to pay the stipulated price for it, by which he was a very considerable lo- ser, as he could have bought it much cheaper at market, the meal being then sold at L. 5, and bear at L. 4: 10 per boll. The petitioner, in the year 1763, when about to leave Brichen, wrote a letter to the managers above mentioned, bearing, That he would not have use for his full quantity, and was therefore willing to agree with them for a part of it. This offer, however, was not accepted of, nor any no­ tice ever taken of it. The petitioner did therefore afterwards make a demand of his full quantity; this demand was made at a meeting of the managers by Alexander W ishart, in name of the peti­ tioner; an offer was made to receive it at Brichen, and caution was offered for the price. In 1765, the petitioner again wrote to the managers, ma­ king a demand of his proportion for that year; and saying, "That, if it was peaceably paid, he would posib ly pass from any any claim of damages for the two preceeding years: But nei­ ther was any notice taken of this proposal. The petitioner having ten children to feed, not one of whom is yet able to earn a bit of bread for themselves, had much occasion for his share of the bear and meal; and yet was, for the same reason, extremely unable to take legal mea- sures for obtaining it. He therefore wrote a third letter to the managers offering to submit the matter to two honest men to be mutually chosen; but they paid as little regard to this as to his former proposals, so that all gentler methods pro­ ving ineffectual, he found it necessary to bring the present action. The Lord Hailes Ordinary having assoilzied the defenders, the petitioner gave in to your Lordships a reclaiming petition; upon advising which, with answers, you were pleased, on the 22d of January last, to pronounce this interlocutor: “ The Lords find, That the defenders ought to procure a release from Sir Alexander Ramsay to the pursuer, of the engage­ ment he became under to Sir Alexander, in the contract within mentioned, or to find sufficient caution to relieve him thereof; and, upon the defenders obtaining the said release, or finding the said caution, and producing the same in process, they assoilzie the defenders, and decern.” The petitioner hopes, that his circumstances will plead his excuse for giving your Lordships the trouble to review his case, especially as some mistakes in fact in the answers to his for­ mer petition, had perhaps some influence with your Lordships, in pronouncing the interlocutor above mentioned. T he plea insisted on for the defenders, was, that the bargain with Sir Alexander Ramsay was made for the benefit of the weaver-trade of Brichen: That the petitioner, by having re­ moved to Dundee, ceased to be one of the weaver-trade of Brichen; and must therefore be excluded from any share of that bargain. By this argument the defenders admit, that, if the peti­ tioner tioner could still be considered as one of the weavers of Brichen, he would be intitled t o his share in the bargain: T a­ king the matter then on this footing, your Lordships will be informed, that the petitioner does still carry on business as a weaver in Brichen, and has his own utensils there for that purpose. This being the case, he humbly contends, T hat he does not cease to be a member of the incorporation, by having changed his place of residence a few miles; and that, supposin g the bargain was to be confined to the weaver- trade of Brichen, the petitioner is in that character intitled to his share of it. But further, although the original view of the agreement appears to have been to provide the victual for the use of the weaver-trade of Brichen, yet, the petitioner does, with great submission, apprehend that it is very evident, that, when the bargain came to be executed, it was not confined to that original purpose, but was also intended for the proper and per- sonal advantage of those who entered into the contract. The terms of the contract itself clearly prove this to have been the case; for the persons who signed it did not only bind their successors in office for the benefit of the incorporation, but did also come under a personal obligation, and expressly bound themselves, and their executors and successors whatsoever, for the price. It appears also, from other circumstances, that this was bv no means intended to be entirely a trades bargain; had it been so, every one of the trade would have had an equal claim; at least, every one of them would have been intitled to some share: But this was not the case. The trade consisted of a- bove forty members, many of them got no share, and the managers, who were only seven, had about one half of the whole among themselves, thinking probably, and indeed with reason, that they were intitled to a larger proportion, as they had come under a personal obligation for the price. The The defenders in their answers asserted, not only that all the members of the incorporation had received a share of the bargain, but that their share had been constantly in use to be withdrawn from them when they moved from Brichen; they added too, that, when ever any application had been made to the trade by people in that situation, such applica­ tion was strenuously opposed by the petitioner. But the de­ fenders ought not to have made this allegation; for the fact is, that no such case ever occurred during the pursuer’s resi- dence at Brichen; nor does he know that any instance of it has happened since, except in the case of one man, who re­ sided without the liberties of the town, notwithstanding which, he got his share of the meal till this year, when the defenders have thought proper to withdraw it, with a view to avoid the argument which it would have afforded against their present plea. The defenders were pleased to represent the petitioner as a bankrupt; but this was likewise a mistake, for the petitioner never was bankrupt: It is true indeed, that, by reason of his numerous family, and some losses which he sustained in his business, his affairs were at one time in some disorder, and some of his creditors, in consideration of his misfortunes, ac­ cepted from him a composition of ten shillings in the pound; but the greatest part of them were fully paid without any abatement, particularly the price of his share of this visual was paid to the last farthing; and even, if the petitioner’s circumstances were as bad as the defenders have thought fit to represent them, they could not from thence draw any argument against his claim, as he has all along offered suffi- cient caution for the price of the victual which he is demand­ ing. The defenders are likeways in a mistake in saying, That the petitioner never came to any meeting of the trade after Fe­ bruary 1763, at which time they alledge he became bankrupt. But the fact is otherways; the petitioner did attend the meet­ ings ings of the trade; he was even one of the acting managers- that year, and took bills for the meal, and gave receipts for it after the period specified by the defenders. The defenders have not produced the list which was made up in consequence of the above mentioned act of the trade, specifying the shares which were to be given to the different members therein mentioned, and was signed by the deacon and clerk. They have indeed produced what they call a co­ py of the division of the victual, and they found a good deal of argument upon jottings marked on this copy; as for ex­ ample, these words said to be subjoined to the petitioner’s name, fallen for going out of town, and the same thing is like- ways said to be marked at the names of some other members. T he petitioner submits to your Lordships, if any jottings of that kind made by the defenders upon a paper in their own hands, and which, for any thing known to the petitioner, they may have added since the commencement of this pro- cess, can be available to support their defence, even suppo- sing this to be a just copy of the original list made out at the time of the agreement; but as there is no sort of evidence of its being so, the petitioner submits to your Lordships, if the defenders should not be ordained to produce the original list itself signed by the deacon and clerk, which may perhaps throw some light upon this matter. And what makes the petitioner the rather desire that the original list itself should be produced is, that the paper given in by the defenders as a copy thereof, appears to be an old lift made up upon some former occasion, as several of the persons therein named, and to whom the defenders refer as precedents against the petitioner, are people who were either dead or removed from Brichen before the date of the con­ tract with Sir Alexander Ramsay; and the fact is, that no example has occurred, since the date of that contract, of any person in the same circumstances with the petitioner: It is therefore therefore impossible that there should be any precedent to support the defenders plea. And, indeed, it appears from the above-mentioned act of the weaver-trade, of 13th October 1757, that it was nor understood that any person was to forfeit his share of the victual merely by leaving Brechin. It is by that act provided, that any of the victual which should fall into the hands of the trade, by the death of any of the members, should be divided amongst the rest in the manner therein prescribed. The same provision would no doubt have been made, with respec t to w h a t should fall by the removal of any of the members from Bre­ chin, had it not been understood that the members retained their shares, notwithstanding their happening to remove du­ ring the currency of the contract. And that the refusing to the petitioner his share appeared in a very odious light to some of the incorporation, is in- structed by a protest taken on 13th February last by Robert Wight, one of the trade, at a meeting where they were de­ liberating on measures for opposing the petitioner’s claim; by which protest the said Robert Wight represented, “ That as the whole members of the said trade, especially the poorer sort, were noways benefited by the victual deliver­ able by the foresaid contract, but only some individuals, and such as the managers were pleased to favour; that therefore no part of the common stock or fund ought to be employed in defending of the said process.” And the ma­ nagers were so conscious of the truth of the facts upon which this protest was founded, that they did not attempt to make any answer to it. The defenders used an argument against the petitioner’s claim, from the terms of his letter of 6th December 1763, where he writes the managers, t hat he hopes they will he good as allow him the quantity there mentioned. This, it was said, was begging it ex gratia, and showed his being conscious, that he he had no claim to it of righ t: But the petitioner is per- suaded, your Lordships will not admit of this construction o f his letter. He was indeed desirous to have avoided any dispute, and the words he made use of were no more than the com mon terms of civility, which can never be prejudicial to any man’s right.o If Sir Alexander Ramsay had brought an action upon the contract above mentioned against the petitioner and the o- ther obligants, it will not surely be said, that the petitioner could have been liberated from his obligation, which was ab- solute and unconditional, by pleading in defence, that he had changed his residence from Brechin to Dundee. Can it then be said, that he is not intitled to the benefit of this contract, when he stands bound for the counter-part thereof, and would have been obliged to fulfil the same? If not only the petitioner, but the whole other persons bound in the contract, had chanced to remove from Brechin, the contract would not surely have been thereby at an end: They could, notwithstanding their removal, have forced Sir Alexander to fulfil his part of the contract, and he could have obliged them to pay the price. This proves that the peti­ tioner’s changing his residence cannot cut him out of his bar­ gain. Had such been the intention of parties, the contract would, no doubt, have bore it. Supposing the price stipulated by the contract were above the ordinary selling prices of the country, is there any room to doubt that the defenders could oblige the petitioner to ac­ cept of his proportion of the victual, and to pay his share of the price? There is indeed no need here for any hypothetical argument, for the case has actually happened. When the price in the contract was above the felling prices, the petitioner was obliged to take the victual and to pay the stipulated price, by which he was a loser in above 12 l. 12 s. Sterling; no in- considerable sum to a poor man charged with a numerous fa­ mily; mily; he humbly submits to your Lordships, if justice will permit that, now when prices are higher, he should be de­ prived of all benefit from this contract, when, upon the same contract, he was formerly subjected to a loss. T his seems con­ trary to reason and equity; and therefore the petitioner hopes your Lordships will not allow it. May it therefore please your Lordships, to alter your interlocu- tor, and to decern in terms of the libel. According to Justice, &c. W. N A I R N E.