Petition 1767

Unto the Right Honourable the Lords of Council and Sesion, T H E P E T I T I O N; O F THEPIONE; M;EeOE; r Merchant in Portfoy, s Humbly Sheweth, T HAT Helen Brebner, sister to the petitioner,and relict of the deceased John Frigg merch­ant in Findhorn, having confirmed executor to her husband, the petitioner became cau­ tioner in the confirmation o f some very great debts which had been due to her husband, and, by way of security, she lodged a part o f the money, when it was recovered, in the petitioner’s hands, which she drew from him from time to time, as her occasions re­ quired. Helen Brebner managed the affairs of her deceased husband, for behoof of her children; and her manage­ ment not being to the satisfaction of the petitioner, he he became uneasy about his relief, and refused to part with any more of that money which had been lodged in his hand by way of security. His s ister on this brought a process against him before the sheriff, where­ in she at last obtained decreet for eleven hundred and odd pounds, being much more than was just ly due. The petitioner therefore applied for suspension of this de­ creet, and having offered Alexander Ogilvie of Cul- vie as cautioner in the suspension, his circumstances being well known to Mrs Frigg and her doer, he was received by their express consent, and letters of sus- pension expede. Before this suspension was obtained, Mrs Frigg had raised inhibition against the petitioner: She had also arrested his rents, and every moveable subject she could discover to belong to him. Having thus locked up all his funds, it is plain to what a disagreeable situation she mult have reduced the petitioner: In fact he was unable to satisfy the demands that were made on him, as much as if he had been really bankrupt. The petitioner did not at first imagine, after she had thus got undoubted security in the suspension, that she would have insi sted to keep his funds locked up by those steps of diligence; but finding that such was her intention, he presented a bill, in the usual form, for loosing her sundry arrestments; and he offered the same, Mr Ogilvy of Culvie as cautioner, and sent up a bond of caution, signed by him and the petitioner. Mrs Frigg’s agent, however, thought proper to write the clerk of the bills, prohibiting him to accept of this caution, pretending he had got some new light with respect to the circumstances of Mr Ogilvy, since the time that he had consented to receive him as cautioner in in the suspension, which was only about six months be­ fore. The clerks to the bills did accordingly refuse to receive Mr Ogilvy as cautioner, as appears by an instrument of protest, taken against them herewith produced. This hath laid the petitioner under the necesity of making the present application to your Lordships. It is plain, that in the situation he is reduced to by Mrs Frigg's diligences, it cannot be expected that every person will become a cautioner for him in coniderable sums; as he hath been disabled from paying the de­ mands that have been made upon him, his credit must necessarily be suspected; and unless it is such as have taken the trouble to examine minutely into his affairs, and to satisfy themselves about his solvency, none would be prevailed on to interpose as security in his behalf. As Mr Ogilvy hath taken the trouble of such an enquiry, and is willing to become cautioner for the petitioner, it is a matter of some consequence to him that he should not be resi sted, as the petitioner was at considerable expence in satisfying Mr Ogilvy concern­ ing his circumstances, by searching the whole registers of sasines, adjudications, inhibitions, arrestments, &c. Mr Ogilvy is a person of unquestionably good cir- cumstances. He is possessed of a land-estate of 4000 merks a year. He is reputed to be worth many thou- sand pounds in money. He is attentive to his affairs; and hath long been in the way of improving, not of hurting his fortune. These are facts that can be pro­ ved by the testimony of many gentlemen, who are practitioners in this Court, to whom he is well known. At the same time, it is a favour that cannot be expect­ ed from these gentlemen, that they should formally at- test test him to the clerk to the bills, as that renders him subsidiarly liable: some of them, however, have ex- pressed their opinion of his circumstances to the clerk of the bills in the strongest terms. Now that a gentleman in these circumstances should be rejected as cautioner, and the petitioner laid under the hardship of having all his funds still locked up by the arrestments of Mrs Frigg, merely because she chu- ses to lay that she does not incline Mr Ogilvy shall be received as a cautioner, is such a wrong as, the peti­ tioner apprehends, calls for redress from your Lord- ships. If Mrs Frigg, or her agent, will propose good objections against Mr Ogilvy as a cautioner, then there is no help for it; he must be refused; but if no such objections are offered, or if the objections causa cognita appear to be ill-founded, then it is humbly apprehend­ ed, your Lordships will ordain the caution offered to be received. The case of the petitioner is a hard one, that the sums for which these arrestments are laid on, are the same with those under suspension, for which the same cautioner hath already been received by consent of Mrs Frigg; and the petitioner apprehends, that when the ob­ jections he has against those sums come to be heard, they will be reduced to less than one third of what is in her claim: Perhaps it is with an intention to oblige the pe­ titioner to pass from all or part of those objections, that such rigorous measures are pursued against him, but if this is intended, it will meet with no countenance from your Lordships. May it therefore please your Lordships to appoint the clerk of the bills to receive Alexander 0- gilvy of Culvie as cautioner for the petitioner in loosing the above mentioned arrestments. According to justice, &c. A N D. C R O S B I E. Upon the 17th day of January 1767 years between the hours of 10 and 12 forenoon, I John Robertson writer in Edinburgh, doer for Alexander Brebner the petitioner, did intimate to Laureuce Inglis, one of the Clerks to the Bills, and Joint Fraser writer to the Signet, doer for Helen Brebner, relict of the deceast John Frigg merchant in Findhorn That copies of this petition were to be put into the Lords boxes this day in order to be moved on Tuesday next. This I did, by delivering printed copies of the said pe­ tition to the said Laurence Inglis and Joint Fraser, 111 their own hands, with a signed note thereon intima­ ting as above, in presence of Charles Robertson, and George Cairncross, both writers in Edinburgh. J o h n R o b e r t s o n.