Answers 1769

March 2. 1769. A NS W E R S F O R MARY MUIR Executrix decerned and con- firmed to the deceast James Taylor, her Husband, Pursuer; T O T H E F O R � R � � � � Isobel Buchanan ��� ��� ����� ����� �� ������� T HE respondent, in the character of executrix to thedeceast James Taylor her husband, insists in an action originally commenced before the magistrates of Glas- gow, against the petitioners, for payment of the principal sum of 2000 merks with interest from the term of Whits unday 1759, constituted in the most formal manner by mar­ riage articles produced, that past between Mr. Taylor and her, by which the deceast James Muir, husband to the petitioner Is obel Buchanan, and father to the other petitioners, bound himself, his heirs and successors, to pay that sum to the said James Taylor at the first term of Whitsunday or Martinmas that should happen after the death of Christian Hutchison, his and the respondent’s mo­ ther: Therefore, the only relevant defence that can be pleaded against this debt so formally constituted by the bond in process, is payment proved in the manner required by law, viz. either by the discharge or oath of the creditor. In these circumstances, the long tale introduced into the petiti­ on, which cannot influence the decision, will not create any fa­ vourable impression of the petitioner's defence; and it is the more disagreeable, 1 1- 1 I 1 disagreeable, that it lays the respondent under the necessity of ta­ king some notice of those misrepresentations, as they are at­ tempted to be made a so rt of foundation for presumptions of payment. The respondent’s father died in 17 18, worth at leaft 20,000 merks; and the respondent, instead of being left destitute, was provided by his testament, to which she appeals, in a portion of 2000 merks: All his other children were likeways provided by that settlement; particularly, the respondent’s brother mentioned in the petition, whose name was Alexander, not only got a patri- mony f 6000 merks, but was even, during his infancy, insest in the lands of B lairbeth; and all which the petitioner’s husband was left, was 8000 merks, only 2000 more than Alexander his younger brother. In 1718, James Muir was only eight years old, and the whole subject then left by his father, was liferented by Christian Hutchi- son the mother. It is in vain, therefore, in the petitioner to pre- tend, her husband took the respondent and her brother into his own house, or was at any expence about their education: He had no house till his ow n marriage in 1748, and, by his minority, as well as the smallness and situation of his patrimony, could not possibly be at any expence upon them. It is equally affected that he was at the expence of having the respondent taught to be a threed-maker t It did not cost the re­ spondent any thing to learn that trade; she was never formally bound an apprentice, nor did she pay any apprentice-fee, or any money for instruction in the art; but she acquired it by asi sting the Miss Fleemings, who were then engaged in the business, as she was both quick and industrious, and eager to do something early for herself. Her brother James did not advance her any stock, nor did he give her a farthing to enable her either to begin or to prosecute business; He was abroad at the time she set up, and had not yet gained a six pence to himse lf; on the contrary, it has not been denied, that 1000 merks had been laid out 011 his apprentice fee: Much money was also expended in fitting him out to leave Scot­ land: He made large draughts during the time he staid at London, an expensive place, at which he remained long before he went a- broad; and a considerable sum was uplifted of his patrimony, to defend him against a costly prosecution, in which he was inno- • cently. j f T **. V ■ ' * r- *- — 4 7 ' "* * > ■* < 4 cently, but unfortunately engaged; So that his whole patrimony was almost exhausted, and he could not possibly afford, if he had been willing, to be of any service to the respondent. But her en­ couragement was altogether owing to others, particularly, to one Baillie Crawfurd, an extensive dealer; and, on account of the o- pinion which every body had, both of her honesty and of her industry, she got credit for yarn, &c. to any extent she plea- sed. By this means, her business increased surprisingly;, of which your Lordships have real evidence from a fact not denied by the petitioners, that she had no fewer than nine women and two men servants working under her all the year round, besides many young ladies that were apprentices to her; and, by the profits she was thus enabled to make, instead of being a burden on her mo­ ther’s family, (in which she staid, for her brother had no family.) she proved its chief s upport, particularly by the board which she paid punctually every quarter for herself, as well as for her ser­ vants. Indeed, the tale which the petitioners tell refutes itself, that James Muir either would or could afford to maintain, not on­ ly the respondent herself, but her nine women and two men ser­ vants. Hence, instead of being in debt or low circumstances, she had made money; and the fact is notorious, that she gave her brother James several bills, particularly, one by Mr. John- ston her threed merchant, for no less than 103 l. to pay off all her little debts before her marriage: This even honour re- quired both him and her to do: And he would never have con- sented, that she should impose herself upon her husband before clearing her scores; for which reason, she gave him these bills, that he might clear all out of the proceeds. Mr. Taylor, at the time the respondent married him, was a re­ putable merchant, in good character and good credit: And it has been admitted by the petitioners, that her relations were fond of the match, which it cannot be supposed they would have been, unless he had been thought a proper husband for her. Any misfortunes, which befel Mr. Taylor afterwards, were altogether accidental, owing to a partnership in which he was engaged with his own brother William, whose debts he was obliged to pay, but it is an absolute fiction, that the respondent, during his absence, was either taken into her brother’s house, or at all supported at his expence: On- the the contrary, James Muir continued only two years a surgeon at Rutherglen, the place at which the respondent lived, but was soon obliged to leave that town, and, on coming to Glasgow, he was not able himself to keep house, but staid always with his si ster, one Mrs. Parlne, till he married in 1748. And the account given of the services done the respondent by her brother at taking up the grocery, is in like manner without foundation: Mr. Muir did not advance her either money or stock on that occasion, but she provided a little one for herself, and ha­ ving got credit from Mr. Macnair and others, who dealt in that way, matters succeeded with her so well, that she did nor stand in need of assistance from any; indeed the only or principal hard- ship which she met with in that business, proceeded from the long and great accompts her brother James ran with her, which he was uncommonly dilatory in paying, as can yet be proved by the respondent’s books. It was not, therefore want of success which made her quit the grocery;—the real cause was her brother’s advice;— she was af- flicted with rheumatick pains, and he told her a cold shop, which occasioned them, might, if she continued in that way, prove fa­ tal. At his desire she took the house, of which the rents make one of the subjects in dispute; and it is entirely affected to pre­ tend, that he either furnished it for a tavern, or set her up in that business; on the contrary, the respondent took it rather out of favour to her brother, who could not easily find another tenant yet he did not furnish it for her, and at no time laid he not a far­ thing on her account. Her husband’s character remained all along entire, and it is vain to pretend, that the office he got in the excise was procured him by Mr. Muir; as it is notoriously known to have been ob­ tained by the interest of one Mrs. Murdoch. That office yielded him a neat income of 35 l. a year, and it has not been denied, he was also employed in several other profit­ able branches of business, particularly, in managing both the Duke of Hamiltons salt-office, and that of Mr. George Hoar and. company, with another concern, they carried on in selling cheese, and as the respondent, by her uncommon industry, succeeded in all her undertakings, she had little occasion for assistance from a- ny.—Her family was not expensive or numerous, consi sting only o f one child, and, if it were material, the respondent could in- struct stru ct that her brother never advanced a farthing for her; on the contrary, she was extremely serviceable to him:- Not being forward to call in his accompts, he never had the command of the ready money; whereas the respondent, by the way in which she dealt, was commonly mistress of a good deal. Her temper led her to be generous, and she advanced considerable sums for him, particularly it has not been denied, that, besides the bills already mentioned, she further gave him 2 0 l. before her marriage, and also paid for some cloaths to him, which would never have been the case, if he had been as flush of money as is pretended in the petition; the contrary is well known to have been the fact, of winch your Lordships have real evidence from the bill for 35 l. she paid for him to Mr. Parlane. ' It is therefore affected in the petitioner to pretend Mr. Muir gave the respondent money to pay that bill: The tale is well known to the petitioner to be entirely without foundation; and it is vain to alledge, that he employed her to pay it, because his nephew, Mr. Parlane and he, were not in speaking terms: T he date of the bill, which is the 30th of September 1761, compared with the time at which it was paid, being the 9th of No- v em b e r 17 6 1 is good evidence of the contrary: Besides that would rather have been a reason for being very exact in dealings with Mr Parlane; and it is incredible, that if the petitioner's husband had given the respondent the money, he would never- theless have suffered the bill after it was paid, to remain in the respondent’s custody; he would certainly have got it up, which is not pretended; and it is a mistake to say, that the respondent ever acknowledged the fact or said she would deliver it. The hold laid on the words of the receipt, show how much the petitioners are pinched on this article, as if its being said in the indorsation on the back of the bill, that the contents had been received by the hands of Mrs. Taylor; showed the money not be hers? It is needless to inquire what would have been the case, if the receipt had contained a discharge, and the bill had actually been delivered to Mr. M u ir. Fo r, if th e m oney had been his, no mention at all would have been made of her in the bill; but a simple discharge would have been granted and the b ill would have been directly put into his custody, which as it was not the case, but, on the contrary, the receipt bears, that the respondent did actually pay the money; and it is confessed, that that the bill remains in her possessio n, the receipt written on the back, however uncouthly worded, was plainly intended, and must have the effect of an indorsation in her favour; nor do the petitioners pretend to show from Mr. Muir's books, that he either gave her this money, or paid the bill. Indeed, for the reason already mentioned, he seldom could command money, of which your Lordships have further evidence from another particular overlooked in the petition, and not pre­ tended to be denied, that he agreed to pay the respondent 3 l. a-quarter of board for her son, whom he employed as an atten­ dant about his shop, yet of 36 l. to which the board for three years amounted, only 5 l. 9 s. 2 d. has been paid, and the ba­ lance is still resting; The presumptions, therefore, of payment affected in the peti­ tion, are altogether chimerical. The respondent, amidst a thriv­ ing business, had no occasion to uplift her portion; it was not even exigible till Whits unday 1759; her husband’s difficulties were at an end long before that time, and the respondent herself, who is admitted to have always been in a way of business, had very few: So that she had no present occasion for the money; and from the causes already mentioned, it is abundantly plain, that Mr. Muir, not being possessed of ready money, could not have paid that sum, to him a large one, amounting to at least a sixth of all he left even at his death, without selling his herita­ ble subjects which the respondent, without an absolute necesi- ty, would not have obliged a brother to do; but she allowed the money to lie in his hands, knowing it was fate, at his own de­ sire, as he thought it for the interest of her and her family so to do, and she knew he would raise it in case she should come to have any absolute occasion for it. The defences now pleaded by the petitioners, he would never have proponed, because he knew the debt was just ly due, and had more honour than to think of either pretending or refusin g payment in that case. The debt is instructed by a clear obligation, contained in a so- lemn marriage contract and the defences pleaded are not pay­ ment, but resolve themselves into articles of compensation, which, therefore, if they were solidly founded, could not stop the respondent’s decreet for a liquid debt constituted by a formal bond; but the petitioners would fall to be left to age upon them as %as accords, the rather that they cannot be liquidated without a proof by witnesses. But, without entering upon that point, the total answer which the respondent pleads is, and she does shortly maintain, that on considering the particular articles, it will appear that compensa- tion is not pleadable upon them. The first is the article of house-rent, about which the fact, ac­ knowledged before the inferior court, wars, that the respondent and her husband had possest a house belonging to Mr. Muir, for eight years preceeding 1764, at 7 l. Sterling of yearly rent; but that the same, as well as all the petitioner's other claims, had been more than satisfied and extingushed by sundry sums of mo- ney above mentioned, that were paid either to him, or on his ac­ count; viz. 1mo, By the sum of 1 0 l. 3 s. 6 d. paid by receipt produced in 1753.—2do, by the further sum of 4 l. 4 s, by ano­ ther receipt also produced, dated 11 t h November 1734.— 3tio, The foresaid bill for 35 l. Sterling, also paid by the respondent for her brother, with the further, claim for board, which the petitioner’s husband agreed to pay to the respondent for her son, who served him in the character of an attendant about his shop. With respect to the rent, the petitioners differ with the respon- dent, both about its extent, pretending it was 8 l. a year, and about the number of years the house was possest: The respon­ dent will not enter into either question, because it is, like most of the other matters introduced into the petition, totally extra­ neous; and her answer to the argument urged in the petition, does not depend upon it. And this is, 1mo, That the petitioner must either take the ac­ knowledgment made before the magistrates, qualified as it stands, or betake herself to the legal mean of proof: The respondent did not acknowledge a farthing t0 be due by her, and the ac- cknowledgment admits of no ambiguity not only bearing that the claim is extinguished, but pointing out the manner in which i t i s s o.. ' 1 Nor will it lessen your Lordships opinion of its candour, that the respondent fairly acknowledged the possession, nay, produced the receipts now founded on by the petitioner, which she was not obliged to do but might; without further, have rested entirely on prescription, which is. in every view, an undoubted good de­ fence against the claim; for 2do, 2do, It is no matter what was the rent, or number of years during which the house was possest, because it is admitted that the rent is prescribed, the possessio n having ended at least in 1764, since which prescription is run: The article, therefore, is only proveable scripto or juramento; and indeed, it is not even com- petent to be proved by the oath of the respondent, who is only an executor, as the proper creditor is dead; and the proof demanded by the petitioners is incompetent, nor would it avail if brought, because the rent of possession is not the thing which must be proved; on the contrary, in all cases like the present, in which prescription is pleaded, either against house-mails, furnishings, by merchants, servants wages, or other the like debts, the fur- nishings or possession or services, is in a manner admitted, at least supposed in the very defence, and the thing that is denied, is and must be proved resting owing: The rule being, that in case action is brought before the prescription is run, it is competent to prove the service, or furnishing or possession by witnesses, which being once established, the law presumes payment not to have been made, and makes it incumbent on the debitor to prove it: But if prescription is run, the law presumes payment; therefore the possession or furnishing or performance of the service which cannot influence the question, is not material or competent to be proved; but the law, even on the supposition that the debt was once due, requires that it be proved to be resting owing. In any other view, the triennial prescription would be unavailable, as a gentleman who acknowledged that he had lived in a house, or that a person had served him, would thereby be liable to pay, and to be sued for the rent or wages, at any the greatest distance of time. Resting owing, therefore, must either be acknowledg- ed, or it must be proved scripto or juramento; nd unless that be done, payment cannot be recovered. Indeed, the presumption is particularly strong in the present case, the circumstances of which, make it fall directly under the statute 1583. The receipts produced, dated in 1753 and 1754, on the peti­ tioner's own account of the matter, prove all to have been clear in November 1754, and cannot thereafter have any influence on the present question, as the rents for the possessio n said to be held after that date, must necessarily be presumed p aid: Every year’s rent, like every term’s service, is separate from and entirely discon- nected nected with that of every other before or after it; and therefore, runs a separate prescription. Indeed, it is impossible to believe, that Mr. Muir, whose family was numerous and his income by no means considerable, either would or could afford to want his rents; but, if he had wanted them, and was the kind brother represented in the petition, he would naturally be presumed ne­ ver to have intended to ask payment, and a claim now set up after the respondent, by his death, is deprived of the benefit or evidence of his oath, must appear extremely suspicious as well as unfavourable. The s econd ground on which compensation is pleaded, is, the two bills alledged to have been paid by Mr. Muir to David and Robert Shaws, with respect to which it will immediately occur at first sight, that they are very old claims; one of them is dated in 174 1, and the other in 1742: Therefore post tantum temporis, action could not now be sustained upon them, even at the in- stance of the original creditor, much less of any others. The petitioners do not pretend to say, at what time they were paid by Mr. Muir, no diligence is alledged to have been done upon them, but they were readily discharged, and the payment must be pre­ sumed to have been made long ago. Besides, your Lordships will observe, that they were granted before the date of the respondent’s marriage contract libelled, by which her brother became bound for the sums claimed, and it cannot be believed that he would have paid them, unless he had been possessed of the respondent’s money aliunde; much less would h e after having so done, granted her his obligation for the full 1... ' � � � � � � � � � � � � � � � ' � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � evidence, that all claims he had on the respondent must have been extinguished long prior thereto. This would be presumed at any rate; at marriage, scores are commonly cleared, and it cannot be doubted they were so in the present case, as the respondent, by her business, was in full ability to do it: Accordingly, your Lord­ ships have already heard, that before her marriage she put into her brother’s hands, besides other funds, a bill for no less than 103 l. Sterling, for the very purpose of clearing any little debts then owing by her. And here the respondents must take notice of the contradic­ tions, well known to the Lord Ordinary, appearing in the peti­ tioner's former papers.—In one page, they represented both the respondent: *, I, ».* •- respondent and her husband as absolute beggars; and, in the next that the respondent was treated as an heiress, who brought him a fortune; that Mr. Taylor was lucratus by the marriage, and therefore, was personallv liable for all her debts: But, to crown all, the petitioners, conscious that no claim lay against the re­ spondent upon these two bills paid to the Shaw s, have been at pains, even pendente lite, to obtain the receipts that appear in- dorsed upon the back of them. It is no wonder she would now pretend to deny having done so; but, if it were material, the respondent would have little difficulty to instruct it. It will not, however, be necessary to enter into that investigation, because their priority to the respondent’s marriage, as well as the anti­ quity of the bills, bars all claim upon them. For the respondent does humbly contend, in the second place, That these two bills, nor any others properly due by herself, can­ not enter the present question, for the reason already hinted, that the sum now pursued for, was a debt expresly due, and made by the marriage contract, payable to her deceased husband alone.— It is now pursued for by the respondent, in the character of his executrix only, nor could she pursue for it in any other. Com- pensation, therefore, can only be pleaded against the present claim, on debts due by the defunct, her husband; it cannot be founded upon any pretended, or even truly due by the respon­ dent herself, whether contracted before, or after the marriage, as by its dissolution her husband ceased to be liable for them; and the answer attempted in the petition is altogether insufficient, that the wife sustains a double character, and compensation was proponed during the marriage. The only character the respondent here sustains, is that of exe­ cutrix to her husband; she can sustain no other, nor is any other she has, pretended to be pointed out by the petitioners. But if it was, it could have no influence upon the que­ stion, because it is established, by a variety of decisions in point to the present case, that compensation cannot be pro­ poned against an executrix, pursuing for debts due to the de- f unct. upon debts properly due by herself; and the point was settled on solid principles, as an executor is no more than a fac­ tor, or, as it were, a tutor, against whom, pursuing for debts due to his constituent or pupil, the law is not so unjust as to say, say, that compensation can be proponed on his own proper debts. That compensation was here pleaded during the marriage, can have no weight: Your Lordships know, that even a decreet reco­ vered, or a caption executed against a husband during his mar­ riage, for a debt due by his wife, does not render him personally liable for that debt, but its effects are totally at an end, and he is even entitled to be instantly liberated on the dissolution of the marriage, whereby all its effects are for ever sopited against him. The petitioners seem to complain, that they were not found liable s ecundem vires inventarii, and that they were held confess’d upon the passive titles. But the extent to which Isobel Buchanan is liable, is a point that was not stated before the magistrates; and therefore she cannot complain that any injustice will be done her, by remitting the cause: She has not produced any confirmed testament, to show she has not intromitted with funds sufficient to satisfy the re- spondent's claim, nor does she pretend to say it; and full ju stice is done by the interlocutor of the magistrates, which “ Sustains the defence of payment, and admits the same to probation, by the pursuer’s writ or oath.” That was all which could well be done in law, and makes it less material to bring a proof of the passive titles against the other petitioners, the children of Mr. Muir, because, if the petitioner Is obel Buchanan is fixed in a pas- sive title, which she does not even adventure to deny, and was all that was intended by the magistrates, there will be no occa­ sion to be at the trouble of proving one against her children; but the respondent has no objection, that the cause be remitted with this instruction, that decreet be not pronounced against the minors, before a proof of the passive titles be brought against them. In respect whereof, &c. G EO. W A L L A C E.