Answers 1769

December 14 1769. A N S W E R S F O R M A R Y M U I R, Relict of James Taylor Mer- chant in Glasgow, Pursuer, T O The P E T I T I O N of Isabel Buchanan, and her children, Defenders. T HE respondent, in the character of executrix to thedeceased James Taylor, her husband, insi sts in an action originally commenced at his instance, be- fore the magistrates of Glasgow, against the peti- tioners, for payment of the principal sum of 2000 merks, with interest from the term of Whitsunday 1759, constituted by marriage-articles produced, that passed between the said James Taylor and her the respondent; by which " the decea- sed James Muir, husband to the petitioner Isabel Bucha- nan, and father to the other petitioners, bound himself, his heirs and successors, to pay that sum to the said James T aylor, at the first term of Whitsunday or Martinmas that Should happen after the death of Christian Hutchison, his and the respondent’s mother.’’ In stating their defences to this action, the petitioners in- troduced a long history of facts, which could not influence the decision, because they were incompetent to be admitted to to proof, as well as affected in themselves: but being cal- culated to create an impression against the ju stice of the respon- dent’s claim, she was laid under the necesi t y of following them through their misrepresentations; and she is hopeful, that the particulars, not denied in the petition, dated in her answers to the defenders first petition, were sufficient to satisfy your Lordships, that every material alledgeance made by the petitioners was ill founded. More particularly, she set forth, That she was provided by Her father’s settlement in a portion of 2000 merks: — That she was bred to threed-making; and was uncommonly suc- cessful in that business: — That she had no fewer than nine women and two men, besides many apprentices, working to her all the year: — That her family was not expensive or nu- merous, consisting only of one child: — That any misfor- tunes which befel her husband after their marriage, were al- together accidental, owing to a partnership in which he was engaged with his own brother, whose debts he was obliged to pay on that account: — And that all his difficulties were at an end half a score of years, or more, before Whitsun- day 1759, the term at which her marriage-portion was pay- ab le:— That he had obtained, by the interest of Mrs Mur- doch, an office in the excise, which yielded him neat L. 35 a-year; and was also employed in several profitable branches o f business, particularly in managing both the Duke of Ha- milton’s salt office, and that of Mr George Hoar and Com- pany, with another concern they carried on in selling cheese. In these circumstances, the respondent has no occasion to resort to the evidence of Alexander Parlane, D1 witness to whose testimony appeal was made by the petitioners them- selves, and who was accordingly examined at their own most anxious desire, of consent of the respondent’s procurator), to show, that the respondent and her husband were not in want, or supported at the expence of James Muir. Alexander Par- lane is nearly related to both parties; and his evidence, brought brought by the petitioners themselves, will certainly give flrong conviction, that the averments made by the petition- ers on that head, are equally ill founded as they are im- probable. Indeed these are fully disproved by facts and circumstances admitted by the petitioners themselves. James Muir was left only a provision of 8000 merks, of which 1000 are acknow- ledged to have been laid out on his apprentice fee.— Much money was expended in fitting him out to leave Scotland, in the prosecution of His business. — He made large draughts du- ring the long time he staid at London, before he went abroad: — and a considerable sum was uplifted of his patrimony, to defend him against a costly prosecution, in which he was in- nocently, but unfortunately, engaged: — So that, in a little time, his whole patrimony was almost exhausted. The profits which a country-surgeon, like James Muir, makes, are seldom great. He had a family of nine chil- dren; and as he was not forward to call in his accounts, so he never had the command of ready money. Hence he neither did nor could afford to advance any to the respondent or her husband. Indeed, by real evidence produced in this process, it ap- pears, that he was rather straitened. 1 mo, He agreed to pay the respondent board, at the rate of L. 3 a quarter, for her son, whom he engaged to attend his shop; yet of L. 36, to which the board amounted for three years, only L. 5: 9: 2 has been paid; and the balance is not denied to be still resting. 2do, Two bills are mentioned in the petition, (p. 12.), of which one is produced, dated 30th September 176 1, and the other was payable about Whitsunday 1762; which show, that he was every now and then borrowing small sums from his friends and neighbours. 3tio, The respondent’s marriage-contract proves he did not pay her portion at the time of marriage; but took advantage of of the proviso contained in his father’s testament concern- ing it, anti postponed payment to Christian H utchison’s death, the term thereby appointed. Had he been flush of money, or the generous brother, or had the respondent and her husband been in the necessitous condition, represented in the petition, would he ever have taken that advantage? In these circumstances, it is incredible, that he either could or would be continually advancing to the respondent’s hus- band. 4t0, The petitioners (p. 6.) say, “ The pursuers never once, in all this time, thought proper to demand the sum which they now claim, or to commence any action for it. When such was their situation, it is submitted to your Lordships, if it can be believed, that the pursuer and her husband would have failed to demand the 2000 merks, if they had not been conscious of its having been greatly overpaid.’’ But the respondent will be pardoned to think, that an in- ference direct ly coutrary falls to be drawn from these premis- ses. If she and her husband had been in straits, is it possible to believe, that they would not have demanded payment of the money! T he very reason she allowed it to lie in her bro- ther's hands was, because she had no present occasion for it; and though she believed it safe enough, yet it would have been a hardship on her brother, who was not a monied man, to have raised so large a sum. She thought it for the interest of her family to allow it to lie in his hands, and her brother persuaded her to it; but she did not think, and the obstinate defence maintained against payment ju stify her for not thinking, it equally prudent to allow it to lie in the hands of the petitioners: therefore payment was demanded. The circumstances therefore noticed in the petition will have no weight; and if the respondent had not been able to re- move the suspicions thereby endeavoured to be thrown upon her claim, she is humbly persuaded it would, without fur- ther, have been a sufficient answer, to ask, whether the peti- tioners tinners can seriously believe, your Lordships would cut down a debt, instructed by a clear and formal obligation, contained in a solemn marriage-contract, without either receipts or dis- charges, or any other written evidence of payment? In some cases, bills, or notes of hand, have been cut down from presumptions merely: but it is a length the court has never hitherto gone, to use the same freedom with bonds, or other formal securities; and it would be hard indeed, to deny ac- tion fo r a just debt so lately become due, merely on an alled- geance, that the creditor was in low circumstanccs; and, ou on the petitioner’s argument, any debt might be cut down, as a clamour is easily raised. The respondent therefore cannot enter into the observation made, or fee the consequence drawn, in the petition, (p. 6.), That against Mr Muir himself the pursuer could never have thought of maintaining the present action; because the advances made by him in support of Mrs Taylor and her husband, during the time of their indigent and straitened circumstances, were much more than sufficient to exhaust the whole of this claim:" and the distin ction is highly af- fected that is attempted between him and the petitioners. He, as well as they, would have been equally obliged, not only to alledge payment, but to prove it by proper vouchers. The respondent indeed knows, that he would not have main- tained the defence now pleaded, because he knew the debt was ju stly due. If he had paid a farthing of this bond, he would have taken vouchers of the payments. Indeed if he had made any advances without taking vouchers, and the respond- ent had been man indigent condition, on the showing of the petitioners themselves they could not now be brought in computo; as the preemption would be, that he meant, and gave them for presents or chanties, merely to relieve his sister in her distress. The preliminaries, which cannot influence the decision, be- ing ing thus discussed, the respondent shall proceed to that which can alone be reckoned the solid matter in the petition. The debt of which payment is here demanded, is formal- ly constituted by a bond produced; and as such obligation cannot be cut down otherwise than in the manner required by law, so the only relevant defence that can be pleaded a- gainst the action, is payment, proved either by the discharge, or by the oath of the creditor. Payment the petitioners do not alledge; but their defences resolve themselves into articles of compensation, of which they insist for allowance to extinguish, pro tanto, the respon- dent’s claim. The first article is the house-rent; about which the fact is, that the respondent’s husband, in his defences put in before the magistrates of G lasgow, voluntarily acknowledged, that he had possessed a house belonging to Mr Muir, fo r eight years preceding 1764, at L. 7 Sterling of yearly rent: th e ad- misio n however was qualified, that these rents, as well as all the petitioners other claims, were extinguished, by sundry sums of money paid in that specific view: particularly, 1mo. By the sum of L. 1 0:3:6 paid, by receipt produced, in 1753; 2do, By the further sum of L. 4, 4 s. by another receipt, also produced, dated 1 1 th November 1754; 3tio By the foresaid bill for L. 35 Sterling, also paid by the respondent; with the further claim for board above mentioned, which the petitioner's husband agreed to pay the respondent for her son. The Lord Ordinary found, “ That the house-rents propo- ned as compensation, being resting owing, are now only probable by the oath or writ of the debtor, and are to be allowed as a ground of compensation to the extent only of what thereby shall be found resting owing.” No interlocutor can be better founded. And the petition- ers, in their argument concerning the triennial prescription, take two things for granted, which cannot be admitted: 1mo, That the acknowledgement of the possession of the house, IS is equivalent to an acknowledgement of resting owing;2d On that supposal, they all along assume, that the rents are admitted to be resting owing. But with submission, in all cases like the present, in which the triennial prescription is pleaded either against house-rents, furnishings by merchants, servants wages, or other the like debts it does not follow that resting owing is acknowledged, because the furnishings, or possesion s, or services, are ad- mitted: on the contrary, the furnishings, or possesion s, or services, are not contested; and the point which is denied, and must he proved, is resting owing; the rule here being, that in case action is brought before prescription is run, it is competent to prove the service, or furnishing, or possession, by w itness; which being once establis hed, the law presumes payment not to have been made, and lays on the debtor the onus of proving it: but if prescription is run, the law pre- sumes payment; therefore the possession, or furnishing, or performance of 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, and all must be referred to oath. In any other view, the triennial pre- cription would be unavailable; as a gentleman who ac- knowledged that he had lived in a house, or that a per- son had served him, would thereby be liable to pay the rent or wages at any the greatest distance of time: resting owing therefore must either be acknowledged, or it must be proved in one or other of the modes limited by law, viz. scripto or juramento, otherwise payment cannot be recovered. The petitioners do not pretend to have proved resting owing, either by the writ or by the oath or me debtor, the only evidence competent by law; but the evidence to which they appeal, is that called a judicial declaration, emitted by the respondent's deceased husband before the inferior court. In his defences he stated the fast; and the petitioner must ei- ther. ther take the acknowledgement qualified as it Hands, or be- take themselves to the legal mean of proof. T heir manner of dividing the acknowledgement is new. An acknowledgement can, in fairness and candour, only be taken as it stands; and it is tota persctahat its true im- port ought alone to be explained. Indeed it would be hard to allow the petitioners to take any advantage from this ac- knowledgement. Mr Taylor might, if he had pleased, have rested his defence entirely on prescription, and, with- out adding a word more, have insi sted the debt was pre- ferred; in which case the respondent would have been per- fectly secure, unless a reference had been explicitly made to his oath, and he had deponed during his life. Ought he or the respondent to be hurt, because, instead of taking advan- tage of the defence afforded him by law, he candidly produ- ced the two receipts mentioned in the petition, and added, that he had paid the L. 35 bill, to extinguish these rents? The petitioners contend, “ That as the pursuers, in their acknowledgement before the inferior court do not alledge, that the rents were not in themselves anexistgdb,o they cannot be allowed to retract from the force of that acknowledgement, by introducing extraneous matters of compensation;" and it is added, “ Your Lordships cannot, in this case, distinguish betwixt the judicial acknowledge- ment as admitted before the inferior court, and an oath e- mitted in virtue of a reference.” But in this argument it is still assumed, that the rents are acknowledged to be a subsisting debt; whereas the respondent’s husband did not acknowledge that: on the contrary, his ac- knowledgement not only bears that the claim was satisfied, but, pointing out the particular manner in which it was so, instructs the extinguishment, at least so far as he particular money or payments therein specified go, and does surely import a po- sitive denial of resting owing, farther than on a calcul should be be found unextinguished by the sums expressly declared, ei- ther to have been actually paid, or to have remained unex- acted, in extinguishment thereof, viz. 1mo, The sums for which the two receipts are produced; 2do, The L. 35 paid to Alexander Parlane; 3 tio, The balance remaining still of his servant’s board. And, were it material, the respondent might observe, that there is an obvious distinction between a judicial declaration, and an oath emitted on a reference. In the case of a refe- rence, the truth of a particular fact is rested on the testi- mony of the person to whose oath it is referred; and the ju- dicial contract being limited to that particular fact, no o- ther, which is not part of that fact, can enter into it, be- cause the contract is made upon it alone. The decisions therefore which are quoted, relating all to references on oath, do not apply. In that of Black and Simson, the party did expressly acknowledge the debt; adding only, that he had furnished wine to the pursuer. This was perfectly consistent with the debt pursued for being owing, because the deponent did not pretend, or say, that he had not got pay- ment of the wine. And this ratio decidendi, appearing on the face of the decision itself, was most solid. The other case quoted, from Lord Stair, is imperfectly da- ted in the petition. “ Robert Learmonth being pursued by Laurence Russell for the price of wines, and the matter re- ferred to his oath, gave in a qualified oath, bearing, That the wines in question were sent to him, not to be sold till farther order, and that therefore he kept them unsold till the end of the year; and when they were in hazard of spoiling, sold them for L. 12 Sterling the tun; and that he that sent them was debtor to him by bonds and decreets in a greater sum. The Lords sustained the f irst member of the quality, but rejected the second, and found it relevant to be proven by way of exception.” This case rather aids the respondent; respondent; and the reason the second member was not sus- tained as well as the first was, because the defender did not, as the respondent s husband, pretend the debt was extinguished; and said only, that the pursuer had once owed him a greater sum by bonds and decreets; but he did not either specify the extent of the debt, or produce the bonds and decreets; which however if he had done, the compensation would have been sustained. Indeed the respondent may well maintain, that the quality here adjected by her husband was intrinsic. Besides other things, his declaration says totidem verrbis, " The L. 35 was paid to account of the rents which the pursuer owed the defunct." This, if it did not import payment, or a denial of resting owing, and was not intrinsic, the respondent can- not see what will. And it answers a question put in the peti- tion (p. 12), Why the respondent did not demand or bring an action for payment of this L. 35 as well as the 2000 merks? Because it would have been inconsistent, as well as unjust, in her to have sued for money of which she was not intitled to recover payment, as it had been paid to account and in ex- tinction of a debt due to Mr Muir. In the Dictionary many cases in point are to be found un- der the title Qualified Oath. Thus “ A debt being referred to oath, and the defender deponing, That he compensed the debt, by the pursuer’s detaining, for several years, the farms 0f his lands; the Lords allowed of this compensation, be- cause of the qualified oath, although the exception was no otherwise instru cted.” Durie, 28th March 1629, Gall. And a similiar case is quoted from Harcarse, Compensation, Novem- ber 1687, Johnston’s assignee. The respondent, therefore, has no occasion to follow the petitioners through their long argument concerning the ex- tent of the rent, and number of years for which the house was possessed; she will only observe, that she does not know L. 8 to have been its ordinary rent: and no argument can be drawn to that purpose from the receipt produced for L. L. 1 0: 3: 6, the sum the petitioners say (p. 8.) was then paid. T he receipt does not bear the payment to have been then made, but its words are, “ now and formerly, in cloth, pa- per, and cash" and the Lord Ordinary’s interlocutor finds resting owing, in general, to be probable by the writ or oath of the debtor. The respondent therefore shall, without further, proceed to Alexander Parlane’s bill for L. 35, which was paid by her to extinguish the rents. It will at first fight occur, that the respondent’s account of this matter is most probable. 1 mo, It cannot be presumed that James Muir would want payment of his rents; he could not afford it. 2do, Your Lordships have good evidence that in fact he did not, from the two receipts produced, which prove he was paid, if not beforehand, at least very near the term. 3tio, It is most natural to think, that he might desire, and the respondent would agree, as he was seldom in cash, to pay this L. 35 for him, out of the arrears of rent due to him. It is therefore affected in the petitioners to pretend Mr Muir gave the respondent money to pay that bill. It appears, from Parlane’s oath, that he was not even in Glasgow at the time; and the tale is well known to the petitioners to be en- tirely without foundation; yet they offered (mem. p. 8.) to prove, in the most positive terms, by Mr Parlane’s oath, That Mr Muir put the money due upon the bill into the hands of his si ster, to give Mr Parlane; nay, that when Mrs Taylor paid this L. 35, she told him that the money had been put into her hands by his uncle Mr Muir.” The respondent, notwithstanding that her bond could not be cut down by parole evidence, did nevertheless consent to the examination of Alexander Parlane, whole evidence would otherwise have been incompetent. Alexander Parlane was accordingly adduced at the petitioners instance; and as he was their own witness, as well as connected with both par- ties, ties, it is not a little curious to find the petitioners insi sting, that no regard be had to some parts of his oath, because, forsooth, it disproves many of their averments. It is suf- ficient for the respondent, that his oath does not prove the facts offered to be instructed by it; and he does not pretend to say, either that he knew the money to belong to Mr Muir, or that the respondent said it did; both which facts the peti- tioners averred in the most positive manner. And the stress attempted to be laid on the words of the receipt, is highly affected; as if its being said on the back of the bill, that the contents had been received the hands of Mrs Taylor, showed the money not to be hers. In the first place, Mr Parlane is in part mistaken: for the receipt was not written with his hand; neither is it written by the re- spondent’s. All he did was, to indorse his name on the hack, which was precisely the thing that the res gest a would presume, and required to be done; and it was after- wards that the other words were superadded, by an igno- rant lad, without necessity, or attending to the propriety of them. In the second place, It cannot be believed, that if Mr Muir had given money to pay the bill, he would not have taken care to get it directly delivered up to him. He lived no less than four years after the payment. In the third place, The receipt expressly bears, that the respondent did actually pay the money; and the bill has all along remained in her possession. It must, therefore, however uncouthly worded have plainly been intended, and have the effect of an indor- sation in her favour. And, in the fourth place, It cannot miss to have particular weight, that it is not pretended to appear from Mr Muir's books, that he either gave the re- spondent this money, or paid the bill; which, if he had done either, would undoubtedly have been the case. Indeed, for reasons already mentioned, Mr Muir could seldom command money; of which your Lordships have strong strong evidence from the several particulars already men- tioned, while on the other hand the respondent, by being in business, had money always at command. The last article for which the petitioners crave compensa- tion on their part, are the two bills alledged to have been paid by Mr Muir to David and Robert Shaws. With respect to which it will immediately occur, that they are very old do- cuments; one of them is dated in 1741, a n d other in 1742; therefore, pos t tantum temporis, a claim could not now be sustained upon them, even at the instance of the original creditor; much less can it at that of any others. The petitioners don’t pretend to condescend on the time at which 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 presumed to have been made long ago. Indeed it is not pretended to have been made within these twenty years; nor is it alledged, that Mr Muir ever made any demand upon them against the respondent. The petitioners say, it is clearly proved, by the receipts on the backs of the bills themselves, that they were paid by him. But the fact is, which if necessary can be proved, that these receipts now appearing indorsed on the bills, were purposely procured pendente lite to aid the present plea. This ma- noeuvre, therefore, proves the reverse; shows the petitioners were conscious no claim lay against the respondent upon them; and will not make their other defences appear in the most unsuspicious light. Besides, your Lordships will observe, that both bills were granted prior to the respondent’s marriage-contract, by which her brother became bound for the sums claimed; and as it cannot be believed, that he would ever have thought of paying them during her marriage, by which she not only ceased to be liable, but was absolutely secured against distress for them; so it is equally incredible, that he would have paid them before her marriage, unless he had got the respondent's money money to do it; much less, after having so done, would he have granted her his obligation for the full 2000 merks, but the presumption is, and your Lordships have real evi- dence, that all claims he had on the respondent must have been extinguished long prior thereto. This would have been presumed at any rate. At marriage scores are commonly cleared; and it cannot be doubted that they were so in the present case, as the respondent, by her business, was in full ability to do it. It is therefore of no consequence, that the term of payment happened to fall within that of her mar- riage. The presumption thence arising can never sure- ly aid the petitioners: The debts were both contracted by her, as well as constituted, before her marriage; and therefore common honour required, both of her and of her brother, that she should not be imposed with debt on her husband, but that any trifles owi ng by her should previously be cleared. Accordingly it has not been denied, that, be- sides some cloaths which she paid for her brother, and L. 20 she gave him in cash, she did further put into his hands, before her marriage, a bill for no less than L. 103 Sterling, for the very purpose of clearing any little debts then owing by her. In the next place, The respondent does humbly contend, that these two bills, or any others properly due by herself, cannot enter the present question, for the reason already hint- ed, That the sum now pursued for, was a debt expressly 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; compensation therefore can only be pleaded against it, on debts due by the defunct her husband; it cannot be founded on any pretended to be, or even truly due by the respondent herself, whether contracted before or after the marriage, as by its dissol u tion her hus- band ceased to be liable for them. And the answer attempted in the petition is altogether insufficient, That compensation here, here, was proponed during the marriage; and that it must operate against the respondent pursuing for her own behoof. Even a decreet recovered, or a caption executed, against a husband, during his marriage, 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 intitled to be instantly liberated, on the dissolution of the marriage, whereby all its effects are for ever sopited against him. The proponing, therefore, of compensation during the mar- riage, can never have the effect to make him continue liable after its dissolution. It is equally established, that compensation cannot be pro- poned against an executrix upon debts properly due by her- self. And the point is settled on solid principles; as an exe- cutor is no more than a factor, or as it were a tutor, against whom, pursuing for debts due to his constituent or pupil, the law is not so unjuft as to say, that compensation can be proponed on his own proper debts. Executry is an office, and in every process brought by the executor in execution of that office, the executor discharges a duty therein implied, endeavours to collect the effects, and pursues for the behoof of all having interest in the moveable estate of the defunct. It is most affected to pretend, that James Taylor was lucra- tus by the marriage, and therefore remained personally lia- ble for all the respondent’s debts. It is admitted that he was in good business and credit at the time of the marriage; it was entered into with the consent of James Muir himself, as well as the respondent’s other friends; and it cannot serious- ly be maintained, that any man of Mr Taylor’s rank is, or can be, lucratus by a marriage, who gets no more than 2000 merks, payable at a very distant period. In respect whereof, &c. GEO. W A L L A C E.