Petition 1766

bUnto the Right Honourable the Lords of Council and Session, T H E P E T I T I O N O F J O H N Duke of A R G Y L L, Sheweth, THAT Mr. John Campbell of Mamore, the Petitioner's Father, died possessed of a very small Estate, and leaving Debts exceeding the Value of it. That, in 1730, soon after his Father’s Death, the Petitioner was served Heir to him, cum beneficio inventarii, and gave up, in Inventary, the Lands of Mamore and others, which had belonged to Mr. Campbell, the yearly Rent of which was within 68 l. Sterling. The Inventary, in Process, was duly recorded in April and May that Year. At the same time, as the Petitioner was desirous, as far as in his Power, that all his Father’s ju st Debts should be paid, he did accordingly pay off these Debts, from time to time, to the Extent of no less than 2040 l. 5 s. Sterling, a Sum great­ ly exceeding the Value o f the Inventary. That a Process was lately brought against him, at the In- stance of Walter Colquhoun, as representing his deceased Father, Humphry Colquhoun, Maltman in Dumbarton, for Payment of a B ill of 79 l. 7 s. 6 d. Scots, supposed to have been due by Mr. John Campbell to the said deceased Humphry Colquhoun. A The The Bill bears Date 23d November 17 12, payable at Candle­ mas thereafter, and the Summons is dated, signeted, and exe­ cuted on the 1 2th August 1762, within a few Months of the long Prescription. Your Lordships may easily suppose, that the Petitioner would not have stood a Process for such a Trifle, were he not in his own Mind thoroughly convinced that it is not due, and were there not Reason to apprehend, that, i f he was to give way in this Instance to the Payment of so antiquated and suspicious a Claim, other Debts of the same kind might be reared up against him, which he is under no Obligation to pay. He must therefore be excused for insisting in such Defences, as the Law will allow h im; and these are twofold, 1 mo, His Service upon Inventary; 2do, The Antiquity of the Bill itself, which presumes Payment, and excludes any Ac­ tion upon it. The Lord Auchinleck, Ordinary, before Answer, granted Diligence for Recovery of the Inventary of the Defender’s Service, and Instructions of Payment, to s how the same ex- J ' hausted; and these Documents having accordingly been re­ covered, His Lordship, of this Date, pronounced the follow­ ing Interlocutor: “ In respect the Defender has failed to pro­ duce Vouchers of Payment, to show exhausted in terms o f the above Interlocutor, decerns against him in terms of the Libel.” The Petitioner craved a Review of this Interlocutor, which, in so far as respected the Vouchers of Payment, had proceed­ ed on a Mistake in Point of Fact. But his Lordship, of this 'Date, pronounced the following Interlocutor: “ The Lord Ordinary having again considered this Representation, with the Answers, repels the Defence founded on the Antiquity of the Bill, in respect it is not prescribed, and that there are no Circumstances instru cted to presume that it was paid, on the contrary, the Creditor is not denied to have been in easy Circumstances; and the Debitor, according to his Grace, Grace, the Defender’s own showing, by his other Defence, appears to have been in a different Situation, which, with personal Circumstances of the Parties, accounts well for the Delay; and repels the other Defence founded on the De­ fender’s being served Heir cum beneficio, in respect his Grace does not offer to assign the Inventary which he has no Title to hold, and to plead exhausted; and therefore finds the Defender liable in Payment, and decerns.” The Petitioner, rather than struggle this Matter any fur­ ther, would have acquiesced in the Judgment o f the Lord Or­ dinary, however hurtful the Consequences of it may be to him, in rearing up other Claims of the same Nature, and ac­ cordingly an Offer was made by his Agent to pay the Debt and Interest, though there was still the greatest Reason to be­ lieve that it had been long ago extinguished. This produced a Communing between the Parties, during which it was a- greed by a Writing under the Hand of the Pursuer’s Agent, herewith produced, that the reclaiming Days should not run; but a Difference having ensued upon the Article of Expen- ces, and the Pursuer’s Claim, on that Plead, appearing to be quite unreasonable, as none were awarded by the Lord Ordinary, the Treaty was broke off, and this Application is now made to your Lordships for a Review of the Lord Ordi­ nary’s Interlocutor. In the fir st, place, supposing it were certain, that this Bill was a true Debt, and still unpaid, the Petitioner does, with Submission, contend, that he is not liable for it, because, from Evidence produced, it appears, that he entered to his Father cum beneficio, and that the Inventary is much more than ex­ hausted. Sundry Rentals and stated Accounts are produced for the 1 729, 1730, and subsequent Years, docquetted and signed by the factor and by the Petitioner, from which it ap­ pears, that the highest Rent yielded by the E state in any of these Years, for the Lands in Tenantry, was 4 8 l. 1 7.s. 4 d. Sterling, or thereby; and, by a Contract of Wadset between Mr. Campbell and Mr. Buchanan of Middleton in 1727, it ap­ pears, pears, that the Lands in the Proprietor’s natural Possession were reset to him by the Wadsetter, at the yearly Rent of 23 l. 1 8 s. Sterling for five Years, in all 67 l. 13 s. 4 d. Ster- ling. On the other hand, the heritable and personal Debts, ap­ pearing from the Vouchers produced to have been due by M r. John Campbell, and paid off by the Petitioner, amount to 2040 l. 5 s. Sterling, which your Lordships will observe is above thirty Years Purchase of the Rental. It is submitted, that a more satisfying Proof of exhausted cannot be figured. Your Lordships will not believe that any Estate in the High­ lands was at that Time (near thirty-six Years ago,) worth thirty Years Purchase of an adequate Rental; and there is no Reason to doubt, that the Rental was in this Case ade­ quate, as Mr. John Campbell lived in the Country at the Head of his Estate, and his Income was so inconsiderable for a Man of his Rank, that it is by no means probable he would g ive down any of it to the Tenants. The Law does not ob­ lige any Heir who enters cum benef icio, to value or sell his E- state, in order to ascertain the precise Amount of what is due to the Creditors. It is enough that he gives it up in In­ ventary, and he will be safe if he can show, by rational Evi­ dence, that this Inventary is exhausted by Payments. I f any Creditor, coming at a Distance of Time, disputes the Fact, and maintains that the Inventary is not exhausted, he ought to prove his Allegation. It would be extremely hard, post tan- tum temporis, to oblige the Petitioner to enter into a regular Process of Valuation of the Estate, or to assign the Inventary, when your Lordships have sufficient ex facie Evidence from the Writings produced, that the Inventary was exhaust­ ed near thirty Years ago, and no Proof of the contrary is of­ fered by the Pursuer. But, 2do, Supposin g the Petitioner were the universal Re- presentative of his Father, he is advised that a sufficient De­ f ence arises from the Nature and Circumstances of the Debt itself, L J itself, against his being liable in Payment o f it. Many Que- stions have occurred concerning the Validity of Bills which had lain over the Length of twenty or thirty Years, without any Demand; but it is believed this is the first Instance of a Process for Payment o f a Bill within three Months of the longest Prescription. Bills are the Vehicles o f Commerce, in­ tended by their Nature to have a very short Endurance; and Lord Stair says, “ I f they are kept for any considerable T im e, “ they will not be probative.” The Petitioner admits, that there is no statutory Prescription of Bills in this Country, other than that which cuts off all Obligations by the Lapse o f forty Years; but there is a Preemption or Suspicion a- gainst them, from the Nature of the Thing, in consequence o f which your Lordships, in Practice, without expresly find­ ing them to be prescribed, have been in use to deny Action upon Bills, after lying over for any considerable Number of Years; more especially, i f both the original Parties in the Bill happen to be dead, and the Question only arises among Heirs, who may be ignorant of the Transaction. A Number of Instances of this Kind occur in the printed Decisions. In the Case of Wallace against Lees, A ction was brought for Payment of two Bills which had lain over, one of them twenty-five, and the other twenty-three Years. No Circumstance of Payment was alledged, but the judgment pronounced by the Court was in these Words: " The Lords found, that the Bills having lain over so long, and the Granter being dead, there lay no Action upon them.” In the Case of Moncrieff, the Bill had lain over about twenty-six Years, and both Drawer and Accepter were dead. The Court found, “ That no Action lay upon it after such a Lapse of T ime. In the Case of Lookup against Crombie, Action was denied on two Bills, merely because they had lain over about thirty Years, and the original Debitor was dead. A like Decision was pronounced in the Case of Mary Wallace, against Janet Murray, 9th January 17 59; and in ^ the the Cafe of Hugh Stewar against the Trustees of 9th July 1760. This in short, has been the uniform Practice of your Lordships, in every Case o f the Kind that has happened, and no Instance to the contrary can be given, unless either where the Bill has been pursued for within twenty Years, which is the Period fixed by Law for the Prescription of holograph Writs, or where some of the original Parties are alive, and can make Oath, or give a rational Account whether the Bill is due or not due. In the Case of Pringle against Murray, 18th November 1760, Action was sustained on a Bill nineteen Years old, on this Condition only, that the Drawer, who was alive, should make Oath that the Contents were still rest­ ing. In the Case of Garden of Troup against Mr. Thomas R igg, the House of Peers sustained Action on the B ill; but the Ac­ cepter was alive, and could give no other Account of the Mat­ ter, except that he could not charge his Memory with having ever seen the Bill. The Court of Session had, by two diffe­ rent Interlocutors, found that no Action lay, unless the Bill was supported by Mr. Rigg's Oath, upon the Verity o f his Subscription to the Acceptance. The Case of Hamilton against Hamilton, 10th December 1757, was much of the same Na­ ture; the Accepter was alive, and owned his Subscription, and his only Defence was a non memini with regard to the Cir- cumstances of the Debt, for which Reason the Court sustain- ed Action on the Bill. In the present Cafe, it is impossible to have Recourse either to the Acknowledgment or Oath of the Accepter, Both the original Parties being dead, and therefore, according to the invariable Practice of the Court, Action falls to be refuted on the Bill. The long Taciturnity is, indeed, in this Case, ex­ tremely suspicious, when it is considered that Mr. John Camp­ bell, the Granter of the Bill, lived at Ros eneath, within a few Miles of Dumbarton, (where the Drawer resided) for about eight Years after the Date of it, and was in good Credit all his his Life, and always in sufficient Circumstances to pay so trifling a Sum, as being possessed of a Pension from, or Office under, the Government, besides his small Estate, and when it is also considered, that no Demand was made for Payment, at the Time that the Petitioner was known to be calling in and paying his Father’s Debts, nor, indeed, at any Time during the Life of Humphry Colquhoun, who lived till within these few Years, and was not, so far as the Petitioner knows, in opulent Circumstances. The fair Presumption,- therefore, is, that this Bill has been, in some Shape, paid or accounted for, as it is not otherwise conceivable how it should have been kept up for thirty-nine Years and nine Months without any Demand. * May it therefore pleas e your Lordships to alter the Lord Ordinary's Interlocutor, and, on one or both of the Grounds above set forth, viz. the Inventary being exhausted, and the Antiquity of the B i l l the other Circumstances which occur against it, to af- fo ilzie the Petitioner from the present Action. According to Justice, &c. I L A Y C A M P B E L L. A / c / +- s — w m ~ 7y Ar^_ / / ^ r 4*i0 r < r> A* ^ / / ^ 0 t K / * 4 ^ ijC *-f 7 l » b *> firfl-fip-t he- / 4 i L ‘ 7> /Il ///. /£//£ ^ £ a *S /& /• * + / A lA b, *—b 7 t.-A^^-/. A *4 • ' f * £ t ^ *y!«/ / ij£. ^ / f- / • / f o —- At~(A" ' < 7 ^/ /*■ « X •A) V /*-* A // <5- Z 7^ *‘ v ' Hr \