Answers 1767

■ ’ December 17, 1766. M < ' % ' ' t- 1 '1 '. IA N S W E R S F O R: W A L T E R C O L Q U H O U N, and his tutors, • * T O The P E T IT IO N of John Duke of Argyle. •’ f * * ' ': t: • * i * IN November 1722, the deceased John Campbell of Ma- more, the petitioner’s father, accepted a bill for the sum ‘of L. 79: 7: 6 Scots, payable at Candlemas 1723, to Humphry Colquhoun maltman in Dumbarton, father of the said Walter Colquhoun It is a fact very well known, that Mr Campbell of Ma- more was by no means in opulent circumstances. His estate was very unsuitable to the rank and dignity of his family; so that he was often obliged to contract debt, which it was very inconvenient for him to pay. Humphry Colquhoun, the drawer of the foresaid bill, was a man in easy circumstances; and as he lived in the town of Dumbarton, where Mamore had great power and influence, he probably did not insist much for payment of the foresaid small bill: so that during all Mamore’s lifetime it remained unpaid. Mamore having died in 1730, the petitioner, his son, made up titles to his estate, as heir of inventory: A nd it is believed, Humphry Colquhoun made f requent demands for payment of the foresaid bill; b ut in his situation, it is easy for your Lordships to conceive, that he would not press hard for the payment. He still continued to live in the town of Dumbar- A ton, ton, and held the post-office there, and was, on several occa- sions, obliged to the petitioner f or his good offices towards him. By this means the bill lay over unpaid during the life­ time of Humphry Coquhoun himself; after his death, the respondents the tutors of his infant-son, having found this bill among his other grounds of debt; and the petitioner having succeeded much about the same time to the estate and dignity of Argyle, the respondents, in duty to their pupil, de­ manded payment of the foresaid bill from the petitioner. A demand to this purpose was made upon the Noble Duke very soon after his succesio n to the estate. His Grace, at that time, did not absolutely refuse the payment; but as he delayed from time to time to give any explicit answer, the respondents were under the necesi t y of bringing this action against him, concluding for payment of the foresaid bill, with interest from Candlemas 17 2 3.------ It is very true, the summons upon which this action proceeds, is not signeted till the 22d Auguft 1762; but it cannot be denied, that for al- most two years before that time, the respondents had been in a course of demanding payment, both from the Noble pe­ titioner himself, and the managers of his affairs in this coun­ try. After the action was raised, the respondents did not insist in it for some time, st ill expecting that the bill would be paid; but, being disappointed in these expectations, they proceeded in the cause; which coming in course before the Lord Auchinleck Ordinary, the petitioner first pleaded his privilege as a member of parliament: but having afterwards been pleased to wave that defence, he proceeded to the defen­ ces in causa; which, from the beginning, have been the same with those now stated in the petition. After repeated orders of the Lord Auchinleck Ordinary, the petitioner produced his service and inventory, and the vouchers that he founded upon, to show, that the inventory wa was exhausted. Upon advisin g these, the Lord Ordinary pro­ nounced an interlocutor, of this date, decerning against the petitioner in terms of the libel. A fterwards the petitioner complained of this judgment by a representation; upon advi­ sing of which, with answers, his Lordship, of this date, pro­ nounced the following interlocutor. “ The Lord Ordinary having again considered this representation, with the an­ swers, repels the defence founded upon the antiquity of the bill, in respect it is not prescribed, and that there are no circumstances instructed, to presume that it was paid; on the contrary, the creditor is not denied to have been in easy circumstances, and the debtor, according to his 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 defender’s be­ ing served heir cum benefico, in respect his Grace does not offer to assign the inventory, which he has no title to hold, and to plead exhausted; and therefore finds the defender liable in payment; and decerns.” The respondents, this judgment in their favour notwith- standing, were still willing to listen to any reasonable terms of accommodation that the Noble petitioner should propose. In this view, a communing was set on foot; but as his Grace would only pay the principal sum and interest, the respon- dents were not in safety to accept of that offer, as it was in effect losing their cause, unless they also got payment of the expence of this process, which is a necessary consequence if the judgment now under review is affirmed. However, ra­ ther than persist in a litigation with the Noble petitioner, the respondents were willing to accept of one half of the expence. But the Duke of Argyle having rejected this offer, the com­ muning ended, and his Grace brought Lord Auchinleck's judgment above recited under your Lordships review, by the petition which is now to be answered. The The two points pleaded in the petition are, 1mo, That as the petitioner represents his father by a service as heir of in­ ventory, and has already paid more debts than exhausts the subject of the inventory, he cannot be further liable; and, 2dly, That as this bill has lien so long over, its antiquity pre­ sumes payment, and excludes any action upon it. The re- spondents, reverting the order of the petition, shall endeavour, in the first place, to show your Lordships, that notwithstand- ing the lapse of time, this bill is still a subsisting document, and that action upon it ought to be sustained; after which very few words will suffice, in answer to the petitioner’s first defence, the exhausted inventory. With respect to the firs t point, That this bill is not now ac­ tionable, on account of the long time that has elapsed since it became due, the respondents must, in the entry, observe, that this is, at any rate, a very unfavourable defence upon the part of the Noble petitioner, that he shall plead the lapse of time against a bill which he acknowledges he never paid, and the principal sum and interest of which he has already offered to pay. The respondents are advised, that a defence of this sort, and under such circumstances, must have a very unfavour­ able appearance to your Lordships. But, more particularly, in point of law, the respondents are advised, that as a bill is an obligatory writ, authorised and ac­ knowledged by the law of Scotland, the obligation thereby crea­ ted must subsi st during the full period of forty years, that is, the legal period of the negative prescription, unless bills were limited to a shorter period by a particular statute. But the respondents know of no statute limiting bills to a shorter endurance than for­ ty years: they do not fall under the act 9. parl. 1609, which introduces the vicennial prescription of certain writings Bills are not mentioned in that act; and Sir George Mackenzie, in his observations upon the statute, says, “ That the parliament refu- “ sed to admit bills of exchange to this prescription.” At the same time the respondents will admit, that in a variety of of cases your Lordships have refused action upon bills, although they had not lien over full forty years; and such in particular are the cases quoted by the petitioner. But it will occur to your Lordships, that in none of these cases did the judgment of the court go upon prescription; nor did your Lordships, in any one of them, seem to think, that a vicennial prescription takes "place in bills, as the petitioner insinuates: on the contrary, in all the cafes mentioned in the petition, the judgments of the court seem to have proceeded from particular circumstances. and are not the effect of any general rule; and the decidendi seems uni­ formly to have been a presumption arising from the circumstan- ces and situation of parties, that in these cafes, had not the bills been paid, they would not have been allowed to lie so long over. °_ I f any prescription, whether introduced by statute, or the u- niform judgments of your Lordships, had been the cause for re- fusing action on a bill, in the several cases quoted by the peti­ tioner, your Lordships would have followed the same rule in e- very other case; that is, where-ever the particular time was e- lapsed, you would have declared the bill not actionable, what­ ever the situation or circumstances of the parties concerned might have been. But your Lordships judgments have by no means proceeded upon that principle: on the contrary, where there were no circumstances tending to introduce a presumption of payment, action upon a bill has uniformly been sustained, when brought within the forty years, if the verity of the accepter’s sub- scription was not controverted. Such was the decision of the House of Lords, in the case of Garden of Troup against Mr Thomas Rigg, where the bill had lien over twenty-eight years. Such also was the decision of your Lordships, in the case of Ha­ milton against Hamilton, N ° 65. of the new Collection, where the bill had lien over twenty-one years. And in a case more lately decided, in January 1763, Stevens against Kennedy, your Lordships sustained action upon a bill which had lien over from 1736 to 1761. Such being the rule by which your Lordships determine, whe­ ther action ought to be sustained upon a bill or not, the respon- dents, with submission, apprehend, that the question here de­ pends entirely upon the circumstances; and that if your Lord­ ships do not see reason, from the circumstances and situation of the parties, to presume that this bill was paid, that action upon it must still be sustained. The only circumstance that the petitioner can possibly lay hold of, is the lapse of time since the bill became due. But there is little in this, when your Lordships attend to the fact, that the petitioner’s father, the accepter of the bill, lived only eight years after it became due; and the petitioner himself does not pretend to say, that ever he paid this bill. It cannot therefore properly be said, that this bill lay over above eight years. This surely can afford no presumption of payment; especially in this case, where the situation of parties accounts so well for the delay in the de­ mand of payment. And more particularly, 1mo, From the petitioner’s own showing, your Lordships will observe, that Mr Campbell of Mamore, the accepter of the bill, was in low circumstances when the debt was contracted, and ap­ pears to have continued in the same condition to his death. Humphry Colquhoun, the drawer of the bill, was always in good circumstances. In this situation, living in the town of Dumbarton, it is extremely probable he would not push Mamore for so small a sum; and in that way the bill might very readily lie over for eight years; which was all the space Mamore lived after the contraction of the debt. Again, with respect to the petitioner, as he acknowledges that the bill never was paid by him; so there were exceeding good reasons why Humphry Colquhoun would not be very stre- nuous in demanding the payment. In the first place, the peti­ tioner was only an heir of inventory, and of course supposed to take little by his father su c c e ssion; and as the petitioner, from his own showing, appears to have had right to heritable debts of his father s exceeding the supposed value of the inventory; as these these debts were preferable to the bill in question; so, at that time of day, and between such parties, they might easily have been used to elide any demand for payment of the bill; at least it is extremely probable, that Humphry Colquhoun, the holder of the bill, might be thereby discouraged from demanding pay­ ment. And this is the rather to be presumed, that the petitioner himself, till he succeeded to the honours and estate of Argyle, though he held high offices under the government, yet his dig- nity and rank still exposed him to an equivalent expence: in that situation Humphry Colquhoun, who continued to reside in Dumbarton, and was postmaster there, might very readily ne- glect or decline to insist for the payment of so small a sum; and the more so, that he had the honour to be always in good friendship with the petitioner; and as the respondents have been informed, was obliged to him on some occasions for his good of­ fices towards him.. And whereas it is said in the petition, That it is a circum- stance against this bill, “ that no demand was made for pay- ment at the time the petitioner was known to be calling in and paying his father’s debts, nor indeed at any time du- ring the life of Humphry Colquhoun;” the respondents confess they never heard that the petitioner had called in and paid his father’s debts. They see from the production in this process, that he has acquired right to certain heritable debts, with a view of covering the subject of his father’s inventory; but they see no evidence that ever the petitioner carried on any general measure for the payment of his father’s debts: and as to payment not having been asked during the life of Humphry Colquhoun himself, your Lordships have already heard it accounted for from the circumstances and situation of the parties while Humphry Colquhoun lived, and before the petitioner became Duke of Argyle Humphry Colquhoun was dead. So much to show your Lordships that this bill is still action­ able. That point being established, the other defence, That B 2 the the petitioner is heir of inventory, and that the inventory is exhausted; and that the inventory being exhausted, he is not farther liable, shall next be considered. And, 1mo, Supposin g the law stood so as to allow an heir of in­ ventory, to hold his father’s estate at a certain value put on it by himself, and to be liable no further than to the extent of that value; even in that case the evidence founded upon is not sufficient to support the petitioner’s defence. For, in the f irst place, The rentals referred to are no just proof of the real value of the lands in tenantry, because they might have been possessed at that time by tenants under old leases. And as to the value of the lands possessed by Mamore himself, the evi­ dence referred to in the petition on that score is nothing to the purpose. A back-tack-duty paid by a reverser to a wad- setter, is no evidence whatever of the real value of the lands; especially in this case, where it appears that John Buchanan the wadsetter held the wadset only as a trustee for the peti­ tioner; so that the back-tack-duty stipulated from Mamore, was only for form’s sake, without regard to the value of the lands. Besides, the petitioner puts no value upon the man- sion-house of Roseneath, in the building of which large sums had been expended. Again, your Lordships must be informed, that the sums said to have been paid by the petitioner, are by no means Sufficiently vouched. The two principal debts whereby he alledges the inventory was exhausted, are, Imo, A wadset- right for L. 1 325 Sterling granted by the late Mamore to John Buchanan of Middleton, and conveyed by Buchanan to the petitioner in 1743; and, 2dly, A decreet against Camp­ bell of Mamore for L. 2230 Scots, assigned by Aitkenhead of Jaw to the petitioner, then Colonel Campbell, in 1732. With respect to the first of these, the wadset conveyed to the petitioner by Buchanan of Middleton, it appears from the conveyance, that Middleton paid no money for the wadset, and that he had all along held it in trust for the petitioner himself. And again, as to the decreet conveyed by Aitken­ head head of Jaw, it does not appear from the conveyance what sum was paid by the petitioner; and therefore, before credit could be taken for either of these articles, the petitioner would be bound to inst ru ct in what manner he had advanced the wadset-sum, or what sum he had paid for Aitkenhead’s de­ creet; because if any composition was obtained upon either of these transactions, he is bound to communicate the eases to his father's creditors, agreeable to your Lordships decision, Aitkenhead against Ruffel, December 25. 1 725; D ictionary vol. 1. p. 363. ’ But, 2do, The respondents are advised, that at no period whatever did the law allow an heir of inventory to hold his predecessor’s estate at the value put upon it by himself. It is very true, that by the earlier practice, an heir of inventory was found intitled to bring an action against the creditors of his predecessor, for valuing the subject of the inventory; and he was declared to be no further liable than to the extent of the value put upon it. And so in particular it was found in a case, Gray against Maccaul, 6th Ju ly 17 3 3; and in another case decided 17th February 1736, Murray against the creditors of Pilmuir. But in both these cafes, it was understood, that the heir was liable to the extent of the value of the inventory at the time that the process of valuation was brought; And therefore, it the petitioner was now to bring a process for va­ luing the subjects of his father’s inventory, he must account according to the extent of the present value; which he will not deny, is far exceeding the debts he has hitherto paid But, 3tio, The respondents are advised, that, by the present practice, an heir of inventory is not intitled to hold the estate at a certain value; but the creditors may, i f they have a mind, bring the estate to a sale, and make the most of it. So it was solemnly decided 12th Ju ly 1738, Heirs of Strachan of Glenkindy against his creditors; and that decision has been held as law ever since. And therefore, if an heir of invento­ ry ry shall hold the subject, without exposing it to sale, he is bound either to pay the debts of his predecessor, or to assign the inventory to any creditor who demands his payment, that he may make the most of it; which the petitioner, in this case, seems not inclinable to do. The Lord Ordinary has therefore found the petitioner liable for the debt; and it is hoped your Lordships will be of opi­ nion, that his judgment upon the whole cause is well found­ ed. And further, as the respondents will, in effect, lose their cause, i f your Lordships should deny them expences; so they humbly hope, that over and above payment of the bill and annualrents, the Noble Duke will be also decerned to pay the costs of this suit. I In respect whereof, &c. CO SM O GO RDON,