Answers 1766

December 1 7. 176 6.-: J;■* v: 6-A N S W E R S F O R John Maxwell writer in Dumfries, brother-german and executor qua nearest in kin of the deceased William Maxwell of Carswadda, T O The P E T I T I O N of James Maxwell of Kirk- connel, son and heir of the late James Maxwell of Kirkconnel; and of Mrs Mary Riddel, relict of the said deceased James Maxwell. OF this date, James Maxwell younger of Kirkconnelgranted a bill to William Maxwell of Carswadda, for the sum of L. 38 Sterling, payable against the 1st of May then next. William Maxwell, the creditor in this bill, was at that time factor on the estate of Kelton; and it does appear, that the mo­ ney lent upon the foresaid security, was part of the rents which he had uplifted from the tenants of that estate. For, from Mr Maxwell’s journal or count-book, which is produced in process, it appears, that, in December 1733, and February 1734, he had made two collections of the Kelton rents, amounting to L. 3 7: 7: 6; under each of which, it is jotted, of William Max­ well’s hand-writing, That these collections were lent to young Kirkconnel: Kirkconnel: and accordingly Kirkconnel’s bill is for L. 38 Ster­ ling, which is only 12 s. 6 d. more than the amount of the col­ lections; and it bears date the day immediately following the se- cond collection. The second collection is stated in the journal as made upon the 26th, and the bill bears date the 27th Feb­ ruary 1734. It would appear, that William Maxwell, on the foresaid ac­ count, did not consider this bill as a proper fund of his own; but that he had lent out the money, to bear interest for the be­ hoof of his constituent, until the same should be called for: and accordingly there is produced in process, a state of accounts, ho­ lograph of William Maxwell himself, which he had made out with a view to a clearance with Lady Logan, his constituent; in the last page of which, he takes credit for this bill, as an ar­ ticle of his discharge, proposing to indorse it over to the lady as so much of her money, which he had lent out for her be­ hoof on the foresaid security: and in this account he likewise takes credit for a bill, drawn by him upon, and accepted by, John Macgeorge of Cocklick, dated 13th February 1742, for the sum of L. 30 Sterling; and for a bill granted to him by William Maxwell of Munchies, dated 4th March 1742, for L. 28: 8: 4 Sterling. The foresaid accounts, though made out several years before Carswadda’s death, were not cleared betwixt him and Lady Lo­ gan. He for some years before his death was in a bad state of health, which prevented his fettling these accounts, or attending properly to business: But it would appear, that as he did not consider these bills as his own proper money, that therefore he did not chuse to intromit therewith; but allowed the same to lie over, in the view of giving them up to his constituent when his accounts came to be fitted and cleared. And accordingly a cor- respondence seems to have passed betwixt him and Mr Andrew Hunter, who was the Lady Logan’s doer, relative to this bill; and there is produced in process a letter from Mr Hunter to Carswadda, dated the 11th July 1747, in which he writes, “ As " As for that money lent to Kirkconnel, &c. I will not yet give you any orders anent i t; but shall notice after this, if any ad­ judications he passing against Kirkconnel, and write you. I am,” &c. The respondent, in the course of this action, ap­ plied to Mr Hunter for the letter, in answer to which the fore- said letter was wrote: he says, that he has not preserved it, not judging it to be now of any consequence. Carswadda died in September 1762; upon which the respon­ dent his brother, who had procured himself decerned and con­ firmed executor qua nearest in kin to the defunct:, brought an action before your Lordships, against James Maxwell, now of Kirkconnel, as representing the deceased James Maxwell of K irk­ connel his father, the accepter of the foresaid bill; and also a- gainst Mary Riddel his relict as representing him passive, for payment of the contents; and also against Ebenezer Macgeorge of Cocklick, as representing John Macgeorge his father, for payment of the contents of the foresaid bill, granted by him to Carswadda; and also against William Maxwell of Munchies, for payment of the other bill above mentioned, granted by him to Carswadda in the 1742. This action came, in course, before the Lord Auchinleck Or­ dinary; and Munchies having died before the action came to be called, the respondent insisted against the other two defenders: and no compearance having been made for the now petitioner; and it having been contended, upon the part of Mr Macgeorge, That action did not lie after so long a taciturnity; the Lord Ordinary, of this date, pronounced the following interlocutor « Decerns in absence against the defenders James Maxwell and Mary Riddel, in the terms of the libel against them: and before answer allows the procurator for Ebenezer Macgeorge to give in a condescendence of the decisions refusing action upon bills, in respect of the taciturnity, and not timeously demanding pay­ ment; and from which he would infer, no action should lie upon the one here pursued for; and that against next calling, with certification.’’ Against Against this interlocutor a representation was preferred upon the part of the petitioners; and the Lord Ordinary, upon advi- sing the same, with answers, of this date, pronounced the fol­ lowing interlocutor. " The Lord Ordinary having again con- sidered this representation, with the answers, and Mr Andrew Hunter’s letter, adheres to the former interlocutor, and refuses the desire of the representation; superseding extract till the 15th of November.” And upon advising a second representation for the petition­ ers, his Lordship, of this date, pronounced this interlocutor. “ The Lord Ordinary having considered this representation, with the former proceedings in this cause; and particularly, that the bill in question is not cut off by prescription; that there is no document of its having been paid; and that the ta­ citurnity is well accounted for from the creditor’s books, which shows, that the contents of it were by him consider- ed not to be his own, but to belong to the proprietor of the estate o f Kelton, upon which estate he was factor, and which is confirmed by Mr Hunter’s letter in the 1 747; ad­ heres to the former interlocutor, and refuses the desire of the representation.” The petitioners have reclaimed to your Lordships. The petition is ordained to be seen and answered; and in obe­ dience thereto, this is humbly offered on behalf of the re- spondent. And, in the first place, The respondent does humbly beg leave to lay it down as a clear point, That no prescription hath run against this bill. The bill was payable the 1st of May 1734, and this action was brought in December 1764. Bills, by the law of Scotland, are probative writings. They have always been considered as legal vouchers and grounds of debt; and the lieges have accordingly, in their transactions, been in use to rely upon them as permanent securities for mo­ ney: and, when that is the case, the respondent, with all submission, cannot discover upon what grounds they can be limited, in their duration, to less than forty years. No No prescription is known in the law of Scotland, except what is introduced by positive statute. Bills are mentioned in none o f the statutes establishing the shorter prescriptions. Sir George Mackenzie, in his observations upon the act 9. parl. 1669, does observe, That the parliament expressly re- fused to bring bills of exchange under the vicennial prescrip­ tion; “ because that were to limit them by too narrow sta- tutes.” And if they do not fall under any of the shorter prescriptions that from time to time have been established in the law of Scotland, it must necessarily follow, that no pre­ scription can take place against them, except the general pre­ scription of forty years. Whether it would be expedient, that bills should be limited to a shorter period, is not the proper subject of inquiry be- fore a court of ju stice; but until such law is made, limiting their duration, full force and effect must be given to them, if pursued within the long prescription. And it does not easily occur, how a court of law can make a shorter prescription for them, when that very point seems to have been under the consideration of the legislature, and it occurred to them to be improper to limit bills to a shorter period. The respondent shall not dispute, that, independent of prescription, cases may occur, where taciturnity, under cer­ tain circumstances, will be sufficient to cut down a legal voucher of debt, though found in the hands of the proper creditor. And accordingly various cases are mentioned in the petition, where your Lordships denied action upon bills, al- though they were not struck at by the long prescription. At the same time the respondent must observe, that in questions of this kind, it is not easy to argue from one case to another. Prescription is defined with precision in the law; but what de­ gree of taciturnity is sufficient to cut down any claim, is an arbitrary question: so that every case must be judged of upon its own circumstances, and the species facti that does apply to it. The respondent apprehends, that all the cases mentioned in in the petition do contain specialties which difference them from the present case. As to the first cafe, Lady Forrester contra Lord Elphingston, the respondent cannot discover a reason for mentioning it. In that case, resting owing was referred to the oath of party; and as the court were of opinion, that the oath did not prove the alledgeance, the defender behoved to be assoilzied. As to the second decision, viz. 3 1 st January 1749, Wal­ lace contra Lees, it is observable, that the point now in issue was there very little considered. The point upon which the defender chiefly rested his cause, was, That the bills were null, as containing a penalty; but the other defence was very overly mentioned; nor is there a word of argument stated in answer to it upon the part of the pursuer: so that it is hum­ bly submitted if it can be considered as a decision upon the point now in issue. The next case mentioned in the petition, is, 13th December 17 3 1, Moncrieff contra Sir William Moncrieff. But your Lordships will observe, that in that case other circumstances did occur besides taciturnity alone, to induce a belief that the debt must have been paid. It had lien over without any de­ mand for the space of twenty-seven years, notwithstanding that the bill did not bear interest, being only payable on de­ mand: For although a missive was granted in the 1720, pro- m ising to pay interest, yet that missive was cut off by the vi­ cennial prescription; and in that case Sir William Moncrieff, the creditor, had been under a ten years prosecution before the court of Exchequer, and could not afford to want his money. It is obvious that that case will not apply to the case where nothing but simple taciturnity can be alledged. The next case is, 20th February 1754, Andrew Lookup con­ tra John Crombie, &c. But neither is it similar to the pre­ sent. The bills there claimed were thirty years old; one of them was payable on demand, and bore no interest, and the debtor was long in labouring circumstances. Under all • which which circumstances it was not easy to believe, that the cre­ ditor would have, during all that period, taken no step either to operate his payment, or even to make the bill bear interest. The case 9th January 1 759, Wallace contra Murray, is like- wise widely different from the present. It had not only lien over for thirty years without any document taken upon it, but besides, James Finlayson, the creditor in the bill, was in use to receive the clerk’s dues, and to pay them to Clerk Mur­ ray, who was the debtor in the bill; and therefore it could not be presumed, that if the bill had been really due, he would not have retained his payment at some of the various clearances that intervened betwixt the parties. And as to the last case mentioned in the petition, viz. Stewart contra Houston, 15th July 1760, the circumstances of it difference it widely from the present. For in that case, besides that the bill had lien over for twenty-seven years with­ out any document being taken upon it, other circumstances did concur, which rendered it highly presumable, that the bill had been extinguished loon after it became due. It ap­ peared that Mr Houston the debtor was proprietor of a consi- derable lime-work in the neighbourhood of Mr Stewart the creditor’s farm, and that he was in use to furnish him with large quantities of lime; that he sometimes borrowed small sums from his neighbour Mr Stewart, which were afterwards allowed in accounting for the lime; and, particularly, it ap­ peared from a missive produced, that, not long after the date of the bill, Mr Houston burnt some kilns of lime for Mr Stewart, which were to be delivered to him in payment of cer­ tain sums which he then owed him; and it was probable that the bill in dispute was one of these sums. The judgment pro­ nounced by your Lordships in that case is in the following words. “ The Lords, in respect of the circumstances of the case, found, That no action lay upon the bill; and suspended the letters simpliciter.” It It is therefore humbly submitted, i f any of the foresaid de- cisions can apply to the present case. In all and each of them, besides a long taciturnity, other circumstances did con­ cur, which rendered it highly presumable that the debt had been paid; whereas in the present case there does not occur any suspicious circumstance against the debt; on the contrary, the taciturnity that hath occurred is in this case easily ac­ counted for. It appears from the facts already stated, that the money for which this bill was granted, did truly arise from the rents of Kelton, over which William Maxwell was factor; which rents, it appears, were lent out by him to Kirkconnel, for behoof of his constituent. And accordingly, when he makes up an account o f his intromissions with the rents of that estate, he takes credit for the sum in this bill, and also for the sums in the other bills above mentioned. It from thence clearly appears, that he had lent out these sums for behoof of his constituent, there to remain at interest till she should have occasion for the money. The accepters o f these bills were persons of unexceptionable credit. He con- sidered the money as sure as in the hands of the bank; and as he did not chuse to keep in his own custody money which was not his own property, so his intention is extremely obvious, that he meant the money should remain in the hands of these gentlemen until he should settle and clear accounts with the Lady Logan his constituent, when he would indorse to her these bills, (which he considered as her property), as so much cash towards payment of the balance that might arise against: him: and as these accounts were never settled or cleared, it sufficiently accounts for these bills lying over so long unpaid; and must remove any suspicion arising from the antiquity of the bills. And in this view of the case William Maxwell’s straitened circumstances, though true, would be of no moment; as it ap­ pears pears that he very honestly considered the money not as his, and himself not at liberty to dispose of it. At the same time the respondent must observe that Wil­ liam Maxwell was not in labouring circumstances. On the contrary, he continued to be a man in good credit. He was possessed of a land estate of some value. He left more than sufficiency of effects to have paid every shilling he owed in the world; and a considerable sum of ready money was found in his repertories after his death. But having made no con­ veyance of his estate, and his brother, the respondent, being a poor man with a large family of children, William Maxwell’s creditors did voluntarily agree to give him an abatement of 3 s 4 d. per pound, provided he would make up titles to the estate, and dispone it to trustees for their behoof; by which the great expence of legal diligence and a judicial sale would be saved. It is said, That the sum in Carswadda' s count-book, which it is there said he lent to Kirkconnel, does not correspond with the sum in the b ill; and it is somewhat extraordinary, that Carswada should, upon the 27th of February 1 734, have been collecting rents at Kelton, and the same day have lent the mo- ney at Dumfries, which is at the distance of seventeen miles. In the first place, The sum in the account-book is only 12 s. 6 d. short of the sum in the bill, which it was very na­ tural to Carswada to give out of his own pocket, to make it even money. And as to the other observation, it proceeds upon a mistake in fact. It appears from the account-book that the last collection was made upon the 26th of February, and the bill is dated the day following. The petitioners say, That the state of accounts referred to by the respondent is altogether an imperfect scroll, incomplete and unintelligible, and without any date, docket, 0r sub- scription, and made out by no body knows who. The accounts are no doubt so far incompleat, that they were never cleared or docketed. But at the same time they are perfectly perfectly intelligible. They were made out by Carswadda himse l f; they are all of his own hand-writing; they are in- titled, “ Discharge of money paid to and for Lady Logan, as executrix to the deceased Robert Johnston of Kelton, her bro­ ther, conform to an account thereof, signed by both parties of the date hereof;” and every article of this account does bear a date. The petitioners say, That the letter from Carswadda to Mr Hunter ought to have been produced; and that the letter from Mr Hunter to Carswadda does disprove the respondent’s a lledgeance; for that Mr Hunters being upon the watch, in case adjudications should be led against Kirkconnel’s estate, is inconsistent with the idea of this bill’s being a ready-money fund: and that it could not be supposed that Mr H unter would accept of an old bill as so much ready cash in pasin g the factor of Kelton’s accounts. Kirkconnel, the accepter of the bill, was always consider- ed as a man of very good circumstances, and of undoubted credit, although about the period of the foresaid letter, it was uncertain what effect the operations of the years 1745 and 1746 might have had upon his affairs, which seems to have given rise to the foresaid expressions in Mr Hunter’s letter. Whether Mr Hunter would, upon a clearance of the fac­ tor’s accounts, have accepted of the foresaid bill, as an ar­ ticle of discharge in Carswadda’s accounts, is immaterial to the present question. As it clearly appears, that the sum in the bill did arise from the rents o f Kelton; so it would likewise appear from the foresaid letter, that Carswadda did consider that money as the money of his constituent, and that he had been wanting Mr Hunter’s directions about it. On the other hand, it would appear, that Mr Hunter was doubtful, whe­ ther that money should be considered as Kelton’s money, and remain at Kelton’s credit; and therefore Mr Hunter, in his letter, declines to give any orders about it at that time: His words are, I w ill not yet g ive you any or­ ders anent i t; clearly denoting, that the matter was to re­ main main in suspense. And as these accounts in reality never came to a clearance in Carswadda’s lifetime, the foresaid cir- cumstance does sufficiently account for the money s not being demanded. The petitioners lay great stress upon the following circum- stance v iz. That about the year 1 738 or 1739, a tew years after the date of this bill, when K irkconnel, the petitioner's grandfather, intended to settle his estate upon the late K irk- connel the accepter of the bill, he made a state of his af- fairs, holograph of himself; in which is the following ar­ ticle. “The debts of the estate of K irkconnel were, in m y time and many of them of my own contracting, L. 1338 Sterling; of which sum, before settled the fee of my for- tune upon my son, I paid to Carswadda L. 38 Sterling. But to this it is answered, That there is no reason why this Jotting should be held as evidence in favour of K irkconnel himself. It would be attended with dangerous consequences, i f any note or jotting by the debtor should be held as evi­ dence that the debt was paid. And therefore this jotting will by no means prove, that Kirkconnel did even pay L. 30 Sterling to Carswadda. But, 2do Were full credit to be given to this jotting, it must be presumed, from the circum- stances of this case, that it applied to some other transaction. There is no reason for presuming that it applied to this bill, when not only the bill itself remained in the hands of the cre­ ditor, but likewise when it appears from Carswadda's state of accounts anent the Kelton rents, whieh was made up after the date of K irkconnel's holograph state (as appears from se­ veral articles in the account being of a posterior date), that Kirkconnel’s bill was given up at that time as resting, which it cannot be presumed he would have done had it been paid. Besides, Mr Hunter’s letter in the 1747 i s likewise suffi- cient to redargue any presumption arising from the foresaid jotting. Mr Hunter was at that time doer for Logan, and stillis is so. The foresaid letter shows, that Carswadda had been writing him for directions what he should do, as to the up- lifting or securing of the money due by the foresaid bill, which Carswadda looked upon as Logan’s money, not his own. This proves, that the bill was resting in the 1747, and must re­ move any presumption arising from the foresaid jotting of payment’s having been made in the 1738. The petitioners likewise found upon what they alledge the late Kirkconnel declared when on deathbed. The petitioners alledgeance was stated for the first time in a representation to the Lord Ordinary, in December 1765, an d is in the following words: “ That the late Kirkconnel, when on deathbed, at which time it seems some hints were thrown out that the sum in this bill still remained due, declared, That he was not owing this sum; that at the time of granting this bill, he sometimes transacted business for his father old Kirkcon­ nel, and possibly may have granted this bill on his account.'’ But, in the first place, There is not the least degree of evi- dence to support this allegation; and, 2do, Although there were evidence of it, it would be of very little moment: For the late Kirkconnel, from the manner the story is told, seems to have considered himself as owing nothing, because the bill had not been accepted on his own account; but that if he had accepted such a bill, it was done by him in the course of managing his fa­ ther’s affairs. Indeed he would seem to have spoke with great uncertainty, as he does not even remember that he had accepted the bill; and yet none will believe, that the bill was a forgery. Carswadda had always the character of being as honest a man as any in the country; and since the late Kirkconnel did not re­ member the accepting of the bill, there is surely no reason to presume that he paid it. Upon the whole, therefore, the respondent does, with submis- sion, apprehend, that any taciturnity that has occurred in this case, is sufficiently accounted for and that no circumstances do concur concur, from which payment of the bill in question can be in­ ferred, in opposition to the legal presumption arising from the document of debt being in the hands of the proper creditor. The respondent does not dispute, that such facts and circum- stances may concur, as may be sufficient grounds for a court of law, to presume payment without a written voucher thereof; but he humbly apprehends, that no such circumstances do con­ cur in this case. And, in the general, he must beg leave to ob- serve, that it is a matter of very great delicacy, to determine what evidence is sufficient to establish such a presumption. Some persons are so slovenly in their transactions, that ma­ ny things in their conduct will appear most extraordinary to a man of accuracy in business; and yet a man’s being pos- sessed of an indolent disposition, is no reason for cutting him out of any of his j ust rights; and therefore, before evidence of this kind can be properly weighed or judged of, it becomes necessary to know the particular temper and disposition of the persons who are concerned in the transactions: And there- fore, unless such circumstances do concur as afford irresi st- ible evidence of the debt’s being paid, the safest course is, to give the legal effect to the obligation, which being found in the hands of the proper creditor, must be presumed to be still outstanding. By following a different rule, real injustice may be committed; whereas the debtor can never complain when he acts so improper a part as to pay money without a written voucher, and at the same time allow the instrument of debt to remain in the hands of the creditor. The respondent apprehends that it is material in this case to observe, that the respondent has brought his action into court, concluding against three different defenders, for pay­ ment of three bills, all of an old date, which were granted to the respondent’s deceased brother. It is as easy to suppose, that the respondent’s brother would have allowed all the three bills to lie over as any one of them; but it is very difficult to presume, presume, that the three different debtors should each of them pay up the debt without a receipt, and at the same time, that each of them should allow the document of debt to remain in the hands of the creditor. In respect whereof, &c. RO. M A C Q U E E N.