Donald v. Murdoch — Memorial, 4 Mar 1771

Untitled [This concerns a bill of suspension remit to Lord Coalston to discuss the reasons summarily.] V [Lord d i s c u t i h Reporter.] March 4. 1 77 1. M E M O R I A L • F O R mm S U S A N M U R D O C H, daughter of the decea- sed John Murdoch of Craigton, Charger, A G A I N S T Robert Donald, James Hepburn, Walter Stirling and Company, merchants in Glasgow, Suspenders. TH E late John Murdoch of Craigton, by an heritable bond of provision, of this date, to the memorialist, his youngest daughter, “ obliged himself to pay the sum of 3000 merks of portion, and that at her marriage, or upon the first term after my decease, which of them shall first happen, with the lawful interest after the said term.” The said John Murdoch, upon the narrative that the me- morialist was unmarried, " and that my other daughters ha- ving received at their marriage, wedding-cloaths, and other favours; ” therefore, of this date, “ he granted a personal bond bond for 600 merks to the memorialist, her heirs, executors, or asignees, in lieu of her wedding-cloaths, and other favours that the rest of my other daughters have received from me at their marriages, and other times.” By a third deed, of this date, he settled certain heritable sub- jects on William Stirling surgeon in Glasgow, his son-in-law, and James Rowan his grandchild, with certain burdens and pro- visions; and, inter alia, “ with the just sixth part of the free price of the said lands, in favour of Susan Murdoch my daughter, (the memorialist), in liferent, during all the days and years o f her lifetime; and failing of her by decease without marriage, the fee to the heirs therein mentioned: and which provision in favour of my said daughter, is over and beside the sum contained in the said heritable bond.” Susan being thus provided by her father, lived and supported herself on her patrimony. But it being more convenient to have her whole money lent out in one sum, and to one debtor, she collected all together; and, of this date, she lent it out, and re- ceived a personal bond from Robert Donald, James Hepburn, and Walter Stirling, merchants in Glasgow, fo r the use o f our company-concern, the sum of L. 300 Sterling, with annualrent and penalty. The memorialist being unable to subscribe receipts, or vouchers, by reason of an infirmity in her right arm, of this date granted a factory “ to Elisabeth Murdoch her sister, and failing of her by decease, to Walter Stirling merchant in Glasgow, my ne- phew, to be factors and managers for me: And in respect of said infirmity in my right arm, therefore I expressly provide and declare, that my said factors, or any one of them, their own account shall be a sufficient voucher for instructing the payments to be made by them, or any one of them, to me; or the money to be applied by them on my account, or for my behoof; and that without the necessity of any further or 0- ther proof.” This factory is signed by two notaries, and four witnesses. Not Not many days after executing this factory, the memorialist was prevailed upon to make a settlement of all her affairs. And accordingly, of this date, an assignation and disposition to all her goods and effects, particularly of the bond above mentioned was executed by two notaries and four witnesses, “ in favour of Elisabeth Murdoch my sister; and failing of her by decease to and in favour of Walter Stirling merchant in Glasgow, her son, and my nephew, his heirs, executors, or successors, whatsoever, with the burden of lawful debts, and funeral ex- pences. And containing a power of revocation or altera- tion. It is further “ provided and declared, That in case the said Elisabeth Murdoch my filler shall decease before me, and that the said Walter Stirling my nephew shall thereby suc- ceed to my moveable subject, hereby conveyed in virtue of these presents, then the said Walter Stirling, by acceptation hereof, shall be bound and obliged to pay the legacies there- in mentioned.” There is this further clause: In the event that the debts and funeral expences shall occasion a shortcoming of the funds, then it is appointed, that there shall be a proportional defalcation out of the legacies bequeathed; “ only in this last mentioned e- vent, I expressly provide, that the said Walter Stirling mv nephew shall retain, out of my subjects hereby conveyed, pre- ferable to all my foresaid other legatees, the sum of L. 20 sterling, in consideration that the said Elisabeth Murdoch, his mother, hath already expended an equal sum upon my ac- count.” The substitution in favour of Walter Stirling took place by the predecease of Elisabeth Murdoch. The memorialist then resol- ved to make an alteration in her settlement. From affection to E lisabeth, all was left to her without any burden; and by" the above settlement her son would have drawn a great share and pro- portion of the memorialist ’s fortune. But as she had loon reason to find, that Walter deserved no particular favour at her hand, nor nor to be preferred to her other nephews by her sisters, who stood in the same degree of relation with himself; and above all, be- ing provoked with the above provision of L 20 of legacy to Walter, as a præcipuum, ingrossed without orders from her, and upon a false narrative in point of fact, and which she had heard nothing of till the death of her sister, she therefore resolved to make an alteration in the settlement of her affairs. This alteration was done with the greatest gentleness and fa- vour even to Walter Stirling. For having a nephew by each of her three eldest filters, she executed, of this date, a disposition in favour of them, viz. James Rowan, Robert Urie, and said Walter Stirling, putting them all on an equal foot; and it con- cludes with this clause. “ And I hereby expressly revoke all my former settlements, in so far as inconsistent with and prejudicial hereto; and particularly, I revoke my settlement of the 29th of August 1769, and a clause and provision therein of L. 20 Sterling of legacy, to be retained in the said Walter Stirling’s hands, preferable to all my other legacies therein mentioned, said to be in consideration, that Elisabeth Murdoch, his mother, had expended an equivalent sum upon my account; but which clause and provision was insert by mistake, contrary to my true meaning and intendment; and in regard that the said Elisabeth Murdoch never expended that sum, nor any sum, on my account, for which she was not reimbursed by me, and that I owe her no debt or sum for any cause whatever, therefore I do hereby expressly revoke that legacy and provision accordingly.” This just and reasonable settlement, and proper revocation, gave very great offence to the nephew Walter Stirling. As one of the above copartnery, he was thereby debtor in said bond of L. 300. He was also factor, and unaccountable, except by such accounts without vouchers, which he might be pleased to make up. In these circumstances, he saw it an easy matter to starve his aunt, the memorialist, by with-holding the interest of the bond, her only fund of subsistence; or by alledging, qua factor, fa ctor, that he was exhausted by accounts made up for the pur- pose, and at random. Accordingly he had interest enough with the copartnery to with-hold payment of the interest of the bond; and it is now an acknowledged fact by him, that no interest has been paid since the 30th of September 1769; although it is a certain fact, and will not be denied, that from the 1 763 till the exe- cution of the last settlement, the interest had been paid regular- ly and annually. T his new and unexpected stoppage involved the memorialist in the greatest misery and distress, and almost to absolute starving. In this situation, she was advised to registrate the copartnery- bond, and to give the company a charge of horning. The bond was clear, liquid, and unexceptionable. She had no trans- action; nor was debtor to the copartnery in a brass farthing; it did not therefore appear possible, that for a moment she could have been kept out of her own money, and by applying the by- gone interest to her mod preding and immediate wants, there- by have obtained some comfort and relief; and by lending out the principal in a lure and certain hand, have had a regular sup- ply for future wants, as she had had for six years before the 1769, when her nephew Walter was pleased with the prefer- ence he had in her settlement. In this expectation she was miserably disappointed. For the company thought proper to apply by a bill of suspension; which being advised, with answers, replies, triplies, and a condes- dence, Lord Coalston Ordinary passed the bill. The memorialist directly gave in a petition, craving a warrant to discuss the reasons summarily on the bill, and to remit to Lord Coalston, who had passed the same; which accordingly were granted. The suspension was inrolled; and of this date, “ the Lord Ordinary makes avisandum to the whole Lords with this cause, and ordains parties procurators to prepare memorials thereupon, and give in printed copies thereof to the Lords “ boxes boxes on Monday next; with certification.” And this is humbly offered for Susan Murdoch. The cause had been fully debated in the bill chamber, in the papers above-mentioned, which were long, and contained all the facts and allegations of parties. They had nothing further to say, and the Lord Ordinary fully informed, it became necessary in the circumstances of this case to have the quickest dispatch, by a decision of the whole Lords, that the memorialist might not be starved in the mean time; which probably would happen if it was to be hung up by the forms unavoidable in the outer house. And it is hoped, for these reasons, that a very short day will be appointed for advising the memorials. The memorialist shall briefly state the reasons of suspension, so far as they are understood, and can be reduced into any shape, and humbly submit the answers thereto. The reasons contained in the bill of suspension were most frivolous and irrelevant. 1mo, It was alledged, That the charger had promised to for- bear, and not demand payment of the bond till Martinmas next, which the suspenders offered to prove by her oath. This was answered by a denial of the fact, and an offer to de- pone negative. 2do, It was averred, That the charger was under the influence of her maid-servant, who, without orders from her mistress, had directed the charge of horning to be given; and that if the mo- ney was paid, it would be squandered away. The answer to this too was a denial of every averment: This supposed maid had left the memorialist’s service: That orders were given for the charge by the memorialist herself: That the L. 300 of principal was directly to be lent out to other as good hands, who would pay the interest regularly. But what right or title has a debtor to controul the free and absolute ad- ministration of the creditor, or to prescribe rules and impose fetters on the administration of the money which he owes to his creditor? 3 tio, 3tio, It was alledged, That said Walter was creditor to the charger by sundry accounts, upon which compensation or retention was craved. This was likewise denied, that the charger owed a brass farthing to Walter. Then what right or title had the co- partnery, who had borrowed the L. 300 fo r the use o f our com- pany-concern, to plead, s uper jure te rtii, against payment of their proper debt? Lastly, What right or title had Walter the factor to refuse payment of a liquid bond due to his con- stituent, upon pretence o f illiquid accounts restin g owing, which were fictitious, and absolutely denied? These reasons of suspension appearing frivolous and unte- nible, the suspenders had recourse, in their after writings, to an averment, most ungracious in Walter, That his aunt was from her infancy but a kind o f ha lf idiot; but now, by in- firmity and old age, she was altogether incapable to ma- nage her affairs: and was at great pains to obtain letters and declarations to attract this fact. It appeared to the Ordinary to be material to investigate this fa c t: For, in case of ins anity the suspenders could not safely pay nor accept o f a discharge from the insane creditor. His Lordship, therefore, when on the bills, o f this date, before answer, appoints the complainers to give in a con- descendence of [what they alledge, and offer to prove, with respect to the state and condition of mind of the charger, and how far she is or is not capable to manage her own affairs.” In obedience to this interlocutor, the suspenders gave in a long condescendence of ten pages; in which, by artificial ar- gument, they endeavour to make out this pretended insanity. A few observations shall be made upon it, very short, and then submitted. In the outset, the Lords are intreated to attend particularly to the dates of the deeds above mentioned, and the contents thereof; and it is humbly hoped it will from thence appear, that that this averment of ins anity is a mere fiction, and trumped up from resentment, and now insi sted on for no other rea- son than delay payment of the bond charged on. Walter Stirling did not complain of his aunt’s insanity on the 9th of August 1769, when she executed a factory in fa- vour of E lisabeth Murdoch, and, failing of her by decease, to Walter himself, declaring them accountable by s u c h accounts as they s hould pleas e to make up, without necessity o f any further or other proof. She was not insane three weeks thereafter, on the 29th of August 17 6 9, when she made a total settlement o f her effects upon said E lisabeth, and, failing of her, upon said Walter. She was then a sensible clever woman, having only an infir- mity in her right arm. But six months thereafter, on the 23d of March 1770, when she altered the former settlement by a most rational deed, calling her three nephews equally and proportionally to her succession; then, poor woman, she was infirmity all o- ver, and absolutely insane. This sudden revolution in the state and condition of mind of the charger, and putting it so critically on the 2 3d of March 1770, will not readily go down, or be adopted, when so natural a reason is apparent, and accounts for the whole averment, viz. That till this period, Mr Walter was the heir of his aunt, but now he is disappointed; and other two cousins, who had as kindly a title as he, are put on the level with him. The rationality o f this last settlement is further apparent from this circumstance. It will be recollected, that the char- ger’s father, by his deed of settlement o f the 3d of November 1729 above mentioned, provided Susan to the liferent o f the just six t h part o f the free price o f certain lands, the fee to o-:ner heirs. This six t h part of the free price was known to a farthing. And accordingly Susan, in this last settlement, provides the same to the heirs in, in terms of her father’s settlement settlement forty years before. This has so much of the rea- ity of recollection, and of a found mind, that the suspend- ers will find it difficult to persuade the court, that Susan is now of an unfound mind, because, forsooth, she has done equal ju stice to all her nephews. The suspenders, however, in their condscendence, have set forth several circumstances from which they infer this insa- nity. The first is very curious, viz. the above clause of the fac- tory, by which Walter Stirling was to be accountable by his own accounts only, without further proof. But he makes no apology for having accepted, acted under this lunatic facto- ry, giving in his accounts, and supporting them upon the a- bove clause o f the factory solely. The other circumstances give as little satisfaction: The re- asons are of opinion, that uplifting the L. 300 would be ruinous to her; that she is altogether incapable to manage it; that he is under the influence of her servants; that she brought a groundless process against Walter before the magistrates o f G lasgow; nay, she is so lunatic, that when her servant-maid left her service as above mentioned, Susan paid her bygone wages, at least gave security for the same by a bond for L. 12 Sterling; lastly, For the recovery of her health, she is gone t0 the country with her cousins, the M iss Pettygrews, millners in Glasgow, who have a design on her fortune. These circumstances o f infinity are humbly submitted without any answer. Perhaps, indeed, the suspenders, in their me- morial, may dress tnem up better than when in the bill-cham- ber; and greater ingenuity may suggest a thousand more. But as they stand at present, it is humbly apprehended, that they are light in the balance, and deserve no regard; and the letter ought to be found orderly proceeded. The charger shall conclude w ith praying the court, That if th e rea son s o f in san ity a lread y condescended on, o r hereafter ter to be set forth, shall appear to be any wise relevant, the charger has no objection to go to proof, and as, at present, her s t ate and setlmns ade by her are at stake dependent on the present question, your Lordships will, without delay, pro- nounce an act, and grant commission for taking the proof next vacation. 2do, As it has appeared, that the charger is in the greateft indigence, and almost starving, that your Lordships, out o f the clear balance confessedly resting owing, will order, by in- terim decree, a sum of money to be paid for her necessary support and aliment, as also to defray the expences of this li- tigation, in support of her state and s ettlements made by her. 3 tio, I f any doubt shall remain of her capacity to manage, she does not object, but consents, that the money to be a- warded shall be impressed into the hands of any man of cha- racter, to be laid out at his sigh t, and by his orders. In respect whereof & c. DAV. D A L R Y M P L E.