Donald — Memorial, 31 Jul 1771

Untitled July 31. 1771. m e m o r i a l T HE late John Murdoch of Craigton, father to the charger,and grandfather to the memorialist Mr Stirling, having no Tons, left his effects among his daughters; and it ap­pears from the deeds and Settlements made by him, and which are produced in process, that the charger’s share amounted to L. 263 Sterling. Four of Mr Murdoch’s daughters were married, one to Mr Row- and, another to Mr Urie, and a third was married to Mr Lewis, the fourth to Mr Sterling, the suspender Mr Stirling’s father. The charger Susan being from her earliest years weak in her judgment, and of a disordered constitution, never was married. Mrs Stirling being in pretty good circumstances, and considering the weak and imbecil situation of her si ster Susan, and how unfit she was to take the charge of her own affairs, took her under her imme- diate inspection; and by her fidelity and attention, and the presents she at different times made her, there was part of the interest of the charger’s patrimony laved, which being added to the original sum of L. 263, made up the sum of L, 300; and the memorialists, who trade in company together, having agreed to take it at 5 per cent, and to pay the interest thereof annually, they, o f this date, granted bond to the charger for this sum. In return for Mrs Stirling’s care and attention, and the favours which she had received from her, the charger made a settlement, yet extant, F O R T HE l a t e H J o hn M uor ld c l f EC a J M i o h t l a g t, a h, J m and s Hr f o J S M Merchants in Glasgow, Suspenders A G A I N S T g CdoJJo v CanH;p M Daughter of uHpJ v CanH;p o f Craigton, Charger. extant, of her whole effects, in favour of her si ster Mrs Stirling, re- serving a power to alter; but in 1769 Mrs Stirling finding herself de- clining, and not choosing that she or her children should have more of the charger’s effects than her other si sters, she pressed the charger to alter the deed, and accordingly, of this date, she made a settle- ment produced in process, leaving her whole subjects to her si ster’s children equally among them, but with a provision in the following words: “ That the said Walter Stirling my nephew shall retain out of my subjects hereby conveyed, preferable to all my foresaid o- ther legatees, the sum of L. 20 Sterling, in consideration that the said Elisabeth Murdoch hath already expended an equivalent sum upon my account.” This deed too very properly reserves a power to alter. And at the same time the charger, by another deed likewise produced, nomina- ted her si ster Mrs Stirling; and failing her by decease, Walter Stir- ling the memorialist, to be factors and managers for her, in manner and to the effect therein mentioned; and which deed contains a clause in the following words: “ Providing always that my said factors shall be obliged to make ju st compt, reckoning, and payment to me of their intromissions with my subjects in virtue of these pre- sents; but, in respect by an infirmity in my right arm, I am not able to subscribe receipts or vouchers to my said factors for what money they shall give me, or apply for my behoof, out of my sub- jects to be recovered by them in virtue of these presents, there- fore I expressly provide and declare, That my said factors, or any one of them, their own accompt 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 necessity of any further or other proof.” As the charger’s whole estate consi sted only of the said L. 300 bond, her body-clothes, and some trifling household-furniture, and as the interest of the bond became due but once a year, her si ster while she was able to go abroad, was obliged, till such time as the in- terest sell due, to make repeated advances for the charger’s behoof, and her son Mr Stirling continued afterwards to do the like. These advances constitute a claim against the charger on the part of Mr Stilling. They have been already stated in a memorial formerly- given in to your Lordships in this process; and as they are foreign to the purpose of the present memorial, the memorialists shall not now resume them. It It has been already mentioned, that the charger Susan Murdoch, was from her infancy weak, both in body and in mind; she is now past 70 years of age, and her age, and the additional infirmities it has brought on, have, in the suspenders apprehension, rendered her utterly incapable to manage her own affairs. Her weak and imbecil situation has particularly exposed her to receive impressions from artful and designing people about her, who, taking advantage of her unfortunate situation, have endeavoured to insinuate themselves into her favour, and, in order to serve their own selfish purposes, have had the address to make her quarrel with all her relations. One of the persons who first of all took advantage of the char- ger’s situation, and endeavoured to get the ascendent over her, in order to promote her own selfish views, was a woman who had served her some time in quality of a servant. This woman used every me- thod in her power to make the charger quarrel with her relations, and particularly endeavoured to raise suspicions in her mind against the memorialist Mr Stirling, and to set her at variance with him. Her first step was to go to the charger’s two other nephews, viz. Mr Rowand and Mr Urie, and to complain to them that Mr Stir- ling and his late mother had wronged her mistress much, and made her sign papers to her ruin. On this Mr Stirling having gone to these gentlemen and shown them the papers, they were entirely satisfied that every thing was right; but in order to remove every ground of cavil, there was a new factory made out, vesting the same powers which had former- ly been in one of them, in the three nephews jointly, and the survi- vors of them. And there was also a new settlement agreed on of the same import with the former. This settlement was actually written out, and agreed to by all parties, and brought to the charger to sign; but the maid would not suffer her to do it, unless the aforesaid clause relative to the L. 20 to Mr Stirling should be left out. Although this was highly unjust, yet the charger, it seems, was prevailed on to com- ply; and Mr Stirling has been informed that this alteration was made, and that both factory and settlement were signed. Soon after this, Mr Rowand, one of the nephews, and one of the joint fact ors, fell sick and died before any clearance was made with Mr Stirling the preceding factor. As the maid-servant however st ill retained the ascendent over the charger, she having associated along with herself the Miss Pettigrews milliners in Glasgow, the charger’s grandnieces, who likewise had ingratiated themselves into her favour, and were actuated by the same views, they, in order st i l l to keep up the prejudices which they they had infused into the mind of the charger against her nephew Mr Stirling, prevailed upon her to bring a process against him be- fore the magistrates of Glasgow, accusing him of having embezzled the charger’s subjects, and craving, that he should be obliged to accompt for any money which he had in his hands belonging to the charger, over and above the sum contained in the bond. As the fact however was, that the L. 300 contained in the bond was all the money which the charger ever had, Mr Stirling has been assoilzied in this process, and expences found due. The maid-servant and the Pettigrews, having been thus disap- pointed in this process, they next, aCting in conjunction with one an- other, had the address to prevail upon the charger to charge the memorialist s for payment of the sum of L. 300 Sterling, for which they had granted bond, and which is the only fund the charger has for her subsistence. The charger has not pretended to say that this sum is not surely lodged, and that on this account there is any reason for uplifting. The Company in which the memorialist s are jointly concerned is in a flourishing condition, and they would have no difficulty to get credit for a much greater sum than the one now in question. Neither can it be said, that there is any ground for uplifting this money, because the interest has not been regularly paid. So far from this, the interest has been punctually paid at each term; and Mr Stirling has further been in the use from time to time, of making advances over and above the interest, as the situation of the charger seemed to require. The last year’s interest indeed has not been yet paid, but the reason of this shall be stated in the sequel. The motives of bringing this process therefore must be exceed- ingly obvious. Those persons who have got the guidance and di- rection of the charger, and who are laying schemes to make a prey of her, are sensible that as long as the charger’s money is well secu- red, they will be deprived of every opportunity of embezzling or di- lapidating it. But were this money once out of the memorialist s hands, and paid up to the charger, they entertain hopes that by their influence over her, they will have it in their power to apply it to what purposes they please. And in pursuance of these views, your Lordships will be informed that, since the commencement of this process, the charger has been prevailed upon to recal the former fa ctory in favour of her nephews, and no new factor has been ap- pointed. These appearing to the memorialist s to be the motives of the present action; and as Mr Stirling, from his personal knowledge of his aunt's situation, and of the character of the people with which she she was surrounded, was convinced in his own mind that the con- sequence of the sum now charged for its being paid up would lead to the ruin of the charger, and deprive her of the only fund she has for her subsistence; he thought it would be improper in him to make payment of the sums demanded, without dating what appear- ed to him to be the real state of the cafe; satisfied, that his having acted under your Lordships direction mud prove in every event a suf- ficient exoneration of his conduct. Actuated by this motive, and having no view of any advantage thereby, the memoralists having obtained suspension of the charge, the charger applied to your Lordships for a warrant to Lord Coal- don who had passed the bill, to discuss the reasons thereof; and the cause having come before his Lordship, he was pleased, of this date, to make avisandum to the whole Lords, and ordained memorials to be given in. In obedience to this appointment, memorials were given in on both sides. In the memorial for the suspender, though it was with great regret that Mr Stirling found himself under the necessity of making public the situation of so near a relation, a number of circumstances were dated to satisfy your Lordships of the truth of what was asserted of the charger's weak and unfortunate situation. These circumstances the memorialist will again beg leave to re- sume, in order that the whole cause may be brought at one view un- der your Lordships eye. In the first place, The suspenders, in their memorial formerly given in, referred to the terms in which the factory was conceived to Mr Stirling and his mother, as evidence of the charger’s being thought altogether incapable to manage her own affairs. By this factory, as your Lordships have seen, it is expressly provided, “ That the fac- tors or any one of them their own accompt shall be a sufficient voucher for instructing the payments made by them, or any one of them to the charger, or the money to be applied by them on her account, or for her behoof, and that without the necessity of any further proof;’’ and the same clause is repeated in the other factories. This clause points out how much the charger was reckoned in- capable to take any share of the management of her own affairs, and as the factories granted by her are now recalled, and no new factor named, it shows how dangerous it mud be in the present calc to allow this bond to be uplifted. 2dly, Another strong circumstance dated by the suspenders in their former memorial, as evidence of the charger’s weak and imbecil imbecil condition is, that every one of her relations, so far from approving of the present charge, are in the firm persuasion that her uplifting the sum charged for would prove ruinous to the charger, and would expose her to have the only fund which she has for her subsistence embezzled and squandered away. As evidence that this is the opinion of the charger’s relations, the memori- alists refer to a letter produced from Mr Urie, nephew to the charger, since deceased, where he expresses his dissatisfaction with the present charge, and gives it as his opinion, that the suspender’s money in the memorialist s hands is properly and well secured. There is likewise another letter produced from Janet Murdoch, (Mrs Rowand) the charger’s only filter now in life, to Mr Stirling, which, as it ap- pears extremely material, and affords direct evidence of her unfortunate situation, the suspender shall give in Janet Murdoch’s own words. Govern, 27th August 1770. Dear Sir, I am sorry to hear my sister Susan is endeavouring to raise the L. 300 you and company owe her; as (poor woman) when at her best, she was but a kind of half idiot, now, through age and infirmities, she is altogether in- capable, and consequently it is not her, but her servant using her name, to get it into her hands. Therefore I must beg of you, in the most earnest manner, you’ll not part with the money; for I am persuaded it will not be long out of your hands, till she be thrown either as a burden upon the public, or me and the rest of her friends. Your mother, during her life, managed her subject fo carefully, as, from L. 263 (my father Craigton at his death, left my sister Susan), to increase it to L. 300, besides maintaining her decently, that I, who am now her only si ster alive, was quite easy. And since your mother’s death, my lately deceased son Hea- thriehall, told me had looked into how you had managed his aunt Susan's affairs, and was extremely well pleased every thing being clear and dist in c t; therefore I hope you will still con- tinue to manage as you have done, which will greatly oblige, Dear Sir, your affectionate aunt, and most humble servant. (Signed) Janet Murdoch." This letter affords the strongest evidence of the charger’s situation, and the light in which this charge is considered by her friends, and in particular by Janet Murdoch, who is the grandmother o f the Mils Pettigrews themselves. 3dly, Another fact was likewise stated by the memorialists, in or- der to show how much the charger was under the influence of those around her, and how much they consider it to be their interest to make her quarrel with her relations, and in particular with Mr Stirling. The circumstance here referred to is an incident which happened 27th November last. Your L ordships have been already informed informed that Mr Stirling has all along made payment of the interest upon the bond, as soon as it was due, and accordingly upon the 30th September last, when the last year’s term became due, Mr Stirling, as was his usual custom, waited upon his aunt, and offered to make payment of it, in prefence of her servant. As it was the interest of the servant, however, if possible to prevent the charger and Mr Stirling from coming to any agreement, and as it had been her con- stant aim to foment the prejudices which she had infused into the charger’s mind against him, she had the address to prevail upon the charger to refuse payment of the last year’s interest, when offered by Mr Stirling. Mr Stirling, however, being afterwards informed that a loud cry was made against him in this process, for not having paid up this last year’s interest, and as he knew the injustice of the accusation, he went with two witnesses to his aunt, and again offered the money, which was then refused. The following declaration, subscribed, 27th November 1770, is direct evidence of this fact: “ We Adam Graham and Wil- liam Gilfillan merchants in Glasgow, do hereby certify and de- clare, that, at the desire of Mr Stirling merchant in Glasgow, We, this forenoon, accompanied him to the house of Susan Murdoch, his aunt, in order to witness his paying her the bygone interest of the money he says that he owes her, and such other sum as his aunt might then have occasion for: That upon our coming into the house, Mr Stirling, after the usual ceremony of asking his aunt with regard to her health, &c. took out a parcel of bank-notes, in order to compt over, and deliver us to compt af- ter him, before giving the same to his aunt, but in doing of this was interrupted, by his aunt’s maid-servant, who would not al- low her mistre ss to take any of the money, and got between Mr Stirling and her mistress, and continued fo till we were obliged to go away; we having remonstrated to the maid, against her re- fusing to allow her mistress to take the money, but to no purpose. (Signed) Allan Graham. William Gilfillan. 4 thly, Another circumstance from which the ascendent which the people about the charger have got over her, and the use they are pleased to make of it, appears, is the process brought before the magistrates of Glasgow against Mr Stirling, (whereof an extract is produced), in order to make him accompt for any money he had in his hands of the charger’s, besides the sum charged for in the bond. Had not the charger been under the most improper influence, she never would have brought this process, as it behoved her to know that Mr Stirling never had or could have any other money of hers in his hands, hands, except the sum contained in the bond. Accordingly, as the pursuer was not able to bring the least document, or even to form a special alledgeance of any other sums having been in Mr Stirling’s hands, he has, as your Lordships have been informed, been assoilzied from that process, with expences. 5thly, As a further proof how much the charger is under the in- fluence of this maid-servant, and those about her, and how apt she is, in her present condition, to squander away her money, the sus- penders had occasion to inform your Lordships in their former me- morial, that the charger has already granted a gratuitous bond for L. 12 Sterling to her servant, and that arrestments have actually been used in the memorialist s hands for this sum (whereof the messenger’s copy is produced). When this charger, therefore, before this bond is uplifted, grants gratuitous bonds of this kind, out of the small fund which he has for her subsistence, it must show your Lordships what is to be dreaded were the whole sum to be paid up. In the last place, Another fact was stated to your Lordships, which happened since the time the suspension was brought, and which the me- morialist s apprehended to be very material, in order to ascertain the situation of the charger. Your Lordships have been informed that the maid-servant and the Miss Pettigrews, who had both the same end in view, acted at first in concert together; but, since that time, they have quarrelled about the share each of them should have of the charger's effects, and the Miss Pettigrews, thinking the servant want- ed too large a share, contrived to fend her out of the way, and ha- ving a chaise ready, they partly by force, and partly by persuasion, put the charger into it, and carried her off to the country. Since that time the charger has remained under close confinement; all her re- lations are denied access to her; the Miss Pettigrews, now unrivalled, have got the sole management; by their means the charger is now as much offended with the maid-servant as she was formerly attach- ed to her; and the memorialist s have reason to believe that the Pet- tigrews are now at the sole expence of this process. The above were the principal circumstances stated by the suspen- ders in their former memorial, in order to satisfy your Lordships of the ground which they had for obtaining the suspension of the charge. Upon considering the memorials on both sides, your Lordships, of this date, pronounced the following interlocutor: “ On report of the Lord Coalston, the Lords remit this cause back to his Lordship to inquire into the facts, hear parties further, and do as he shall see cause; and with power to call the cause any time this session he pleases, without an hour.’' A nd. And at an after calling of the cause, when an interim payment to the charger of L. 20 was proposed, the Lord Ordinary pronounced this interlocutor: “ Of confent of parties procurators, remits to the Provost of Glasgow, and the sheriff-depute of the shire of Lanerk, to inquire into the charger’s state of mind, and to report whether it is such as that it is proper for her to manage her own affairs; and particularly whether she is in such a situation as to be entrusted with the sums charged for; and in the meantime grants warrant to, and ordains the suspenders to make payment of the foresaid interim sum or L. 20 Sterling to ac- compt of the debt charged for.” Payment of this sum has never been demanded. A report, however, in terms of the above interlocutor, having been made by the provost of Glasgow, and sheriff-depute of the county, the Lord Ordinary has made avisandum to your Lordships, and ap- pointed memorials hinc inde. This is humbly offered on the part of the suspenders. ‘ T he report, which the memorialists are informed is to be annexed to the charger’s memorial, consi sts only of two pages; and as your Lordships will no doubt read it with attention, it will not be necessa- ry to trouble you with many remarks. In general it may be observed, That the two reporters do not seem to have had any prior acquaintance with the charger. T heir report proceeds merely upon what they observed during the short time they were with her, and what they could pick up from four women men- tioned in the report. It is not therefore to be wondered i f the two gentlemen reporters could not give a very minute account of the charger’s situation, or of the arts used to get the ascendent over her; more especially as it is not to be doubted that the Miss Pettigrews, with whom she was at the time, would be at all possible pains to prepare the charger for the visit, and to conceal every thing that could make against them. From the report, however, as it stands, the memorialist s do sub- mit to your Lordships, that it would be improper in them to make payment of the sum now demanded; that the uplifting it would an- swer no good purpose, but might prove exceedingly prejudicial to the real interest of the charger; and that in short they are well grounded in their present reasons of suspension. In the first place. Your Lordships will observe, That the reporters are of opinion that the money is very well secured where it is. It will further be observed, That though the reporters give it as their opinion that the charger is not an idiot, that yet, from what they they themselves observed, they think her of a very low form o f un- derstanding; and they further add, that they called for four wo- men, one of whom had been her landlady, and another her servant or keeper, and the other two had lived in her neighbourhood, and had been frequently with her; and from the answers of these wo- men the reporters observe, that they found no occasion to alter their opinion with respect to the weakness of the charger’s understanding, especially as they all agreed that her memory had failed her conside- rably of late, and as the reporters found too from their answers, that the getting possession of her seemed to be matter of contest a- mong those who were then about her, which, the reporters observed, farther confirmed them in the opinion of her understanding already- given. The reporters do likewise say, that the charger complained much to them of her nephew the suspender, and affirmed he had wronged her in about L. 1 50 Sterling of her father’s effects, which ought to have fallen to her share, over and above what she go t; as also, that her nephew would pay her no interest on her bond. Taking all these circumstances together, the memorialists submit to your Lordships whether this report does not in every particular, in so far as fell within the reporters observation, confirm what has been formerly stated. It is agreed, that the charger is of a very low form o f understanding; and a person in this situation is surely very liable to be exposed to the arts and sinistrous practices of artful and design- ing people. It is agreed likewise, that the people with whom the charger was at the date of the report, and with whom she still is, had a contest about getting her into their possession. But the getting the possession of an old weak woman past seventy, your Lordships will not believe would have been made a matter o f contest, had there not been some very improper end in view. The complaints which the charger is said to have made to the re- porters of her nephew Mr Stirling, do further point out in a very strong degree the improper practices of the people about her. In or- der to forward their, views, it was necessary that she should quarrel with her relations, who would endeavour to preserve her from ruin, and in particular with Mr Stirling, in whose hands the money is lodged. The ground upon which she founds her complaints, your Lordships will particularly attend, are altogether false and calumni- ous. Mr Stirling could not wrong her in about L. 1 50 Sterling of her father’s effects. Mr Stirling was hardly born when Mr Murdoch of Craigton’s effects were divided among his daughters; and from the settlements in process as has been already observed, it appears that what was left to the charger amounted only to L. 263. As As to Mr Stirling not having paid up the interest, this has been al- ready answered. The whole, with something over, has been already paid up, except the interest due for last term; and it will be particu- larly observed, that when this charge was brought the term of pay- ment was not come. With regard to what is said at the end of the report, that the sup- porting the charger in a proper way may take an additional sum over and above the interest of the bond, your Lordships wall observe, that Mr Stirling has been in the use, from time to time, of making small advances over and above the interest; and if it shall be found that the money should remain where it now is, he can make no objection to further advances being made in order to make the char- ger’s situation more comfortable. Mr Stirling is however much afraid that this effect will not follow fo long as the charger remains in the hands she is in at present. Upon the whole therefore, the memorialist s submit this matter to your Lordships. They, with great submission, apprehend, that the circumstances above specified, and the report of the Provost of Glas- gow, and sheriff of the county, will satisfy your Lordships, that the paying up the sum now charged for would prove most essentially hurtful to the charger; and that the allowing her to remain in the hands of those who have now got the custody o f her, and who de- bars access to all her relations, must likewise be very much to her prejudice. The memorialist would therefore most humbly suggest how far it might not be proper that the charger be placed in the house of some unconnected persons of good character, who would not take advantage of the very low form of her understanding. The memorialist, Mr Stirling, may perhaps fee matters in a stronger light than he ought; he does therefore with the more confidence rely upon the impartial judgment of your Lordships: but, at the same time, he is hopeful that, whatever may be your judgment in other respects, the report now under consideration will satisfy your Lordships, that the abuse which has been thrown out against him in some of the papers in this cause was highly improper and unbecoming. The memorialist shall only further point out one other circum- stance not hitherto mentioned, which makes it material that this money should not be paid up without its being properly secured in some good hand; and this not because of the interest of the charger herself, but on account of the interest which others have in part of the sum contained in the bond. Your Lordships will be informed, that as the charger was from her infancy weak both in body and mind, mind, and as there was no chance of her ever being married by a deed of settlement of John Murdoch, the charger’s father’ executed in 17 3 1, part of the charger’s patrimony is left to her only in liferent, and the fee thereof is left to the children of Thomas Harvey. The clause is in these words: " I tem, in the next place, I do destinate and appoint the other ju st sixth part of the free price of the said lands in favours of the said Susanna Mur- doch, my daughter, in liferent, during all the days and years of her lifetime; and failing of her by decease, without marriage, the fee of the same in favours of the children foresaid of the s aid Mary Murdoch, reserving the said Mary’s liferent of it after her said sister’s decease, Including the said Mr Harvey’s administration thereof, and which is not to be affected by the debts of the said Mr Harvey. And which provision, in favours of my said daugh- ter, is over and besides the sum contained in the said heritable bond.” As this sixth part of the free price of the said lands hereby left in liferent to the charger, and to the daughters of Thomas Harvey now deceased, in fee, amounts to L. 63: 1: 1 o 1/2 of the L. 300 con- tained in the bond, your Lorships will see how important it is, in- dependent even of the interest which the charger has in this matter, that this part of the sum at least should be properly secured; and in this situation the memorialist s did not think themselves in safety to pay up the sum now charged for, till such time as the nature of the cafe was laid before your Lordships; and till at least they had your Lordships authority for fo doing. And it will be proper to inform your Lordships, that, since the time this charge has been brought, Archibald Robertson, husband to one of the daughters of Thomas Harvey, has appeared for his interest in this matter; and there is a letter from him, produced in this process, in which he desires that every method should be taken to prevent the money from being up- lifted out of the memoralists hands, as he knows it is there safe. The memorialist s have only to add, That if, notwithstanding what has been laid, your Lordships should be of opinion that the sum now charged for ought to be paid up, Mr Stirling will in the first place fall to be preferred for those separate claims which he has against the charger. The nature of these claims has been already stated in the memorial formerly given in in this cause; and as it is apprehended, that they do not fall within the intention of the Lord Ordinary, in appointing this memorial, the memorialist shall not now trouble your Lordships with any thing upon this head. In respect whereof, & c. W I L L. C R A I G.