Donald v. Murdoch — Replies, 21 Nov 1771

Untitled [Lord C o a l s t o n Reporter.] 1771. R E P L I E S 0 F O R Susan Murdoch, daughter of the deceased John Murdoch of Craigton, T O The Additional Memorial for Robert Donald, James Hepburn, Walter Stirling and Company, Merchants in Glasgow, Suspenders. IN the suspension of a charge on a bond of L.300, at the instance of Susan Murdoch, against Walter Stirling and others, there have been various proceedings before the Ordinary, which are the subject of a report upon me- morials. But the suspenders having craved and obtained li- berty to give in an additional memorial, your Lordships al- lowed the charger to reply; which shall be done in a very few words. The charger will not repeat what is set forth in her me- morial. It will only be necessary for the understanding of the replies, to set forth briefly, That the chief and only rea- son of suspension was, That the charger w as but a kind of half idiot; and on that account the suspender was not in tuto to pay. In In support of this very ungracious plea of Walter Stirling the nephew, against Susan Murdoch the aunt, he solicited, pro- cured, and produced, sundry private letters in modum proba- tionis of his reason of suspension. His aunt, the charger, ju stly complained of this very un- toward, irregular conduct, which did not deserve the least countenance, and had been frequently censured by the court. But the charger went further, upon credible, and indeed upon certain information; and averred, That one of those letters, from Janet Murdoch, her sister, was a downright for- gery; and produced most incontestable evidence thereof, viz. the declaration of said Janet M urdoch, That s he never wrote, nor caus ed w rite, s aid letter, nor did ever see it, nor ever hear any mention made of it, till it made its appearance in Walter Stir- ling’s printed memorial; as an instrument in process, under the hand of a notary and witnesses, does testify. The charger, laid under the absolute necessity of thus dis- proving the pretended evidence produced against her, was so moderate and attentive to her nephew, that she did not so much as insinuate a reflection against him, but attacked only such modes of proof as improper and unjustifiable. Upon this, Walter Sterling craves, and obtains liberty to give in an answer; the sum of which amounts to this, That the s ubs cription of Janet Murdoch is an absolute forgery. This was all that his aunt alledged. He indeed gives a laboured apology for producing this forged letter; which has very little to do with the point at issue. He acknowledges, in the, 2d and 3d pages of his Additio- nal Memorial, T hat he solicited from Janet Murdoch that letter; that it is of his diction; that he sent it by a porter; that Janet Murdoch is under restraint by his presence; and insinuates, that she must comply with whatever he orders. The charger will not follow the example of her nephew, by aggravating this conduct, or showing the total insuffi- ciencv4 ciency of the apology, either to alleviate or to excuse from so gross an imposition, to deceive and mislead the judgement of the court. She will only fay, that these private impetra- t ed letters ought not to be received in process, and that the letter of Janet Murdoch was a forgery. B ut it would appear, that the imagination of Walter Stir- ling is very fertile: for though he is reduced to the sad ne- cesi t y of acknowledging the forgery, yet he must needs have all the benefit of evidence from the forged deed, which he has contrived in a very curious manner, by production of a declaration of three men, of a conversation they had with laid Janet Murdoch. And this he urges as evidence of the truth of the foresaid letter; as also that the said instrument of the notary is a rank falsehood. This is a very poor shift, and can answer no purpose: for surely your Lordships will not receive that declaration as proof; whereas the instrument of the notary, a public officer, and amenable to this court, will be received, and have the same weight as evidence, as it has in every other case; and if it is necessary, the truth of it will be astru cted by the no- tary and witnesses. It cannot but be observed in the passing, that Walter Stir- ling is either very unfortunate in his relations, or uses very improper freedoms with them to gain the point for which he presently contends. He represents the charger, his aunt Susan, as a kind of half idiot; he represents his other aunt, the said Janet Murdoch, to be full si ster to Susan. He first settles with her the forged letter, in all its heads and clauses. Thereafter Janet denies this; and, in prefence of a notary and witnesses, avers she never heard or saw that letter. But last l y, he produces three men, who declare, that Janet both saw it, heard it read, and ordered it to be signed. This is a strange character to give of an aunt. And as Walter has that opinion of her, it is a very unnecessary trouble to fight fo hard for her testimonial of her sister Susan’s sanity of mind. B y his own showing, a testimonial vice versa would have been equally satisfactory. Walter Walter Stirling further sets forth, p. 5. “ From the begin- ning to the end of this matter he has said, and does still say, that he is willing to pay up this money, if it shall ap- pear to be properly secured in other hands.” And, in evi- dence of this, recites a protest taken against John Sim, said to be agent for the charger, reciting, inter alia, “ his having been always ready and willing to pay the bond of L. 300 to any f it pers on, July authorised to receive the s ame, upon s ettling accounts, and allowing him a deductio n of what he had already advanced for his aunt’s behoof, as her mana- nager and factor.” Now this will appear to be a mere flourish, to create an impression, and to mislead an overly and inattentive reader; but it can have no influence or effect with your Lordships. Walter knew very well, at the time of the protest, that John Sim was not the person duly authorised to receive the L. 300; that he had no power or data to settle accounts, or to allow deductions; besides, he neither offered nor produced the mo- ney at the time. The protester was therefore very safe; and the protest itself might have been taken with the same pro- priety against his aunt Janet, and then appealed to as evi- dence of his intention. But the charger chuses rather to form an opinion upon fact s, than on the bare assertion of Water Stirling. These will afford a clearer and surer ground to form the judgement of the court. Susan Murdoch has been in straits and difficulties since this ungracious suspension made its appearance in court. She cannot be supported and maintained on the bare interest of the L. 300. Of this your Lordships have s atisfactory evi- dence in her memorial, from the report of the Provost of G lasgow, and sheriff of the county. They report, “ That considering Miss Murdoch’s age and infirmities, and the attendance on her that seems necessary, the supporting her in a proper way may take an additional sum, over and a- “ bove bove the interest of the bond, to the extent of, as we judge from what we saw, from L. io to L. 20 Sterling yearly.” This was a matter so notorious, and acknowledged by Walter Stirling, that, on the eighth of March last, when Su- san represented this fact, and “ craved a warrant on the sus- penders for the sum of L. 20 Sterling in the mean time, for the charger’s sustenance,” that Walter s procurator a- greed to what was craved; and the Lord Coalston Ordinary grants warrant to, and ordains the suspenders to make payment of the foresaid interim sum of L. 20 Sterling, to account of the debt charged for.” Walter Stirling knew, and therefore consented to pay in- stantly this absolutely necessary and alimentary sum: and if his repeated declarations of his willingness to pay the whole capital had been sincere, he certainly would have paid this trifling sum over the bar; for then his objection was remo- ved, he was in tuto, having paid auctore prætore. But what happened? And upon it your Lordships will form your opinion. Does Walter Stirling instantly pay this alimentary sum? No. He refuses payment for eight long months. Susan is compelled, from urgent necessity, to ex- tract the warrant, and to give him a charge of horning thereon, a week or two ago. After this charge of homing, Walter Stirling, this very ready and willing debtor, offering payment before demanded, was generously pleased to pay this alimentary L. 20, at the distance of more than eight months from the order of the Lord Ordinary. This needs no commentary; and will satisfy your Lordships of that dreadful and starving condition to which the aunt will be re- duced, if she is abandoned, and left to the discretion of the suspenders. But it is hoped your Lordships will interpose, and allow her to raise her money, and lend it to Brown and Company merchants in G lasgow, to which even the suspend- ers have made no objection. In respect whereof &c. D A Y. D A L R Y MP L E.