Brebner — Answers, 27 Jan 1767 (Box 1)

Janury 27. 1767. A N S W E R S F O R Helen Brebner, relict of the deceased John Frigge merchant in Findhorn, T O- The P E T I T I O N of Alexander Brebner merchant in Portfoy. M R Brebner, in his application to your Lordships,having egregiously misrepresented the facts, and that too, in such a manner, as indirectly to charge the respondent with oppression towards him, she, on that account, though very unwillingly, is laid under the necessity of giving a short and candid detail of the circum- stances, for her own vindication; after which the matter o f the petition shall be humbly submitted. John Frigge merchant in Findhorn, the respondent’s hus- band, by his latter-will and testament, named the respon­ dent his executrix, in absence of his eldest son, who was then, and st ill is, out of the country. Mr Frigge at his death, in 1756, left behind him consider- able funds, chiefly money, secured by the bills and moveable bonds of persons o f the best credit. The respondent had no occasion to uplift any of these sums; and she never dreamt of such a measure till the year 1758, that- the petitioner, her brother, applied to her; and setting forth the great advantages in trade that were open to him, if he could command a little money, begged that she A would would confirm and uplift part of her husband’s funds, and give him the use of the money upon interest; proposing, at the same time, to become cautioner in the confirmation. The respondent, a widow, with a large family of nine children, having no person to advise her, unhappily listened to the petitioner’s request; and having expede a confirmation of some part of the foresaid subjects, in which the petitioner became cautioner, she impowered the petitioner to uplift the confirmed sums. And it is a certain fact, that the peti­ tioner himse lf drew all the money that was uplifted; that the whole came first into his hands; and that the respondent did not draw one farthing, except now and then small sums from the petitioner, as her occasions required. In this way they continued for two or three years, till the petitioner’s credit being greatly on the decline, the respondent insisted for a clearance with him. The petitioner, however, made various shifts to evade a clearance as long as possible; and at last, when pushed, he trumped up the story that is told your Lordships in this petition; and even went so far as to alledge, that the respondent was in his debt; at least, that he was not in safety to part with any of the money in his hands, till relieved of his cautionry in the confirmation. The petitioner’s drift being then obvious, the respondent made repeated proposals to submit all their differences to any reasonable arbiter that the petitioner should name. Every proposition of this sort, however, was rejected; and the respondent was thereby laid under the necessi- ty of bringing an action against the petitioner, in the end of 1761, before the sheriff of Banff. The question there re- solved into a count and reckoning. The petitioner practised every possible art of litigation in the inferior court; and ha­ ving presented two bills of advocation, which were both re­ mitted, the sheriff finally decerned in favour of the re­ spondent for a sum that, with annualrents, amounts to L. 1600 Sterling.. The The petitioner’s conduct, in applying for a suspension of this decree, your Lordships will probably remember: That he presented first a bill in the usual manner, offering cau­ tion, which the respondent agreed should pass: That failing to find caution, he presented a second bill, insi sting that heritable security should be accepted of, which, by the by, the petitioner was unable to grant; and that question was first the subject of a report, and afterwards of a reclaiming petition to your Lordships: And upon its being finally found here, that Mr Brebner was bound to offer caution in the usual form, he carried the question by appeal to the House of Lords; and the appeal being dismissed, and L. 40 of costs awarded against the appellant, he even resi sted to pay that sum, till ultimate diligence was done against him; which he also attempted to suspend, but without success, as the bill of suspension was twice refused. The petitioner being thus obliged to find caution in his suspension, in the usual form, he made offer of Mr Ogilvie of Culvie; and the respondent having agreed to accept of that gentleman as cautioner, the bill was passed; and the suspension has since come to be discussed before the Lord Kennet Ordinary, where the petitioner is practisin g every art he posib ly can, in the same manner as in the inferior court. So much in vindication of the respondent’s conduct co­ wards her brother. With respect now to the merits of this application, it must be observed, that before receiving Culvie as cautioner in the suspension, the respondent, for the safety of herself and her children, had done what she could to se- cure the sums belonging to them in the respondent’s hands; and particularly she had arrested in the hands of the pur- chaser the balance of the price of an estate which the peti­ tioner sold some time ago. As no other remedy was left, the respondent thought it the wiseft course to accept of Culvie as a cautioner, trusting at the same time to the col- A. lateral lateral security of the arrestments, The present application prays your Lordships to loose these arrestments; and that Culvie should be accepted of as cautioner in the loosin g: And this application the respondent is by your Lordships or­ der appointed to answer. The sum of the petition amounts to this, That the respon- dent should either consent to Mr Ogilvie of Culvie’s being ac­ cepted of as cautioner in the loosing of these arrestments, or else propone objections against Mr Ogilvie as a cautioner. And it is further said, that the respondent prohibited the clerk to the bills to accept of the caution now offered. But, with great submission, the respondent apprehends, that when a party has used arrestments, if a bill with caution is offered for loosing these arrestments, that the arrester is not bound either to consent to the cautioner, or to object to his circumstances, and show cause why such a cautioner should not be received. The arrester is not bound to do either; that is, he is not bound to depart from his diligence, or to pass from the ordinary security that the law requires, in place of the subject secured by that diligence, viz. a sufficient caution­ er received by the clerks of the bills, and for whom the clerks are subsidiarie liable. And therefore, if the respondent’s arrestments shall be loo- sed, she is undoubtedly intitled to such caution as the law ap­ proves of; that is, such as the clerks of the bills are willing to receive. Neither is there any thing whimsical or improper in the respondent's refusal of Mr Ogilvie as cautioner in the loosing, though she consented to receive him when the bill of suspension was passed. It will occur to your Lordships, that the two situations are widely different: before the suspension passed, the respondent had taken every measure for securing her payment from the petitioner; she could do no more, and Mr Ogilvie’s cautionry was an additional security; but if what the petitioner now proposes should take place, the re- spondent’s security must be greatly narrowed. Culvie’s cau- tionry tionry in the loosing, secures the respondent no more than the bond he has already granted in the suspension; while at the same time the subjects arrested, which were the collateral se- curity that induced the respondent to consent to Culvie as cautioner in the suspension, are withdrawn from the respon- dent’s diligence, and could not afterwards be made forthco­ ming for her payment. And as to prohibiting the clerks of the bills from receiving Culvie as cautioner, all that the respondent did, was, upon getting notice from, the clerks, that a bill of loosing was pre- sented, and Culvie offered as security, in return to sign ify a resolution not to consent to Culvie; and that if he was accept­ ed of, it should be in the usual form, upon the peril of the clerks. This the respondent did; and she humbly appre­ hends the reasons already given sufficiently ju st i fy her for so doing, without being obliged to condescend on any alteration in his circumstances s ince he was accepted of in the suspen­ sion. She might agree to him where his cautionry tended to strengthen her security, but she would never give her consent where it tended to weaken it. And here your Lordships will observe, that the petitioner misrepresents the matter, when he says, that the respondent objects to Mr Ogilvie, and does not incline to have him as cautioner in the loosing. The respondent does not object to M r Ogilvie’s being received as cautioner in the usual manner; that is, upon the peril of the clerks to the bills. It they are willing to accept of him, the respondent is satisfied, that the arrestments be loosed quamprimum. And if Mr Ogilvie’s circumstances are such as the peti­ tioner represents, it is surprising how the clerks should re- fuse him, or how s ufficient attestor can be wanting. It is said, he has an estate of 4000 merks a-year. How that may be, or what burdens are upon the estate he has, it is not the respondent’s business to discover, or publish; only one thing she is sorry to observe, that his willingness to engage for the petitioner, petitioner, whose present situation, in point of credit, gives her the most sensible concern, is no very favourable sign, ei­ ther of his caution, or his circumstances. There is an insinuation in the end of the petition, as if the respondent, with-holding her consent to Culvie being cau­ tioner, proceeded from a design of obliging the petitioner to depart from some of his claims against her. But this insi ­ nuation is highly calumnious; and must appear in that light to your Lordships, when you are informed, that the respon­ dent is taking every possible step before the Lord Ordinary, to bring matters to an issue, and that the petitioner’s con­ duct is the direct contrary. Besides, it is believed, if the re- spondent’s arrestments were loosed to-morrow, the only con- sequence would be, to narrow her security, without giving the petitioner access to his funds, which are attached by num- berless other creditors; and the principal fund, the ba­ lance of the price of s ome lands lately sold by the petitioner, is at present the subject of a multiple-poinding, depending before Lord Coalston Ordinary. In fine, with Mr Ogilvie’s cautionry in the suspension, and the collateral security of the arrestments, the respondent is hopeful she will be able to make effectual the sums for which she shall recover decreet against the petitioner. She would not think herself secure with Culvie’s cautionry alone; and therefore must be pardoned for not consenting to it. And, upon the whole, humbly submits her case to the judgment and pleasure of your Lordships. In respect whereof, &c. COSM GRDN.