Additional Memorial Donald, 23 Oct 1771 (Box 2)

Untitled October, 23. 17 7 1. A D D I T I O N A L M E M O R I A L F O R 2 3. 1 7 a n 3 d S u s p eS r 1; A 1 G. I 7 d p N S u a 1 7 T a U 7 u U d M and R 3 r G S d D p Suspenders; A G A I N S T S U S A N N A M URDOCH, Daughter of e 3Od C I 7 s 3 H O of Craigton, Charger. IN the memorial for the charger given in, in consequence of the Lord Ordinary’s appointment, certain new facts having been stated, never before mentioned in the course of this process, your Lordships allowed the suspenders to give in an additional pa- per, in answer to these new facts, with liberty to the charger to give in replies, if she shall see cause. The suspenders shall not here relume any of the arguments stated in the memorial already given in on their part in this cause. They shall beg leave only, in consequence of your Lordships permisio n, to take notice of an allegation thrown out in the chargers memo- rial, relative to the letter from Janet Murdoch, (Mrs Rowand), which has been founded on by them, as evidence of the charger’s situa- tion. Your Lordships will observe, what, when the cause was formerly before the Court, it was said by the suspenders, That the chargers friends and relations were of opinion, that the uplifting the money now charged for would be hurting the charger herself; and, in the situation in which she is, would be prejudicial to her interest. To instruct this, a letter from Janet Murdoch was produced, before the Lord Ordinary, before the bill was pall; it was transcribed in the memorial first given in to Court, by his Lordship’s appointment; and this letter is again engrossed p. 6. of the suspenders last memo- ria l During During all the former steps of this cause, no objection, whatever, was made to the authenticity of this letter. The chargers, how- ever, have now, for the first time, thought proper, in their me- morial, to mention a fact relative to this letter, altogether new in the cause, and never before so much as hinted at by them. This has made it necessary for the suspenders to trouble your Lordships with this additional paper. The allegation, with regard to this letter’s not be- ing signed by Janet Murdoch herself, being quite new to Mr Stir- ling, he has, since the time the memorial was given in, made all the inquiry in his power, in order to have the real fact ascertained; and he will now state to your Lordships, both what has been his own conduct with regard to this letter, and, what information he lias received, as to the conduct of others upon this head. Your Lordships, will therefore, be informed, That Janet Mur- doch, Mr Stirling’s aunt, lives within two miles of Glafgow; and, though advanced in years, her judgment is still perfectly found. Sometime in harvest last, Mr Stirling happening to be in the neighbourhood of the place where his aunt lives, went and paid her a visit. During the time they were together, this process hap- pened, naturally enough, to become the subject of conversation. Mrs Kowand expressed her concern at the charger’s situation; and, in very strong terms, her apprehension of what would be the conse- quence were the money now charged for to be uplifted; and said, she was exceedingly desirous that the uplifting of it should be pre- vented. Upon this, it was suggested, that a letter from her, ex- pressing her opinion upon this head would be of service. Mrs Rowand said, she was out of the use of writing, and could not under- take to write the letter; but proposed, that a letter should be writ- ten, agreeable to what had past, and that she should sign it: This was accordingly agreed on. And, when Mr Stirling returned home, he caused a letter be written, agreeable to what appeared to him to be Mrs Rowand’s meaning, and what she herself had desired might be done. The letter is not written by Mr Stirling himself; but, he acknowledges, that it is of his diction. Mr Stirling did not himself go with this letter to Mrs Rowand, he thought, that she ought not to be laid under any restraint by his prefence, and that it would be better to leave it with herself, to approve of the letter or not, as she should think best; he accordingly lent the letter in question, under a cover, to Mrs Rowand, and informed her, in this cover, that he had made out the inclosed agreeable, as he thought, to what past at their last conversation; and, if she thought the letter right, it might be returned signed. The The servant or porter who carried the letter, brought it back as it now stands. Mr Stirling asked the porter, if he had seen Mrs Rowand herself? he answered not; that the letter was taken from him, carried up stairs and then returned; this is all Mr Stirling himself knows of this matter. He was in the firm belief, that this letter was signed by his aunt; had he not been so, he never would have made use of i t; nor would it ever have made its appearance in this process. Mr Stirling’s character, as a respectable merchant and as a man of honour, is well established in the place where he lives, and he is satisfied, that there is not a person who knows him, who would think him capable of any thing unfair in a matter of this kind. The moment, however, the memorial, on the part of the charger, was put into Mr Stirling’s hands, and when he saw it averred, that this letter was not signed by Mrs Rowand herself, but by Dorohea Rowand her grand-daughter, he made it his busin ess to inquire in- to the fact; and the information which he has received, is as follows: That when the letter, in the manner which has been already men- tioned, was lent to Mrs Rowand, to be signed, Dorothea Rowand, her grand-daughter, was present; and Mrs Rowand told, said Doro- thea, that, by want of practice and the decay of her sight, by reason of her age, she was not well able to sign it; and therefore, she wish- ed, that Dorothea would do it for her, as this, she added, being done at her desire and in her presence, would amount to the same thing as if done by herse l f; by this argument, Dorothea Rowand was prevailed upon to sign the letter for her grand-mother. Mr Stirling having received this information, went with three other persons to Mrs Rowand, and inquired at herself, in their presence, and in presence of Dorothea, what was the fact? and the account file has given is precisely si mil ar to that nowstated. This appears, from the following attestation, signed by the three witnesses prelent, and writ- ten by one of them, viz. William Gray: Govan 3d August “ We William Gray and Simon Paterson, merchants in Glasgow, and Alexander Douglas servant to the laid William Gray, being present along with Janet Murdoch designed in the annexed letter, and Dorothea Rowand, ow spouse to the said William Gray, grand-daughter to the said Janet Murdoch, when the said Doro- thea Rowand asked her grand-mother, if she had not, (after hear- ing the letter, of which the annexed is a copy, read over to her), desired the said Dorathea to sign it, as she, through age and want of of fight, could not fo well do i t; and that her figning, was the fame thing as if she Janet had done it herself; upon which desire, the said Dorothea Rowand signed the said Janet Murdoch’s name in her presence, and her looking at her: all which, the said Janet Murdoch declared to be a truth; and, if any person said the con- trary, it was an untruth, and that, to her remembrance, she had never said the contrary. As witness our hands, (Signed) William Gray, Simon Paterson, Alexander Dalgiesh." This, therefore, being the fact, your Lordships will see, that no blame can fall, in this matter, upon Mr Stirling. He was not present when the letter was signed. When it was returned to him signed, he was in the firm belief, that it was his aunt’s own subscription. Mr Stirling never heard any insinuation of the contrary till lately; and, as the fact has now turned out, he surely is not to blame. Even the other party does not pretend, that the letter was signed by him, nor, is it alledged, that he was in the knowledge of its being signed by Dorothea Rowand; he therefore, was bona fide to ar- gue upon this letter, and cannot be found fault with for making the use of it he has done. As to the conduct of Dorothea Rowand, it is not Mr Stirling’s business to enter into any disquisi tion with regard to it; it has, to be sure, not been altogether regular: at the same time, your Lordships will easi ly see, how she might fall into it. A woman not acquainted with the importance of letters of this kind, nor foreseeing those re- mote consequences, which make it, on account of the public utility, o f the utmost importance, that letters should be signed by persons themselves, whole names are adhibited thereto, might very natural- ly think, that Mrs Rowand’s desiring her to sign this letter, and its being signed in her presence, she looking at her while it was signed, was the same thing as if Mrs Rowand herself had signed it. But, whatever be in this, as has been already said, it does not affect Mr Stirling, who firmly believed, that the letter had been signed by Mrs Rowand herself. It only remains, to consider the import of the notorial-instrument, mentioned in the charger’s memorial; where Mrs Rowand is said to have declared, that she never wrote or caviled write the above let- ter, or ever saw it, or heard mention made of it before. With regard to the manner in which the declaration was procured, Mr Stirling can say nothing for certain. But, if your Lordships shall think it of importance, he can make no objection, that the mat- ter may be lifted to the bottom; he will however, in the mean time, tell your Lordships what is the account he, by information, has re- ceived ceived of this matter. The fact, as he is informed, is, that Mrs Pet- tigrew, who is daughter to Mrs Rowand, and the Miss Pettigrews, her daughters, live at Shuttelstone, within two miles of the town of Glasgow, where the charger is now lodged; and, in the month of june last, Mrs Pettigrew lent word to Mrs Rowand, that she was sick and just a dying, and desired to see her. Whether this sickness was real or affected Mr Stirling cannot say; but Mrs Row- and, upon being sent for, went to see her, and, upon her coming there, there was produced this declaration ready and prepared, not written upon the spot, but composed by John Syme, a writer in the town of Glasgow, who, it would appear, did not think proper to be present upon this occasion. This declaration, prepared in this man- ner, does not bear, that it was read over to Mrs Rowand; and Mr Stir- ling has been informed, that Mrs Rowand says, it was not read over in her hearing, and that, when she touched the notary’s-pen, she was not let into the knowledge of what the purport of the paper was; but took it to be something else; and that what is insert in this de- claration or instrument, is not conformable to the truth; and, your Lordships will see, it is contrary to what is averred in her declaration above recited. The suspender must make mention of one other circumstance, which he humbly apprehends will go far to satisfy your Lordships, that he has done nothing wrong in this affair; and, this is, that he himself has personally no interest in this matter. It is not of any importance to him, that this money should remain in the hands of the Company, in which he is a partner, at the highest interest which the law allows of, of live per cent. It has been insinuated, that the purpose of this suspension is, to invallidate any settlement made by the charger of her affairs, and to preclude her from disposing of her money by testament. But, your Lordships will see, that, even though the charger were to be found incapable, this would not benefit Mr Stirling; he is not heir at law to the charger, nor will he succeed to her though she were incapable to make a settlement. Her near- est relation is her siste r Mrs Rowand, and not Mr Stirling her ne- phew. Mr Stirling’s only view, therefore, in bringing this suspen- sion, was for the behoof of the charger herself; and the trouble he has met with in this proces has taught him how ticklish a thing it is for a man to involve himself in the affairs of another. Mr Stirling, from the beginning to the end of this matter, has said, and does still say, That, he is willing to pay up this money, if it shall appear to be properly secured in other hands. But, when the factory in his favour was recalled and no new factor appointed, he apprehended, is it would be improper in him to pay up this money, as no person was authorized to take his accompts off his hands or to grant a discharge. The chargers say, That, Mr Stirling has been anxious to deceive, in order to shun payment of a just debt. But Mr Stirling had no inch view. And, as evidence of this, your Lordships will be in- formed, that, soon after the bill of suspension had been presented, upon the grounds which have been stated to your Lordships, and, while parties were litigating the matter upon the bill, Mr Stirling went to the charger’s agent, and informed him what were the rea- sons which moved him to decline making payment; and, added, that he would immediately make payment of the sum demanded, provided, as the former factory was recalled, a proper person should be appointed to take his accompts off his hands, and lome security found, that the money should be lodged with a proper hand, and should remain there; so that the charger might not be a sufferer. This request, however, was refused, as appears from an instrument of pro- test taken by Mr Stirling. This protest speaks for itself. And, as it will fully satisfy your Lordships, both of what have been Mr Stir- lings views, in this affair, and of the integrity of his conduct, the suspenders shall beg leave to lay before your Lordships the protest itself. “ At Glasgow, the 26th November, 1770 years, in presence of the notary public and witnesses after-named subscribing, appear- ed, Walter Stirling merchant in Glasgow, and passed with us to the personal presence o f John Syme writer in Glalgow; and then, and there, the said Walter Stirling represented to the said John Syme, as procurator and agent for Susanna Murdoch of Craig- ton, That he, the said Walter Stirling for himself and Company, always was and now is ready to make payment of the sum of L. 300 Sterling, due by their bond to the said Susanna Murdoch, aunt of the said Walter Stirling, and any bygone interest due thereupon, provided he knew to whom, and in what manner he was to be discharged of the said bond, and of his intromissions with the bygone interests thereof, as factor for the said Susanna Murdoch. That it is well known, that, by the age and infirmi- ties of the said Susanna Murdoch, and that imbecility of mind under which she laboured in her best state, she is now totally in- capable of managing any business or transacting for herself; and consequently an easy prey to her servant or any other designing person; and, as the sum in the bond is the only fund she has for her substsistance, it is a duty which he, the said Walter Stirling, “ owed owed her, to see that that fund is properly secured for her be- hoof; so as that she may not afterwards become a burden to hr friends or to the public: And, as he has already noticed, that she herself is totally unfit to manage business or even to talk to upon the subjest, and, as the charge given for payment of the above bond is under the direction of the said John Syme, and that her maid, whom the said John Syme sent with the receipt of interelf, seem- ed to be as foolish and unreasonable as her mistress is weak, by refu sing to allow the said Walter Stirling deduction of what he had already advanced for her aunt’s behoof as her manager and factor; therefore, the said Walter Stirling required the said John Syme, as procurator and agent foresaid, immediately to con- descend upon the person with whom the said Walter Stirling is to settle accompts, for his bypast intromissions, and make payment of the sums due by the said bond; he having been always ready and willing to do this to any fit person duely authorized to re- ceive the same; and who, in his turn, is to be responsible to all concerned for the sums so to be paid him; and protested, that, if he the said John Syme failed to comply with this most ju st and reason- able request, he the said John Syme should be liable for any expen- ces which he the said Walter Stirling may afterwards incur, in ob- taining a proper acquittance, and in making the necessary appli- cations for having this small fund secured for the maintenance and support of the said Susanna Murdoch, if such factor shall refuse to lay out the money upon good security for that purpose. And, thereupon, the said Walter Stirling asked and took intru- ments, &c." The offer here made by Mr Stirling, so far back as 26th Novem- ber 1770, will show your Lordships what have been his views, and, what his conduct; and the refusal made by the procurator for the other party and his associates, of this most reasonable request, will, in a stronger manner than any argument which could be used, demonstrate what have been their views, and what their conduct in this affair. Now, indeed, your Lordships are informed, that, it is intended, this film should be lent out immediately to Simon Brown and Company merchants in Glalgow. Mr Stirling does believe this Company to be in a thriving way, and, can make no doubt, that the money will be safe in their hands; and, if your Lordships, after considering the report, should think, that the money ought to be up- lifted and put into the hands of Simon Brown and Company, the suspenders can have no interest to make any opposition thereto. Mr Mr Stirling will just only take notice of one other thine men- tioned in the chargers memorial, and this is, what is said with re- gard to the letter produced from Archibald Roberton, who is mar- ried to one of the daughters of Thomas Harvie. It is not true that Mr Stirling solicited or importuned Mr Roberton to send this let- ter; he indeed was the person who told Mr Roberton of this pro- cess, and said, t hat he thought it was his interest to oppose the charge. This Mr Roberton was satisfied was the case, and accord- ingly agreed to send the letter in process. Mr Stirling is sorry he has taken up so much of your Lordships time: But, he thought, in ju stice to himself, it was incumbent on him to state the above facts to your Lordships. With regard to the merits of the cause its elf, your Lordships, from the report given inby the sherif of Clidesdale and provost of Glasgow, wil judge, whether it will be better that the money should remain in the hands where it now is, or whether it ought to be lodged in some other se- cure hand; and whether, if this last should be your Lordships judgment, it might not be proper that a factor, loco tutoris,, should be appointed; or, that there should be some security found for the monies not being afterwards uplifted out of the hands in which it may be appointed to be lodged; and that, at any rate, Mr Stirling’s accompts, as factor, should be taken off his hands, and credit al- lowed him for the deductions to which he has right. In respect whereof, &c. W I L L. C R A I G.