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Document : 288

Title: Petition Regarding Land, Named 'The Leadhead'

Author(s): Wight, Alex

JULY 3. 1790.
PET. JOHN SHAW STEWART Eſq
againſt Lord DREGHORN'S Interlocutor,
refuſing a Bill of Advocation.
D. Steuart, W.S. Agent.
UNTO THE RIGHT HONOURABLE
THE LORDS OF COUNCIL AND SESSION,
THE
PETITION
OF
JOHN SHAW STEWART, Eſq; of Greenock ;
HUMBLY SHEWETH,
THAT in the year 1769, the petitioner's father, Sir Michael
Stewart, agreed, in the character of the petitioner's commiſſioner
to give a nineteen years leaſe of a piece of land, called
the Leadhead, in the vicinity of the town of Greenock, to
James Bartholomew, fleſher in Greenock.
This tranſaction has been the ſource of much litigation, as
your Lordſhips will ſee from the following detail.
In the month of Auguſt 1778, the petitioner obtained a decree
againſt Bartholomew for upwards of L. 114 of rent then due,
with intereſt, and L. 20 Sterling of damages and expences; and
although Mr Bartholomew brought a ſuſpenſion, he ſoon after
ſaw the neceſſity of making a ſettlement, and got a diſcharge of
his rents for crop 1777, and all precedings. He, however, ſoon
fell again into a great arrear; in conſequence of which, the petitioner
brought a proceſs againſt him before the Sheriff of Renfrew
in June 1786, concluding for payment of a balance of rent
for crop 1782, and of the whole for crops 1783, 1784 and 1785,
and the half-year's rent of crop 1786, and alſo concluding that
he ſhould find caution or be removed, in terms of the act of ſederunt
1756.
In this proceſs, Mr Bartholomew inſiſted for production of the
articles of roup, in conſequence of which he had entered to his
poſſeſſion; and although the petitioner was unable to produce
their articles, which had been ſent to London during the pendency
of an appeal between him and the Magiſtrates of Greenock,
and were there loſt or miſlaid, ſo that they could not afterwards
be found, and it was ſtated, that their import, in ſo far as
they related to Mr Bartholomew, was fully dated in the proceedings
in the bill-chamber in the year 1778, the Sheriff pronounced
an order upon the petitioner to produce them. The petitioner
was therefore laid under the neceſſity of bringing the cauſe before
this Court by advocation; and the proceſs of advocation
having come in courſe before the Lord Hailes, Ordinary, his
Lordſhip, after certain proceedings, unneceſſary to be mentioned,
pronounced an interlocutor, of this date, in the following
terms: 'Having heard parties procurators, ordains
'the defender Bartholomew to confeſs or deny, by a writing un'der
his hand, whether the clauſes of the articles of map, as
'narrated in the anſwers for John Shaw-Stewart to the defender's
'bill of ſuſpenſion, are fairly recited or not, and that at next
'calling.' And upon the 28th of the ſame month, his Lordſhip
pronounced this other interlocutor: 'Having again heard par'ties
procurators, advocates the cauſe; and in reſpect of the
'proceedings in the bill, chamber upon the defender's ſuſpenſion,
'finds there is no neceſſity for producing the articles of coup
'this proceſs, and ordains the defender to ſtate his objections in
'writing to the arrears of rent purſued for, as ſtated in the libel,
'and that againſt next calling.'
No objections being given in, the Lord Ordinary, of this date,
decerned in terms of the libel; and Mr Bartholomew having given
in a repreſentation, in which he took notice of his having
tranſmitted a letter in his own hand-writing, mentioning what he
recollected to have been the terms of the articles of coup, the
following deliverance was pronounced upon this repreſentation
'The Lord Ordinary obſerves, that his interlocutor, 23d Febru'ary
1787, appoints James Bartholomew ' to confeſs or deny, by
"a writing under his hand, whether the clauſes of the articles
"of roup, as narrated in the anſwers for John Shaw-Stewart, to
"the defender's bill of ſuſpenſion, are fairly recited or not;' but
'that the writing now lodged in obedience to that interlocutor,
'written by a man of buſineſs, and ſigned by James Bartholo'mew,
does not make that direct anſwer which the Ordinary re'quired,
and inſtead thereof denies that the clauſe is a true extract;
'therefore, before anſwer to the ſaid repreſentation, the Lord
'Ordinary ordains James Bartholomew to make a direct anſwer,
'in terms of the ſaid interlocutor; and further, if the clauſes are
'not fairly recited, to ſay wherein, and in what particulars, they
'differ from the ſtatement in the bill of ſuſpenſion, and that
'within eight days, with certification.'
No regard having been paid to this interlocutor, the repreſentation
was refuſed. An order was afterwards given upon Mr Bartholomew,
to find caution in terms of the act of ſederunt ; and he
having fill given in new repreſentations, the Lord Ordinary pronounced
another interlocutor, of this date, in the following terms:
'In refpect that the repreſenter, after reiterated appointments, has
'not given thoſe explicit anſwers to the queſtions which the Lord
'Ordinary appointed, but, inſtead of that, has gone into a detail
'of extraneous matters, adheres to the former interlocutor, and re'fuſes
the deſire of the ſaid repreſentation; and recommends to
'the repreſenter, when he applies to the whole Court for a rectification
of this interlocutor, to make a fair and explicit anfwer to
'the queſtions put.' And to this interlocutor your Lordſhips adhered,
having, of this date, refuſed a petition from Mr Bartholomew,
without anſwers.
The petitioner was obliged to bring a new action again Mr Bartholomew,
for payment of the rent for the other half of crop 1786, and
the whole of crop 1787; and this proceſs having been remitted to, and
conjoined with the former proceſs of advocation, the Lord Ordinary,
of this date, pronounced the following interlocutor 'In reſpect
the defender has failed to find caution, in terms of the interlocu'tor
8th Auguft laſt, finds him liable in payment of the arrears of
'rent, as contained in the libel before the Sheriff; and ordains the
'defender to remove inſtantly; and further finds him liable in pay'ment
to the purſuer of the rents and intereft thereof, in terms of
the libel brought before this Court, and decerns accordingly;
finds,
'finds expences due, and allows an account thereof to be given
'in.'
A repreſentation being preferred againſt this interlocutor, the
Lord Ordinary fuperfeded adviſing the ſame till the 11th of. March
1788, when the following deliverance was pronounced upon it:—
'In reſpect a bond of cautionry is not lodged, refutes the repreſen'tation,
and adheres to the former interlocutor; but with this qua'lity,
that, in caſe the repreſenter ſhall, within eight days, lodge a
'ſufficient bond of caution, in terms of the former interlocutor, in
'the clerks hands, allows the reprefenter to be heard againſt the
'third ſederunt day in June next; but if ſuch bond is not lodged
'within the foreſaid ſpace, allows decreet to go out, and be ex'tracted.'

Mr Bartholomew accordingly lodged a bond of caution by one
Patrick Clark, deſigned a farmer ; but it turned out that this ſame
farmer was only a day-labourer, and inſolvent. The petitioner did not,
however, extract the decree ; and the cauſe having been called before
— the Lord Ordinary, of this date, this other interlocutor was then pronounced
Allows the defender's procurator till this day ſe'nnight,
'that he may, in the mean time, have the ſufficiency of the cau'tioner
properly atteſted ; and in the mean time, allows the defen'der's
procurator to ſee the account of expences, and give in objections
thereto, if he any has.' And no atteſtation having been
obtained, the expences were afterwards modified to L. 21 Sterling,
for which, and the expence of extracting, decree was pronounced.

The decree was accordingly extracted, and a charge given for
payment of the ſums therein contained, amounting to near L. 100
Sterling, and for Mr Bartholomew's removing from the poſſeſſion;
upon which he thought proper to prefer a bill of ſuſpenſion, upon
the old ground that the articles of roup had not been produced:
But upon this bill, the Lord Dreghorn Ordinary, of this date, pronounced
the following interlocutor: Having reſumed conſidera'tion
of this bill, anſwers and replies, and conſidered the duplies,
'refuſes this bill, both as incompetent and groundleſs, except as to
'the removing immediately, as to which he probably would have
'obtained an alteration of the Lord Ordinary's interlocutor, had
'he applied for it; but he acquieſced, and decerns for 30 s. Ster'ling.'

The petitioner now expected to meet with no further trouble
from Mr Bartholomew. He was, however, deceived, that gentleman
having been pleaſed to commence an action againſt him before
the Sheriff of Renfrew, in which, after ſtill calling for production
of the articles of roup, and falſely alleging that the petitioner was
bound to incloſe the grounds, upon being allowed 7 1/2 per cent. of
the expence, and not only refuſed ſo to do, but likewiſe took from
him part of the bell of his poſſeſſion, giving him in exchange a piece
of barren ground: And that during the leaſe he had been obliged
to erect a barn, byre, and cart-houſe, at the expence of L. 50
Sterling, in order to crop the farm, as he could not graze on it for
want of the dikes: He concluded for payment, 1mo, Of L. 46 Sterling,
as the loſs ſuſtained by him, from the alleged exchange of
ground; 2do, Of L. 22: 11 3, laid out in making incloſures;
3tio, Of L. 80, as the loſs ſuſtained through the want of theſe incloſures;
and, 4to, That the petitioner ſhould be ordained to take
the barn, byre, and cart-houſe, off his hand, and pay him L. 50,
or ſuch other ſum, as they ſhould be eſtimated to be worth by birleymen.

Defences were given in for the petitioner, in which it was, inter
alia, ſtated, That, by the articles of roup, the petitioner was not
obliged to incloſe the ground, but that if the tackſman choſe to
do ſo, he was to be repaid the expence at the expiration of the
leaſe, provided they were made at the ſight and direction of Sir
Michael Stewart, and were left perfectly good and ſufficient
That the expence was to be aſcertained by the contract to be made
by the tenant, with the advice of Sir Michael and the dike-builders,
and by their diſcharges upon the back of ſuch contract That Mr
Bartholomew had never taken Sir Michael's advice with regard to
that buſineſs, and that the laſt year's rent of his leaſe for crop
1788, amounting to L. 11 odds, would be ſufficient to anſwer any
claim he could juſtly maintain for the expence of the dikes.
Of this date, the Sheriff pronounced the following interlocutor:
'Having conſidered the libel, writs libelled on, anſwers for the
'defender, papers therewith produced, and replies for the pur'ſuer,
finds the preſent action incompetent, aſſoilzies the defend'er
from the proceſs; finds him entitled to expences, and decerns
'therefor, being per account, and for the extract, conform to the
'clerk's certificate; reſerving to the purſuer to age againſt the de'fender
for the value of any dikes or fences, erected by him, as
'the ſame ſhall be aſcertained by ſkilled perſons, at the purſuer's
'removal from the lands libelled.'
Mr Bartholomew having preferred a long petition, the Sheriff
pronounced another interlocutor in theſe terms: 'Having conſidered
the reclaiming petition for the purſuer, anſwers thereto
'for the defender, and whole proceſs, and having ſignified his
'opinion thereon, ordains the purſuer, by in writing under his
'hand, to condeſcend and ſay, whether or not he admits it to
'be a true ſtate of the obligation relative to fencing, in the ar'ticles
of roup, that the dikes are to be left ſufficient and ſencible at
'the end of the tack; in which event, the maſter is thereby bound
'to repay the expence thereof, as ſhould be aſcertained by the
'different contracts to be made with the dike-builders, at the ſight
'of the maſter, and their diſcharges upon the back of ſaid
'contracts, as is admitted upon the part of the defender, in his
'anſwers to the bill of ſuſpenſion in proceſs, and aſſigns the 20th
'day of January next for that purpoſe: Mr Bartholomew accordingly
gave in a condeſcendence, poſitively affecting, That, by
the articles, the petitioner was bound to incloſe the ground, he
paying the petitioner 7 1/2 per cent. for the expence; upon adviſing
whereof, the Sheriff-ſubſtitute, of this date, allowed 'the
'purſuer a proof of the import of the obligation, ſaid to be con'tainted
in the articles of roup, relative to the fences in queſtion,
'and granted diligence at his inſtance againſt havers, for recover'ing
the ſaid articles, and alſo againſt John Moodie, for recover'ing
the leaſes of the ſubjects libelled, which are ſaid to have
'been prepared on paper of an old ſtamp.'
Their two laſt interlocutors, the petitioner conſidered to be
wholly improper, becauſe the different particulars of the articles
of roup were clearly aſcertained by a decreet in fore, in the foreſaid
long depending proceſs before this Court; yet, in order to
prevent any farther litigation, by ſubmitting theſe interlocutors to
the review of your Lordſhips, he acquieſced in the proof without
oppoſition.
Bartholomew upon this gave in an incidental petition, craving
to be allowed a proof at large of the other parts of his libel; and
upon anſwers, the Sheriff-depute, of this date, 'In reſpect of the
'long acquieſcence in the exchange mentioned in the libel, re'pelled
the purfuer's claims on that account; repelled alfo his
'claim on account of erecting the cow-houſe mentioned in the
'libel, in regard there is no obligation on the defender to afford
'any indemnification on that account; repelled alſo the purfuer's.
'claim for fences not having been completed by the defender, in
'regard the purſuer appears to have made the option of conſtructing
'the fences himſelf; but as to the expence of the fences made
'by the purſuer, allows him a proof of their ſufficiency at this
time, when the term of his ſet is almoſt expired, and any farther

'ther proof he can bring of the expence of their conſtruction,
'and of the defender, or his commiſſioner, knowing of, acquieſ'cing
in, or approving of their conſtruction, and a conjunct proof
to the defender; and grants commiſſion and diligence againſt
witneſſes and havers.'
Againſt this interlocutor, Bartholomew reclaimed, ſtill inſiſting
for a proof at large of the articles in his libel; and he ſoon after
gave in all additional reclaiming petition, together with two letters
from the petitioner's father to him, and an award made by arbiters,
reſpecting the whole buildings erected by him on the petitioner's
ground; which award found him entitled for the ſame, to the
ſum of L.40, 12 s. Sterling, and craving, accordingly, that the
petitioner ſhould be found liable for this ſum.
To theſe two petitions, a ſhort anſwer was given in, ſtating in
ſubſtance, that Sir Michael Stewart's letter, of 25th September
1771, now produced by the purfuer, reſpects the building of a
barn alone, not a cow-houſe; and that by that letter, it was left in
the option of the petitioner to pay him the value to be put
upon the ſame, or to allow him to remove the materials;
that beſides, Sir Michael Stewart's letter to the petitioner's
agent, Mr Campbell at Greenock, was confined entirely to
the naming an arbiter in conjunction with the purſuer, to put
an eſtimate on the barn, that the petitioner might either take it
at the eſtimate, or allow the materials to be removed; that for
this purpoſe, Mr Campbell wrote to Mr Paton, agent for the purſuer,
to attend the inſpection when called upon, as Mr Campbell
himſelf could not be preſent; and that as ſoon as the valuation
was made, Mr Paton ſhould write Sir Michael, that he might
take his choice of either paying the ſum, or of allowing the removal
of the materials; that Mr Paton, however, without waiting
an anſwer, made out a ſort of decreet-arbitral, which is in
fact void and null, being on unſtamped paper, and without the
writer's name, or names of the witneſſes, and which relates to
the whole buildings erected by the purſuer; and that upon Mr
Campbell's being furniſhed with a copy of it, he ſent it to Sir
Michael, who refuſed taking the houſes at the valuation, and de-fired
him to require the purſuer to remove the materials, under
form of inſtrument, which was done accordingly.
Theſe anſwers were followed with replies and duplies, and the
Sheriff-depute, of this date, 'having adviſed the reclaiming petitions
for the purſuer, anſwers for the defender, replies and du'plies
and writs produced, before anſwer, Ordains the defender
'to produce the letter written by the purſuer to his commiſſioner,
'and acknowledged to have been received by him, in his letter
'of 25th March laſt, produced, and that againſt Thurſday next ;
'as alſo ordains the purfuer, before ſuch day, to put in a conde'ſcendence
or minute, ſpecifying whether he put in any claim
'to the alleged arbiters, and whether the ſum in their award, he
'underſtands to be in full of his claim for fences as well as for of'fices,
and whether there was any offices erected by him, be'fides
the barn, for the extra of which be claims reimburſe'ment.'

In conſequence of this interlocutor, the purſuer condeſcended,
that he gave in no claim to the arbiters, and no inſtructions, except
they were to put a value on the houſes; nor did he underſtand
that the ſum awarded included the fences. That there was
no office erected, except the barn, unleſs a ſmall cart-houſe, and a
little byre, which he built when he found it neceſſary to convert
part of the barn into a dwelling-houſe. And along with this condeſcendence
was produced a letter from Sir Michael Stewart to
the petitioner's agent at Paiſley.
The Sheriff-ſubſtitute, of this date, 'having conſidered the con'deſcendence
for the purſuer, letter for Sir Michael Stewart, and
'whole proceſs, and received the opinion of the Sheriff-depute
'thereon, ordained the defender to obtemper the interlocutor of
'15th October laſt, in 10 days, and that with certification, if he
'fails, the Sheriff will hold him as confeſſed, that the purſuer's
'letter, therein ordered to be produced, when joined with Sir
'Michael Stewart's anfwer of the 25th March, would import,
that the option was thereby made to pay the value of the barn, rather
than allow the purſuer to remove the materials of it.'
The purſuer's letter to Sir Michael Stewart having been recovered,
was accordingly produced, and the following interlocutor, of this
date, pronounced:' Having reſumed conſideration of this proceſs, and
'having adviſed with the Sheriff-depute, adheres to the interlo'cutor
of the 31ſt of March 1789, and refuſes the purſuer's petition
'againſt the ſame; but farther, finds, with regard to the barn, that
'the defender, in virtue of the letters of the purſuer and Sir Mi'chael
Stewart, of 25th March 1789, and proceedings following
'thereupon, is barred from the option refereed by the letter of
'Sir Michael Stewart, of 25th September 1771, of ſuffering the
'purſuer to carry off the materials of the barn, inſtead of paying
'for the value of the barn: Finds the value of it ſufficiently in'ſtructed
by the award of 30th April 1789, and decerns accord'ingly
againſt the defender for the ſum of L. 40, 12 s. Sterling,
'therein contained, with intereſt from and after 30th May 1789
'Finds the defender liable in the dues of the extract of this in'terim
decreer, and decerns.'
This interlocutor the petitioner brought under the review of
your Lordſhips, by bill of advocation; upon adviſing which, with
anſwers and replies, the Lord Dreghorn Ordinary, of this date,
was pleaſed to refuſe the fame, by the following interlocutor:
The Lord Ordinary having conſidered this bill, with anſwers
'and replies, refuſes the bill; but remits to the Sheriff; with this
'inſtruction, that he hear the complainer farther as to the value
'of the houſes; and decerns againſt him for 40 s. of expences;' of
which judgment the petitioner now humbly craves an alteration.

After the proceedings in this cauſe have been ſo fully detailed,
it will not be neceſſary to detain your Lordſhips with additional
ſtatements of matters of fact. The letters referred to, and the
proof which has been led, will be ſufficient, the petitioner humbly
hopes, to ſhow that the interlocutor complained of ought to
be altered.
With regard to the proof which has been allowed: It was altogether
improper, as has been already ſtated, to allow a proof of
the articles of roup relative to the fences, as the particulars were
ſo fully eſtabliſhed by a decreet in fora. But as the petitioner
acquieſced in that proof, he muſt now call your Lordſhips attention
to it.
Sir Michael Stewart deposes, 'That the tenant had it in his
options to build the dikes himſelf; and provided be did it by the
'advice and direction of the deponent, and conſulted the deponent as to
'the bargain be made with the dike-builders, and took their diſcharge
'upon the back of the contract for the dike-building, and left
'the dikes at the iſſue of the tack, fencible, good and ſufficient;
'in that event, the proprietor was to reimburſe him of the ex'pences
laid out; but the ſaid James Bartholomew never conſulted
'the deponent as to any bargain he made with reſpect to the dikes.'
John Campbell depones to the Caine purpoſe. And John Moodie,
writer in Greenock, who drew the tacks from the articles of roup,
which happened not to be ſigned, as as additional ſtamp on
paper had taken place, produces on oath a ſcroll of theft tacks,
which corroborates what is above deposed to. From the agreements,
alſo produced by the purſuer, with his dike-builders, as the
vouchers of his libel, it appears that they are neither ſigned by
Sir Michael Stewart, nor is either his name, or that of the petitioner
mentioned in them. The petitioner, therefore, it is evident,
cannot be liable in the expence of building any dikes on
the lands, contrary to the expreſs bargain above ſpecified. The
interlocutors of the Sheriff, allowing a proof with regard to the
expences of theſe dikes, were accordingly altogether improper, as
it is impollible that the petitioner can be found liable in the expence
of erecting any of them.
As to the interlocutors of the Sheriff, reſpecting the haul, built
by the purſuer, the petitioner hopes to ſatisfy your Lordſhips,
that they alſo are unfounded.
This claim originated from a letter of Sir Michael Stewart's
to the purſuer, of this date, which is produced in proceſs, and is
in theſe words: 'As you propoſe building a barn upon part of
'the Ladehead grounds, now in your poſſeſſion, this is aſſuring
'you that, at the end of your tack, you ſhall either have liberty to
'remove all the materials, or, in my ſon's option, to pay you for the barn,
'the value to be put upon it by two honeſt men mutually choſen,
'with power to them, in caſe of variance, to chaſe an overſman,
whole determination ſhall be final.'
By this letter, there is an expreſs power referred to the petitioner,
either to keep the barn at an appriſed value, or to allow the
tackſman to take away the materials; but in place of a barn alone,
it appears, both from his libel and his condeſcendence, that the
purſuer built not only a barn, but alſo a byre and cart-houſe, and
afterwards converted part of the barn into a dwelling-houſe, ſo
that the original bargain with Sir Michael Stewart has been totally
departed from. The petitioner is neither obliged to pay
for the byre or cart-houſe, nor to allow the materials of them to
be carried off the lands; and with regard to the barn itſelf, the
petitioner is clearly, in terms of his father's letter, entitled to the
option of either paying its value, or allowing the materials to be
removed.
But it is found by the Sheriff's interlocutor, of 16th March
1790, that this option is now barred by a poſterior letter from the
purſuer to Sir Michael, and Sir Michael's anſwer to him.
This letter from the purſuer, which is of date 25th March
1789, is in theſe words Sir Michael, Bailie Campbell ſpoke to
'me you wanted to take the houſes I blinded on the Ladehead
ground off my hand; ſo if it be ſo, you'll write and name the man
you'll take, and I will do the ſame; and let it be done agreeable
to your own letter to me, as your Honour, I fancy, has a copy
'of it, and it is the inſtruction how it is to be done; ſo let this be
'done by ourſelves, without any other trouble; and as ſoon as
'I get your anſwer, I will make ready for it, by putting a little
'thack on the houſe, and to make it tenantable.' Sir Michael's
anſwer, which is of the ſame date, is as follows: 'James, I have
'juſt now yours, and wrote Bailie Campbell fully upon this ſub'ject,
and he will name my man. Which is all from, &c.'
Bailie Campbell did accordingly name Robert Patrick and William
Lyle, two birleymen of the barony, and the purſuer named
Charles Robb, Wright in Greenock, to put a value upon the barn
and this Bailie Campbell slid, with the ſole view that the petitioner
might have his option to take the barn at the appriſed valise,
or to allow the purſuer to carry off the materials.
The purſuer and his agent Paton met with theſe valuators; but
neither the petitioner, nor any man of buſineſs on his part, was
preſent at the meeting; they proceeded, however, to make out
the decreet-arbitral or appreciation; which has been already mentioned,
and which is of the following tenor 'We, the ſubſcri'bers,
being mutually referred to for our judgment as arbiters,
'in the matter of houſing on Ladehead-park, betwixt Sir Mi'chael
Stewart, as commiſſioner for Mr Shaw-Stewart, on the
'one part, and James Bartholomew, fleſher, on the other part;
'and having maturely conſidered the claim of Bartholomew, as
'outgoing tenant, alſo the miſſive-letter of Sir Michael Stewart, bear'ing
date the 25th September 1771, addreſſed to James Bartholomew,
'butcher in Greenock, with the whole effect thereof; likewiſe having
'viewed and meaſured to our ſatisfaction, the whole buildings made
'and erected by James Bartholomew on the ſaid ground; we, after
'mature deliberation among ourſelves, and having God and a
'good conſcience before us, unanimouſly find, that Mr Shaw--
'Stewart ought and ſhould pay to James Bartholomew, the ſum
'of L. 40, 12 S. Sterling, and that within one month from this
'date; in conſideration of which, the ſaid James Bartholomew
'is to leave the whole buildings, &c. a cloſe bed excepted, with
the looſe lofting or flooring plank, as it at preſent lies on
the loft. All which we declare to be our decerniture in the
premiſes, &c. Signed at Greenock, April 30. 1789. — Charles
Robb, Robert Patrick, Williarn Lyle.'
It cannot fail to ſtrike your Lordſhips, that this appreciation is
directly contrary to what it ſets forth as its warrant. The appretiation
refers to Sir Michael's letter, which has been above
recited, of 25th September 1775; and yet this letter expreſsly
mentions the barn alone; notwithſtanding which, the valuators
gave in an appretiation of the whole buildings erected by the purſuer.
It will be obſerved, beſides, that not only is the appretiation
contrary to its warrant, but alſo to the intention of Sir
Michael, in agreeing to ſuch a valuation in his anſwer to the letter
of the purſuer, of 25th March 1789, all that he intended being,
that an appriſing of the barn ſhould take place, in order that he
and the petitioner might judge, in terms of the original letter in
1771, whether they would pay the price ſo put upon it, or agree to
the tenant's removing the materials of the barn; whereas this decree-arbitral
or appretiation binds down the petitioner to pay a
certain ſum, without any alternative whatever.
Accordingly, when Sir Michael Stewart was informed of the appretiation
thus made by theſe valuators, he cauſed Bailie Campbell,
of this date, take a proteſt againſt the purſuer, that neither himſelf
nor the petitioner would take the barn or houfe at the valuation
put thereon, and required him to remove the materials thereof
upon the ground ; and that he never intended that this valuation
ſhould exclude the petitioner from the option expreſsly reſerved
in the original letter, or to bind him to pay down a ſpecific ſum,
whether he choſe to or nor.
The petitioner therefore ſubmits to your Lordſhips, that there
is nothing in the letters of 25th March 1789, which paſſed betwixt
Sir Michael Stewart and the purſuer, that in the ſmalleſt degree
varies the original agreement. This the petitioner reckons
to be clear beyond any queſtion; and accordingly, this award of
the valuators cannot poſſibly alter this original bargain, without
the conſent of Sir Michael or the petitioner, and contrary to their
wiſhes and their orders.
It will likewiſe be remarked, that there was ſomething exceedingly
ſingular and contradictory in the laſt interlocutor of the
Sheriff, of 16th March 1790, in finding the petitioner barred from
his option, by the letters of 25th March 1789, which undoubtedly
infer no ſuch conceſſion; and moreover, in finding, after his
former interlocutors, which are founded upon the letter of 25th
September 1771, and which regards the barn alone, that the petitioner
is obliged to pay the groſs ſum of L.40, 12 S. which the award
itſelf declares to be the value of the whole buildings.
It is true, that Mr Bartholomew, in his letter of the 25th of
March 1789, artfully mentions houfes in general; but Sir Michael
Stewart, of that date, referred him to Bailie Campbell, to
whom he then wrote as follows: 'Sir, I ſend you a letter I have
'juſt now from Bartholomew. What he means, after telling
'him what I agreed ſhould be done, I dont know. In my an'ſwer,
I refer him to you; and am, &c.' Bailie Cpbell did
not think himſelf warranted to ſubmit the value of the barn. He
accordingly wrote to the petitioner's agent upon the 7th of April
laſt as follows: 'From Sir Michael's anſwer to Bartholomew, of
'25th March 1789, you will ſee that I did not conſider myſelf as
'warranted on the part of Mr Shaw, to ſubmit the value of the
'barn then converted into a dwelling-houſe ; but when James
'Bartholomew applied to me to have it valued, I told him
'that I had no objection that it might be valued, in order
'that Sir Michael, as commiſſioner for Mr Shaw, might make his
'election whether he would take it at that valuation, or allow
'James to carry away the materials; and for that purpoſe deſired
'the baron-officer to call upon two of the birleymen to value it,
'alongſt with any perſon to be named by James. After this, I
'heard no more about it, until the 30th of April following, when
'Willy Paton, writer here, ſent me a meſſage by the baron-officer,
'informing me, that the birleymen, alongſt with Charles Robb,
'were on the ſpot, and wanting me preſent. I was that day con'fined
to the houſe, and could not attend; and for that reaſon
'I ſtated to Mr Paton, in a card, the tenor of Sir Michael's letter,
'25th September 1771, and that all that was wanted was to put a
'valuation thereon, and how ſoon I was furniſhed with it I would
'ſend it to Sir Michael, in order that he might for his ſon make
'his election, whether he would keep it or not But, to my great
'ſurpriſe, they turned their valuation into a decreet-arbitral,
'wrote by Mr Paton, which was moſt unwarrantable in him to
'do, after what I wrote him. I had a letter from Sir Michael
'on 2d May with this extraordinary decreet-arbitral; and upon
'the 4th of that month, intimated to James Bartholomew, that
'Mr Shaw would not take the houſe at the valuation put upon it,
'and required him to remove and carry away the materials.'
Sir Michael's letter to Bailie Campbell, of the 2d of May
1789, here referred to, is as follows: 'The incloſed came to hand
'this morning. As I have no idea the houſe is worth the money
'put upon it, I left my anſwer to Paton open for your inſpection.
'I thought you had known the Greenock birleymen ſo well as
'never to employ them when it can be avoided; and, in this caſe,
'you could have named another man. The ſum put upon the
'houſe is far beyond any notion I had of it; and ſuppoſing L. 4 of
'rent-got for it, it is above ten years purchaſe for an old houſe,
'which will require a conſtant repair; and I am certain he will
'not make one-fourth of the ſum from the materials. If you re'member,
I wrote you to get for my man, the perſon employed by
'Mr Mackechny, to put a value upon Archibald Kerr's houſes in
'the Hagfield park, which he told me was L. 11, and I imagine
Kerr's houſes are as good as the other. And am,' &c.
Thus, it is evident, that although Bartholomew's letter artfully
mentions bouſes in general, yet Sir Michael's anſwer to him, and
letter to Bailie Campbell, Bailie Campbell's letter to the petitioner's
agent, and Sir Michael's letter to the Bailie, all before
quoted, clearly ſhow, that no more was meant, either by Sir
Michael or the Bailie, than that the barn, or dwelling houſe alone,
should be appretiated; and this with the ſole view of Sir Michael's
having it in his option either to take the ſame for behoof of his
ſon, at the appretiated value, or to allow Bartholomew to carry
off the materials.
The petitioner is ſorry he ſhould have detained your Lordſhips
ſo long, and therefore only further begs leave to ſubmit the propriety
of that part of the Lord Ordinary's interlocutor which decerns
againſt him for forty ſhillings of expences, notwithſtanding
his ſeeing it neceſſary to remit to the Sherif with inſtructions.
May it therefore pleaſe your Lordſhips, to alter the Lord Ordinary's
interlocutor, and to remit to his Lordſhip to paſs,
the bill of avocation, or to remit the cauſe to the Sheriff,
with inſtrucions to find, that the petitioner is not liable for
the expence of the dikes which may have been put up by
Bartholomew, without the advice and direction of Sir Michael
Stewart, or conſulting him as to the bargain, in terms
of the articles of roup, and ſcroll of the tack, and to recal
the proof allowed of that expence; as alſo to find that the
petitioner is not liable for the ſum awarded as the price of
the whole houſes, and that Bartholomew ſhall be at liberty
to take away the materials of the barn, or eye to allow a
proof of the value of the barn alone, which the petitioner is
willing to take at the price it ſhall he proved to be worth;
and laſtly, to find the petitioner entitled to expences.
According to juſtice, &c.
ALEX. WIGHT.
