Corpus of Modern Scottish Writing (CMSW) - www.scottishcorpus.ac.uk/cmsw/

Document : 24

Title: Memorial for James Petrie, Writer in Aberdeen

Author(s): Anonymous

July 5. 1736.
ANSWERS
FOR
James Petrie Writer in Aberdeen,
TO THE
PETITION for the Procurators before
the Sheriff- and Commiſſary Courts of Aberdeen.

MR. Petrie having been educate as a Writer, and having
in the Year 1734 taken up his Reſidence at Aberdeen,
he propoſed to ſerve his Clients, and oothers
that ſhould employ him, as a Procurator before
the Sheriff and Commiſſary Courts. His Purpoſe having
come to the Knowledge of ſome of the Procurators before
theſe Courts, he was by them informed, That his Reſolution
was impracticable: That by certain Regulations
that had been made by the Procurators before the Commiſſary-court,
with conſent of the Commiſſary, in the Years
1685, 1689 and 1731, the Procurators had been erected into
a Corporation, with excluſive Privileges: That by thoſe
Regulations, no Perſon could be admitted as a Procurator
before that Court, unleſs he had ſerved as an Apprentice to
one of the Procurators for three Years; and, even then, he
could not be admitted without the conſent of every one of
the Procurators, and alſo upon payment of 5oo Merks into
their common Stock; That this Regulation, though it had
not received the Sanction of the Sheriff, yet as the ſame were
Procurators before all the Courts at Aberdeen, this Corporation
of the Commiſſary's Erection pretended to have the
like excluſive Privilege of procuring before the Sheriff-court,
and to have the ſame Limitation with reſpect to the Adminſſion
of Procurators before that Court.
Mr. Petrie being adviſed, that the Rights claimed by this
Corporation of Procurators was not founded in Law, (and
particularly, that as the Commiſſary and his Procurators
could bring_no Limitation upon the Sheriff and his Court,
that if it was not competent to every Perſon having a Mandate
from his Client to procure in the Sheriff and Commiſſary
Courts; yet that the Sheriff, who by his Commiſſion under
the Great Seal was impowered to name all the Members
of his Court, the Clerk only excepted, could not be reſtrained
by the Commiſſary's Incorporation, from authoriſing- and
admitting any Perſon whom he judged qualified to act as Procurator
before his Court,) did therefore believe he was entitled
to apply to the Sheriff and Commiſſary to be admitted
as Procurator, though he had neither ſerved an Apprenticeſhip
to one of the Procurators at Aberdeen, and though he
ſhould not be ſo lucky. as to obtain the. conſent of .every one
of them.
The Procurators, it would appear, being ſenſible that their
excluſive Privileges would not ſtand the Teſt propoſed to,
compromiſe the matter: And as Mr. Petrie did not incline
to enter into a conteſt with this Corporation, he was willing
to comply with the Propoſal. It was execute in this manner:
It was agreed, that he ſhould enter into Indentures
with Mr. Burnet, one of their Number, for three Years;
that upon the Expiration of the Indentures, he might be admitted),
without Encroachment upon their pretended Regulations,
upon payment of the uſual Contribution; and that,
in the mean time, he ſhould be allowed to manage his Clients
Cauſes in the Name of Mr. Burnet.
That, purſuant to this Agreement, indentures were execute
betwixt Mr. Burnet and Mr. Petrie in June 1734; and
from that Period, till July 1735, he continued to manage
his Clients Cauſes before the Sheriff court in the Name of
Mr. Burnet. But at that Period, one of the Procurators, not
being able to anſwer readily an Argument uſed by Mr. Petrie
-for his Client, took another Method of anſwering, by ſtopping
Mr. Petrie via facti, and by his own Authority; upon
pretence, That he was no Procurator, no Member of
their Corporation; and therefore that the Sheriff could not
allow him to proceed in his Argument.
And as the reſt of the Procurators concurred in this riotous
Procedure, (at leaſt to the Number of ten, and the reſt
did not incline to interpoſe either Way,) in direct breach of
the Concert that had been propoſed by themſelves; Mr. Petrie
found himſelf under the unpleaſant Neceſſity, either of
giving up the Buſineſs for which he had endeavoured to qualify
himfelf, or to fight his Way to what he was adviſed was
the common Privilege of the Lieges, againſt this powerful
Corporation, that pretends- to have acquired excluſive Privileges,
and a very conſiderable Stock, in conſequence of their
excluſive Right.
Accordingly Mr. Petrie applied, in the firſt place, to the
Sheriff by Petition, ſetting forth his Education as a Writer,
and his Deſire to act as a Procurator before his Court, there-fore
praying to be admitted a Procurator. The Sheriff, by his
Interlocutor the 19th November-1735, found, "That there
"being no etabliſhed Rules-for receiving and admitting Pro"curators-before
the Sheriff-court, until ſuch ſhall be agreed
"upon and ſettled, conſidering the Intereſt he has himſelf in
"appointing Members of Court; before Anſwer to the Petition,
allowed the haill Procurators, or any two of them
concurring, betwixt and the 26th of November, to ob"ject,
as they ſhould ſee Cauſe, to the Character and Deportment
of the Petitioner: And no ſuch Objection be"ing
in that Time offered, he recommended to, and nomi"nate
five of the Procurators, whereof three to be a Quo"rum,
to be Examinators and take trial of the Petitioner's
"Knowledge of the Principles of the Law of this Kingdom,
"of the Stiles and Forms of Proceſs as preſently practiſed,
"and of his Fitneſs for exercing the Office of a Procurator,
"and that in the Sheriff's own Pretence; and the Examina"tors
inſtantly to give their ſigned Opinion and Report up"on
the Premiſſes"
Mr. Petrie is adviſed, that he had Reaſon to object to this
Interlocutor, particularly that Part of it allowing the haill
Procurators to object to his Character and Deportment. He
does not mean, that if any relevant Objections had been made
to his Character by the Procurators, or any body elſe, and
had they been made good, the Sheriff might juſtly have refuſed
the Deſire of his Petition: He has a power both to exclude
infamous Perſons from acting as Procurators in his
Court, though they have been admitted; and therefore he
muſt have a Power to refuſe to admit ſuch Perſons. But then,
Mr. Petrie apprehends, it was contrary to Rules of human
Society in the Sheriff to ſet up an Inquiſition upon him, to
call upon the Procurators to pry into the Secrets of his Life,
and, to fiſh for Objections to his Character, becauſe he deſired
to be admitted a Procurator. The Law preſumes for the
Innocence of every one of the Lieges, and provides Remedies
againſt Tranſgreſſors. There are publick Officers appointed
for carrying on Proſecutions againſt Offenders; private
Accuſers are alſo admitted. But Mr. Petrie knows no
Law that authoriſed the Procurators of Aberdeen to enquire
judicial Way, and, without ſtating themſelves as Accuſers,
into the Character of thoſe that are, or deſire to be admitted
Procurators; and, in this ſhape, to bring all the World
upon. the Candidate, in order to beſpatter his Character;
when he can have no Acceſs to know his Accuſation, or to
make his Defence; and when, ſuppoſe he is found innocent,
he can have no Redreſs. But Mr. Petrie, being conſcious
of his own Innocence, did not object to the Interlocutor.
But the Procurators thought fit to enter a Proteſtation againſt
this Deliverance, and inſiſted on their excluſive Privileges,
That Mr. Petrie had not ſerved an Apprenticeſhip for
three Years; and upon their Negative, That, let a Candidate's
Abilities and Integrity, and his Fitneſs to ſerve the Lieges,
be never ſo remarkable, the Procurators had a Right to
exclude him without any Cauſe ſhown.
As this Proteſtation however did not alter the Sheriff's
Opinion, the Procurators thought fit to apply by Petition,
Craving a Warrant to Officers to ſummon all and ſundry
Perſons, Havers of Writs, neceſſary for proving that part
of the Sheriff's Interlocutor, as to the Character admitted
by him as afore ſaid. And the Sheriff was pleaſed to grant
the Deſire of the Petition, and Diligence at large; and they
by virtue of this Diligence, pretended to recover from Mr.
Petrie's Correſpondents all Letters that he had wrote to
them, in order from thence to bring Accuſations againſt him;
and, in paſſing, Mr. Petrie muſt ſubmit it to your Lordſhips,
if this Procedure was not unprecedented, the demanding
the Production of private Letters, in order to found a
Complaint againſt the Writer.
But to proceed, the Sheriff-, after having allowed the Procurators
all the Opportunities they could deſire, to canvaſs.
Mr. Petrie's Actions, and to uſe his Letters written many
Years before, to raiſe Clamour againſt him, was pleaſed to
pronounce the Interlocutor fully recited in the Condeſcendence
ſubjoined to the Procurators Petition, Repelling the
Objections made to Mr. Petrie's Admiſſion, upon the
count of his Character; and at the ſame Time finding, that
an impartial Examination was not to be expected from the
Procurators: Therefore,- ſuperſeding Mr. Petrie's Admiſſion,
until Trial ſhould be taken of his Qualifications by an
unſuſpect Perſon.
That purſuant to this Interlocutor, the Sheriff made choice
of Mr. Hay of Dalgety, to take Mr. Petrie's Trial; who,
by his Letter of the 9th of December, addreſſed to the Sheriff,
gave his Opinion, That Mr. Petrie had all the Qualifications
requite for the Office of Procurator, and at the
ſame time, that his Character was unblemiſhed. But before
any Procedure was had upon this Report, the Procurators
thought fit to -advocate the Cauſe to your Lordſhips;
and which having come to be diſcuſt before the Lord Dun,
his Lordſhip, after having fully conſidered the whole Procedure
had before the Sheriff, was pleaſed to remit the Cauſe
in common form. The Petition reclaims; and, firſt, They
inſiſt upon their excluſive Privilege, their arbitrary Power
of excluding Perſons from being Procurators before the Sheriff
Court,unleſs they had ſerved Apprentſhips to one of their
Number, the Negative that each of the Society had upon the
Admiſſion of a Procurator, without any Cauſe ſhown; and
this founded upon a pretended Preſcription. And, 2dly,
They inſiſt upon certain Objections to Mr. Petrie's Character,
which they pretend to have proved, or are ſtill willing
to prove.
Mr. Petrie will follow the Petitioners in the ſame Order:
and, firſt, With reſpect to the Right of Corporation, and excluſive
Privileges, Mr. Petrie is adviſed, That the Crown
may erect Corporations, and may in ſome Caſes delegate
that Power to a Subject; but that without the Interpoſition
of the Crown, no Corporation can be erected; the erecting
a Body politick is beyond the Power of a Subject, in ſo
much, that by the Statute of the ſixth of King George I.
entituled, An Act for better ſecuring certain Powers and
Privileges intended to be granted by his Majeſty, by two
Charters for Inſurance of Ships, &c. It is among other
things enacted, That the preſuming to act as a corporate
Body, without a legal Authority erecting the ſame, _ſhall
be deemed a publick Nuſance, and the Offenders therein
ſhall be.puniſhed with the Penalties mentioned in the Statute.

Wherefore Mr. Petrie apprehends it was not in the Power
of the Procurators before the Commiſſary-court of Aberdeen,
by themſelves, or by the Intervention of the Commiſſary's
Authority, to erect themſelves into an Univerſity or College,
by the Regulations founded on, nor to levy Money upon any
of the Subjects who ſhould thereafter become Procurators
in that Court; nor to make any By-laws or Regulations that
might reſtrain the Liberty of the Subjects who were qualified
to act as Procurators, and to follow out that Buſineſs, eſpecially
if they were authorized by the Commiſſary, the,
Judge of the Court.
And 2dly, With reſpect to the Powers claimed by this.
Corporation, of reſtraining the Office to thoſe that had ſerved
as Apprentices to one or other of the Procurators, and
even with reſpect to thoſe, giving every Procurator a Negative,
that even an Apprentice could not be admitted without
the Conſent of the whole. This is a Limitation upon the
reſt of the Subjects, that Mr. Petrie does not know that it
was ever granted to any Corporation erected by the Crown,
That every one ſhould have a Negative in admitting Members
into the Corporation. The Corporations in Royal Burrows
erected by a proper Authority, and which, as Matters
now ſtand, are no Favourites of the Law; they are Encroachments
upon the natural Liberty of Mankind; yet they have
no ſuch. Negative lodged, in: every Member And indeed it is
contrary to the .Nature of a Corporation, that it ſhould be in
the Power of any one Member to extinguiſh the Corporation,
by excluding the Admiſſion of any new Members:.On
the contrary, 'tis implied. in the very Notion of a Corporation,
that the Majority of Voices ſhould determine all Queſtions
that are not inconſiſtent with the Deſign of the Erection:
And therefore, how the Procurators of Aberdeen, with
Conſent. of the Comiſſary, ſhould have Power_ to erect themſelves
into ſuch a Corporation, with Powers ſo extraordinary,
and contrary to the very Nature of a Corporation, is not
eaſily to be comprehended.
But 3tio, Suppoſing for once that the Procurators before
the Commiſſary-court were by their own or the Commiſſary's
Authority, erected into a College with excluſive Privileges,
with reſpect to that Court; yet upon what Foundation
can they pretend to ſubject the Sheriff or his Court to
their Regulations? What Law gave the Commiſſary or his
Procurators a Power over the Sheriff to limit him in Admiſſion
of Procurators? And it is not pretended that the Sheriff,
either the preſent Sheriff or his Predeceſſors, ever authorized
ſuch a Regulation, or that he put it in the Power
of the Commiſſary or his Procurators, whether there ſhould
be any Procurators before his Court or not. I don't ſay
the Sheriff had a Power to make any ſuch Regulation, we
apprehend it is undoubted that he had no ſuch Power; but
then ſuppoſe that were the Caſe, we inſiſt upon it, that there
is not the leaſt colour of Evidence that the Sheriff ever ſubmitted
to ſuch a Regulation; and if ſo, the Privilege claimed
by the Petitioners is without any Foundation either in
Law or Fact.
And as to the Pretence, That the Records of the Commiſſary-court
are burnt, and had it not been for that Accident,
the Petitioners might have been poſſeſſed of more proper
Vouchers for their Claim.
'Tis anſwered, 1mo, That this is not eaſily to be comprehended:
Sure the Commiſſary-court was not the Record of
Grants from the Crown; thoſe, if any ſuch had been made
in favours of this Corporation, would have been found at
the Seals: For we humbly inſiſt upon it, that without the
Interpoſition of the Crown, either immediately or mediate1y,
no ſuch Corporation with excluſive Privileges could be
erected.
And 2do, The Original of this Incorporation does appear;
for after the burning of the Records of the Commiſſarycourt,
the Members of the Court were poſſeſſed of exact
Copies of the Regulations made in that Court, and which
Copies, by an Order of the Commiſſary, ſubſequent to the
burning in the 1721, is approven of as authentick, and among
the reſt the Regulation 1685 mentioned in the Petition,
which contains the original Conſtitution by the then
Members of a publick Stock, and the Methods laid down for
increaſing the ſame, by a Tax upon Apprentices and upon
Procurators to be thereafter admitted. 'Tis apparent from
looking into this Regulation, that antecedent to this Period,
they had no publick Stock, they were no Society, much
leſs did they claim any excluſive Privileges: But in this, as
in other inferior Courts, every Perſon who was underſtood
to be qualified to ſerve the Lieges, was allowed to procure
for them; and if there was any Admiſſion, it was by the
Judge.
But 3tio, The Records of the Sheriff-court were not burnt;
and there is not the leaſt Veſtige in all the Sheriff's Records
of any ſuch Society or excluſive Privileges. whereby the Petitioners
pretend to limit the Power of the Sheriff in admitting
Procurators; and it is certain in Fact, that many of the
Petitioners themſelves were admitted without ſerving as Apprentices,
and every one of them without any previous Examination,
in the Terms of the pretended Regulations.
And as to the Pretence of Preſcription, That this Corporation,
with excluſive Privileges, is eſtabliſhed by Preſcription;
and that your Lordſhips had been in uſe to find, that this
was a Method in Law for eſtabliſhing Corporations, particularly
in the Caſe of the Trades of Leith.
'Tis anſwered in the 1ſt place, That Mr. Petrie can by no
means admit that this is a ſettled Point in our Law, that a
Society with excluſive Privileges can be eſtabliſhed by Preſcription;
this were to preſcribe againſt the publick Law the
Liberty and the Subject: And particularly with reſpect to the
Caſe of the Trades of Leith, Mr. Petrie is adviſed that no
ſuch thing was there determined. The Caſe there was, The
Baron of Reſtalrig had a Burgh of Barony erected in his favours,
by a Charter from the Crown; he had granted Seals
of Cauſe to certain Fraternities in Leith, with Power to
them to levy certain weekly Rates for Maintenance of their
Chaplain: Your Lordſhips found the Fraternities intitled to
the Privileges mentioned in the Seals of Cauſe; but with reſpect
to the excluſive Priviliges — claimed by the Trades, of
debarrind expert Tradeſmen to ſet up in Leith, your Lordſhips
found they had no ſuch Power; and therefore the Petitioners
can receive no Aid in the point of Preſcription from
this Deciſion, in no View whatſoever.
And as to the Argument drawn from the Admiſſion of Advocates
and Writers to the Signet, Mr. Petrie is adviſed, is
directly againſt the Petitioners. The College of Juſtice is
erected by Act of Parliament, the Advocates and Writers to
the Signet (who in the Act are called Clerks of the Signet)
are contain'd in the Erection, and the Lords are impowered
to lay down Regulations with reſpect to the Admiſſion of the
Advocates and Writers to the Signet; and purſuant to the
Regulations laid down by your Lordſhips from time to time
they are admitted; and the Privileges of the College of juſtice
are ratified almoſt in every Reign by Act of Parliament:
And therefore if the Petitioners would produce ſuch a Statute,
erecting the Procurators before the Commiſſary or Sheriff
Court of Aberdeen, or impowering them to regulate the
Admiſſion of Procurators before their Courts, their Argument
would conclude: But as there is no ſuch Erection, no
ſuch Power given them by any Law, their aſſuming by their
own Authority ſuch a Power, is acting as Lawgivers, and
putting their private Concerts upon the ſame foot with the
publick Laws of the Land: And indeed ſo far they have exceeded
the Powers that hitherto your Lordſhips have thought
fit to aſſume in this Matter, your Lordſhips have not tied
the Candidates for Advocates before the ſupreme Courts to
acquire their Knowledge in any particular Place; if they are
qualified, 'tis no Bar to their Admiſſion whether they have
ſtudied at Home or Abroad; nor has every one of your Lordſhips,
nor each Member of the Faculty, a Negative upon the
Candidate; if he is qualified in the Opinion of the Majority
of his Examinators, and of the Court, he is intitled to be
admitted: So that if the Petitioners are founded in their
Claim, one who is qualified, and has been found ſo by your
Lordſhips and the Faculty of Advocates, and has been admitted;
yet if he has not compleated his Education by three
Years Service to one of the Petitioners, or if, after all this,
any one of them happen not to like his Complexion, it is not
in the Power of any one of the Judges of Aberdeen, the Sheriff
or the Commiſſary, to allow him to ſerve the Lieges in
their Court.
And with reſpect to the Argument brought from the Regulations
made by the Commiſſaries of Edinburgh in the 1707,
Mr. Petrie has all due Deference to the Commiſſaries of Edinburgh;
but he cannot admit that they have a Power to erect
a Body corporate with excluſive Privileges; and therefore
if they had aſſumed ſuch a Power, it would be no Precedent;
nor would it juſtify the Commiſſary of Aberdeen in
copying after them in ſuch an unlawful Uſurpation.
But 2do, The Regulations of the Commiſſaries of Edinburgh
do not at all come up to thoſe founded on by the Petitioners:
The Procurators have no Negative upon the Admiſſion
of Procurators, nor is the Office confined to thoſe
who have ſerved Apprentices to one of the Procurators; but
the Commiſſaries name Examinators, who take Trial of Intrants
Qualifications, and report to the Commiſſaries. There
is no Inquiſition by the Procurators into the Intrant's Charaacter:
And laſtly, There is no levying Money upon the Intrants
without their Conſent. All the Sanction that by their
Articles of Copartnery are impoſed their
Admiſſion refuſe to contribute to the common Stock, is, that
they and theirs are excluded from any Intereſt in the common
Stock: A Sanction that is in the Power of any private
Society, though they have no excluſive Privileges.
And therefore, upon the whole of this Article, Mr. Petrie
is in your Lordſhips Judgment, if the Sheriff committed
any Iniquity, in repelling the Petitioner's Claim of excluſive
Privileges; and, on the contrary, if the Petitioners are not
cenſurable, for urging Powers not given them by Law, to
the prejudice of the Sheriff and of the Lieges, and upon Pretence
thereof, endeavouring to oppreſs Mr. Petrie.
And as to the Objections to Mr. Petrie's Character, your
Lordſhips will obſerve in the general, That the Facts brought
out againſt him upon this Occaſion, and which are ſaid to be
highly criminal and injurious to third Parties; yet that hitherto
no Complaint has been made by the Parties ſaid to
have been injured: The Procurators of Aberdeen are his only
Accuſers; and your Lordſhips will obſerve, beſides the Irregularity
of this ſort of Accuſation, Mr. Petrie ſuſtains
this real Prejudice, that he is deprived of the Benefit of the
Party who is ſaid to be injured his Oath, in order to explain
the Facts, and to exculpate himſelf, he has no effectual
Compulſitor againſt them to compear in this Inquiſition.

But more particularly with reſpect to the firſt Article, the
Letter to John Gordon of Auchanachy; your Lordſhips will
be informed, That Mr. Gordon had wrote to Mr. Petrie for
a blank Summons, and which, according to the ancient Form
obſerved in the Courts of Aberdeen, contain ſtill a Warrant
of Arreſtment ſubjoined, tho' ever ſince your Lordſhips Deciſion
in the 1706, ſuch Warrant of Arreſtment is in that
Court, and all other Courts of the Nation, the Admiral
Court only excepted, an uſeleſs Thing; becauſe your Lordſhips
having then found, That there could be no Letters of
Arreſtment upon a Dependence, until a Dependence was
created by the Execution of the Summons, reported to the
Court before the Warrant of Arreſtment was granted:
Therefore, ſince that Time, in all the Courts of the Nation,
and particularly in the Courts at Aberdeen, no Warrants for
an Arreſtment on a Dependence can proceed until the Summons
is execute But the Sheriff-clerk continues his old
Form, and to every blank Precept of Summons he ſubjoins a
Warrant for Arreſtment.
It appears that Mr. Gordon had deſired the Precept might
be blank in the Date; and as this was contrary to the Rules,
Mr. Petrie wrote him that no ſuch Thing could be obtained:
But then as Mr. Petrie apprehended, that what was in
Mr. Gordon's View was, That the Precept ſhould continue
in Force as long as was poſſible, Mr. Petrie ſuggeſted a Method
for attaining this End, and which is daily practiſed in
blank Summonſes before your Lordſhips, namely, by filling
up the Month in the Diet of Compearance, ſuch as the Purſuer
pleaſes, if it be within a Year of the Date of the Summons;
and then the Summons will laſt a Year from that;
ſo that by this Method the Purſuer, and in the preſent Caſe
Mr. Gordon could not be hampered by the Date: This is
what was intended by the Letter, and the Conſtruction it
fairly admits of; and 'tis ſubmitted to your Lordſhips, if this
was a thing cenſurable: And as Mr. Petrie was in a Haſte,
as the Letter bears, and he could not explain the Matter fully
to his Employer, he deſires him to do nothing till he
ſhould ſee him.
And as Mr. Petrie inſiſts that this was the Deſign, and the
true meaning of the Letter, and when it will at leaſt bear
this Conſtrution, 'tis ſubmitted to your Lordſhips if his
Parties can be allowed to ſtrain it, ſo as to bring an Imputation
of ſomewhat that's criminal againſt him; eſpecially that,
2do, The Letter is incapable of the Gloſs put upon it by
the Petitioners, namely, That the Precept was to be antedated,
in order to ſupport an antedated Execution of Arreſtmeat,
which they ſuppoſe was to be made uſe of by Mr. Gordon:
For your Lordſhips have heard, that this Precept could
not at all be the Warrant for uſing an Arreſtment; that until
the Summons was execute, and the Execution returned to
Court, and a new Warrant granted, there could be no Arreſtment
at all; and therefore the altering the Dare of this
Precept, could be of no Uſe towards ſupporting an Arreſtment,
ſuppoſed to be prior to the true Date of the Precept.

Add toa all this, 3tio, That Mr. Gordon never uſed this
Precept as the Warrant of any Arreſtment, as indeed he could
not; becauſe he did not execute the Precept; he never made
a Dependence, which might be the Foundation of an Arreſtment.

And as to the other Objection founded on this Letter,namely,That
Mr Petrie charges eighteen Pence for the Precept,
whereas a Shilling was the uſual Fee paid for the ſame. The
Anſwer occurs from the Sheriff's Interlocutor, who had enquired
into the Practice of his own Court, namely, That
the Dues for ſuch a Precept were not fixt, but higher or
lower as the Clerk pleaſed to exact.
And as to the ſecond Objection founded on Mr. Petrie's
Letter dated the 7th of December 1731, addreſſed to John
Hamilton Chamberlain of Huntly: The Fact was, as far as
Mr. Petrie can remember at this Diſtance of Time, That
Mr. Hamilton had uſed Arreſtment in the Hands of Abachy,
as Debitor to Daach, that he being at Huntly-Caſtle, and
Mr. Petrie at Huntly, hard by, Mr. Hamilton ſent the Execution
of Arreſtment, before it was ſigned to Mr. Petrie to
be reviſed; becauſe it was underſtood, that upon the Formality
of the Execution Mr. Hamilton's Preference was to depend;
and at the fame Time deſiring him to make out Copies
for Abachie, in whoſe Hands the Arreſtment was uſed, and
for Daach the principal Debitor, ſummoning them in the
Forthcoming before the Sheriff of Aberdeen, and to write
out a Scroll of the Execution in the Forthcoming.
In Obedience to this Deſire of Mr. Hamilton's, Mr. Petrie
reviſed the Execution of Arreſtment, and made out the
Copies in the Forthcoming, and a Scroll of the Execution,
and accordingly writes in his Letter that he had done ſo, and
adds, That the copies in the Forthcoming ſhould be ſigned
by the Meſſenger, and that to Abachie might be delivered
inſtantly, and that to Daach next Day, at his Dwelling--
houſe; but deſires that the Execution, that is, the Execution
of Arreſtment, might be inſtantly ſigned by Moriſon the
0fficer, and by Minto one of the Witneſſes, who was with
Mr. Hamilton, and that Johnſton the other Witneſs, who
was with Mr. Petrie, ſhould ſign it afterwards.
Now if this is the Import of the Letter, that the Execution
that was to be ſigned, was the Execution of Arreſtment
that had been uſed ſome time before, and to which
Johnſton and Minto were Witneſſes, Where was the Crime
in directing it to be ſigned immediately after it was reviſed?
and that it was to be ſigned by thoſe that had been Witneſſes
to the Execution at different Times and Places: This is
what is done every Day; the Execution is not made out the
Moment that the Diligence is uſed, but is commonly made
up ex poſt facto, from a Note taken at the Time; and the
Witneſſes Subſcriptions are obtained as they can be found.
And indeed, as the Letter mentions two Executions, an
Execution of Arreſtment, and an Execution of a Summons
of Forthcoming upon it, the whole of the Petitioners Objection
reſt upon their applying the Execution mentioned in
the latter Part of the Letter to the Execution or the Forthcoming.
If this had been the caſe, the Advice would have
been irregular: But if it was the Execution of Arreſtment,
then there is not a colour for an Objection. And as the Letter
will apply to either, Mr. Petrie is adviſed, that by all
Rules of Interpretation it ought to be applied to the laſt. No
Law allows a Crime to be inferred from Words or Letters
that may and can receive an innocent Interpretation. And
this ought to hold eſpecially in the preſent caſe, where ſuch
was the true Intent and Deſign of the Letter. And indeed it
was impoſſible, that Mr. Petrie could have adviſed the ſigning
the Execution of Forthcoming, when he could not know
how it was to be execute againſt the Parties, whether perſonally
or at their Dwelling-houſes; eſpecially that it was a
Matter in which he had no Concern. He was not intereſted
in the Debt, nor was he Doer for Mr. Hamilton in the cauſe,
further than that he gave his Aſſiſtance to the Officer employed
to execute the Diligence: So that the whole of this
Objection is founded upon an unjuſt Criticiſm upon a Letter,
written with no great Accuracy, becauſe the Party to whom
it was addreſſed was within call of Mr. Petrie at the Time,
and could eaſily obtain an Explication of any thing that might
be doubtful in the Expreſſion.
And as to the third Objection, namely, That Mr. Petrie
did cauſe ſummon Mr. Gordon of Binhall before the Sheriff:
court, for payment of an Accompt due to John Davidſon
Litſter, without any Warrant from Davidſon; it is anſwered,
The Objection is without any the leaſt Foundation. The
Fact is, and is inſtructed by Davidſon's Letter, That Binhall
owed Davidſon an Accompt; and, in September 1735-Davidſon
deſired Mr. Petrie to proſecute him before the Sheriff-court,
and, in preſence of his Wife and Servant, gave
Mr. Petrie an Extract of the Accompt, and impreſſed Money
into his Hands for carrying on the Proſecution: And
accordingly Binhall was cited. But he, it ſeems, having applied
to Davidſon for a Delay, he prevailed on Davidſon to
write a Letter diſclaiming the Proceſs, which he ſuggeſted to
Davidſon was the only proper Method of granting the Delay;
and accordingly the Diſclamation was produced, and
Proceſs ſiſted. That this was the Fact, is inſtructed by Davidſon's
Letter produced.
And this being the caſe, Is it any Crime in Mr. Petrie,
that his Employer was Prevailed upon to grant a Delay to
Binhall, or that he execute this in the Form of a Diſclamation?
And does it not ſhow the Spirit with which the Petitioners
are acted, when they inſiſt upon this Accuſation after
the Matter was thus explained? Eſpecially that from the Face
of the Proceſs, Mr. Petrie was ſufficiently juſtified. He produced
the Accompt due to Davidſon, which was ſufficient
to juſtify him from being calumnious or officious in the Proſecution,
notwithſtanding the fubſequent Diſclamation.
And as to the fourth, namely, Mr. Petrie's Acceſſion to
the apprehending Binhall with Caption at the Inſtance of
James Gordon, while there was a Bill of Suſpenſion and Anſwers
depending before your Lordſhips; Mr. Petrie will beg
leave to refer to the Bill and Anſwers depending before your
Lordſhips upon this Subject. He will only obſerve, that the
only Part he had in that Affair was, That, at the Creditor's
Deſire, he ſent a Meſſenger from Aberdeen to execute the
Caption, and that he was preſent at ſettling Matters after the
Debitor was apprehended; that he had no Notification that
there was a depending Bill of Suſpenſion; that however the
Debitor may be conſtrued to be in the Knowledge of Anſwers
given in for him to a Bill of Suſpenſion, yet ſure there
is no Preſumption that this was known to Mr. Petrie, who,
as has been ſaid, had no other Management in the Matter;
but the ſending a Meſſenger.
And as to the fifth, His Exactions from Mr. Brown, and
his threatning to betray his Secrets, in order to deter him to
ſeek Redreſs: The Fact is, That upon Richard Gormont
Merchant in Peterhead's Death, his Creditors, among whom
Brown his Son-in-law was the moſt conſiderable, employed
Mr. Petrie to expede a Confirmation of his Moveables in
their Name: That this put Mr. Petrie to the Expence of ſeveral
Journeys from Peterhead to Aberdeen; and particularly,
as the Defuncts Writs were in his Houſe at Peterhead,
and ſealed up by the Commiſſary's Authority, a Commiſſion
was directed by the Commiſſary to Mr. Petrie to open the
Seals, and to inventary the Defunct's Writs, in order to a
Confirmation; and as the Writs were very numerous, and in
great Diſorder, it was the Work of ſeveral Days to ſeparate
the Inſtructions of the moveable Debts that were to be confirmed,
from-the Defunct's other Writings: And the Inſtructions
of the moveable Debts, and the Inventary thereof,
were carried by Mr. Petrie to Aberdeen, and lodged with
the Commiſſary, purſuant to his Commiſſion. The Commiſſary,
at reporting the Commiſſion, modified five Guineas
to Mr. Petrie for his Trouble in executing the Commiſſion;
and which Sum, as ſo modified, is ſtared as an Article of the
Executor's Credit in the Confirmation. Mr. Petrie was alſo
employed by the Executors confirmed, in levying the
Debts, and ſettling Accompts with the Defunct's Debitors;
which, as they were very numerous, occaſioned great Trouble
and Expence: And for Mr. Petrie's Pains in all this, he
received two Guineas, which at the Time was conſidered by
both Parties as a very mean Gratification.
Gormont the Defunct had alſo left ſome heritable Subjects,
which had not been affected by any of his Creditors, and were
claimed by a Relation of the Defunct's in Ireland, who was
recommended to Mr. Petrie; at the ſame Time, Brown, who
was a Step-ſon to the Defunct, applied to Mr.:Petrie, that
he might aſſiſt Brown, in getting Poſſeſſion of the Defunct's
heritable Eſtate, and, in getting into his Hands the Titles
thereof: And, in order to induce Mr. Petrie to concur with
him, he told him, he was adviſed his Accompts were exorbitant;
and that he was offered Money for his Action of Repetition
againſt Mr. Petrie. That upon this Occaſion Mr.
Petrie wrote the Letter, whereof a part only is ingroſſed in
the Petitioners Condeſcendence; the Letter runs in the following
Terms: Mr. Brown, I ſpoke long ago to Mr. Moſman
about your Father-in-law Gormont's Adjudication upon
the Houſes in Fraſersbugh; he has the Papers; but then,
he will not give them up to you: and really I ſee no manner
of' Title you have to them; and ſo do not pretend to expect
them. And then Mr. Petrie proceeds, as in the Condeſcendence,
to take notice of Mr. Brown's pretending to fell his
Adion of Repetition, and mentions Mr. Petrie's being employed
by the Heir of Gormont to proſecute his Right.
This being the Caſe, 'tis ſubmitted to your Lordſhips if
there be any ſolid Foundation for ſo much Clamour; he was
imployed as Commiſſioner by the Commiſſary; and the
Commiſſary modified five Guineas for his Pains; he was imployed
by the Executor in executing the Teſtament, and he
pays him two Guineas for his Pains, beſides his plan
and neceſſary Expences and to this Day no Complaint
is made, at leaſt judicially, with reſpect to the Extravagancy
of the Accompt, except by a ſham Proceſs before the Balies
of Aberdeen, intented by the Procurators in Brown's
Name, long after this Dependence before your Lordſhips, in
order to ſupport their Alledgeance, which the Magiſtrates
could not well proceed in, and have not attempted to do. 2dly,
He was imployed by the Executor to execute the Teſtament;
was this any Reaſon to exclude him from accepting of the
Employment from the Heir,in the Proſecution of his Claim to
the Heritage, eſpecially when he was deſerted by his former
Employer, and threatned with a Proceſs of Oppreſſion? At
leaſt, when he was calumniate by his former Client, as he
apprehends, without any juſt Ground, was it not lawful for
him, at leaſt excuſeable, to reſent this Treatment, and to
tell him, That he would have no further Concern with him?
For as to the Suggeſtion, of Mr. Petrie's betraying the Secrets
of his Client, 'tis unintelligible; Mr. Petrie was imployed
by Mr. Brown in no Plea; the Confirmation is actus
voluntariæ juriſdiction is, no Occaſion, where Mr. Brown had no
Competitor, where there was not Ocaſion to diſcover any
Secrets whatſoever; wherefore this Objection was juſtly repelled
by the Sheriff.
And as to the ſixth, with reſpect to the Vitiation of the
Records of the Procedure before the Juſtices of the Peace at
Portſoy; As it was not mentioned before the Sheriff, ſo
from firſt to laſt it is a direct Falſhood. The Fact was, That
William Petrie, Mr. Petrie's Brother, had inſured a Cargo
of Salt from St. Martins to Portſoy; that the Ship having
ſtruck on the Goodwin Sands, was bulged, and a great
Part of the Cargo loſt, and the reſt damnified; that the Ship,
after having been repaired at Ramſgate, proceeded on her
Voyage, and arrived at Portſoy; that Mr. Petrie's Brother
applied to the Juſtices of the Peace by Petition, that they
might take the proper Evidence that the Cargo had ſuffered
Damage by Misfortune, and for aſcertaining the Damage,
and that they might certify the ſame in the uſual Form; accordingly
William Petrie compeared before the Juſtices of
the Peace perſonally, and made Oath to the Truth of the
Inſurance, and that he had not inſured the Cargo any where
elſe; the Maſter and Crew made Oath to the Misfortune,
and that they had not broke Bulk; the Officers of the Cuſtoms
made Oath that the Ship was duly entred; James
Mackie, and James Robertſon, two Merchants, depone uppon
the uſual Produce of the Quantity of Salt contained in
the Invoyce, French Meaſure, when the ſame was brought
to Scotland, and weighed with Engliſh Weight, and Colin
Falconar, and Patrick Baird report, but without Oath,
the common Price of Salt at that Port, when ſufficient,and the-Value
of the Salt as it was damnified; and purſuant to the Report,
the Juſtices expoſed the Salt to publick Roup, as it had
been appretiate; and 'tis purchaſt by one Melvill. All theſe
things are certified under the Hands of the Juſtices of thePeace,
and John Lorimer their Clerk, and the Procedure,
with the Certificate ſubjoin'd, was tranſmitted by William
Petrie himſelf, to Mr. Catanach his Correſpondent at London,
who, in conſequence thereof, recovered the Difference,
from the Inſure-maſters.
This being the Fact, which appears from an exact Copy
of the Juſtices Procedure left with Mr. Arbuthnot Merchant
in Peterhead, when the Principal was ſent to London, 'tis
apparent that this Article, from firſt to laſt is a meer Fiction.
The whole of this Affair was tranſacted by William Petrie
himſelf; he himſelf makes Oath before the Juſtices; and his
Brother James Petrie had nothing to do in the Matter.
2dly, William Petrie's Claim was a juſt Claim, unleſs
can ſuppoſe the Oaths of half a Dozen or a Dozen of Perſons
who ſwear in the Matter, to be all Perjuries, upon the Petitioner's
Aſſertion, and among the reſt Mr. Robertſon, who
they ſay was their Clerk, who. with another Merchant,
swears to the Converſion of the French Meaſure of the Salt
into Engliſh Meaſure. 3dly, Colin Falconar who is ſaid to
have been bribed to declare falſely what he would not ſwear
to, and whoſe Declaration is ſaid to have been changed to
an Oath by Mr. Petrie, neither did ſwear, nor had he ocſion
to do ſo: What he was called upon, with another Merchant,
to do, was, to tell the current Price of Salt at Portſoy,
a Matter that was notour, and needed not be ſupported
by an Oath, and to eſtimate the damnified Salt, not in order
to raiſe a Claim againſt the Inſure-maſters, but to direct the
Juſtices at what rate they were to expoſe it to Roup; and
which Roup, and not their Eſtimation, was to determine the
Extent of the Damage that had been ſuſtained. And, laſtly,
John Lorimer and not James Robertſon was Clerk to the
Juſtices of Peace in this matter: ſo that it muſt be obvious,
that this Fact, not mentioned before the Sheriff; where it
could eaſily have been redargued, is brought moſt unwarrantably
into the Petition, without any Regard to Truth,
in order to give Impreſſions, and. to deſtroy Mr. Petrie's
Character.
And as to the ſeventh Objection to Mr. Petrie's Character,
it conſiſts of two Branches; firſt, That Mr. Petrie is
a, Dealer in Proceſſes. And, 2dly, That he has been guilty
of entring into a Pactum de quota litis.
'Tis anſwered to the Firſt, That it is Mr. Petrie's Miſfortune
to be Defender in ſeveral Actions before your Lordſhips,
-inſtigate, as he has good Reaſon to apprehend, by the
Petitioners themſelves, and from which he hopes to be aſſoilzied
by your Lordſhips Juſtice: But whether that ſhall be
the Event or not, as he acts in his Defence by Advice of his
Lawyers, it is his Misfortune, but cannot poſſibly be a Crime.
And with reſpect to the other Proceſſes wherein he is Purſuer,
they are all upon the Title of Executor confirmed to
his Father, and therefore he was bound by the Truſt committed
to him to carry on the Proceſſes for the Behoof of all
concerned; except as to one;. and which belongs to the ſecond
Branch of this Article.
As to which, the Fact is, That John Leith of Auchairn's
Children obtained a Decreet of Forthcoming againſt Gordon
of Abachie, and as they had no Funds for laying out the Expence
of putting the Decreet to Execution, Mr. Petrie, who
believed the Debt might be made effectual at a ſmall Charge,
did, at the earneſt Deſire of their Father, and of three Gentlemen
their Relations, viz. Thomas Innes of Muirfield, John
Innes of Edingith, and James Miln in Botary, undertake
to execute the Decreet, and to refer the Allowance for his
Trouble and Expence to thoſe three Gentlemen. This is the
Fact, and had it been mentioned before the Sheriff; as it was
not, though aſſerted in the Petition to have been before him,
and repelled by him, could have been proved by the Gentlemen
who were Witneſſes to the Tranſaction, and by the Production
of the Deeds themſelves; 'tis ſubmitted to your Lordſhips
if there was any thing cenſurable in Mr. Petrie's Conduct:
Sure it was no pactum de quota litis, where there was
no lis, but a Decreet of Forthcoming: Where there was no
Quota ſtipulate by Mr. Petrie, but he was undertaking a
charitable Action upon his own Risk; and in caſe of his making
the Decreet effectual, leaving it to his Cedent's Relations
what Reward he was to have for his Pains and Trouble,
or if he was to have any at all.
And as to the Eighth, the Fact is, That Alexander Auchynachy
having by a diſſolute courſe of Life diſobliged his Father,
he applied to Mr. Petrie, informing, him that his Father
deſired he ſhould ſign ſome Deeds, and deſiring his Advice;
Mr, Petrie very readily adviſed him to comply with
his Father, and at the ſame time wrote a Letter to his Father,
interceeding Forgiveneſs to the Son. This was the Part Mr.
Petrie acted; and in Return, the Son invented the Story
mentioned in the Letters, That Mr. Petrie had diſſwaded
him to comply with his Father, and had offered to give the
Son a Sum of Money for a Conveyance of his Claims againſt
the Father; and that Mr. Petrie adviſed him to leave the
Country: And to give countenance to this Falſhood, he the
Son forged a Letter as from Mr. Petrie to him; and upon
this Plan, the Letters mentioned upon this, Article, written
by the Son and Mr. Elphingſtone of Glack are grafted.
Such a Contrivance was to the laſt Degree alarming to Mr.
Petrie; it was attacking his Character in the fouleſt Man
ner: Wherefore he laid the Caſe before an eminent Lawyer
for his Advice, and by his Direction he brought an Action
before the Comiſſary of Aberdeen againſt Father and Son,
for this atrocious Injury, and for the libellous Letter written
by the Son, and this before any Application made to the
Sheriff in order to his Admiſſion as a Procurator; and though
the Commiſſary has delayed hitherto to proceed in the Cattle,
yet he cannot doubt of obtaining Juſtice in due Time.
This being the Caſe, 'tis ſubmitted to your Lordſhips, if
this atrocious Injury done to Mr. Petrie, and which he is
proſecuting in the courſe of Law, can forfeit him of any civil
Right; and if it is not very modeſt in the Petitioners to
expel your Lordſhips ſhould concur with them and Mr.
Auchynachy in blaſting Mr. Petrie's Reputation, without any
other Evidence than Mr. Auchynachy's Aſſertion.
And as to the laſt Article, The Petitioners offering to
prove a fama clamoſa againſt Mr. Petrie; 'Tis believed it
needs no Anſwer: The Petitioners have ſhown to your Lordſhips
their Diſpoſition to defame him, and they have grafted
abundance of Calumnies upon what he hopes he has ſatisfied
your Lordſhips is nothing. This, conſidering their Influence
upon the Country, is ſufficient to raiſe a fama clamoſa
amongſt thoſe that are under their Influence, and thoſe that
are abſolutely unacquainted with Mr. Petrie: Such is the
courſe of humane Affairs! But as it is hoped your Lordſhips
have perceived the Facts brought to defame Mr. Petrie,
when enquired into, are nothing; That therefore you will
be of Opinion that a Fame built upon thoſe Facts, or upon
nothing, cannot deprive him of any civil Right, and that it
is not the Subject of an Enquiry: At the ſame time, if that
were the Caſe;- he could entertain no Doubt but he could
ſupport his Character by the Teſtimonies of all to whom he
is known, and that their Teſtimony would outballance any
contrary Evidence that could be brought even by this formidable
Body his Proſecutors.
Mr. Petrie humbly begs Pardon for the Length of this Paper;
but, as an Accuſation was brought againſt him before
your Lordſhips, conſiſting of a Variety of Articles, he thought
it his Duty to make an Anſwer in Fact to each of them: At
the ſame Time, he hopes your Lordſhips will be ſenſible it
was impoſſible to make ſo full an Anſwer, as he could have
wished and would have been able to do, if he had had an Accuſer,
who would have been liable to the Expence of a full
Enquiry into the Injuſtice of the Accuſation brought againſt
him.
Upon the whole, he humbly hopes your Lorſhips will be
of Opinion, That the Procurators of Aberdeen, the Petitioners,
are no Body corporate, with excluſive Privileges; that
they have no Right to exclude the Sheriff, from admitting any
Perſon whom he ſhall judge qualified to officiate as a Procurator
in his Court. 2do, That it was irregular in the Sheriff,
to allow an Inquiſition into Mr. Petrie's Character, upon
the Occaſion of his applying to be admitted Procurator.
And 3dly, That the Sheriff juſtly repelled the Objections laid
to Mr. Petrie's Character: And therefore, that your Lordſhips
will adhere to the Lord Ordinary's Interlocutor, remitting
the Cauſe.
ROB. CRAIGIE.
July 20. 1736.
MEMORIAL
F O R
James Petrie Writer in Aberdeen.
THE Memorialiſt having applied to the Sheriff of Aberdeen, to be admitted
a Procurator in that Court, his Admiſſion was moſt invidiuaſly
oppoſed by ſome of the Procurators of the Court, upon two
Grounds; firſt, That they had an excluſive Privilege, of admitting
or rejecting ſuch Perſons as they thought proper into their Society;
but being conſcious to themſelves that they had no ſuch Powers, they
fell upon another Contrivance, to fling Reflexions upon his Character and Deportment:
The Sheriff, before Anſwer, allowed the haill Procurators, or any two of
them, to object, as they ſhould ſee Cauſe, to the Character and Deportment of the
Memorialiſt.
Thus far the Sheriff's Interlocutor might be juſt, that if the Memorialiſt had ever
been convicted of any mala praxis, it was pars judicis, and competent to any of
the Members of Court to have made the Objection.
But the Sheriff proceeded further, and granted Warrant to Officers to ſummon all
and ſundry Perfons whatſoever. Havers of Writs neceſſary for proving that part of
the Sheriff's Interlocutor, as to the Character, admitted by him as aforefaid.
The Memorialiſt might have juſtly complained of this part of the Sheriff's Interlocutor,
as a Thing unprecedented, and founded neither in Law or common
Senſe, to ſet up an Inquiſition upon the paſt Actions of a Man's Life, at the Suit
of no particular Perſon, who would be liable, in caſe they ſuccumb in ſuch Examination.

Defamatory Libels, by the Laws of all Nations, are highly criminal; by the Laws
of the twelve Tables, and by the Law of the Emperors Valentinian and Valens, it
was made Death for any Perſon, not only to write a Libel, but, if he met with
one by Chance, not to tear or burn it. In the preſent Caſe, there was no particular
Libel; and yet a Diligence was granted for recovering Writs to compoſe and make
up one.
The Lords are intreated to obſerve, what Writs they are, from which the Procurators
of Aberdeen pretend to make out this mala praxis, none other than the
Memorialiſt's miſſive Letters, which he had Occaſion to write to his Correſpondents
many Years ago.
Miſſive Letters are, for the moſt part, but one half of a Story; and it is impoſſible
to make a juſt Interpretation of them, unleſs both Sides of the Correſpondence
were produced, and the Circumſtance of the Caſe examined.
Miſſive Letters are frequently writ in a Haſte, without Attention or Exactneſs;
many times, when People have Occaſion to write to their Correſpondents, upon the
lower ſort of Buſineſs, they generally write, as they ſpeak, to their Friends, without
the Apprehenſion of any bad Conſequence or ungenerous Uſe that can be made of
them.
It is ſubmitted to the Lords, if it is not a Practice of the moſt dangerous Conſequence,
to grant Diligence for recovering a Man's private Letters; and, from them,
by unjuſt Criticiſms and ſtrained Conſequences, to infer a mala praxis.
The mean, low, and bad Conſequence of ſuch a Scruitiny, can never be better
expreſſed, than it is by Cicero, in his ſecond Philippick, in that Speech againſt
Mark Anthony, which coſt him his Life; amongſt the firſt Things which he lays
to Mark Anthony's Charge was, the expoſing of his miſſive Letters; it is true, the
Breach of Truſt that he complains of in his Friend does not preciſely hit this Caſe,
yet the Conſequence of having a Man's private Letters expoſed, muſt apply to this,
and every other Caſe of this Nature: His Words are, At etiam litteras, quas me
ſibi miſiſſe diceret, recitavit, homo & humanitatis expers, & vitæ communis ignarus.
Quis enim unquam, qui paululum modo bonorum conſuetudinem noſſet, litteras
ad ſe ab amico miſſas, offenſione aliquâ interpoſit â, in medium protulit, palamque
recitavit? quid eſt aliud, tollere è vita vitæ ſocietatem, quam tollere amicorum
colloquia absentium? Quam multa joca ſolent eſſe in epiſtolis, quæ, prolata
ſi ſint, inepta eſſe videantur? quam multa ſeria, neque tamen ullo modo divulganda?
Sit hoc inhumanitatis tuæ: ſtultitiam incredibilem videte.
This great Philoſopher knew Mankind, knew the Way of the World as much
as any Man that ever lived; and the Reaſons he gives are undeniable, why ſuch
Letters ought not to be divulged, or brought againſt the careleſs and inadvertent
Writer, who apprehends no manner of Harm or bad Conſequences that can ariſe from
them.
The Proſecutors have gone ſo far, as to produce what they call a notorial Copy
of the half of a Letter; and, though it is inſert in the Petition, as ſubſcribed by
me, to one Leith of Auchairn, yet they have never thought fit to give it in to
the Proceſs; nor was it even produced before the Sheriff, though the Petition aſſerts
that it was.
The firſt Letter they found upon, is, the Memorialiſt's Letter to Gordon of Auchanachy;
which begins with theſe Words, I am juſt now favoured with yours,
and concludes with theſe Words, I am in haſte. And, by an unjuſt Comment upon
this Letter, (which your Lordſhips ſee the Memorialiſt had, that Moment he received
Auchanachy's, writ in haſte) one of their ſtrongeſt mala praxis is inferred,
though Mr. Petrie deſired his Correſpondent to do nothing, till ſuch Time as he
ſhould ſee him: But, as the Caſe of this Letter is fully explained, and ſhown to be
intirely groundleſs, in the Anſwers to the Petition, it is needleſs here to recapitulate
the ſame.
The next Evidence is, the Letter to John Hamilton, whereof only a part is inſert
in the Petition; and Care is taken, to ſtop ſhort at the Clauſe that would explain
the whole: The Letter goes on in theſe Words, Write to Mr. Irvine, and
ſend me his Letter with the Papers, which I ſhall deliver him carefully, and inform
him of the Caſe. I have an Expreſs at Aberdeen about Mill of Collithie's
Affair, which I expect here every Minute; and if you would allow Moriſon to
wait till Tomorrow's Morning, before he go to Haddamill, he would do Mill of
Collithie's Affair at the ſame Time. As this can do no Prejudice to your previous
Arreſtment, which, if it did, I would not propoſe it, I believe you will not
decline it.
This plainly ſhows, that the Execution Mr. Petrie deſired to be ſigned, was, the
Arreſtment which had been previouſly laid on.
The third Objection was ſo much without Foundation, that the Petitioner did not
think fir to inſiſt in it before the Ordinary.
The fourth Objection, in relation to the apprehending of Binhall, lyes before the
Court in another Shape.
The fifth Objection, as to the Memorialiſt's Executions from Mr. Brown, is
ſufficiently removed by the Anſwers to the Petition, and the principal confirmed
Teſtament, produced before the Lord Ordinary, for inſtructing the Modification.

As to the ſixth Objection, the ſame is fully explained in the Anſwers to the Petition;
and, as it was never before the Sheriff, it ought not to have been mentioned
before this Court: But then, the whole Allegation is diſproved, by an exact Copy
of the Juſtice of Peace's Procedure, left with Mr. Arbuthnot Merchant in Peterhead,
when the Principal was ſent to London. It is ſufficiently obſerved in the Anſwer,
that Colin Falconer had no Occaſion to ſwear, he was only called to tell what
the damnified Salt might be entred at, when souped, which was rather an Advice than
any thing elſe.
As to the ſeventh Objection, the Letter to Leith, in relation to Gordon of Avachie's
Debt; The Letter is not produced, the Petitioners had in their Hand what
they called a notorial Copy, which they never mentioned before the Sheriff, nor
never durſt venture to produce in this Proceſs. The Fact is ſpecially ſet forth in the
Anſwers to the Petition, and further ſupported by Mr. Leith of Auchairn's and his
Son's Letter to the Memorialiſt herewith produced.
The eighth Article is a downright Falſhood, and the Petitioners did not think
proper, nor did they adventure to inſiſt in it when the Caſe was heard before the
Lord Ordinary ſince the Remit by the Lords.
To conclude: There never was a more groundleſs and injurious Proſecution againſt
any Man than what has been endeavoured againſt the Memorialiſt; a Proſecution
contrary to the fundamental Rules of Society itſelf. There is nothing more
certain than that nemo ſine vitiis naſcitur: Humane Nature muſt be subject to Failings
and Weakneſſes, and all Mankind have their Faults more or leſs; but then thoſe
Faults ought not to be the Subject of an Inquiſition The Law is open to puniſh
People that tranſgreſs, but no ſuch Treſpaſs has been made out in the preſent Proſecution,
nor not the leaſt Fault whatſomever which could infer the ſmalleſt Cenſure,
though the Proſecutors have been at the utmoſt Pains, and ſhown the ſtrongeſt Diſpoſition
to defame the Memorialiſt, who before the inferior Court did juſtly tax the
Proſecutors with Practices they were not able to vindicate, as appears from the Extract
of the Proceſs produced, whereby they were the more enraged againſt him;
yet all they could do has not been ſufficient to bring out one falſe Step he ever did in
his Life: And now when they have failed in bringing any ſuch Evidence before the
Sheriff, they have prayed the Lords to advocate the Cauſe to the ſupreme Court, in
order to proceed in their Inquiſition before the Lords; which is certainly ſuch an
extraordinary Demand, that 'tis humbly hoped the ſame will be rejected, in reſpect
that the allowing them to proceed would make this Proceſs endleſs.
It is therefore humbly hoped that your Lordſhips will remit this unprecedented
Proceſs to the Sheriff, with Inſtructions to receive the Memorialiſt
immediately as a Procurator, and diſcharge any further Inquiſition
againſt him.
ARCH. HAMILTON.
July 20. 1736.
INFORMATION for the Procurators of Aberdeen,
AGAINST
James Petrie.
WHEN this Cauſe was laſt before your Lordſhips by Bill and
Anſwer, you ſeemed to be pretty unanimous, that the Condeſcendences
given in againſt Mr. Petrie, and the particular
Objections againſt his Character and Conduct, were by
no means ſo trivial in themſelves, and of to ſmall Importance
with regard to the Members of that Society, into which he
intended, contrary to all Law and Reaſon, and the uniform eſtabliſhed Practice,
to intrude himſelf, as Mr. Petrie would ſo fain have it believed that they were
Your Lordſhips were of Opinion that the Sheriff of Aberdeen, from whom this
Cauſe is advocated, had acted too precipitant and partial a part, in over-ruling and
entirely diſregarding, all the Objections made againſt him; That the Interlocutor
which he had given did not ſo properly deſerve that Name, but was rather an elaborate
and learned Harangue, an elogium upon himſelf, and a Manifeſto to the
World, in order to ſhow how diſtinct and tedious a Sentence he could pronounce.
Some of your Lordſhips Number took particular notice that the Anſwers made
to the firſt and ſecond Articles of the Condeſcendence were by no means ſatisfactory;
and therefore you remitted the Cauſe to my Lord Dun Ordinary, that
Parties might be heard, and have an Opportunity more fully to reaſon upon them.
Accordingly my Lord heard us both at full length; and after the Debate was over,
took the Cauſe to report, and ordered a ſhort Information, with the former Petition
and Anſwers to be given in.
In the Entry the Procurators beg leave to inform your Lordſhips, That it is by
no means out of any Pique or particular Reſentment that they, being in effect
called upon by the Sheriff's Interlocutor of the 19th November, to object to the
Character and Deportment of Mr. Petrie, have made this Oppoſition to his Admiſſion;
but it is in order to maintain the good Character of their own Society,
and for the Benefit of the Lieges, that no Perſon addicted to bad Practices, might
be admitted as one of our Number.
And as your Lordſhips were juſtly of Opinion, ſo Mr. Petrie himſelf in his Anſwers
has admitted, "That if any relevant Objection had been made to his Cha"racter
by the Procurators, or any body elſe, the Sheriff might juſtly have re"fuſed
to admit him; for that as he has Power to exclude infamous Perſons from
"acting as Procurators in his Court, though they have been admitted, ſo he muſt
"have a Power to refuſe to admit ſuch Perſons." The only Queſtion therefore
betwixt us is, Whether the particular Facts alledged by us againſt Mr. Petrie be
relevant and true Objections for this Effect, to deny him Admiſſion into the Office
of Procurator, which he is ſeeking?
The Intent of this preſent Information is briefly to ſhow, that the Anſwers made
by Mr. Petrie to the particular Condeſcendences given in againſt him, are neither
well founded in Law nor in Fact; and if that is made appear to your Lordſhips, the
Procurators are humbly confident that your Lordſhips will advocate the Cauſe injure;
and upon finding a Relevancy, allow us, if thought neceſſary, to bring a
further Proof of the ſeveral Facts alledged.
Your Lordſhips will then be pleaſed to caſt your Eye upon the firft Article of
the Condeſcendence, in the 11th Page of the Petition, which is an Advice to his
Client, to alter the Date of the Warrant of an Arreſtment: Nor will the Anſwer
given by Mr. Petrie take off the Force of this Objection; for the Words of the
Letter are too ſtrong, and cannot poſſibly admit of the Interpretation that Mr.
Petrie would fain put upon them. He tells your Lordſhips, "That he ſuggeſt"ed
a Method to his Client, in order that the Precept ſhould continue in Force
"as long as poſſible, namely, by filling up the Month in the Dyet of Compear"ance,
and then the Summons would laſt a Year from that Time." Now this
Defence is with great Submiſſion felo de ſe; for as Mr. Petrie was certainty in
the Knowledge, and owns himſelf to have been ſo, of that Deciſion of your Lordſhips
in the 1709, wherein you found, That there could be no Letters of Arreſtment
upon a 'Dependence, until that it was created by the Execution of the Summons.
How, or upon what Pretence does he take upon him, if not directly yet in a
round-about-way, to evade the Force of the Law? But the Procurators dare not
preſume to take up your Lordſhips Time upon ſuch a plain Point; for it is impoſſible
that ſuch a ſoft Meaning can be put upon the Words of the Letter; they are
too ſtrong and glaring to admit of it, except the Defender could alſo fall upon a
Method to change the ordinary Import and Meaning of Words, it being plain that
the Words, altering the Month in the Precept convey a quite different idea from
what the Words, filling up the Month in a blank Summons, do. The Procurators
ſubmit this without any further Argument.
The ſecond Objection made againſt Mr. Petrie, was, That he had adviſed Meſſengers
or Officers and Witneſſes, to ſign Executions, before laying on Citations.
Nor will the Evaſion that he makes uſe of, in order to get the better of it, be of
any Avail to him: Your Lordſhips ſees what he ſays in his Letter is, That I reviſed
the Execution of the Arreſtment, which I think will do. This ſhows that he
was already ſatisfied with the Execution of Arreſtment laid on by his Client Mr.
Hamilton, in the Hands of Avochy, as Debitor to Daach; That he had no further
Objections to, or Amendments to make upon it; and therefore it plainly
follows, that Mr. Petrie was abundantly well pleaſed, and had no further Corrections
to make upon it, and that he had no more to ſay about it: Then he goes on
and mentions the Executions in the Summons of Forthcoming, "I have wrote out
ſays he, Avachy's and Daach's Charges, and the Execution againſt them, cauſe
Moriſon ſign the Copies, Avachie being with you he can preſently deliver it.
That is, he can deliver him his own Copy of the Execution in the Summons of
Forthcoming: And Mr. Petrie having as yet given no Directions as to the Way
and Manner of laying on the Execution of Forthcoming in the Hands of Daach,
Hamilton's own Debitor, his Advice to his Client would have been plainly to
no manner of purpoſe, at leaſt it would not have been a complete and full one, except
the laſt Words in the Letter are to be underſtood as ſpeaking about the Execution
of the Summons of Forthcoming in Daach's Hand: Neither is the Interpretation
given by Mr. Petrie at all conſiſtent with the Words as they ly in order;
for he ſays in his Letter, Cauſe Moriſon ſign the Copies: The Word Copies plainly
refer to the Executions in the Forthcoming, and Avachy being preſent his Copy
was inſtantly to be given him, the other Copy then muſt neceſſarily, and can
mean nothing elſe than that of the Execution in the Forthcoming to be delivered
to Daach, otherwiſe the Letter contains no full and ſatisfactory Advice to his Client;
and the laſt part of it is nothing elſe but a meer Tautology, and a Repetition
of what was ſaid in the Beginning of it.
The Procurators would be very fond of putting a favourable Interpretation upany
Man's Writings; but where is it impoſſible, if the whole of them is taken together,
and conſidered in one View, that they can admit of an innocent Meaning,
we ſubmit it to your Lordſhips if it would not be a Crime in us to conceal a Fact,
the Diſcovery of which muſt be allowed to be of very great Importance to Society
in general; beſides, if your Lordſhips think it material, we can prove that Moriſon
was no Meſſenger, but a Sheriff-officer, and conſequently not a fit Perfon to
ſign the Execution of Arreſtment upon the Horning: And we are able alſo to prove
that the Execution of Arreſtment had been actually laid on before, by one who
was a Meſſenger: It is hoped then that it appears to the Lords, that the laſt Words
in this Letter can't poſſibly apply to the Execution of the Arreſtment which was
already compleated, and made as formal as it could well be, and which Petrie
himſelf thought would do; but to the Execution of the Forthcoming, a Copy of
which remained to be given to Daach as well as to Avachy.
As to the fourth Article in the Condefcendence, namely, Mr. Petrie's Acceſſion
to the apprehending Binhall with Caption at the Inſtance of James Gordon,
when there was a Bill of Suſpenſion and Anſwer depending before the Lords, the
Procurators will not venture to trouble your Lordſhips with any thing further upon
that in this Place: They refer to a Petition given in by the ſaid Gordon in
Cluniemore, whereby they hope it will appear in due time, that Gordon the Employer
had no hand in the illegal Procedure; that Mr. Petrie was the ſole Acter and
Contriver of the whole Plot, and that he acted in that manner, with a View to ſatisfy
ſome private Reſentments of his own, which it ſeems he had taken up againſt
Binhall: And tho' Mr. Petrie has thought fit, both in his printed Anſwers, p.17,
and alſo when put to it before my Lord Dun Ordinary, moſt ſolemnly to deny,
that he had any farther Concern in that Affair, than the getting- the Caption put
into his Hands, in order to be executed, and that he never knew of any Bill of
Suſpenſion and Anſwers; yet by his diſcharged Account to Cluniemore the Creditor,
it appears, that he all along correſponded with Mr. Farquharſon, who gave
in the Anſwers to the Bill, and ſtates no leſs than L.21:18 s. given to Mr. Farquharſon,
expreſly for anſwering the ſaid Bill, and two Guineas for his own Pains
in that Matter: And ſince he confidently refuſ-es his Knowledge of the Dependence,
we muſt beg that your Lordſhips will grant us a Diligence for recovering
that diſcharged Account, in order to prove his Knowledge of the Dependence at
the time of apprehending Binhall, as well as for proving, that he impoſed upon
and abuſed his ſaid Employer Cluniemore, by exorbitant Exactions in almoſt every
Article of the Accompt.
As to the fifth, viz. his Exactions from Mr. Brown, and his threatning to betray
his Secrets, in order to deter him from ſeeking Redreſs; after Mr. Petrie
has endeavoured to ſet this Affair in as favourable a Light as it was poſſible for him
to do; and after that, he has enlarged and declaimed ſo much in his own Favours,
to ſhow the World what "vaſt Pains and immenſe Trouble he had been at in ſerving
his Client, in taking an Inventary of his Writs, which were ſo numerous
and in great Diſorder, and in ſeparating the Inſtructions of the moveable Debts
"from the Defunct's other Writings." It would have been well for himſelf, and
the Procurators heartily wiſh, that for his own Sake, he had done himſelf the Juſtice,
as to have acted a more generous Part, than out of ſuch a ſmall Sum as L.
50 or 60 Sterling, to have exacted no leſs than L. 221 Scots; and that he had
made a better Uſe of the Diſcoveries he made by looking into the Writs of his
Client, than to have turned them againſt him, in order (we muſt he forgiven to
ſay ſo, ſince it is true Matter of Fact) to intimidate him, and force him to pay that
very Accompt, ſo extravagant as it was, which he had ſtated againſt him.
As to what is ſaid on this Head, in Mr. Petrie's Anſwers, "That the Suggeſtion
of Mr. Petrie's betraying the Secret of his Client, is unintelligible; for
"he had been employed by Mr. Brown in no Plea, the Confirmation being only
actus voluntariæ juriſdictionis." We muſt beg leave to obſerve, that this Defence
is more unintelligible than our Suggeſtion, and intirely contradictory to the
foregoing Part of his Allegation on this Head. Had he not already ſaid, that the
Writs were in Diſorder, which muſt imply, that he had put them in Order.
Could he poſſibly do that without looking into them? Does he not ſay, That it
was the Work of ſeveral Days to ſeparate the Inſtructions? Is it not ſurpriſing
after this Confeſſion, that he ſhould with the ſame Breath ask the Queſtion.
Where the Occaſion was to diſcover any Secrets. One of a very dull Genius
could not fail to have ſtumbled upon ſome Diſcovery in the Space of ſeveral Days,
if he had entertained any ſuch Deſign; and one of a very ſmart one, poſſeſt with
the ſame bad Intention, would have done it in the tenth Part of the Time.
The Procurators on this Head, would only add, that they cannot poſſibly ſee
how the Words of the Letter, (ſet down at large in the 15th Page of the Condeſcendence)
which are, I know your Ground of Credit, and you will find none of
them ſo well eſtabliſhed as my Account, can poſſibly admit of a milder Interpretation,
than they put upon them; and they ſubmit it to the Lords, if a higher or
more threatning Stile can be thought of And whether it be on occaſion of a Plea,
in foro contentioſo, or in order to make up the Client's own Titles, that a Writer
gets his Grounds of Credit into his Hands, it is equally undue to turn that Knowledge
to his Client's Prejudice, by engaging or ſtirring up a Plea againſt him, or
threatning to do it.
Theſe were the moſt Part of the Articles of Accuſation brought by the Procurators
againſt Mr. Petrie before the Sheriff of Aberdeen. And when it is conſidered,
that moſt of them are proven by Letters written with Mr. Petrie's own
Hand, which he cannot diſown, it is left intirely to your Lordſhips better Judgment,
to determine if they are not ſtrong and pregnant, and ſpeak out loudly againſt
him; if it does not in conſequence of this appear, that the Sheriff has committed
manifeſt Iniquity and Partiality in repelling all theſe Objections, and ſhowing
ſuch a favourable Inclination, and ſuch a warm Side towards the Defender, as
that, notwithſtanding ſuch a heavy and well grounded Charge brought againſt
him, he ſhould do all in his Power to procure his Admiſſion.
The Sheriff's Conduct in this Affair, will appear to be the more remarkable, if
the Words of his own Manifeſto are attended to, by which it appears, that Mr.
Petrie's Anſwers are not ſatisfactory to the Sheriff himſelf For he ſays, "That
"in the ſecond and third Objections, the Petitioner has wrote Mr. Hamilton and
"Auchanachy in a Way unguarded, and ſuch as he ought not to have done, or
"adviſed anent laying on of Summonſes, and returning the Executions of them;
"and concerning the altering the Month in the Precept of Arreſtment mention"ed,
though taken out blank, without qualifying what he wrote, or adviſed, ſo
as to make it fairly underſtood, that he intended not to lead his Correſpondents
"into any unwarrantable Steps in their Buſineſs, and appoints him to be publick"ly
admoniſhed thereanent." The Procurators ſubmit it to the Lords, if it does
not clearly appear from this, that the Sheriff, as great a Friend to Mr. Petrie as
he is, yet he was not ſo very far prejudiced in his Favours, as to allow himfelf to
put another Conſtruction and Meaning upon Words than what they would naturally
admit of; that on the contrary, he thought the altering of the Month in the
Precept of Arreſtment, was actually the Crime which the Procurators now
charge Mr. Petrie with; that Mr. Petrie's Advice to his Client Auchanachy,
could not admit of the favourable Conſtruction, that his Procurators would put
upon it; or at leaſt, that the Diſtindion under which he would ſo fain have ſheltered
himſelf, was ſo very thin, as that Mr. Petrie ought to have explained himſelf,
and talked in a more intelligible Manner, ſo as to have prevented his Correſpondents
from falling into any unwarrantable Steps in their Buſineſs. What
Excuſe then can the Sheriff have, for his acting ſuch a precipitant Part, as to make
a ſolemn Declaration, and pronounce an Interlocutor in favours of Mr. Petrie's
Admiſſion, when in the very ſame Sentence, he appointed him to be publickly admoniſhed
for his Faults. Is it not apparent, that this Sentence is at one and the
ſame time, a Condemnatory and an Acquittance of Mr. Petrie's Conduct?
For theſe Reaſons it is, that the Procurators are humbly confident, that your
Lordſhips, now that the Facts are ſet in their proper Light, and any Force that was
in Mr. Petrie's Defences entirely removed, will find no Difficulty in advocating
the Cauſe; and that you will not ſee any Reaſon for remitting it to that Judge,
who, we muſt be forgiven to ſay, has not ſhewn all the Impartiality that could be
wiſhed for.
There are two other ſeparate Articles which were given in to your Lordſhips in
our Condeſcendence, and which appeared to the Lord Ordinary to be of great
Weight, which were not indeed before the Sheriff; and that for a very good Reaſon,
Becauſe he would not give us Time to propone them. Theſe two Objections,
we humbly contend, are each of them a ſeparate Reaſon why your Lordſhips thould
indulge us in a further Proof of all the Circumſtances that relate to this Affair.
The firſt of them is with reſpect to the falfifying a Declaration taken before the
Juftices of the Peace at Portſoy. The Story is told at full Length in the 17th
Page of our Petition, which ſuperſedes the Neceſſity of repeating it. The Anſwers
made by Mr. Petrie contains an abſolute Denial of the Fad, in very bold
Terms, viz. That the Article from firſt to laſt is a direct Falſhood. After which
Denial before your Lordſhips judicially, if the whole ſhall be proven which relates
to the proper Fact of Mr. Petrie, we ſubmit it, whether this very behaviour before
your Lordſhips, as to this, and another Article to be after mentioned, does
not afford a new Objection againſt his Admiſſion as a Procurator, ſince Veracity
is an eſſential Duty of Perſons in that Office.
He pleads further upon an exact Copy of the Juſtices Procedure; which at the
ſame time he has never thought proper to produce. But ſure a pretended Copy
can be no Proof. And next, if the Copy ſpoke of were fair and genuine, Mr.
Petrie could with the ſame Eaſe have obtained an Extract from the Clerk of Court,
which would have been conſidered as authentick. But, to ſhew Mr. Petrie's Diſingenuity,
and how much this Copy ſpoke of by him muſt be conſidered as contrived
and falſe, we muſt beg leave to ſet in Oppoſition thereto the genuine Account
of the Story, as related in a Letter under the Hand of Mr. Ogilvie, one of the
Juſtices of Peace, and who was Judge in Court at the Time; and is far from diſcovering
any Biaſs againſt Mr. Petrie, but rather endeavours to excuſe him, if the
Fact could admit of any. The principal Letter is produced, and bears verbatim
as follows.
"It being ſo long ſince that Affair anent Mr. Petrie happened, I can't ſay but
"it has partly eſcaped my Memory. However, after the Declaration was cloſed
or ſigned, I think it is true that James Petrie went to the Table, and wrote a
little. The Clerk asked him what he had done. He openly told he had altered
"the Word declare for depone, thinking it a Buſineſs of mere Moonſhine as to the
"Subſtance of the Matter, only he thought it would read better for his Brother's
"purpoſe; which indeed was quarrelled, as a Thing not ordinary: And the
"Clerk, looking to the Alteration, ſaid he had made ſuch a macula, as it could
"not be well known whether the Word was declare or depone. This is right as
"far as I can mind; but as true it is, that Mr. Petrie did this in no clandeſtine
"or latent Way, but in open Company; So that, make out what Way it may,
"it is ſuppoſable his Deſign in ſuch doing was not iniquous." We ſubmit it, if
this Letter in our favours is not a ſtrong Preſumption of the Truth of the Fact;
and if it ought not at leaſt to have this Effect with your Lordſhips, ſo as to incline
you to allow us a full Proof of it.
The other Objection made is as to the pactum de quota litis, or rather properly
de tota litis. The Anſwer made by Mr. Petrie to it makes it neceſſary to ſtate
the Fact a little more fully. A Bond was granted Anno 1692, by William Gordon
at Mill of Avachie as Principal, and Rothemay as Cautioner, to one Elſpeth
Gordon, for the Sum of 600 Merks. Upon this Bond, and the Diligence following
thereon againſt Mr. Gordon and Rothemay, there was an Arreſtment uſed in
the Hands of the deceaſt Hary Gordon of Avachie; and, in March 1703, a Decreet
of Forthcoming is obtained againſt him in Abſence. The Right to this
Bond did devolve by Succeſſion to Alexander, John, Anne and Janet Leiths,
Grandchildren to Elſpeth Gordon, the original Creditor, by Anne Young her
Daughter, and John Leith in Auchairn her Husband: And, Anne 1711, John
Leith, the Father, confirms his Children Executors-dative to Elſpeth Gordon
their Grandmother; and particularly, confirms upon the above Bond and Decreet
of Forthcoming. The Inventary is given up by John Leith the Father, as Adminiſtrator
in Law to his Children, who were all at that Time under Age. Auchairn
grants an Aſſignation of this Decreet of Forthcoming, of date 16th November
1733; and of that ſame Date Mr. Petrie grants a Miſſive to John Leith,
which is the Letter narrated in the 18th Page of our Petition, by which it clearly
appears, that at that Time he ſtipulated ſuch a Share as he himſelf ſhould judge to
be reaſonable; which is plainly a pactum de quota litis.
When Mr. Petrie intented his Proceſs of Conſtitution againſt the preſent Avachy,
as repreſenting his Father, before the Sheriff of Aberdeen, a very obvious Objection
was made to Mr. Petrice's Right, viz. that it was granted à non habente
poteſtatem; becauſe John Leith's four Children above-named, who are all ſpecially
mentioned in the Confirmation, behoved to be of full Age, and conſequently
the Father's Title ceaſed as Adminiſtrator of Law, and his Children could only
convey the Debt. This laid Mr. Petrie under a Neceſſity to get a new Right
from John Leith's Children, which accordingly he did in September 1734,
and thereupon granted a ſecond Miſſive to John Leith the Father, wrote much about
the ſaid Time; and in that Miſſive indeed he is pleaſed to alter his Stile; and
in it he obliges himſelf to be accountable at the Inſtance of theſe Friends of his,
which he mentions in his Anſwers: But then your Lordſhips will pleaſe notice
the Reaſon of his changing his Note is, becauſe that ſome Diffculty had
ariſen as to the Juſtnefs of his Title; and therefore it is, that he has Recourſe
to a ſofter Method, in order to prevail upon the Father to come into
his Meaſures; or perhaps Mr. Petrie was ſenſible and conſcious to himſelf,
that he was in the wrong, and that this Procedure of his would not ſtand
the Teſt of a ſtrict Enquiry, which he was actually threatned with. The Objection
is not founded upon the Poſtſcript, of Date the 16th of September 1734,
but upon the Letter itſelf to the Father, of the 16th of November 1733: And as
Mr. Petrie, in his Anſwers, ſays that he believed the Debt might be made effectual
at a ſmall Charge, and did therefore undertake the charitable Action of recovering
it upon his own Risk, it was a very enormous Bargain, to take a Power to
himſelf for laying out that ſmall Charge, of dividing the Money betwixt himſelf
and Auchairn, as he Mr. Petrie ſhould judge reaſonable; that is, he was to account
or give his Cedent what he had a mind, and no more; and therefore he was
reſolved in good Time to endeavour to put this favourable Gloſs upon the Affair.
Upon the whole, It is hoped, that if the Lords take all theſe Facts into their
Conſideration, they will find no Difficulty in advocating the Cauſe in jure; and
either find the Articles already proven relevant; or, before Anſwer, allow
a Proof at large of the whole Articles.
JAMES GEDDES
I
February 27. 1736
Unto the Right Honourable, the Lords of Council and Seſſion,
THE
PETITION
OF
JAMES PETRIE Writer in Aberdeen,
Humbly ſheweth,
THAT the deceaſt Alexander Duke of Gordon having granted an Obligement
to grant a Charter of certain Tenements in Strathbogie,
to the deceaſt Patrick Strachan in Raws of Huntly; the
ſaid Patrick Strachan left two Daughters, Janet Strachan, who
was married to John Duff; and, upon her Deceaſe, 'Patrick Duff,
her Son, was ſerved Heir in general to his Grandfather, and conveyed
his Right to the ſaid Tenements to your Petitioner. The other Daughter, Jean
Strachan, was married to John Smith; and being attacked by a Proceſs at the Inſtance
of James Young Merchant in Leith, for Payment of Sums laid out in building
the Houſes upon the ſaid Tenements, they agreed with your Petitioner to lay out
the Charge of the ſaid Proceſs, in conſideration of which, and a further Sum to be
paid by your Petitioner, they agreed to diſpone and make over their Rights to the
ſaid Tenements.
Your Petitioner having thus purchaſt the Tenements from both the Heirs--portioners
did, in November 1728, enter into a Minute of Sale with William Barron, Merchant
in Huntly, by which he obliged himſelf, "To diſpone the ſaid Tenement in
"favours of William Barron, by an ample and formal Diſpoſition, containing all
"ordinary Clauſes, particularly a Clauſe of Warrandice, binding upon the ſaid James
"Petrie, if it ſhall happen the ſaid William Barron to be legally diſpoſſeſt of the
foreſaid Tenement, to refound and repay to him the Price, being L. 563: 8: 8
"Scots; with what neceſſary Meliorations he ſhall make thereupon; and that at the
firſt Term of Whitſunday or Martinmas after he is ſo diſpoſſeſt: And further,
"the ſaid James Petrie is bound either to procure to the ſaid William Barron,
"from his Grace Alexander Duke of Gordon, a Charter in his Favours, upon the
"ſaid Houſes and Tenement, or elſe to aſſign him to the foreſaid Obligement for
"procuring thereof, and the foreſaid Diſpoſition to the ſaid Houſes, and procuring
"of the Charter or Aſſignment to the ſaid Obligement, is only to be done when
"the ſaid William Barron ſhall have neceſſary Occaſion therefore; and, in the
"mean Time, till the ſaid Papers be expede, the ſaid James Petrie allows the ſaid
"William Barron to enter to the natural Poſſeſſion of the ſaid Tenement and
"Houſes.
Your Lordſhips will perceive from the Tenor of this Minute, that Mr. Barron
has known your Petitioner's Right was not quite compleat; and that he relied upon
your Petitioner's Warrandice, and the natural Poſſeſſion which he got from him,
until ſuch Time as your Petitioner ſhould get his Titles.compleated; and accordingly
he only takes your Petitioner bound to repeat the Price at the next Term of
Whitſunday or Martinmas, after he ſhould be turned out of the Poſſeſſion of the
Tenements; yet although he attained Poſſeſſion of the Tenement upon the foreſaid
Minute in November 1728, and has continued in it from that Time, without
Diſturbance, he has been lately ſtir'd up by ſome other Perſons, out of particular
Views, to charge me upon the Minute, though he neither did nor could pretend that
any Eviction had then happened.
In Anſwer to this, I produced a Diſpoſition from the ſaid Patrick Duff, one of
the Heirs portioners, which was admitted to give me a good Title to one half of the
Tenement in queſtion; and, as to the other, I inſiſted in a Proceſs againſt the ſaid
Jean Strachan, and her Husband John Smith, for Implement of the foreſaid Agreement
betwixt them and me; by which they were bound to diſpone their Share of
the ſaid Tenements, in conſideration of my laying out the Expences neceſſary for defending
them againſt the foreſaid Proceſs raiſed by James Young, and a further Sum
to be paid by me. And that accordingly your Petitioner had defended them in the
ſaid Proceſs, and laid our the whole Expences; and was ready to pay them the further
Sum agreed on: And the ſaid Jean Strachan and John Smith had, in Implement
of the ſaid Agreement, allowed your Petitioner, and Barron his Aſſigny, to
enter to the natural Poſſeſſion of the Houſes, and continue in it for theſe eight Years
paſt.
When this Proceſs came in, I offered to refer the Verity of the Agreement libelled
ſimpliciter to the Defenders Oaths; but they, not being able to deny it upon
Oath, endeavoured to evade the Performance of their Agreement, by an Argument
in Law, "That eſto they had made ſuch a Bargain, they had Privilege to reſile from
"it, until it was finiſhed in Writ." To which it was replied for me, That locus
pœnitentiæ. does not take place, ubi res non eſt integra; and here I had in Fact paid
the greateſt part of the Price, by laying out the Expence of the foreſaid Proceſs, at
their Deſire, and with their Conſent: And therefore they could not be allowed to
reſile, after they had proceeded ſo far, in taking Implement of my part of the Bargain.

The Lord Drummore Ordinary found, That the Promiſe or Agreement founded
on, being with reſpect to the Sale of Lands, and no Writ adhibite, the Defenders
might reſile: And therefore aſſoilzied them from the Concluſions of the Libel.
And. with reſpect to the Proceſs at Barron's Inſtance againſt your Petitioner, his
Lordſhip found, That the Suſpender James Petrie had not produced ſufficient Titles
in his Perſon, to enable him to implement the Minute of Sale charged on; and
found the Letters orderly proceeded. And, by a ſubſequent Interlocutor, he found
the Suſpender ought to repeat and pay back the Price, being L. 563: 8: 8 Scots;
and decerned therefore. And a Repreſentation being offered on the part of your Petitioner
againſt theſe Interlocutors, the Lord Ordinary adviſed the fame upon the
24th inſtant, and refuſed the Deſire of the Repreſentation.
Your Petitioner muſt now apply to your Lordſhips; and 1ſt, with reſpect to the
Interlocutor, finding that Jean Strachan and her Husband may reſile from the
Agreement, in regard it concerns the Sale of Lands: Your Petitioner ſhall admit,
that the Rule is, That not only ſuch Contracts as concern the Sale of Lands, but
even all Contracts which require to their perfection Solemnity in Writ, or which
are agreed to be reduced into Writ, are not in Law binding upon the Parties, until
the Writs are executed; but then he apprehends the Exception is as certain, That
if Implement is made of the Bargain, or any part of it upon one ſide, or any other
thing done in conſequence thereof, from which it follows that res non eſt integra, the
other Party cannot in that Caſe claim his Privilege of raiſing: And this Exception is
founded in the ſame Reaſon, which is the Foundation of the Rule; for this Privilege to
locus pœnitentiæ is only allowed in Law to prevent People from being drawn in of
make Bargains raſhly without due Deliberation. But if the Contracter, who offers
to reſile, has before gone ſo far in Ratification of the Bargain he had made, as either
to implement it in part himſelf, or to take Implement from the other Party; in that
Caſe, with what Juſtice can he pretend to break a Contract, upon which he has given
Ground to the other Party to rely, and his Acquieſcence in which is a greater
Proof of his deliberate Conſent, than if he had given it under his Hand? And accordingly
the Exception is founded upon the ſame Authority with the Rule, viz,
your Lordſhips Deciſions, and has always been ſuſtained when ever it was proponed,
July 23d 1674, Earl of Kinghorn contra Hay; December 1ſt 1674, Gordon contra
Lord Pitſligo; December 10th 1675, Park contra Univerſity of Glaſgow; July
14th 1708, Graham contra Corbet.
The Defenders admitted, That the Exception of res non eſt integra, was generally
ſuſtained as a good Anſwer to locus pœnitentiæ; but they alledged, "there
"was a Diſtinction betwixt Bargains concerning Land and other Bargains, which
muſt be perfected by Writ: That although the laſt are binding after res non eſt
integra; yet in the former there is ſtill place for reſiling, whatever may have been
done by either Party in Implement of the Bargain."
But here it would have been incumbent upon the Defenders, who alledge this Diſtinction,
to have brought ſome Proof of it, either from the Reaſon of the Thing, or your
Lordſhips Deciſions. In Reaſon there ſeems to be no Ground for the Diſtinction
For, in common juſtice, every Man ought to implement his Contracts: It is Breath of
Faith to decline it; and the Law would never have indulged this Privilege in any
Caſe, but to prevent the Hazard above mentioned, of one's being precipitantly drawn
in to Bargains of great Conſequence. That Hazard cannot be alledged where Steps
are afterwards taken in implement of the Bargain; and though Writ is a neceſſary Solemnity
to the Conveyance of Lands; yet nothing is neceſſary to oblige a Party to
grant that Conveyance in Writ, but his own Content or Agreement. And he has no
Reaſon to complain, when the Agreement is referred to his Oath; and he is thereby
made Judge and Witneſs in his own Cauſe.
And as to the Deciſions, they are ſo far from eſtabliſhing ſuch a Diſtinction, that
they prove the contrary. In the two Caſes firſt mentioned above, the Bargain was concerning
Lands; and yet the locus pœnitentiæ was repelled, in regard that res non erat
integra. In the firſt Caſe, the Bargain was a Purchaſe of Lands by the Earl of Kinghorn
from Hay of Dronlaw, at 17 Years Purchaſe: The Earl offered to reſile, and pled
locus pœnitentiæ: It was replied, "That ſuch verbal Agreements may be reſiled from
"ubi res eſt Integra; but here it is not: For it being a Part of the Bargain, That
"Dronlaw ſhould purchaſe the Right of his Superiority, that the Earl might hold his
"Lands of the King, he had done it, and paid 6000 Merks therefore; likeas the Earl
"was infeſt upon his Superior's Reſignation. It was duplied, That the Earl offered to
"repone, and to make new Reſignation." The Lords found, that the Matter was not
entire, and that the Earl could not reſile. And in the other Caſe, Mr. James Gordon
having purchaſed Lands, held of the Lord Pitſligo, who being preſent at the Bargain,
promiſed to receive the Buyer gratis: He purſues Pitſligo to receive him conform to
his Promiſe. The Defence was, "That this being a Promiſe requiring Writ to its
"Accompliſhment, the Promiſer hath locus pœnitentiæ, doth reſile." Replied, "Par"ties
can only reſile re Integra; for this Promiſe having been made the Time of the
"Bargain, without it the Buyer would not have proceeded to give ſuch a Rate, and
"would have taken a Bond ofa Sum of Money of the Seller, that thereupon he might
"have appriſed and compelled the Superior to enter him." The Lords repelled the
Defence, in reſpect? of the Reply, That the Matter was not entire.
To theſe Deciſions the Defenders anſwered, "That, in the firſt caſe, Writ
"had interveened, the Seller having bought his Superiority, and reſigned in the
"Crown's Hands in favours of the Earl, and infeſt the Earl thereupon." But it is
ſubmitted to your Lordſhips, if this is a good Anſwer: For it does not appear, that
any Writ had interveened on the part of the Earl, who pled the locus pœnitentiæ. And
if the Defenders Argument were good, That pœnitentia is always competent until Writ
interveen, it muſt be ſuch a Writ as is obligatory upon the Reſiler. But the Reply in
that caſe was juſt the ſame as in the preſent, viz. That Steps had been taken by the
other Party towards Implement of the Bargain; which the Earl not having oppoſed,
could not be allowed to reſile: And accordingly the ratio decidendi expreſſed in the
Interlocuror is not, That Writ had interveened; but, That the Matter was not entire.

To the other Caſe the Defenders anſwered, "That the Queſtion was not concern"ing
a Bargain of Lands, but concerning a pactum de non petendo of a Sum of Mo"ney
for an Entry; for the Lord Pitſligo might have been forced by Adjudication and
"Charge to enter the Purchaſer upon payment of a Year's Rent." It is replied, The
Purchaſer, neither having adjudged nor charged, could not force the Superior to enter
him in that Proceſs upon any other Ground, but that of his Promiſe: And accordingly
the locus pœnitentiæ is over-ruled, not for the Reaſon the Defenders alledge,
but for the ſame Reaſon that militates in this Caſe, viz. That the Matter is not entire,
which is the ratio decidendi inſert in the Interlocutor.
Your Petitioner hopes that, for theſe Reaſons, your Lordſhips will find, That the
Defenders cannot reſine from this Bargain, and will allow the Petitioner to prove it
by their Oaths; and in that caſe, I hope there can be no Difficulty, that Barron's Proceſs
againſt me for Repetition of the Price, muſt ſtop, until their Oaths are reported
, which, there is great Reaſon to believe, will be in the Affirmative, from their
ſtruggling the Relevancy ſo hard. And Mr. Barron cannot pretend that he runs any
Hazard by the Delay, ſince he has, upon this Dependence, execute an Inhibition
againſt the Petitioner, by which he has lock'd up heritable Subjects belonging to him,
to many times the Value of the preſent Claim. And it appears pretty plain, from
the Minute he has charged upon, That when he bought the Tenement, he knew
your Petitioner had his Titles to complete; and accordingly, relied upon your Petitioner's
Obligation to procure him either a Charter, or a Right to the Duke's Obligement,
and in the mean time, reſted ſatisfied upon the Poſſeſſion he got from
your Petitioner, and his Warrandice: And therefore, 'tis hoped he will not plead to
preclude me from an Opportunity of making his Title more complete, which I ſhow
is in my Power, if your Lordſhips are of opinion that I am well founded in the above
Relevancy againſt:Jean Strachan and her Husband.
But if your Lordthips thould be 01'a contrary Opinion, which I hope You will
not, for the Reafons already offered: In that cafe I hope, at leaff, Mr. Barron will
be obliged to repone me to the Poffeffion which he got from me, before he cblige
me to repete the Price: For, it would feem his Defign is, to caufe me pay back the
Price, and at the fame time to keep the Poffeffion, until I am put to the Expence of
a new Procefs for turning him out; which 'tis hoped your Lordthips will not think
jut{. And if he were legally difpoffets'd of the Houfes by any Third-party, which
has never yet happened; then, by his own Minute, he can only repere the Price
from me at the ficit Term of Whitfunday or Martinmafs after he is difpoffefs'd: And
therefore, if there were to be any Decerniture againft me for Repetition of the Price,
it ought to be fo qualified.
Mr. 'Barron has indeed lately produced a Decreet of the Regality-court of Huntly,
at the Intiance of Jean Strachan and her Husband, dated 14th November 1735, decerning
him to pay 25 Merks Scots termly, as the Rent of the ſaid Houſes, during
his Poſſeſſion, with an Intimation of the Summons to your Petitioner. But 'tis believed
this will not be much inſiſted upon: It appears too palpably to be a Contrivance
of Barron's ſince he commenced this Proceſs, to procure himſelf a Handle to
give me this Trouble. And indeed it is very odly carried on: For, the Citation is
ſaid to be given to Barron upon the 28th July laſt, to compear before the Court on
the 30th; and yet, the alledged Intimation of this Summons to your Petitioner is
dated the 4th of July, which diſproves itſelf; and the Decreet does not bear ſo much
as any Compearance for the alledged Purſuers, but only for Barron the Defender,
who it ſeems has made uſe of their Names, to have this Decreet taken our againſt
himſelf, in order to recur upon me. However, if I prevail in obliging the ſaid Jean
Strachan and her Husband to implement their Bargain, as I hope to do by your
Lordſhips juſtice, this Decreet muſt go for nothing.
MAT it therefore pleaſe your Lordſhips, To review the Lord Ordinary's Interlocutor,
and to find, That the ſaid Jean Strachan and her Husband cannot
reſile from their 'Bargain, in reſpect that res non eſt integra; and therefore,
To allow me to prove the Verity thereof by their Oaths; and to ſuperſede
the Proceſs at Barron's Inſtance againſt me, until their Oaths are adviſed.
Or. 2do, In all Events, To find that Barron muſt repone me to the
Poſſeſſion of the Tenements he got from me, before he get Repetition of the
Price: Or, if he is legally turned out of Poſſeſſion by another, That then he
cannot inſiſt for Repetition, but in the Terms of his own Minute, viz. At
the firſt Term of Whitſunday or Martinmaſs after he is ſo diſpoſſeſſed.
According to Juſtice, &c.
JAMES FERGUSON.
July 12, 1730.
ANSWERS for William Barron Merchant in Huntly,
and for Jean Strachan and John Smith her Husband,
To the Petition of James Petrie Writer in Aberdeen.
PATRICK STRACHAN deceaſt, having purchaſed from Alexander Duke of
Gordon, alo deceaſt, the Feu of a Piece of Ground in Srathbogie, or Raws of
Huntly, for building a Houſe upon it, he obtained an Obligation from the Duke,
whereby his Grace was bound to grant a Charter of the foreſaid Piece of Ground;
and upon the Faith of the Obligation, Patrick Strachan proceeded to the building of his
Houſe, and which he continued to poſſeſs during his Life. Upon Patrick Strachan's
Death, his Right to the Houſe devolved upon Jean Strachan his Daughter, and upon
Peter Duff his Grandchild by Janet Strachan his other Daughter. But as they lived at a
diſtance, it does not appear that they laid any Claim to the Houſe.
It appears, that Mr. Petrie, the Petitioner, thought proper to claim this Houſe as a
Subject that was derelinquiſhed; and, in the Year 1728, he, as deriving Right from
Jean Strachan the ſurviving Daughter, ſold the Houſe to William Barron, for the Sum
of L. 563, 8 s. whereof 200 Merks as the Price paid for the Ground right, and the ,
reſt of the Sum as the Value of the Houſes; and Mr. Petrie became bound "to diſpone
and make over the foreſaid Tenement in favours of William Barron, and grant a Diſ"oſition
containing the uſual Clauſes, and particularly a Clauſe of Warrandice, That,
"in caſe of Eviction, Mr. Petrie was to repay, not only the Price, but the Reparations
"that were to be made on the Houſe.
Purſuant to this Minute of Sale, William Barron paid the agreed Price, and entred to
the Poſſeſſion, and continued in poſſeſſion for ſome Time. But having been informed,
that Mr. Petrie had no Right to the Subjects ſold, and that he could give him no Title
that could defend him for one Moment againſt the Heirs of Strachan the former Proprietor,
he was adviſed he was entitled to demand a Right from Mr. Petrie; and, in caſe of
his Inability, or Refuſal to grant him a proper Right, he was entitled to repeat the Sums
paid; that he was not bound to rely on Mr. Petrie's perſonal Warrandice, which poſſibly
at an after Period, when the Subject ſhould be evicted, would prove ineffectual. And
Mr. Barron having inſiſted for Implement of the Minute, Mr Petrie obtained Suſpenſion.
The Suſpenſion came by courſe of the Roll before the Lord Drummore. It is unneceſſary
to mention minutely the ſeveral Interlocutors pronounced by his Lordſhip: It will
be ſufficient to obſerve, in anſwer to the preſent Petition, That Mr. Petrie, during the
Dependence of the Suſpenſion, in order to enable him to implement the Minute of Sale,
did, in April 1735, obtain a Conveyance from Peter Duff (Grandchild to Patrick Strachan
by one of his Daughters) of his Intereſt in the Tenement, with a Procuratory to
ſerve him Heir to Patrick Strachan: And, in conſequence of this Procuratory, he ſerved
Patrick Duff ſole Heir to his Grandfather; and that moſt erroneouſly, when he
knew, and it appeared from his own Right from Peter Duff, that Jean Strachan, another
Daughter of Patrick's was alive, and conſequently was Heir-portioner with Peter
Duff However, this erroneous Service was the Title produced for one half of the Tenement.

And with reſpect to the other half, Jean Strachan's Share, he brought a Proceſs againſt
Jean Strachan and her Husband John Smith, for Implement of a verbal Agreement
he pretended had paſſed betwixt him and them; whereby he undertook to defend
them in a Proceſs brought againſt them at the Inſtance of one Young, with reſpect to this
very Tenement, and to pay them a certain Sum of Money; in conſideration whereof
they became bound to diſpone their Intereſt in the Tenement: And this Bargain he offered
to prove by their Oaths. The Lord Ordinary found, That the Promiſe or Agreement
founded on, being with reſpect to the Sale of Lands, and no Writ adhibite, the
Defenders might reſile; and therefore aſſoilzied them from the Concluſions of the Libel.
Mr. Petrie reclaims, and inſiſts, That he having, in Terms of the Agreement, defended
Jean Strachan and her Husband in the Law-ſuit, res non erat integra; that therefore
there was no locus pœnitentiæ; and conſequently the Bargain was probable by the
Oath of Jean Strachan and her Husband.
It is anſwered for them, who in the Sequel ſhall be called Defenders, That as they abſolutely
deny that there ever was ſuch an Agreement, ſo they know nothing of any Proceſs
in which they were defended by Mr. Petrie; and as they could ſafely depone in thir
Terms: yet, as they were adviſed, that the Alledgeance was not relevant to be proven
by their Oath, they, to ſave themſelves from the Trouble and Expence of coming to
Edinburgh to depone, did inſiſt in their Defence in Law, That a Bargain of Sale of
Lands did require, in point of Solemnity, that it ſhould be perfected in Writ; that therefore,
though a verbal Agreement ſhould be acknowledged, it was not binding; and that
the implementing ſuch verbal Bargain of either Side, did not ſuperſede the Neceſſity of
Writ: Therefore they inſiſted on their Defence in point of Law, That ſuch a verbal
Bargain as was libelled on by Mr. Petrie was not binding.
And indeed the Defenders take it be an eſtabliſhed Maxim in our Law, That where
a Tranſaction requires Writ, in point of Solemnity, to its Perfection, there, till Writ
is adhibite, it is imperfect; and, as a Conſequence of this, that it is not probable by
Oath: For an obvious Reaſon, becauſe, though the Bargain is proved, it is but a Proof
of an imperfect Deed, which is not binding: Thus, a nuncupative Teſtament, though
proven by the Oath of the neareſt of Kin, is ineffectual; becauſe our Law requires
Writ, as the neceſſary Solemnity of a Teſtament: So ſays Dirleton, ſo ſays Sir James
Steuart, Title Testaments, and ſo ſays my Lord Stair, Title Executry, numb. 34. &
35. Tacks for more Years than one, are not binding without Writ; and, in the ſame
manner, a Sale or Conveyance of Lands, though agreed upon verbally, yet is imperfect,
until it is compleated by Writ: This alſo is laid down as a Maxim by my Lord
Stair, p. 93. & 94. and p. 195. And in the ſame manner, an Infeſtment, the Grant
by the Superior, or the Delivery of Saſine, requires Writ as a neceſſary Solemnity; and
no Proof; by Oath of Party or Witneſſes, can ſupply the Want of Writ. In all thoſe
Caſes; and others that might be mentioned, the Law has made Writ eſſential to the
Deed; and, until Writ interveens, the Deed is no Deed, and ineffectual; and that, not
becauſe of the Want of the deliberate Conſent, though the Parties had perſiſted for ſeven
Years in their Reſolution to hold ſuch a verbal Bargain, and this repeated before a
thouſand Witneſſes, and proved by them or by the Parties Oath: yet ſtill the Law reprobates
ſuch Agreements, when they are not compleated by Writ, becauſe, it is de
forma, and eſſential to ſuch Tranſactions, that Writ ſhould interveen. But it is unneceſſary
to enlarge on this Point, it is a Maxim in our Law, and admitted by the Petitioner.

And 2do, The Defenders are adviſed, that is is equally a Maxim, That where Writ
is de forma negotii, where it is required, in point of Solemnity, that it is not to be ſupplied
by rei interventus: This alto is laid down as a Maxim by my Lord Stair in the
forecited Place, and which he confirms by a Variety of Deciſions; particularly one, the
28th of January 1663, Sir Robert Montgomery contra John Brown: Sir Robert had agreed
verbally with John Brown, to convey to him his Right to the Lands of Fordel,
for 10000 Merks; and, in purſuance of the Communing, he had received 3000 Merks
of the Price, upon his Obligation, till Things ſhould be perfected, and John Brown had
got the Keys of the Houſes; and further, he had wrote a Letter to Sir Robert, bearing,
"That he was afraid he would not get the Money at the Time agreed upon; but
"that he would not paſs from the Bargain." Notwithſtanding all thoſe Circumſtances,
when Sir Robert came to inſiſt for Implement of the Bargain, the Lords found the Bargain
incompleat, and aſſoilzied Brown. And in a Variety of Inſtances, your Lordſhips
have found, That a verbal Tack, for more Years than one, though followed by Poſſeſſion
for a Number of Years, yet may quandocunque be given up by the Tenant; particularly,
July 15th 1637, Andrew Skeen, and July 16th 1636, Keith contra Johnston's
Tenants.
The Defenders will add but one late Deciſion, in the Year 1723, betwixt Small, and
Griſel Pearſon and her Curators, which is in point to the preſent Queſtion; the Caſe
was, Griſel Pearſon and her Curators had ſold her Lands to Small, and a Minute of Sale
was duly ſigned by Small, and by her and two of her Curators; but as four of her Curators
were named a Quorum, the Minute was left in the Hands of one of her Curators,
in order to obtain the Subſcription of the other two Curators: Small entred to the Poſſeſſion
of the Lands, and continued in Poſſeſſion for two Years; but thereafter coming
to be diſſatisfied with his Bargain, he raiſed a Reduction and Declarator, that the Bargain
was null and incomoleat, the Minute not having been ſigned by a Quorum of the
Curators: And the Minute being produced, ſigned by a Quorum of the Curators, it
was pleaded for the Seller, That there was a verbal Bargain; that there was rei interventus;
that the Purchaſer had poſſeſſed the Lands for two rears; that he had paid a
part of the Price, and had taken Bills for the ſame; that the Minute was produced duly
execute: But it appearing, that two of the Curators had ſubſcribed after the intenting
of the Proceſs, and after Mr. Small had declared his Intention not to hold the Bargain,
your Lordſhips, after a moſt litigious Debate, found the Bargain incompleat, at
the Time that the Purchaſer had reſiled; and therefore, that it could not be afterwards
compleated without his Conſent, and decerned in the Declarator. The Deciſion ſeems
to be in point, and to conclude à fortiori to the preſent Caſe. And indeed the Defenders
are adviſed it is a Maxim, That a verbal Bargain of Lands is incompleat, though.
the whole Price ſhould happen to be paid.
And as tothe Deciſions mentioned for the Petitioner, they are by no Means ſufficient
to overturn the eſtabliſhed Principles of our Law: They don't come up to the Point in
iſſue; and particularly the Caſe of the Earl of Kinghorn was this, the Earl had appriſed
the Lands of Dronlaw, which Dronlaw held of a Subject, and had attained Poſſeſſion
by a Decreet of Mails and Duties; a Tranſaction was made betwixt the Earl and Dronlaw,
whereby it was agreed that the Earl ſhould hold the Property by his Appriſing, and
that Dronlaw ſhould purchaſe the Superiority, and convey it to the Earl; and that on
the other Hand, the Earl ſhould pay ſeventeen Years Purchaſe for the Lands; out of
which he was to have Deduction of the Sums contained in his Appriſing. Purſuant to
this Agreement, Dronlaw purchaſed the Superiority, and paid for it 6000 Merks, and
took the Conveyance from the Superior in favours of the Earl, whereupon the Earl
expede an Infeftment: In this Caſe the Lords found the Earl could not reſile; and that
for an obvious Reaſon, namely, the Bargain was not only perfected, but implemented
by a proper Writ; it was the ſame Caſe as if Dronlaw had taken the Conveyance
to the Superiority in his own Name, and then had conveyed the ſame to the Earl of
Kinghorn. This Conveyance of the Lands by the Proprietor, and who was Purchaſer of
the Superiority in favours of the Appriſer' did, 'tis humbly thought, fully convey the
Right to the Lands, and therefore the Earl could not refuſe to pay the Price. It is the
ſame Caſe, as if upon a verbal Communing for a Sale of Lands, the Seller ſhould grant
a Diſpoſition, bearing a certain Sum of Money to have been received, and the Diſponer
being infeft, ſhould refuſe to pay the agreed Price, there it would be competent to
prove by the Purchaſer's Oath, That tho' the Diſpoſition acknowledged the Receipt of
the Price, yet that the Price was not paid; for in ſuch a Caſe, the Lands are diſponed
habily by Writ, and the Seller has followed the Purchaſer's Faith with reſpect to the
Price, and therefore his Oath muſt be competent; In ſuch a Caſe the Tranſaction
ceaſes to be a mutual Contract with reſpect to the. Sales of Lands, which certainly
could not ſubſiſt without Writ, and comes to be a promiſe of payment of a Sum of
Money, which needs not Writ in point of Solemnity; and this appears to have been the
Caſe of the Earl of Kinghorn.
And as to the Deciſion the Lord Pitſligo, 'tis ſtill leſs to the Purpoſe; the Caſe was,
the Lord Pitſligo was preſent at the Sale of one of his Vaſſal's Lands, and to encourage
the Purchaſer to offer a higher Price, he promiſed to enter him gratis; and being purſued
for Implement, the Lords found the Bargain obligatory upon my Lord, and that
for an obvious Reaſon, the Bargain was not with reſpec to the granting the Entry,
that my Lord was bound to by Law, but the Import of the Bargain was, that he was
to paſs from a Year's Rent, and which required no Writ in point of Solemnity.
And as to the Caſe of Park and the College of Glaſgow, it has not the leaſt Reſemblance
to the preſent Argument; there was no rei interventus in that Caſe, but the
College was found liable for a certain annual Augmentation to Park for certain bygone
Years, upon a circumſtantiate Proof; the. Fact was, That Park was Miniſter of a
Church belonging to the College; that in the 1649, he propoſed to inſiſt in a Proceſs
of Augmentation; that to divert the Proceſs, the College agreed to pay him 100
Merks of Augmentation yearly, but that no payment was made him while he continued
in his Charge; but in the 1664, in a Viſitation of the College, when a State was
made out of the College Debts, this 100 Merks of Augmentation was ſtated as due to
Mr. Park; and the Viſitors having reported this State of the College Debts, the Parliment
granted the College certain vacant Stipends for payment of their Debts. This
was found by the Lords as a ſufficient proof of thei agreement upon Mr Park's making
Oath that ſuch Agreement had been made. Your Lordſhips perceive that here was
a promiſe, and not a mutual Contract, the promiſe was proved by the Writs of the
College, and the Purſuer's Oath in Supplement. What Influence this can have to prove
that a Bargain of Lands may be compleated without Writ, is not eaſily to be comprehended.

And as to the Deciſion Graham contra Corbet, 'tis equally foreign to the Queſtion;
the Bargain there was concerning ſome Shares of African Stock, which by the Merchant
Law may be compleated without Writ, and may be proven by Witneſſes, and it was ſo
found by the Lords; and therefore there is nothing on the Deciſions quoted that has a
Tendency to deſtroy the Principle of our Law, whereby a Sale of Lands requires in
point of Solemnity, a Writ duly execute, and that payment of a part of the Price, or putting
in poſſeſſion of the Lands, will not ſupply this Defect.
And this being the caſe, that Mr. Petrie has no Right to one half of the Subjects ſold,
nor has he any reaſonable Proſpect of obtaining ſuch a Right; and as, quoad the other
half, he has a very inſufficient one, a general Service by one of two Heirs-portioners:
it is hoped there can be no Difficulty in affirming the Lord Ordinary's Interlocutor,
whereby Mr. Petrie is found liable to repeat the Price that I paid him.
And as to the Suggeſtion made for the Petitioner in order to obtain a Delay, That
at the time of the Bargain Mr. Barron knew that Mr. Petrie had not completed his Titles
to the Tenement, and therefore that it is agreeable to the Scope of the Bargain that Mr.
Petrie ſhould ſtill be allowed Time to complete his Titles; it is anſwered, That it is true,
Mr. Barron did believe, that Mr. Petrie had not completed his Titles. But then, it is
equally true, that it was underſtood that he had a Right from the Heirs of the Proprietor;
and particularly, it is aſſerted in the Minute, that he had a Right from Jean, the
only ſurviving Daughter, and which enabled him to complete his Titles. But your
Lordſhips now perceive, that he has no Right; and therefore it is in vain for him to
talk of completing Titles: And indeed res ipſa loquitur that Mr. Petrie was ſelling a
Subject to which he knew he had no Right, but which he believed was deſerted by the
Proprietors; and that he induced Mr. Barron to believe, that he had a ſufficient Right
from the apparent Heirs of the Proprietors, and which he could complete at pleaſure.
And as to the Pretence, That the Payment of the Price ought to be ſuſpended until
I ſhall put him in poſſeſſion of the Tenement; your Lordſhips have obſerved, that Jean
Strachan, one of the Heirs-portioners, has brought an Action againſt me before the Regality
court of Huntly for the half of the Rent; and as I had no good Defence againſt
her Claim, ſhe has obtained a Decreet; and as Mr. Petrie does not ſuggeſt any relevant
Defence that was competent to me, nor any juſt Ground of reponing me againſt the
Decreet, how is it poſſible, that I ſhould maintain my Poſſeſſion, or deliver the
Poſſeſſion to Mr. Petrie? The Caſe is ſhortly this: Mr. Petrie, for an adequate
Price paid, obliged himſelf to diſpone the Tenement to me with abſolute Warrandice;
and particularly, that in caſe I was diſpoſſeſſed, he ſhould, immediately after I
was ſo diſpoſſeſſed, repay the Price paid, and the Meliorations. And he now pleads,
That, in conſequence of this Clauſe, though he has no Right, that the Price muſt not
be repaid till I am actually diſpoſſeſſed; and, 2dly, he pleads, That when I am diſpoſſeſſed,
ſtill the Price is not to be paid until I am repoſſeſſed, in order that I may redeliver
the Poſſeſſion to him; ſo that in no Event I can claim the Price. This Reaſoning
is humbly ſubmitted.
And as to the Objection made to the Decreet, and upon which the Petitioner ſeems
to triumph ſo much, namely, That the Citation upon which it proceeds appears to
have been given upon the 28th of July; and yet the Proceſs was intimate to Mr. Petrie
upon the 4th of July, as appeared from the Inſtrument of Intimation produced.
The Anſwer is obvious, That the Citation was upon the 28th of June, and the Intimation
to Mr. Petrie upon the 4th of July: That the Notary had by Miſtake inſert in his
Inſtrument July inſtead of June; for ſure the Intimation of the 4th of July could never
refer to a Citation that was not given till three Weeks thereafter: And the utmoſt
Length that this could go, was to annull the Intimation; but it could have no Influence
upon the Decreer, where there was no ſuch Miſtake. And the Conſequence of
this again could be none other, but to allow Mr. Petrie ſtill to propone any relevant Defence
againſt the Decreet: But as he has been able to ſuggeſt none, the Decreer is an
Eviction; which makes Mr. Petrie liable in his Warrandice.
In reſpect whereof, &c.
ROB. CRAIGIE.
July 15. 1736.
MEMORIAL
FOR
JAMES PETRIE Writer in Aberdeen,
AGAINST
William Barron Merchant in Huntly, and Jean Strachan
and John Smith her Husband.
IN the Anſwers given in, in name of theſe Parties, to Mr. Petrie's Petition,
there are ſeveral Miſrepreſentations in Fact, which want to be rectified: Firſt,
'tis inſinuated, "That Mr. Petrie ſold this Houſe to Barron before he had made
"an Agreement anent the Purchaſe of it from Jean Strachan and her Husband;
"from which the Reſpondents infer, That the Petitioner thought fit to claim Right
"to this Houſe, as a Subject that was derelinquiſhed." But 'tis very unjuſtifiable in
the Reſpondents to make this Alledgeance, when they know very well, that they
made the Agreement with Mr. Petrie anent the Sale of that Houſe prior to the Minute
of Sale entred into with Mr. Barron. This is the Fact referr'd to their Oath
and which their Doers want to avoid their deponing upon, becauſe they know it to
be true. And 'tis moſt unaccountable to ſay, That the Subject was look'd upon as
derelinquiſhed, when the Reſpondents themſelves Confirmed the Rents of this Tenement,
as in bonis of Patrick Strachan, very ſoon after his Deceaſe, prior to the Minute
entred into betwixt Mr. Petrie and Mr. Barron; as appears by the confirm'd
Teſtament lying in Proceſs.
'Tis next alledged, in name of Jean Strachan and her Husband, "That they deny
"there was ever any Agreement betwixt them and Mr. Petrie, or any Proceſs Con"cerning
theſe Houſes, in which they were defended by him, and where he laid out
"Expences on their account." But that there was ſuch a Proceſs, can be vouched
by the Proceſs itſelf lying in the Clerk's hands, in which there was a Decreet pronounced
againſt them in January 1730; and that Mr. Petrie paid the Accompt of
Expences, laid out upon this Proceſs by Mr. Gordon of Carnfield, can be vouched by
his Diſcharge, and will be atteſted to be true by Mr.Gordon. And indeed, theſe Denials
of ſo many Facts, which muſt well conſiſt with the Knowledge of the ſaid Jean
Strachan and her Husband, gives the Memorialiſt the ſtrongeſt Suſpicion, that what
is repreſented in this Cauſe does not proceed from them, or by their Warrant or Information:
And he believes he may appeal to the Doer in the Cauſe, whether he has
any Inſtructions, either from Jean Strachan or her Husband, either to deny theſe
Facts, or even to defend in this Proceſs. He does believe it will not be alledged,
and in that caſe, he hopes your Lordſhips will not allow Mr. Barron, or any other Perſon,
to make uſe of Jean Strachan and her Husband's Name, to defend againſt a Proceſs
which they do nor oppoſe, and to deny an Agreement which they know to be
true, and cannot deny upon Oath.
But next, if there were any Warrant from them to compear in this Proceſs, which
the Memorialiſt believes there is not , their Denial of theſe Facts cannot be regarded
by your Lordſhips, becauſe they are all referr'd to their own Oaths; that is, not only
the Agreement anent the Sale of the Houſe, but alſo the rei interventus, or Implement
in part of the Bargain, by the Memorialiſt's laying out the Expence of the ſaid
Proceſs for the Defenders, and at their Deſire.
The Fact then muſt be held to be true, ſince they cannot deny it upon Oath. The
only Queſtion is, If it is relevant? And 'tis ſubmitted to your Lordſhips, if this Reply
has not been found relevant, even in Bargains of Lands, in both the Deciſions
mentioned in the Petition, viz. the Caſe of the Earl of Kinghorn and the Lord Pitſligo:
For it does not ſeem a good Anſwer, That in the firſt, Dronlaw had purchaſed
the Superiority, and infeſt theEarl; that was ſtill but Implement upon one Side, viz.
upon the Side of the Seller: And if, after Implement upon his part, the Buyer was
not allowed to reſile, tho' he was bound up by no Writ, why ſhould the Seller be
allowed to reſile after he has accepted Implement (either in whole of in part) from
the Purchaſer? Which is the Fact offered to be proven in the preſent Caſe.
Nor is the Anſwer to the other Caſe, betwixt Lord Pitſligo and Mr. James Gordon,
ſufficient. For my Lord was not bound to grant an Entry to Mr, Gordon, becauſe he
had neither adjudged nor charged. So he was bound no otherwiſe but by his Promiſe.
Againſt that Promiſe he pled locur pœnitentia: Which was repelled, becauœe res non erat
Integra. And, in both theſe Caſes, your Lordſhips will obſerve, that the ratio decidendi
expreſſed in the Interlocutor is not what the Reſpondents would now offer;
which: was neither pled nor ſuſtained, but allenarly what the Memorialiſt pleads in this
Cafe, viz. That the Matter was not entire.
And as to the Deciſions cited in the Anſwers, the Caſe of Sir Robert Montgomery
does not prove any thing contrary to what is eſtabliſhed by the above Deciſions; for
there was no Implement there upon either Side. Though Brown had paid 3000 Merks,
yet it was not paid in part of the Price; but a Bond of borrowed Money was taken
for it: So that this Money was neither given nor accepted in implement of the Bargain;
whereas, in this preſent Caſe, the Fact is laid, That the Money was paid by the
Purſuer, and accepted by the Defender, in part payment of the Price.
And as to the other Caſe, of Small, the Deciſion is not collected, and we do not
know the particular Circumſtances of the Caſe: But, as it is ſtated by the Reſpondents,
it does not ſeem to have any Influence upon this Queſtion, becauſe the Bargain
was null upon ,another Ground, as being made by a Minor without the Concurrence of
a Quorum of his Curators. And though the Purchaſer had poſſeſſed the Lands for
ſome Time, yet he could be bound when the Minor was not bound; ſince it is a Principle
in mutual Contracts, That if one of the Parties has a Liberty to reſile from the
Contract, the other Party has the ſame Liberty.
And with reſpect to Mr. Barron's Obſervation, that it is aſſerted in the Minute, That
Mr. Petrie had a Right from Jean Strachan, the only ſurviving Daughter, when yet
he knew he had no Right from her; it is wrong to make this Alledgeance, when the
Fact which I offer to prove by her Oath and her Husbands is, that they ſold me the
Houſe prior to this Minute of Sale with Barron; and they are ſo conſcious of the Truth
of it, that they decline to give their Oaths.
And the Decreet of the Regality Court of Huntly, founded on by Mr. Barron as an
Evidence of Diſtreſs, is too obviouſly a patched up thing to merit any Regard from
Lordſhips. Barron himſelf owns that the Citation is falſe; for he ſays it was
laid on upon the .28th of June, and the Citation bears the 28th of July: Nor does
there appear to be any Warrant from Jean Strachan or her Husband, who are the pretended
Purſuers, to inſiſt in this Proceſs before the Regality Court; there is no
Procurator appearing for them, far leſs a Mandate from them: So that it appears to be
altogether a Contrivance of Barron's own, in order give him a Handle for this
Proceſs.
And it is not well underſtood upon what Ground Mr. Barron can object againſt reponing
me to` the Poſſeſſion, if Jean Strachan ſhould prevail in this Proceſs, and not be
found liable to implement. 'Tis hoped that will not be the Caſe; but if it were, it
ſeems impoſſible to contravert that if I am decerned to pay him the Price, he muſt be
ordained at the ſame Time to repone me to the Poſſeſſion of the Houſes which he got
from me, and to which have produced from unconteſted Right from one of the Heirs--
portioners.
JA. FERGUSON.
Lord LEVEN. February 16. 1736.
MINUTES,
PATRICK GORDON of Binhall,
AGAINST
James Gordon, alias Macgrigor, James Petrie and William
Forbes.
Act. Horn. A1t. Ja. Ferguſoun.
HORN, for the Purſuer, reſurned the Complaint, That Patrick Gordon
of Binhall was charged with Horning at the Inſtance of James Gordon,
for Payment of a Debt due by him to the ſaid James; of which
Charge he, upon moſt relevant Reaſons of Suſpenſion, at leaſt, for one
Term, preſented a Bill of Suſpenſion upon the 17th of January 1735:
which coming of courſe before the Lord Drummore Ordinary, was
by him ordered to be ſeen and anſwered. and a Siſt of Execution granted to a certain
Day. In obedience to this, James Gordon's ordinary Doer gave in an Anſwer to the
Bill of Suſpenſion upon the 20th of January 1735; and Bill and Anſwers ly over unadviſed
to this Day. This in all Law and Equity ought to have ſtopt all further Diligence
till the Bill of Suſpenſion and Anſwers were adviſed; until then, Binball the
Complainer was moſt undoubtedly, both as to his Perſon and Effects, under the ſpecial
Protection of the Lords of Seſſion: But when he thought himſelf abſolutely ſafe
under this Sanction, he was moſt unwarrantably taken with Caption, for Payment of
this ſuſpended Debt; and that the Abuſe of the Lords Authority might be the greater,
and the Affront to Binhall in his Perſon and Credit be the more aggravated, the
Caption was execute againſt him, when he was ſitting in Judgment, as Baillie-depute
of the Regality-court of Huntly, belonging to his Grace the Duke of Gordon; and
he was kept in Cuſtody till he was compelled to pay the Debt, although, before-the
Caption was execute, he intimate, under Form of Inſtrument, That a Bill of Suſpenſion
of that very Debt, with the Anſwers, lay over unadviſed.
As this is a Caſe that will not bear Argument, the Defenders, after owning the
Fact, drew their Exculpation, more, from what at that Time ſeemed to have been a
Weakneſs of good Nature in the Purſuer, than from the Juſtice of their own Cauſe;
for they produced a Letter, written by the Purſuer to James Gordon, Promiſing to
pay the Expences of the Diligence and Caption to Mr Petrie; which they ſaid, was
owning the Caption to have been juſtly execute, and a paſſing from this Complaint
But this Argument, inſtead of doing any Service to the Defenders, only aggravates
their Fault the more: Indeed, had this Letter been written voluntarily, ſomething
might have been ſaid; but it was written by the Purſuer, and drawn from him, in anſwer
to a Letter he had received from James Gordon, wherein he threatned to put
the Caption in Execution for the Expence of the Diligence: So that the Purſuer, who
well knew, and had ſeverely felt, what the Gentleman he had to do with and his
Agents were capable of, was forced of two Evils to chuſe the leaſt; and rather, to
pay the Expence of the Diligence, than be hawled to Priſon, if he refuſed it, he ſubmitted
to this Injuſtice and Severity, in hopes of ample. Satisfaction and Redreſs
from your Lorpſhips Juſtice.
It is needleſs to expatiate upon the great Inconveniencies of putting Diligence in
Execution, when it is legally ſtopt and ſuſpended: At that Rate, no Man is ſafe, either
in his Perſon or Goods; and it ſhall be in the Power of Creditors, and of every
little underling Agent, who pretends he is employed by them, to give Moleſtation
to Gentlemen of the beſt Credit and Character in the Country: It only remains to
crave, That as the Defenders have openly violated and deſpiſed the Authority of the
From all which it is ſubmitted, whether there is any Evidence brought of this Complaint;
and 2dly, whether it is competent for the Complainer to inſiſt in it, after he
has paſt from it by ſo many different Homologations, and is thereby excluded diſſmulatione
injuriæ, if any ſuch had been offered to him. And as the Complaint is
no ways founded againſt the Charger Clunymore, who only gave a Mandate to Mr.
Petrie his Doer to execute the Diligence according to Law, it is ſtill as little againſt
the other Defender Mr. Petrie, he was no otherwiſe concerned in the Affair, but
by employing a Meſſenger to execute a Caption at his, Client Clunymore's Defire
And as his Client, from what is above repreſented, had no Reaſon to doubt he was
acting warrantably, ſurely Mr. Petrie could have as little Reaſon to doubt of it.
And as to the Meſſenger, it is not underſtood how he can be blamed for putting a
lawful Diligence in Execution, when he ſaw no Evidence of Stop or Siſt, of it, in the
Inſtrument produced taken againſt the Meſſenger. The Complainer indeed affirms,
That Anſwers had been given in by the Charger to his Bill of Suſpenſion, which lay
over unadviſed; but as no Evidence was offered of this further than the Complainer's
Aſſertion, the Meſſenger was not bound to regard it, and yet he went no further
than to carry him to the next Houſe in the Town where he was apprehended: Upon
which the Charger was ſent for, who without any other Evidence of the Complainer's
Story than his own Aſſertion, dilmiſt him upon his Promiſe to give the Security
he had formerly offered, which was all greater Lenity to the Complainer than
the Defender was in Law bound to ſhow; and it is ſubmitted if his Requital has
been grateful. And as to the Circumſtance alledged, That the Diligence was executed
when the Complainer was ſitting as Baillie-depute in place of Glenbucket in a
Regality-court belonging to his Grace the Duke of Gordon. This is aCircumſtance
which the Defender knows nothing of; and tho' it is no legal Objection againſt the
Execution of Diligence, yet they would moſt certainly have choſen to ſuperſede it
to another Time. But they had no Reaſon to imagine he was to act in that capacity,
ſine he never had acted ſo before nor ſince, and Glenbucket the Baillie-principal
was himſelf in Town at the Time. The Complainer had been in uſe to act,
not as a Judge, but as a Procurator before the Court, and accordingly was ſitting,
not upon any Bench when he was apprehended, but at a Table with the other Procurators
or Members of Court, and ſome other People then in Court; ſo that the
Meſſenger had no Ground to diſtinguiſh him from one of them: And ſurely it can
be no Fault to apprehend a Procurator before any Court, even in Court, if he cannot
otherwiſe be laid hold of, when one is in immediate Hazard of loſing his Money, if
he ſuperſede the Execution of his Diligence. And therefore upon the whole it appears,
that the Charger has been from firſt to laſt very ill uſed by the Complainer, after
he had kept him in hazard of loſing a great part of his Subſtance for ſome Years,
which the Charger's good Nature obliged him to underly, rather than proceed to
harſh Meaſures: But at laſt, after the Breach of many repeated Promiſes, was obliged
either to loſe his Money altogether, on to go on in Diligence; a Bill of Suſpenſion
was given in, upon Reaſons which muſt now be owned to be groundleſs and fictious.
Tho' the Charger had agreed to ſuperſede Payment to another Term upon further
Security, yet as it was not alledged ſuch Security was -granted, that could be
no Ground for ſtopping Diligence. And the other Objection made to the Executions
of the Charge, is not pretended now to have had any Foundation, after the
Charger had been brought to Expence and Delay by this calumnious Suſpenſion, and
at laſt was going on in Diligence, he, good-naturedly liberates the Complainer,
without ſo much as incarcerating him, and without ſeeking any other Terms than
his own Promiſe to give the Security he had, before offered; and now after the Complainer
had for ſo many Months acknowledged the Fairneſs and Lenity of the Charger's
proceeding, to inſiſt in ſuch a Complaint, without any Evidence brought of any
thing that is unwarrantable; and after ſo many Evidences of his repeated Homologations
will it is therefore hoped that ſo groundleſs and vexatious a Complaint will be
diſmiſt with Expences.
Cy
Febr. 27. 1736.
ANSWERS for PATRICK GORDON of Binhall,
Purfuer;
TO THE
Petition of James Gordon, alias Macgregor, James Petrie,
and William Forbes, Defenders.
Have all along acknowledged, that I was juſtly owing to James Gordon, one
of the Petitioners, the Debts for Payment of which I was charged at his
Inſtance; ſo that the long Detail in the Petition, of the Juſtice of theſe
Debts, might have been ſpar'd. Neither does it now come with a good
Grace from Mr. Gordon, That he was under ſo great Apprehenſions of loſing
his Debt: The Event has ſhewn, that I was ſufficiently reſponſal; and as
they were juſt Debts, ſo they are now honeſtly paid. But, what altho' they were
juſt Debts? Yet, my Reaſon of ſuperſeding the Payment of theſe Debts was moſt relevant.
Mr. Gordon the Creditor wrote me, upon the 16th November 1734, That
if I found him Security, he would delay me for another Term: It was upon this
Reaſon chiefly, that I offered a Bill of Suſpenſion; and I was then ready to have
found him that Security, otherwiſe, to be ſure, my Bill of Suſpenſion would have
been refuſed. After having premiſed this, I ſhall trouble your Lordſhips with very
ſhort Anſwers to the Petition; which reclaims again a moſt juſt Interlocutor
of your Lordſhips, Finding, That the taking me with Caption during the Dependence
of a Bill of Suſpenſion of the Debt charged on, and Anſwers to the ſaid Bill,
was a Contempt of the Authority of the Lords of Seſſion. And repelled the Defence,
That I did, after putting the Caption in Execution, and granting Security for the Debt
charged on voluntarily pay the Meſſenger's Fees: And remitting to the Ordinary in the
Cauſe, with Power to him to proceed accordingly. And reclaims likewiſe againſt an
Interlocutor pronounced by the Earl of Leven Ordinary, upon the 20th Inſtant, Modifying
my Damages and Expences to L. 20 ſterl. and decerning the ſaid James Gordon,
James Petrie, and William Forbes, conjunctly and ſeverally, therefore.
The Arguments us'd in the 'Petition,•conſift of two material Parts: 1ſt, That
there is no Evidence, the Charger gave in Anſwers to the Bill of Suſpenſion, or knew
that Anſwers were given in by his Doer. And 2dly, That my paying the Expence
of the Diligence, was a paſſing from the Injury that had been done me, by taking me
with Caption during the Dependence of a Bill of Suſpenſion.
In anſwer to the Firſt of theſe, I ſhall only obſerve, That all the Lieges in Scotland
are preſum'd, by themſelves or Doers, to be preſent in the Bill-chamber. My
Bill of Su-penſion was preſented upon the 17th of January 1735: the Lord Ordinary
on the Bills gave a Siſt of Execution for Eight Days, and ordained the Bill to he
ſeen and anſwered. Now, My Lords, it is not denied, that the deceaſs'd Mr. Alexander
Farquharſon Writer to the Signet, was the Charger's known and ordinary
Doer; it was he who called for a Copy of the Bill of Suſpenſion, and gave in an
Anſwer to it upon the 20th of January 1735; which Anſwer is ſtill in Proceſs,
written by the Hand of one of Mr. Farquharſon's Servants. This being the matter
of fact, is it any way preſumeable, That Mr. Farquharſon, who was very exact
Buſineſs, would not adviſe his Client of what was doing? Or, is it in the leaſt probable,
That he would write to his Client, to put the Caption in Execution before
the Bill of Suſpenſion ſhould be refuſed? It ſeems the Defenders would ſhuffle over
this Abuſe of your Lordſhips Authority, and the Injury done to my Perſon and Credit,
upon a dead Man, in order to clear themſelves. And truly it is very ſurpriſing,
the Charger ſhould deny his being in the Knowledge of the Bill of Suſpenſion, when
in the very Accompt of Expences which I paid him, and which he has diſcharged,
there is an Article of L. 21 18 ſh. Scots, ſtated to Mr. Farquharſon, for oppoſing the
Bill of Suſpenſion.
In anſwer to the ſecond part of the Petition, of my having paſt from the Injury, by
paying the Accompt of the Expenses of the Diligence, I beg leave to inform your Lord-ſhips,
that upon the 17th of February 1735, notwithſtanding the Bill of Suſpenſion and
Anſwers lay over unadviſed, I was taken with Caption by Forbes the Meſſenger out of
the Regality-court of Huntly, where I was ſitting as Baillie-depute in a fenced Court, although
I intimate to the Meſſenger, that the Bill of Suſpenſion with the Anſwers lay over
unadviſed. Mr. Petrie came along with the Meſſenger, gave him his Orders, and
I was kept in cuſtody of the Meſſenger and Mr. Petrie, till next Day that I found Mr.
Gordon of Ardmellie to engage himſelf with me for the Debt. After this I was liberate
from the Cuſtody of the Meſſenger: But the Caption being left with Mr. Petrie, and
the Expence of Diligence unpaid, I received a Letter from James Gordon the Charger,
upon the 28th of February 1735, acquainting me that Mr. Petrie would not part with
the Diligence till he was paid; and that if I did not pay or ſatisfy him, the Caption
would again be put in execution againſt me. To avoid this, I was forced to write Mr.
Petrie, that I would ſatisfy him; and afterwards, in implement of that obligatory Letter,
I did pay him. Your Lordſhips will ſee, that this Payment was far from being voluntary;
it was done upon a very harſh and threatning Letter, a Copy whereof is ſubjoined:
So that there is the more Reaſon for adhering to your former Interlocutor,
which goes upon the Suppoſition that the Payment was voluntary It was noticed from
the Bench, That notwithſtanding this Letter, yet the Caption could not have been legally
put in execution. To which the Anſwer is very obvious, That the Gentlemen I
had to do with had ſhown they did not ſtick at the illegal Execution of the Caption for
the principal Sum; and was I to expect they would heſitate at doing the like for the
Expences. In ſhort, My Lords, I was taken with Caption moſt unjuſtly; and, to excuſe
that Injury, it is now pled, That they forced me to pay the Expences of the Diligence.

The Petitioners complain, That the Sum modified by the Ordinary is too great:
Why truly, if it had not been in Deference to his Lordſhip's Opinion, I was to have
complained to your Lordſhips, That the Sum was too ſmall. The Injury was very
great at any Rate, to be unjuſtly taken into the Cuſtody of a Meſſenger for near two
Days; but when to that is added a high Contempt of your Lordſhips Authority, and
that the Diligence was purpoſely execute when I was ſitting Judge in the Regality-court
of Huntley, and that Mr. Petrie vaunted of his having done ſo, I am hopeful your
Lordſhips will think the Sum little enough. The Expence of this Complaint has been
very chargeable; beſides, I have a long Decreet to extra.
As to the Petitioners being decerned conjunctly and ſeverally; it is no great Matter
to me which of them be decerned in the Payment: They were all concerned in
the Injury, therefore it would appear reaſonable they ſhould all be liable in the Damage,
and they may ſettle their Relief among themſelves as they pleaſe. One Thing appears
pretty plain, That Mr. Petrie was very active in the Matter; and in the Accompt
of Expences there is an Article of two Guineas charged for his managing the
Execution of the Diligence: So that whatever may be ſaid for the Meſſenger, Mr, Petrie's
Plea of Abſolvitor ſeems to be very ill founded.
May it therefore pleaſe your Lords to refuſe the Deſire of the Petition, and adhere
to your former Interlocutor, and to the Interlocutor of the Lord Ordinary.
According to Juſtice, &c.
JOHN HORN.
Follows a Copy of James Gordon's Letter to Gordon of
Binhall.
Sir Clunimore 28th of February 1735.
THis is to acquaint you that I ſent for the Diligence lodged in Mr, Petrie's Hands,
but will not part with them till he is paid or ſecured for his Pains for raiſing the
Diligence, and diſcuſſing the Suſpenſion. He is content to take you or Avochie for the
Sum. If you have a Mind to keep yourſelf and me free of further Trouble, you will
ſend him your obligatory Letter, ſignifying that you are content to ſatisfy him, that I
may get the Papers, and tranſact with Ardmellie in Terms of his Letter. You are to
ſend your Letter here directed to my Care, that I may forward it to Aberdeen, If
this you agree to I ſhall be very glad; but otherwiſe you'll have me excuſed to put the
Diligence in Execution, which I am hopeful you'll prevent. I am, Sir, your humble
Servant, ſic ſubſcribitur, Ja. Gordon.
P. S. Your poſitive Anſwer I expect by the Bearer.
[DEC. 21, 1736.]
Unto the Right Honourable, the Lords of Council, and Seſſion,
THE
PETITION
OF
JAMES PETRIE Writer in Aberdeen,
Humbly ſheweth,
THAT John Hamilton Chamberlain of Huntly, as Aſſigney by
Major-General Gordon of Auchintoul, having thought fit to
bring a Proceſs againſt me, as repreſenting the deceaſt George
Petrie my Father, upon a Note ſaid to be granted by him, the
Tenor whereof is as follows, I George Petrie in Huntly,
grants me to have received an Bond granted by me to the late
Lord Auchintoul for the Sum of 500 l. Scots, and conform
to his Lordſhip's Obligation to me of the Date of that Bond.
I have paid to Major-General Gordon's Lady 10 Guineas; and after what is
paid by theſe named in the ſaid Obligation, I refer myſelf to the ſaid Major-General
at meeting, as witneſs my Hand at Auchintoul the 5th Day of February
1716 Years, ſigned Geo. Petrie.
Your Petitioner was a little ſurprized with this Proceſs, never having heard any
Thing of ſuch a Claim before; and tho' my Father lived many Years after the
granting of this Note, and after the Major-General's Return in the Year 1720.
and they had many Occaſions of meeting together during my Father's Life, yet no
Claim was ever made upon it till now, when the Note, if it is at all valid, was
juſt upon the Point of preſcribing; that the Purſuer, with whom the Petitioner has
been unwillingly involved in other Differences, has procured an Aſſignation to this
Claim from the General; but even that he would not grant ſimply, but only to ſo
much thereof as remains unpaid, and with an expreſs Exception of the Obligation
his Father was under, by an Obligement relative to the Bond, to make Allowances
to the ſaid George Petrie, and of a Receit for 10 Guineas paid by George Petrie
to the General's Lady.
Your Petitioner, in order, if poſſible, to get ſome Light into this Matter, of
which he knew nothing, it having been tranſacted betwixt his Father and the Lord
Auchintoul, when he was a Child, made a diligent Search through all his Pipers,
and at laſt found the counter-Obligement granted by the Lord Auchintoul to his
Father, of the Date of the Bond, being the 5th of November 1709. which recites,
That there was a depending Action, at my Lord's Inſtance, againſt George Petrie,
for a Maleverſation in an Execution agaiſt Anderſon of Weſtertoun, and in Reſpect
he had given my Lord an Obligation of that Date, to his Satisfaction, therefore
my Lord diſcharges him and his of the foreſaid Action and Damages, &c.
And thereafter follows this Clauſe, And further, I hereby oblige me and mine,
that in caſe I ſhall recover Payment of the principal Sums and Annualrents effeiring
thereto, reſting by the ſaid Anderſons to me, intirely and fully, that I ſhall
diſcharge the ſaid George Petrie or his, of his Obligation of 500 l. Scots, bearing
this Date; and, in caſe 1 be not paid, as ſaid is, of the foreſaid principal
Sums and Annualrents fully, the ſaid George is to have no Allowance of the foreſaid
Obligation; and obliges me likewiſe, for his Sake and mine, to do ultimate
Diligence againſt the ſaid Anderſons Eſtates, and the Eſtate of Edinglaſſie according
to my Rights, upon both their proper Charges, furthwith after the?Date
hereof.
The Defence your Petitioner founded upon this counter-Obligement, was, That the
Lord Auchintoul had not done ultimate Diligence againſt the Eſtate of Weſtertoun
in Terms thereof; but the Lord Ordinary was pleaſed to find, That the Lord Auchintoul
had done ultimate Diligence againſt the Eſtates of Weſtertoun and Edinglaſſie;
and .therefore decerned conform to the,Conciufion of_the Libel. And, after
a Reprefentation and Anfwers, adhered.
Your Petitioner begs Leave to firbmit the Cafe to your Lordfnips Review, and,
in the fiat Place, the Hardfhip your Petitioner is brought under mutt be very apparent,
to be obliged, at this Diſtance of Time, to anſwer to a Claim of this Kind,
founded upon a Note, bearing the Receit of a Bond, the Tenor of which I cannot
know, never having ſeen it, and yet to be decerned, upon this Ground, to pay a
confiderable Sum, when no Claim was ever made againſt my Father upon it, tho'
he lived a great many Years after granting the Note, which cannot be well accounted
for, if the preſent Proceſs is ſuppoſed to be well founded.
The Defence pled by your Petitioner, was, That, by the above Obligement, the
Lord Auchintoul is expreſly bound, For Mr. Petrie's Sake as well as his own, to
do ultimate Diligence againſt Anderſon's Eſtate, and the Eſtate of Edinglaſſie,
according to his Rights, upon both their proper Charges, and that furthwitn after
the Date thereof. In the preciſe Terms of which, I ſurſumed, That my Lord
had not done ultimate Diligence. For underſtanding which, your Lordſhips will
know, that the Maleverſation here alledged againſt my Father, and upon Account
of which the Bond was granted, was, that in executing an Inhibition againſt
James Anderſon of Weſtertoun, and John Anderſon his Son, in the Year 1693.
the Execution, with Reſpect to the Son, bore only Three Knocks, and upon that
Account the Inhibition, quoad him, was found null. This Nullity, your Lordſhips
perceive, could only be pled by the Creditors, who had contracted with young
Weſtertoun after the 1693. the Date of the Inhibition; and if Lord Auchintoul had
an unqueſtionable Ground of Preference to exclude them, it is plain he could ſuffer
nothing by the Error in the Inhibition; and therefore could claim nothing from my
Father upon that Account.
And that he had ſuch a Ground of Preference, tho' he neglected it; and therefore,
if he ſuffers, it was owing allenarly to his Neglect to do ultimate Diligence,
in the Terms of his Obligement, your Petitioner qualifies thus, The Bond, upon
which this Inhibition was raiſed, was a Bond granted by Weſtertoun, elder and
younger, in the 1692. in Corroboration of a Bond granted by the Father in 1682.
and after the Date of the original Bond, the Father, it ſeems, had diſponed his Eſtate
of Weſtertoun to his Son, who was infeſt thereon, and, upon that Ground, his
Creditors were ranked upon the Eſtate.
But here the Lord Auchintoul had an obvious Ground of Preference to the Son's
whole Creditors, if he had thought fit to in inſiſt upon it, viz. That the Bond, granted
to him by the Father, having been anterior to the Diſpoſition he afterwards
granted to his Son, this Diſpoſition was reducible, at his Inſtance, upon the Act of
Parliament 1621. and where the Ground of Reduction appears ex facie of the
Deed, as in this Caſe, the Objection is equally competent againſt the Diſponee's
ſingular Succeſſors, whether Purchaſers or Creditors, as againſt the Diſponee himſelf,
as has been often found by your Lordſhips, February 6, 1672. .Doctor Hay
contra Marjory Jamiſon, January 24, 1680. Crawfurd contra Ker; and conſequently,
if Lord Auchintoul has neglected to found upon this obvious Ground of Preference,
which would have totally excluded young Weſtertoun's Creditors, he has not
done ultimate Diligence againſt the Eſtate of Weſtertoun, in Terms of his Counterobligement;
and therefore cannot claim Payment of the Bond which my Father granted
to him under that Condition.
The Purſuer, in his Anſwer, admitted the general Doctrine, eſtabliſhed by the
above Deciſions, that where a Deed is granted for Love and Favour, or bears to be
granted to a conjunct Perſon; in either of which Caſes, the Objection competent to
prior Creditors, appears from the Face of the Deed, that ſuch Objection is good, not
only againſt the Diſponee himſelf, but againſt his Creditors or Purchaſers from
him; but he inſiſted, there was a Speciality in this Caſe, that the Diſpoſition was
granted to the Diſponer's eldeſt Son and apparent Heir, and therefore was no fraudulent
Deed, but a præceptio hæreditatis, which made the Son perſonally liable to
his Father's Debts, that ſuch Diſpoſitions was not reducible upon the Act 1621.
even againſt the Son himſelf, much leſs againſt his Creditors, or thoſe deriving Right
from him.
But it is ſubmitted to your Lordſhips, if this Diſtinction can, at all, apply to the
preſent Caſe. It ſurely cannot be ſaid, that a Son is liable paſſive for his Father's
Debts, even by accepting of ſuch a Diſpoſition while his Father is alive. It is impoſſible
that he can be ſaid to repreſent his Father, either really, or by this Fiction
of the Præceptio, until he is dead, and therefore during the Father's Life; at leaſt
it muſt be owned, that his Creditors were intitled to reduce this gratuous Right he
had granted to his Son; and conſequently, that, by the above Deciſions, the Reductions
was alſo good againſt the Son's Creditors, and would have given the Lord
Auchontoui an abſolute Preference to him. Now, what Reafon can he given why
my Lord did not inſiſt upon this Ground of Preference, when both the Father and
the Son were alive, and when no Objection could have been made againſt it? Was
it doing ultimate Diligence in the Terms of this Obligation, tO neglect ſo previous a
Plea, which would have given him an excluſive Preference againſt the only Parties
who could object to the Execution of his Inhibition?
And even after old Weſtertoun's Death, it is ſubmitted to your Lordſhips, whether
this Ground of Preference, my Lord Auchintoul was founded in before, againſt the
Son's Creditors, did not ſti1l ſubſiſt, and ought to have been ſuſtained; Or, if this
were ſuppoſed to be a diſputable Point, was that any Excuſe for my Lord Auchintoul
nor to plead it? He was not to make himſelf judge of the Objection, but ſubmit
it to the Lords; he was bound to do ultimate Diligence againſt the Eſtate of
Weſtertoun, that is, to plead every Ground the Law could afford him to ſupport his
Preference; and if he has neglected one that was ſo obvious, he has failed in the
Condition under which my Father's Bond was granted, and cannot claim upon
The Purſuer mentioned a late Caſe betwixt Thomas Purdie and the Lord Torphichen,
in which, he ſaid, it was found that a Diſpoſition, granted by a Father to his
eldeſt Son, was not reducible upon the Act 1621. againſt a Purchaſer from the
Son.
But, as far as the Defender can be informed of the Circumſtances of this Caſe, it
went upon a quite different Ground, viz. That the Lord Torphichen the Purchaſer
had paid the full Price to the Father and Son's Creditors, and had obtained Decreet
of Exoneration thereof before your Lordſhips in the Year 1717. and that Thomas
Purdie the Creditor, who then inſiſted, had not liquidated his Claim till the Year
after; ſo that it was his own Fault he did not draw a Share with the Father's other
Creditors; and therefore he could not oblige the Purchaſer to repeat what he had
bona fide paid in Conſequence of your Lordſhips Decreet. This Deciſion therefore
goes upon ſeparate Grounds, and has no Connection with the Point now in Diſpute,
that a gratuitous Deed by a Father in favours of his Son, is reducible upon the Act
1621. againſt the Son's Creditors; and it is ſubmitted, if that Point is not eſtabliſhed
by the Deciſions before mentioned.
And, laſtly, your Lordſhips will be pleaſed to obſerve, that the Aſſignation, granted
by General Gordon to the Purſuer, expreſly reſtricted to ſo much of the 500 l.
Bond as remains unpaid; and excepts not only the Ten Guineas paid to the General's
Lady by her Receit, but alſo the Allowance which his Father the Lord Auchintoul
was obliged to make to my Father by his Obligement relative to the Bond;
yet the Interlocutor decerns ſimply, conform to the Concluſion of the Libel, which
grants no Allowance or Deduction whatſoever, except the foreſaid 10 Guineas; and
conſequently the Interlocutor goes further than the Aſſignation, which is the Purſuer's
own Title; and it is humbly ſubmitted, whether the Purſuer's Claim can, in any
Event, go beyond his own Title.
May it therefore pleaſe your Lordſhips, to review the Lord Ordinary's
Interlocutor, and to find, That the Lord Auchintoul has
not done ultimate Diligence againſt the Eſtates of Weſtertoun
and Edinglaſſie, in Terms of his counter-Obligement relative to
my Father's Bond; and therefore, having failed in the Condition,
which was to have been performed  on his Part, he can make
no Claim againſt me in the Note purſued on, and to aſſoilzie
from this Proceſs.
According to Juſtice &c.
JA. FERGUSON.
February 7. 1737.
ANSWERS for John Hamilton Chamberlain of Huntley,

To the Petition of James Petrie Writer in Aberdeen.
GEORGE PETRIE in Raws of Huntley deceaſt, it appears was employed
by my Lord Auchintoul to execute certain Diligence at his
Inſtance, againſt James and John Anderſons, elder and younger of
Weſterton; and Mr. Petrie having been guilty of Malverſation in
his Office, in executing the Diligence, my Lord brought an ."Action
of Damages againſt Mr. Petrie; and this At ion was tranikted in
November 1709: Petrie granted a Bond to my Lord or L-5oo, bearing Annualrent,
and my Lord of the lame Date granted a Dileharge of the Prot:els to Mr.
Petrie; and as, upon this Diſcharge, the Queſtion betwixt the Parties turns, a Copy
thereof is hereto annexed.
Purſuant to the Clauſe in the Diſcharge, my Lord proceeded with all Diligence,
to obtain his Debt properly ranked upon the Eſtates of Weſterton and Edinglaſſie,
the Decreet of ranking of the Creditors of Weſterton, was concluded in the 1710,
and the ſame Year the Lands were judicially ſold, and my Lord Auchintoul's Debt
is ranked ultimo loco; and the Price being exhauſted by preferable Debts, neither
my Lord Auchintoul, nor L. 40,000 preferable to him, did draw one Sixpence of
their Debts.
In the Year 1711 ,the Eſtate of Edinglaſſie was alſo ſold by your Lordſhips; and
it appears by the Decreet of Ranking and Sale, that the great Part of the Price was
carried off by Infeftments, or retained for Payment of a Liferent, and that even
upon the Expiration of the Liferent, the Lord Auchintoul, nor none of the Adjudgers
of that Eſtate, who are all preferred pari paſſu, can draw above a Tenth
Parr of their Debts; whereby it is apparent, that the Condition upon which Mr.
Petrie was to have a Diſcharge of his Bond has failed, my Lord Auchintoul, after
uſing ultimate Diligence againſt both Eſtates, did not recover full Payment of his
Principal Sum and Annualrents; and indeed he ſcarce recovered the Expence laid
out in proſecuting his Diligence.
It is well known to your Lordſhips, that in the 1716, General Gordon, my Lord
Auchintoul's Son and Heir, was attainted by Act of Parliament; and while it was
underſtood that this Attainder was good and valid in Law, and when the General
was abroad, becauſe of the Attainder, George Petrie applied to the General's Lady,
and got up his Bond for L. 500 bearing Intereſt, upon Payment of ten Guineas,
but he granted a Receipt, acknowledging that he had received the Bond from
the General's Lady, upon Payment of ten Guineas, and referring himſelf to the General
at Meeting, what further he ſhould pay than the ten Guineas.
In the Year 1720, it was found, that the General was not attainted, in reſpect of
a Miſnomer; and the General having returned to Scotland, he aſſigned the Debt to
Mr. Hamilton, who brought an Action againſt James Petrie, as repreſenting his
Father, for L. 500 contained in his Father's Bond, and the Intereſt thereof, deducing
the ten Guineas paid to the General's Lady.
It is unneceſſary minutely to recapitulate the Defences that have been retailed from
time to time in this Proceſs, whereby it has been kept in Dependence for near three
Years, ſeeing they are all over-ruled by the Ordinary's Interlocutors, acquieſeed
in by the Defender, except the one ſtated in the Petition, which amounts to this,
"That my Lord Auchintoul, by a Clauſe ſubjoined to the Diſcharge, obliged him"ſelt
to do ultimate Diligence againſt the Eſtates of Weſterton and Edinglaſſie,
according to his Rights, and that forthwith after the Date of the Diſcharge; That
"my Lord Auchintoul had failed in Diligence againſt the Eſtate of Weſterton, in
"ſo far as he omitted to plead an undoubted Ground of Preference competent to
him upon that Eſtate.
"That the Fact was, That my Lord Auchintoul was Creditor to Weſterton el"der,
by a Bond dated in the 1682; That ſubſequent to this Bond, Weſterton
"elder diſponed his Eſtate to Weſterton younger, his Son and apparent Heir, with
"the Burden of his Debts; That after this, in the 1692, a Bond of Corroboration
"was granted by the Father and Son to my Lord Auchintoul; That my Lord
"Auchintoul was excluded by the Creditors of young Weſterton, by the Igno"rance
of my Lord and his Council, by their neglecting, to propone a Ground of
"Preference competent to my Lord againſt young Weſterton's Creditors, viz.
"That the Right granted to young Weſterton, being in favours of a conjunct Per"ſon,
and this appearing from young Weſterton's Title, his Right was reducible
"at the Inſtance of his Father's prior Creditors, and that not only againſt the Son
"the gratuitous Diſponee, but alſo againſt all claiming under the Son, wheeler
"Creditors or onerous Purchaſers; That if my Lord had founded upon this Ground
"of Reduction, he muſt have prevailed againſt all the Creditors of the Son; and as
"through his neglecting to propone this Ground of Preference, he was excluded,0
by the Creditors of the Son, he muſt be held to have received his full Payment,
"ſeeing it cannot be ſaid he did ultimate Diligence againſt Weſterton's Eſtate."
This is the Defence in its full Extent.
It is anſwered, firſt, in the general, That my Lord Auchintoul, in purſuance of
his Obligation to do Diligence againſt his Debitors Eſtates, did forthwith appear in
the Proceſſes of Ranking, both of the Eſtate of Weſterton and Edinglaſſie; he employed
Lawyers who at that time were of great Character, and they from time to
time proposed ſuch Grounds of Preference as occurred to them to be competent to
my Lord; and if they were not ſo learned as Mr. Petrie and his Council, that
for certain can bring no Penalty or Damage upon my Lord; he did all that any of
the Lieges could have done in ſuch a Caſe; and therefore, he muſt be conſidered to
have done ultimate Diligence; and though it is the Happineſs of the preſent Age,
that abler Lawyers have grown up, yet that can be no Imputation upon my Lord,
who could not poſſibly have their Aſſitance at that Time of Day.
But 2do, It is with great Submiſſion thought, that my Lord's Council had not omitted
any Ground of Preference that was competent to him; That the Diſpoſition
granted by old Weſterton to his Son, with the Burden of his Debts, did not create
any Ground of Preference to the Father's Creditors in prejudice of the Son's,
nor were the Father's Creditors intitled to reduce ſuch a Diſpoſition, as granted in
defraud of his juſt and lawful Debts, upon:he Statute 1621.
More particularly, 1mo, The Purſuer is adviſed, that a Diſpoſition granted for
Love and Favour, and with the Burden of Debts, gives no real Right or Ground of
Preference to the Diſponer's Creditors, unleſs the Diſponer's Debts are, according to
the Rules of Law, made real Burdens upon the Subjects diſponed. The Purſuer will
not ſay that this has been directly decided; but he apprehends it has been ſettled and
ſuppoſed both by the Lawyers and the Court, in the numerous Caſes that have occured,
where the Queſtion was, Whether a Diſpofition, with the Burden of Debts,
made the the Debts a real Burden upon the Eſtate or not? and tho' the Deciſions in
thoſe Queſtions have varied; yet in every one of them, whether thole finding a
Diſpoſition with the Burden of Debts in general, made the Debts real, or in thoſe
finding the Debts not real, it was uniformly ſuppoſed and admitted, that if the Debts
were nor made real, the Diſponer's Creditors had no other Ground of Preference to
the Creditors of the Diſponee; and this the Purſuer takes to be a ſtronger Evidence
of what is our Law, the uniform Acquieſcence of the Court, and of the Parties, than
any Number of Deciſions, where the Point was controverted.
And indeed where a Diſpoſition is granted, burdening the Diſponee with the Diſponer's
Debts, 'tis not eaſy to comprehend how ſuch a Diſpoſition can be ſaid to fall
under the Deſcription of the Statute 1621; That where the Diſponee is bound to pay
the Diſponer's Debts, where the Creditors have the Diſponer ſtill bound, where they
have alſo the Diſponer's Eſtate in the Perſon of the Diſponee, ſtill equally affectable
by their Diligence, as it was before; and when they have ſuperadded to this the Diſponee's
Perſon and his proper Eſtate, the Diſpoſition, though otherwiſe gratuitous,
cannot be ſaid to be in defraud, or to the prejudice of the Creditors, when, on the
contrary, without any hurt to their Fund of Payment, they have another Perſon, and
if he has any ſeparate Eſtate, that alſo ſubjected to their Debts.
And this holds in the ſtrongeſt Manner, where the Diſpoſition with the Burden of the
Debts is granted to, and accepted by the Diſponer's apparent Heir; for he, abſracting
from the burdening Clauſe, is univerſally liable to his Predeceſſor's Creditors,
upon a ſeparate Medium, namely, as Succeſſor titulo lucrativo poſt contractum debitum:
And therefore ſuch Diſpoſition is no more reducible upon the Act of Parliameht,
than an Heir ſucceeding by Service, ſeeing in both Caſes the Eſate is transferred
from the former Debitor to his Succeſſor gratuitouſly; but then, without any
Prejudice to the Creditors, who have the ſame Acceſs to their Debitor's Eſtate, as
they had before the Tranſmiſſion.
And as to the Suggeſtion of the Petitioner, That an apparent Heir, accepting of
a Diſpoſition from his Predeceſſor, was not liable to his Predeceſſors Creditors, as
Succeſſor titulo lucrativo during the Life of his Predeceſſor; that during his Predeeſſor's
Life, the Creditors had no other Remedy but the Reduction upon the Act of
Parliament; and if ſo, they were preferable to the Creditors of the apparent Heir.
But, with Submiſſion, the Purſuer can admit of no part of this Doctrine; and, firſt,
They know no Rule of Law that confines the paſſive Title of Succeſſor titulo lucrative
to the Predeceſſor's Death, and excludes this paſſive Title during his Life; they
can diſcover no Precedent in the Caſe, nor any good Reaſon. For
It will be conſidered, That this paſſive Title is by another Name called Præceptio
hereditatis, that is, the Heirs ſucceeding during the Life of his Predeceſſor; that is,
tho' he neither is, nor actually can be Heir during his Predeceſſor's Life; yet his
taking his Predeceſſor's Eſtate by a Diſpoſition during his Life, this is conſidered in
Law as a Succeſſion by Anticipation; and upon that Conſideration ſubjects him to
his Predeceſſor's Debts, as if he had actually ſucceeded; and none of our Lawyers, ſo
far as the Purſuer can diſcover, have diſtinguiſhed with reſpect to this paſſive Title,
whether the Predeceſſor is dead or alive, When the Creditor pleads upon the paſſive
Title of ſucceſſor titulo lucrativo againſt the apparent Heir accepting of a Diſpoſiton:
They lay it down as a Rule in the general, That an apparent Heir accepting
of a Diſpoſition from his Predeceſſor, is without further liable to his Predeceſſors
anterior Creditors, upon the univerſal paſſive Title ſucceſſor titulo lucrativo poſt
contractum debitum: And Sir John Nisbet and Sir James Stewart, Title, Behaviour
as Heir, expreſly determines the Queſtion, that one may be liable p.
or Succeſſor titulo lucrativo, by accepting a Diſpoſition from his Predeceſſor
in his Lifetime.
But, in the next place, if the Petitioner's Doctrine held, That a Diſpoſition granted
in favours of an apparent Heir was reducible upon the Act of Parliament, and
that in conſequence of this, the Creditors of the Predeceſſor had a Preference againſt
all claiming under the apparent Heir; it ſeems nor eaſy to aſſign a good Reaſon,
why the Predeceſſor's Creditors ſhould loſe this Privilege after their Debitor's Death,
or even within three Years thereafter, if they neglect to do Diligence; which however
it is believed is a Point undoubted in our Law.
But whatever be in this, ſure my Lord Auchintoul could never have pleaded,
That the Diſpoſition granted by the Father to the Son was in his prejudice, after
he accepted of a Bond of Corroboration from the Son in the 1692, whereby he was
effectually ſecured againſt any Prejudice ariſing from the Diſpoſition.
And the Deciſion in the Caſe betwixt Thomas Purdie and the Lord Torphichen,
in January 1735, is, with Submiſſion, direct to the preſent Queſtion. The Caſe
was, James Purdie, in the 1701, diſponed his Eſtate in favours of John Purdie
his eldeſt Son; who, it was ſaid in the Diſpoſition, had undertaken to pay his
Debts. John the Son ſold his Lands to my Lord Torphichen; and a Creditor of
the Father's long prior to the Diſpoſition, having conſtitute his Debt againſt the Son,
raiſed an Adjudication againſt his Lands ſold to the Lord Torphichen. And Compearance
being made for the Lord Tophichen, the Creditors inſiſted, as the Petitioner
now does, That the Diſpoſition by the Father to the Son, being inter conjunctos,
was reducible upon the At 1621: That as this appeared from the Face of the
Diſpoſition, the Reduction was equally competent againſt my Lord Torphichen,
though an onerous Purchaſer, as againſt the Son; becauſe he behoved to ſee his Author's
Right, that it was reducible upon the Statute 1621; and thereby he was Partaker
of the Fraud, and was obliged to have taken Documents from the Son, of his
having performed the onerous Cauſe of the Diſpoſition. But your Lordſhips, upon
the Anſwers made for the Lord Torphichen that are now made for the Purſuer, That
the Diſpoſition being granted for payment of the Creditors, and being granted to an
eldeſt Son, who, by accepting the Diſpoſition, was Succeſſor titulo lucrativo, and
liable to the Creditors, found it was not reducible, neither in the Perſon of the Son,
nor of the Purchaſer from him.
And, with Submiſſion, it was impoſſible that the Deciſion could have gone upon
the Speciality mentioned in the Petition, to wit, That my Lord Torphichen had
paid the Price. For if the Reduction had been competent upon the Statute 1621, a
Purchaſer, however onerous, would have had no Defence, as is ſettled by the Deciſions
quoted for the Petitioner.
And as to the Pretence, That by the Interlocutor complained or, me Petitioner
is decerned to pay to the Purſuer more than is aſſigned in his favours: But this is
quite affected. The Aſſignation conveys the L. 500 and the Intereſt, ſo far as the
ſame remains unpaid; and as no more appears to have been paid but the ten Guineas,
the Decreer for the L. 500 and the Intereſt, with the Deduction of the ten Guineas,
does not exceed what was aſſigned.
And as to the Exception in the Aſſignation, of what Allowance my Lord
Auchintoul was obliged to make to George Petrie by his Obligement relative
to the Bond; your Lordſhips perceive that this is no Reſtriction of the Purſuer's
Right. No Allowance was to be granted, except in the Event that my Lord Auchintoul
recovered his full Debt, principal Sums and Annualrents, out of the Eſtates
of Weſterton and Edinglaſſie: And your Lordſhips have heard, that this Event has
not, nor cannot now exiſt; both thoſe Eſtates are ſold, and the Price exhauſted by
preferable Creditors.
And as to the Inſinuations of Suſpicion againſt the Debt, upon account of the
long Taciturnity; that is eaſily accounted for. General Gordon was not in Scotland,
except for a few Months, from his Father's Death until the Year 1720; and
your Lordſhips have heard, that before the 1720, the Bond had been given up to
George Petrie upon his Receipt, which from the Face of it may ſeem to import,
that little, if any thing, was due upon the Bond; and my Lord Auchintoul's Obligation
was in Petrie's Hand, and the preciſe. Import of it was unknown to the General,
until it was produced in this Proceſs: So that it cannot be thought extraordinary,
that he was not forward in bringing a Proceſs upon this indiſtinct Receipt,
which was taken in his Abſence by People who were ſtill leſs acquainted than the
General with the Tranſaction to which it referred: And therefore, as there is no
Preſcription in the Caſe, nor no other legal Objection to the Debt; and that the Taciturniry
is in a great meaſure owing to Mr. Petrie's own Fault, in unduly taking
up the Bond, it .can afford no Objection to the Purſuer's Claim.
In reſpect whereof &c.
ROB. CRAIGIE.
Diſcharge and Obligation, Gordon of Auchintoul, to George Petrie.
BE IT KEND to all Men be thir preſents, me Alexandeer Gordon of Auchintoul,
Foraſmuchas there is an depending Action at my Inſtance before the Lords
of Seſſion, againſt George `Petrie in Raws of Huntly, for an Malverſation in an Execution
of his at my Inſtance againſt Anderſons of Weſterton; and in
reſpect he hath given me an Obligation of the Date of thir preſents, to my full Satisfaction,
I hereby diſcharge him and his of the foreſaid'Action, and Damages may
incur therethrough, whatſomever I can lay to his Charge by that Malverſation any
manner of Way; and hereby obliges me and mine, to warrant this my Diſcharge at all
Hands, as Law will: And further, I hereby oblige me and mine, That in caſe I ſhall
recover payment of the principal Sums,. and Annualrents effeiring thereto, reſting by
the ſaid Anderſons to me, entirely and fully; that I ſhall diſcharge the ſaid George
`Petrie  or his of his Obligation of five hundred Pounds Scots, bearing this Date;
and in caſe I be not paid, as ſaid is, of the forelaid principal Sums and Annualrents
fully, the ſaid George is to have no Allowance of the foreſaid Obligation: And obliges
me likewile, for his ſake and mine, to do ultimate Diligence againſt the ſaids
Anderſons Eſtates, and the Eſtate of Edinglaſſie, according to my Rights, upon both
their proper Charges, forthwith after the Date hereof: And I hereby conſent, that
the ſaid L. 500 ſhaLL ly in the ſaid George's Hand, he paying the yearly Annualrent
thereof termly and proportionally, ay and while the ſaid Action betwixt me and the
ſaid Anderſons be finally determined and ended. And for the more Security, I am
content and contents that thir preſents be inſert and regiſfrate in any Judge's Books
competent, and all Execution needful may paſs on an ſingle Charge of ten Days;
and for that effect conſfitutes
my lawful Procurators. In witneſs whereof, I have ſubſcribed thir preſents with
my Hand, written by Alexander Abernethy of Corskie, at Perginſton, the fifth
Day of November, One thouſand ſeven hundred and nine Years, before theſe Witneſſes,
James Gordon lawful Son to the ſaid Alexander Gordon, and the ſaid Alexander
Abernethy Writer hereof. Sic ſubſcribitur, ALEX. GORDON. James
Gordon Witneſs. Alexander Abernethie Witneſs.
Unto the Right Honourable, `The Lords of Council and Seſſion,
The Petition of James Petrie Writer in Aberdeen.
ikmbly cwetb,
THAT in the Proceſs raiſed againſt me by John Hamilton
Chamberlain of Huntly, as ,Aſſigney of Major-Genral Gordon
of Auchintoul, founded upon a Receit granted by my
Father in the Year 1716, acknowledging, "That he had re"ceived
a Bond he had granted to the Lord Auchintoul
"the General's Father, and that he had paid his Lady Ten
"Guineas; and that after what was paid by thefe named
"in Lord Auchintoul's Obligation to him of the ſame Date,
"he referred himſelf to the Major General at meeting."
The Lord Ordinary was pleaſed to find, That the Lord Auchintoul had done u,ltimate
Diligence againſt the Eſtates of Weſtertoun; and Edinglaſſie, and therefore
decerned conform to the Concluſion of the Libel; and, upon adviſing Petition
and Anſwers the 8th Inſtant, your Lordſhips adhered.
I muſt beg Leave to lay my Caſe once more before your Lordſhips. I am
here purſued upon a Note, ſaid to have been granted by my Father, which I
never heard of till it was upon the Point of preſcribing, and which I cannot
know the Caraſe of, further than appears from the Note itſelf, compared with
Lord Auchintoul's Obligation, granted of the Date of my Father's Bond; by
which it appears, that ſome Objection had been made againſt an Execution of an
Inhibition at Lord Auchintoul's Inſtance, againſt Anderſons
of Weſtertoun, upon which my Lord raiſed a Proceſs againſt the ſaid George
Petrie, who had execute the Inhibition, in Conſideration whereof Mr. Petrie
was prevailed on to give my Lord a Bond for 500 1. Scots; but, at the ſame
Time, my Lord granted him an Obligation to do ultimate Diligence againſt the
ſaid Anderſon's Eſtate, according to his Rights forthwith after the Date thereof;
and in caſe he recovered his Debt, then he was to diſcharge Mr. Petrie's 500 l.
Bond.
The Defence I pled was, That my Lord Auchintoul had not done ultimate Diligence
in the Terms of his Obligation, in ſo far as the Bond, upon which this
Inhibition was executed, was granted by Andeſons, elder and younger of Weſtertoun,
the only Objection to the Inhibition related to the Execution againſt the
Son, but the Execution againſt the Father was unexceptionable; conſequently,
if my Lord Auchintoul could make it appear, either that the Father was not
habilely denuded of the Lands in favours of his Son, or that the Son's Right was
burdened with his Father's Debts, he could ſuffer nothing by the Error of the
Inhibition; becauſe, in that Caſe, none of the Son's Creditors who thereafter
contracted with him, could compete with my Lord Auchintoul, who was Creditor
to the Father.
Upon this Head it was obſerved to your Lordſhips, That the Diſpoſition
granted by the Father to the Son, being gratuitous and ſubſequent to the Bond
granted by the Father to Lord Auchintoul, was reducible at the Inſtance of the
Father's Creditiors upon( the Act 1621. and that this Reduction behoved to operate
equally againſt the Son's Creditors; and conſequently, to exclude all the
Creditors who had contracted with the Son after the Inhibition, from competing
with the Father's Creditors.
In Anfwer to this, it was faid, That tho' this Reaſoning might take Place
where a Diſpoſition is granted by a Debtor to a third Party, yet not where it is
granted to the Debtor's apparent Heir, who is liable præceptione hæreditatis; and
therefore, the Creditors have no Occaſſion to reduce ſuch Diſpoſition upon the Act
1621. And it was further ſaid, That the Son had corroborated Lord Auchintoul's
Debt in the 1692. after which be could have no Intereſt to inſiſt  in a Reduction
of the Son's Right.
But as to this, if it were allowed, that, after the Father's Death, ſuch Diſpoſition
is conſidered as a ſucceſſio titulo lucrativo, and there is no Place for a Reduction;
yet that will be no good Anſwer for the Purſuer, becauſe his Father
the Lord Auchintoul ought to have inſiſted in his Preference during the Lifetime
of James Anderſon the Father, at which Time the Reduction was certainly competent:
For it is believed no Reaſon nor Authority can be given for finding ſuch
Diſpoſition a lucrative Succeſſion, or paſſive Title during the Father's Lifetime,
There can be no Scceſſion till after the Death of the Predeceſſor, nor any Title
of Repreſentation, either active or paſſive, to a Man that is alive. There feems
to be a Contradiction in Terms in ſuch a Suppoſition, and we believe no Authority
can be given for it.
And as to the Bond of Corroboration granted by young Weſtertoun in the
Year 1692. your Petitioner apprehends that cannot exclude the Lord Auchintoul
from his Right to reduce the Diſpoſition granted to young Wiſtertoun by his Father;
becauſe he had a manifeſt Prejudice from that Diſpoſition, if ſhould ſubſiſt;
for, tho' both Father and Son were his Debtors, yet while the Lands be-belonged
to the Father, there was Fund ſufficient for Payment of all his Creditors;
whereas, by the Father's denuding himſelf of the Lands, the Son's Creditors,
who were far more numerous than the Father's, were brought in equally
with them, by which they were reduced to draw a much leſs Proportion than
they would otherwiſe have done; and therefore, it is ſubmitted, whether, notwithſtanding,
the Bond of Corroboration, the Lord Auchintoul was not ſtill well
founded in the Reduction during old Weſtertoun's Lifetime, and thereby intitled
to exclude his Son's, Creditors.
In the ſecond Place, we muſt obſerve to your Lordſhips another obvious Objection,
which was competent to the Lord Auchintoul againſt young John Anderſon's
Saſine, viz. that it bears Date in the 1603. and yet the Warrant, upon
which it was pretended to have proceeded, is dated no earlier than the Year
1683. which ſhows it is inconſiſtent that it could have proceeded upon that
Warrant; and as none other is condeſcended on it is ſubmitted to your Lordſhips,
if the Safine ſhould not be void; beſides too, the Warrant of the Saſine, which
is a Contract of Marriage, bears Date the 18th and 28th Days of April and September
1683, and yet the Saſine itſelf is dated the 18th September 1683. which is
a plain Contradiction. The Defender would not, perhaps, trouble your Lordſhips
with noticing, all theſe Informalities, was it not that the Action itſelf againſt
him is founded upon a Neglect of his Father, which was, by far, there
trivial and of leſs Conſequence than any of theſe Ones which he has obſerved.
It was ſaid, That my Lord Auchintoul was not liable for the Overſight of his
Doers or Lawiers; that it was ſufficient if he imployed a Doer to look to his Intereſt
in the Ranking, and directed him to imploy Lawiers; and he had no further
concern however obvious a Ground of Preference was overlooked, Mr. Petrie
was only to ſuffer for that, and not my Lord who had imployed them.
But, with Submiſſion, it is hoped this will never go down. If my Lord was
bound to do ultimate Diligence to recover his Debt out of the Eſtates of Weſtertoun
and Edinglaſſie, For Mr. Petrie's Sake as well as his own, which are the
very Words of his Obligement, was not he bound to ſee, that his Debt was ranked
in a proper Manner; at leaſt that every Thing was ſuggeſted that was neceſſarv
for that End? He muſt by preſumed to have known the Nature of his
own Rights and Diligences; and 'tis plain from this very Inſtance, that he was
in Uſe to examine into them very accurately. He was here taking Hold of
Mr. Petrie for the Omiſſion of a ſingle Letter in an Execution, and bringing
him under the Penalty of the Sum now in queſtion upon that Account. And
will it be ſaid, that after he had taken Mr. Petrie ſo bound, under the Condition
of his own doing ultimate Diligence, it was then free to him to neglect the
Ranking altagether, to paſs over the moſt obvious Nullities or Objections againſt
the Saſine, upon which the competing Rights depended. It ſeems plain, that he
was bound to ſuggeſt theſe to his Doers, and take Care that they ſhould be pled
otherwiſe he can Recourſe againſt Mr. Petrie.
And, in the third Place, the Lord Auchintoul is not only bound to do ultimate
Diligence againſt the Eſtate of Weſtertoun, but alſo againſt the Eſtate of E dinglaſſie;
and by a Memorial given in by the Purſuer in this Proceſs, it is acknowledged,
that my Lord was ranked pari paſſu with the other Creditors; ſo that
it is poſſible he may yet draw his full Payment out of that Eſtate after the Death
of the Lady, for whoſe Liſerent the Purchaſer retains no leſs a Sum than 25400
L. Scots.
Theſe; are the total Objections againſt this Claim, which I humbly ſubmit to
your Lordſhips Conſideration; but as this is the laſt Time that I can apply to
your Lordſhips, I muſt further mention ſome other Grounds upon which it will
be neceſſary to qualify the Interlocutor, even if the Purſuer's Claim were to be
1mo.	The Interlocutor decerns. in Term of the Libel, and the Purſuer has
thought fit to libel not only the principal Sum in the Bond, but alſo Annualrent
and Penalty; tho firſt as to the Penalty, there can be no Pretence; for there is
not the leaſt Evidence from the Obligement, or any other Writ produced, that
there was a Penalty in the Bond; and 'tis believed this is an Overſight in the
Interlocutor, which the Purſuer himſelf will not diſpute; eſpecially when it is
added, that it appears from the Obligement produced, that the Money was to
ly in my Father's Hands. The immediate Conſequence of which is, that no Penalty
could be exacted from him till a Demand was made.
2do.	As to the Annualrent, whatever Argument may be drawn from the ord
Auchintoul's Obligement produced, that the Bond has bore Annualrent, it is ſubmitted
to your Lordſhips, that when there is no other earthly Evindence of this
Fact, how far the giving up the Bond to your Petitioner's Father, upon a Receit
of this Kind, which makes no Mention of Annualrent, was an Innovation,
and freed Mr. Petrie from counting, in any Event, for more than the principal
Sum, which is all that is mentioned in his Receit and Obligement, which is the
only Foundation of this Proceſs; the more eſpecially that here there has been
no Sort of mora upon the Part of your Petitioner; but, on the contray, a long
Taciturnity upon the Part of the Purſuer, which cannot well be accounted for;
beſides, that your Lordſhips will obſerve, from looking into the Note, which is
the only Foundation of the Libel, it is expreſly ſaid, That after what is paid by
thoſe named in the ſaid Obligation, my Father refers himſelf to the Major--
General at meeting; which, beyond all Contradiction, does plainly ſuppoſe, that
Part of the Money, over and above the Ten Guineas, had been advanced, and
that no more was to be referred to the General but the Difference betwixt the
Sum of the 500 1. and what had actually been paid in. And, with Submiſſion,
'where a Claim is founded upon ſuch a Scraul of a Paper, it would be injurious
in the Purſuer to lay Hold of that Part of it which made for him, without conſidering
the whole Frame and Contexture of it.
It was a little inſinuated, as if your Petitioner's Father had unduly taken up
his Bond; But this is injurious; for firſt the Pur-ſuer's own Libel bears, That
the Bond was given up by thoſe who were intruſted with the Management of
Major-General Gordon's Affairs. Next, it is believed General Gordon will not
deny, that he gave Orders to his Lady to apply to George Petrie, and give up
the Bond, in the Terms ſhe afterwards did; and if this Fact be conteſted, we muſt
appeal to the General himſelf for the Truth of it.
3tio.	Your Petitioner has here produced a Bond and Bill granted by the
Purſuer's Father, which, he hopes, in all Events, will be a good Ground of
Compenſation of any Sum that could be found due to the Purſuer upon this
Claim.
The Petitioner muſt notice, That as yet no Title is made up by the General,
the Purſuer's Cedent, to the Bond ſaid to be granted by my Father to the Lord
Auchintoul. It is ſaid indeed in his Aſſignation to the Purſuer, That he is Executor
Teſtamentar, and in the Purſuer's Libel, That he is Executor confirmed;
but no ſuch Title is produced, which would be neceſſary at any Rate before that
he can be at all heard to inſiſt in this Proceſs.
And laſtly, the Petitioner begs Leave to obſerve, That the Note, which is the
Foundation of the Libel, is null and void in Law to all Intents and Purpoſes,
ſince it has not Writer's Name and Witneſſes annexed to it, nor writ on ſtamp'd
Paper, as the Act of Parliament directs.
May it therefore Pleaſe your Lordſhips to review the faid Interlocutors, and
to find, That the Lord Auchintoul has not done ultimate Diligence againſt
the Eſtates of Weſtertoun and Edinglaſſie, in Terms of his Counter Obligement
relative to my Father's Bond; and therefore, having failed in the
Condition which was to be performed on his Part, he can make no Claim
againſt me on the Note purſued on. Or, 2do. To allow a further Enquiry
into the Ranking of the Eſtate of Edinglaſſie, and how far the Lord
Auchintoul's Repreſentatives may yet draw their Payment out of that Part
of the Price retained by the Purchaſer for anſwering the Relict's Liferent.
3tio. To aſſoilzie me from Annualrents and Penalty. 4to. To ſuſtain
the Grounds of Compenſation above mentioned. And, 5to, To find,
up a proper Title. And, laſtly, To find, That the Note, which is the
Ground of the Proceſs, is null.
According to Juftice, &c.	J. A. GEDDES.
