[...] ANSWERS OR Poor James Thomſon Son to the deceaſed Bailie Andrew Thomſon, Brewer [...] E⯑dinburgh; TO THE PETITION of Helen, [...] her [...].

BAil [...] Andrew Thom [...]on to Jean Brown, the Reſpondent's Mother, wh [...] [...]ght with her a con⯑ſiderable eſtate in houſes, and [...] and [...] money [...] far the [...] of the [...] was betwixt them and as a Contract of [...] it is not to be doubted but Jean Brown [...]care to have ſuitable proviſions to [...] marriage. But of theſe the Reſpondent can ſay [...] as the Petitioner did acknowledge before the [...] when the firſt ſubmiſſion depended, that ſhe had burnt the ſaid Contract; which is ſufficient of itſelf to ſhow the diſpoſition of this woman towards her huſband's children of the firſt marriage.

Jean Brown died in the 1719, and left three Sons, and one Daughter; but Bailie Thomſon finding it not convenient [...] keep houſe by himſelf, married the [...]titioner in the 1720▪ [2] with whom he got an annuity of 500 merks, payable out of ſome houſes in the Cowgate which ſhe had from—Gilchriſt her former Huſband. But ſo far was ſhe from bringing the money alledged with her, that her houſhold-furniture was ſold to pay her debt, and was not ſufficient; neither could it be, as her firſt Huſband was bankrupt, and his eſtate ſoon after brought to ſale before your Lordſhips, and purchaſed by Bailie Thomſon, for payment of which he ſold part of the lands in Potterow which came by his firſt wife. During the ſubſiſtence of this marriage, Bailie Thomſon purchaled ſome houſes, and ſold others, and carried on an extenſive trade as a Brewer and Diſtiller, which was managed by the Reſpon⯑dent from 1721 to 1729; when the Petitioner wanting to have the Reſpondent away from his Father's preſence, and from any management in his buſineſs, prevailed on the Father to take a Brewery for him; for which he promiſed to give him at the rate of 15 bolls of malt for all the years he had ſerved in his brewery; part of which he got, but not near to the quantity promiſed; which was all the ſtock the Reſpondent had from his Father, and was far from being ſufficient to en⯑able him to carry on his trade.

But ab [...]ut the 1732, the Bailie finding his own Brewery⯑affairs going into diſorder under the management of the Peti⯑tioner, be ſolicited the Reſpondent to come back again, and take upon him the management thereof; which he did, un⯑der the promiſe of ten pound per annum, to keep his pocket: which he never got. So that the Petitioner is in the wrong to ſay, that the Bailie's affairs were brought into diſorder by any advancements or cautionry for him. It is true he be⯑came bound for Andrew, his ſecond Son, at his ſetting up a cloth and ſilk ſhop, to the extent of L. 200; which will fall to be more particularly noticed afterwards: Baſides this, the Bailie gave a portion with his Daughter when ſhe was mar⯑ried; but the Reſpondent knows not what that was and he [3] gave L. 20 to his third ſon Adam, who was bred a Surgeon, when he went abroad. This is all, ſo far as the Reſpondent knows, that the Bailie gave to his children of the firſt mar⯑riage; which was far from bringing his affairs into any diſ⯑order; for, after that he continued in very good circumſtances, poſſeſſed of houſes which yielded him L. 176 a-year of rent, beſides his extenſive trade as Brewer and Diſtiller.

The Bailie finding himſelf growing old,1738. of this date, thought it reaſonable, to make a Settlement of his eſtate a⯑mong his children of the firſt and ſecond marriage; in which he diſponed to the Reſpondent his houſes in Briſtow and Potterow, which yeilded L. 22 of rent; beſides which, he had formerly, at making the purchaſe of the Brewery in the Graſs-market, and ſome other houſes in the Town, ſecured the fee of them to the Reſpondent; which made the ſhare deſigned him by his Father to be about L. 80 a-year; but this was burthened with the Petitioner's liferent to the extent of L. 58: 5: 6. He likewiſe diſponed to Adam, his third Son of the firſt marriage, lands in the Weſt-port to the ex⯑tent of L. 13, and to John his eldeſt Son of the ſecond mar⯑riage, he gave lands about the foot of Forreſter's wynd, and about the Meal-market and Exchange, which yielded L. 57: 15 s. of rent; and to Joſeph, his ſecond Son of the ſecond marriage, he gave his lands in the Cannongate head, which yeilded L. 12: 10 s. of rent; to Anne and E⯑lizabeth, he gave the lands in Netherbow and Leith, which yeilded L. 20, 15 s. of rent; to Jean and Helen; he gave ſome houſes above Smith's Land: but as theſe were ſold by himſelf, he, by an after-deed, burthened his executors with the payment of L. 100 to each of them; and to Janet, he gave his houſes in Niddrey's wynd, which yielded L. 9, 5 s. and as the Reſpondent's part was ſo far affected with the Pe⯑titioner's liſerent, the Bailie burthened John with the pay⯑ment of 200 merks to him during the continuance of the [4] liferent, and with a 100 merks to Andrew his ſecond Son during his life, to whom he gave no part of his heritance.

Here it will be proper to inform your Lordſhips of An⯑drew's ſituation. It has been already obſerved, that the Bai⯑lie had become bound with his Son Andrew, at his ſetting up ſhop, for L. 200 to Robert Pringle. Upon this ſtock, Andrew carried on buſineſs for ſome time, and dealt with Snee and Company Merchants in London; but his ſales not being able to anſwer his credit, and his Father refuſing to become fur⯑ther bound for him, his London Creditors refuſed to give him any more advances, and were threating diligence: to prevent which, and to bring the Creditors into a compoſition, it was a⯑greed that he ſhould make over, by aſſignation, his whole ſhop goods, extending to near L. 300 to his Father, who, about this time. had got right to the debt for which he had become Cautioner. And the whole goods were put into his poſſeſſion; but having got poſſeſſion thereof, he was perſua⯑ded, by ſome very bad advice, to refuſe to give the ſaid En⯑liſh Creditors, who were the only other Creditors of Andrew, any ſhare thereof, tho' they were willing to have accepted ten ſhillings in the pound. And, for his further ſecurity, he ex⯑ecuted a ſham-poinding of theſe goods already in his own hands; which ſo irritated the Creditors, that they indorſed their Bills to Mr Mansfield, who brought a proceſs againſt the Bailie for payment of their debt, extending to L, 197: 9 : 11; in which the Aſſignation and Poinding were reduced. But the Bailie dying before Decreet was pronounced, the pro⯑ceſs was transferred againſt the Petitioner, and all the Chil⯑dren of the Bailie of the firſt and ſecond marriage, and De⯑creet was obtained againſt them all ſor that ſum. This cir⯑cumſtance, and perhaps ſome reflections by Andrew that his Father had not acted according to the agreement with him, was the reaſon why the Bailie, in the Settlement of his af⯑fair's, gave him nothing but the liferent-annuity of 100 merks.

[5] The Bailie, about this time, finding himſelf a dying exe⯑cuted a Settlement of his moveables to the Petitioner,1743 Mr. Montgomery, now Commiſſioner of the Cuſtoms. William Wardrobe, John Bell, and Andrew Chalmer, as Truſtees for his five daughters of the ſecond marriage, who were autho⯑riſed to turn all his moveables into money, to be ſtock't out on annual rent, and to be liferented by the Petitioner for the aliment and education of her children; and in reſpect he had ſold the houſes diſponed to Jean and Helen in the Settlement 1738, he ordained them to ſecure L. 100 Sterl to each of them, beſide their ſhare of the reſidue, which they were to draw with the reſt of their Siſters, when the liſerent ceaſed; But it is expreſsly provided, That, during the Petitioner's life and continuing unmarried, ſhe was to have the ſole management of theſe ſubjects, and the management of the other Truſtees was only to commence when any one of theſe events happen⯑ed: ſo that the Petitioner has no reaſon to complain that theſe Truſtees refuſed to accept of the truſt, ſeeing, during her life, they could have no power to act. In this deed, the Truſtees are appointed to ſell the houſes in Cannongate-head, which he by the deed 1738 had conveyed to Joſeph, who was then dead, and to pay the price thereof to the Truſtees for the Creditors of Mr Mantgomery of Wrae, from whom he had bought it at a judicial ſale.

Bailie Thomſon having thus ſettled his affairs, wherein he did full juſtice to the Petitioner and her children, died ſoon after in opulent circumſtances, as was reputed by all that knew him, both in heritage and moveables, and not above L. 500 of debt: and after his death, there was a meeting of ſome friends for the Reſpondent with the Petitioner; at which ſhe complained loudly of the Bailie's Settlements, and alledged his affairs were in diſorder, and that his effects would not be able to anſwer his debts, and the other purpo⯑ſe therein deſigned: upon which an offer was made for the [6] Reſpondent, that if ſhe would give up her right to the movea⯑bles, ſhe ſhould have ſufficient ſecurity for L. 500 to herſelf and Children, and be freed of all her huſband's debts. But this ſhe abſolutely refuſed; and as ſhe had a right to the moveables, ſo ſhe kept poſſeſſion of them; and ſhe has ac⯑knowledged that ſhe likewiſe kept poſſeſſion and uplifted the rents of all the houſes belonging to her huſband, except two or three little houſes which the Reſpondent uplifted the rents of, which afforded him but a ſcrimp maintainence; and the Petitioner, after keeping poſſeſſion of her Huſband's effects, and carrying on the Brewing and Diſtilling as formerly, from the month of April, when her Huſband died, to the month of December, ſhe at laſt confirmed herſelf executor, but took care to give up as little in Inventary, as ſhe could with decency do.

The Reſpondent being thus ſtript of his Father's inheri⯑tance, was about raiſing a Proceſs for recovering his right, when a Submiſſion was propoſed, which was readily gone into by him and his Brother Andrew, who likewiſe thought him⯑ſelf injured, as they had not money to carry on proceſſes; and their diſputes were accordingly ſubmitted to Meſſ. George Boſwal and Andrew Dechar, who had ſeveral meetings with the parties and their Doers; but in all their meetings, eſpecially after the 1745, he perceived an evident partiality in favours of the Petitioner, who got allowance of every article claimed by her. But this Submiſſion happening to expire without any Decreet-arbitral being pronounced, the Reſpondent was reſolved never to ſubmit his affair again to theſe Arbiters, and brought a Proceſs againſt the Petitioner before the Sheriff, to account for her intromiſſions with her Huſband's effects, and for freeing him of his Father's mo⯑veable debts.

The Petitioner, afraid of being brought to account, and anxious to have the Submiſſion renewed to the ſame Arbiters, fell upon this ſtratagem. She paid Mansfield's debt, and [7] took right to his Decreet and Diligence in the name of Wil⯑liam Richaradſon her Truſtee, which Decreet was againſt her and all the Repreſentatives of Bailie Thomſon, and which ſhe, as ſole intromitter with his effects, was obliged to pay; and upon this diligence a Caption was raiſed, and the Reſpondent was taken, and threatned with being put in priſon, unleſs he would renew the Submiſſion to the ſame Arbiters; which he alſolutely refuſed; whereupon he was put in priſon on the 14th July 1748, an his Brother Andrew, who was then in a dying condition under a decay, came up in the afternoon to ſee him, and he was likewiſe arreſted; but no intreaties, by his wife and her friends, repreſenting the danger he was in of dying in priſon, could prevail with Mr Richardſon, the Pe⯑titioner's Truſtee, and John Walker, her Son-in-law and ordi⯑nary Doer, to conſent to his liberation, unleſs the Reſpondent and his Brother would ſign a new Submiſſion to theſe Arbi⯑ters: So they paſt that night in priſon, in which Andrew had almoſt died, which, with the moſt earneſt ſolicitations of Andrew's wife and her Couſin Bailie Blackwood, and of George Balfour, Andrew's Doer, induced the Reſpondent next day to ſign this extraordinary Submiſſion; but at the ſame time he de⯑clared, that he would rather have lain in priſon till he rotted, than have ſigned the Submiſſion to theſe Arbiters, had it not been out of regard to his Brother, and ſave his life. And here its to be obſerved, that theſe ſolicitors were all the friends of Andrew, and acting for him, but had no connection with the Reſpondent.

Upon ſigning of this Submiſſion, they were ſoon after ſet at liberty, and not the leaſt demand was made upon either of them for payment of the debt upon which they were laid in priſon, nor of any corroborative ſecurity therefor. They had obtained the ſole purpoſe for which they had execute the Caption; but they took care, that Richardſon, in whoſe name the Caption was, ſhould noit be a party-ſubmitter; ſo that Diligence was ſtill kept as an aweband over their heads, in caſe [8] they ſhould offer to quarrel the Submiſſion on account of its being extorted from them metu carceris, it being in their power to put it in execution at any time.

Whether the Arbiters had any meetings afterwards before the ſigning of the Decreet-arbitral upon the 6th November following, the Reſpondent knows not; but one thing he is ſure of, that he never met with them after, nor did he ever deſire or impower his Doer William Garden to meet with them, or to give in any papers or Memorials to them; and, ſo far as he knows, Mr Garden never met with any of them, nor gave in any Memorials to them; for he had told him that he was reſolved to quarrel the Submiſſion whenever he was in a capacity to do it.

The Decreet-arbitral was no ſooner put into the Regiſter, than a Charge was given to the Reſpondent to obtemper the Decreet-arbitral; and upon his refuſing, a Caption was taken out, which obliged him to retire to the Abbey, and there he was narrowly watched for ſeveral years with different Meſ⯑ſengers, in caſe he ſhould happen at any time to come out of the Sanctuary. As he was ſtript of all his Father's inheri⯑tance, and had nothing to live on but the charity of friends, it was no wonder that he was not able to bring his quarrel of this Submiſſion and Decreet-arbitral ſooner.

The Petitioner having got the Decreet-arbitral abſolutely to her mind, ſhe, for herſelf and children, and her ſon-in-law John Walker, led Adjudications againſt the eſtate; which obliged the other Creditors likewiſe to adjudge; and a proceſs of Ranking and Sale was carried on in the name of Richard⯑ſon the Petitioner's Truſtee, in which a ſtate of the debts was made out, where ſhe, her children, and John Walker her ſon-in-law craved to be ranked for no leſs a ſum than L. 1405: 3: 10 Sterling; which is more than the proven value of the eſtate, and would have been tanked accordingly, of the Reſpondent had not appeared, and oppoſed the ſame; and this over and above the Pettioner's, [...] with [9] the whole moveables of her Huſband, and the rents of his eſtate for 9 years, when the Reſpondent, the father's eldeſt Son, and heir to his mother, who brought ſo large a part of this ſubject with her, is ſtript of all.

The Reſpondent hopes he will be excuſed in giving your Lordſhips ſo full a detail of paſt tranſactions, which he thought himſelf obliged to do, that your Lordſhips might have a juſt and true view of the matter. He ſhall now proceed to con⯑ſider the ſeveral arguments inſiſted upon for altering the Lord Ordinary's Interlocutor, twice adhered to by his Lordſhip.

The firſt is, That there is no legal evidence that the Sub⯑miſſion was ſigned in priſon. As to which, it is true, that Mr Alexander Blackwood is the only perſon who depones to the preciſe fact of the Submiſſion being ſigned in priſon; but as he was an inſtrumentary witneſs to their ſigning the Sub⯑miſſion there, and the only ſurviving inſtrumentary witneſs, it is ſubmitted to your Lordſhips, whether his ſingle Depoſition is not a ſufficient proof of the fact, in which he could not be miſtaken nor under any doubt, though he uſes the pre⯑caution, which every witneſs is allowed to do, eſpecially when deponing of facts which happened 12 years before, ‘That, to the beſt of his remembrance, he carried up a ſcrole of the propoſed Submiſſion to the priſoners, which they reviſed; and that they having agreed to the ſcrole, he afterwards carried up the Submiſſion extended upon ſtamp paper; and that, to the beſt of his remembrance, he received both the ſcrole and principal Submiſſion, either from Mr Balfour, or from Mrs Thomſon, the priſoner's wife: and that, to the beſt of his remembrance, he ſaw both the ſaid James and Andrew Thomſon's ſign the ſaid principal Sub⯑miſſion in the priſon; to which, ſo far as he can recollect, he is a ſubſcribing witneſs; and that the Deponent thinks they were very ſoon releaſed after ſigning the Submiſſion.’

He alſo ſays. ‘That he remembers that both the ſaid James and Andrew Thomſons ſeemed averſe to enter into the ſaid [10] Submiſſion; and that James in particular ſaid, he was afraid it might hurt him with reſpect to ſome deeds execute by his Father in favours of him the ſaid James. He ſwears likewiſe to Andrew's bad ſtate of health, and that his wife was anxious for his liberation, and told him that their liberation was offered them upon condition of their ſigning a Submiſſion; and that, at her deſire, he went ſeve⯑ral times up to priſon to perſwade him; and that George Balfour, Andrew's Doer, was with him at ſome of theſe times.’ This, the Reſpondent apprehends, is as full and ſatisfying a proof as can be deſired, and as could well be ex⯑pected, when the other inſtrumentary witneſs is dead. And it is confirmed in every other circumſtance, except the ſigning of the Submiſſion in priſon, by Maney Blackwood, the widow of Andrew Thomſon, who, as being more particularly concerned in the affair than Bailie Blackwood, is more pointed and clear as to ſeveral circumſtances attending that tranſaction than he can be ſuppoſed to be at ſuch a diſtance of time, and in an affair where he had but an accidental concern. And if this proof ſhould not be thought ſufficient, the Reſpondent could yet adduce two other witneſſes, Alexander Henderſon and James Brown, who came up to them in priſon, after their ſigning the Submiſſion, and were employed by them to go and ſeek money to pay the priſon-dues, in order to their getting out.

It is next ſaid, That though the fact of ſigning the Sub⯑miſſion in priſon was proven, yet it was not relevant to ſet aſide the decreet-arbitral, which is indeavoured to be ſupport⯑ed at great length, and ſeveral caſes are taken notice of con⯑cerning tranſactions with debtors in priſon for payment of juſt debts, or for granting additional ſecurities therefore. But the Reſpondent apprehends, that the law is quite clear, by the Civil law the edict of Praetor was the rule, Quod metus cauſa geſtum erit ratum non babebo. And in the 22d l. dig. Quod metus cauſa in carcerem quem detruſit ut aliquid ei ex⯑torqueret, quid ob banc cauſam ſactum eſt, nultius momenti eſt. [11] And Lord Stair, tit. Reparation, parag. 8. That, by the Prae⯑tor's edict, and the cuſtom of this and other nations, ſuch deeds and obligations as are by force and fear, are made utter⯑ly void; and he cites a deciſion very parallel to the preſent caſe, 22d January 1667, Mair contra Stewart of Shambelly, where metus was ſuſtained to reduce a Bond granted by a par⯑ty taken by Caption, becauſe he was ſick. The Reſpondent apprehends, that there is no compulſitor in law to oblige a perſon to enter into a Submiſſion: That can only be brought about by the free and voluntary conſent of parties; and there⯑fore the uſing a diligence, which is allowed by law, for re⯑covering payment of a debt, for this purpoſe, is a perverting of the law; and the uſing it ſo againſt a perſon ſick and in danger of dying, was a glaring and groſs perverting of the law, which the Petitioner is forced to own will afford a ground for reducing theſe deeds as exported vi et metu carceris. The Reſpondent might add, That as the Petitioner had poſſeſſed herſelf of all her Huſband's effects, and ſhe has acknowled⯑ged that ſhe had paid that debt, no doubt, out of the produce of her Huſband's effects, as ſhe had no other funds, he ſubmits it to your Lordſhips, how far ſhe could have uſed that diligence againſt the Reſpondent for re-payment of it to her, as ſhe the executrix had already paid it out of the funds of her Huſband the original debtor; and if ſhe could not, then all her argument juſtifying the impriſonment of the Reſpon⯑dent and his Brother, falls to the ground.

The Reſpondent apprehends, he needs not take up much time in anſwering the ſeveral caſes founded on by the petitioner in ſupport of her claim; for in theſe the intention of impri⯑ſonment was to get payment or ſecurity, and the debtor was under an obligation to pay the debt, or to grant further ſe⯑curity for it, and if he either paid it in priſon, of granted new ſecurity for it, he did no more than the law obliged him to do; and therefore theſe tranſactions may be held good in law, though done in priſon; and in theſe caſes the debtor gave a full conſent to the tranſaction; whereas here the Re⯑ſpondent [12] gave no conſent to the thing, and ſhowed to demon⯑ſtration that he only did it to ſave his Brother's life, and pro⯑cure perſonal liberty to both. But, at the ſame time, it is certain, that if any iniquity was done to perſons in priſon by theſe tranſactions, they would be reduced on this head, which makes a very material difference between theſe caſes and the preſent one; for here, if the ſubmiſſion be ſupported, the De⯑creet-arbitral following thereon, how iniquous ſoever, cannot be reduced, iniquity not being one of the grounds of law for re⯑ducing a Decreet-arbitral.

The Petitioner endeavours to juſtify her inſiſting on a Sub⯑miſſion as a reaſonable action for ſettling the mutual claims, which each party had on one another. But here it will be ob⯑ſerved, that the Petitioner had no claim upon the Reſpondent, but to get him to confirm her illegal uſurpation of all her Huſband's eſtate. He indeed had a claim againſt her, to reſtore to him what part of his Father's inheritance he had left to him, and to free him of his Father's moveable debts, which ſhe was obliged to do, as intromitter with his moveable effects. But, from paſt experience, he had found that he was in no likelihood to obtain this before the former Arbiters; and therefore, nothing but to ſave his Brother's life, could have induced him to ſubmit his cauſe again to theſe Gentlemen. However good their character may be otherwiſe, their decern⯑ing ſuch a ſum to the Petitioner and her children, and, at the ſame time, ſtripping the Reſpondent is ſufficient to ſhow the iniquity of their Decreet-arbitral. But he apprehends his plea for reducing the Submiſſion is good, upon the head of fear and force.

The Petitioner ſays, That the Reſpondent did homologate the Submiſſion, when he was at liberty, by his Doer William Garden, giving in Memorials and other papers to the Arbiters upon the ſubject of the Submiſſion. This has already been taken notice of, and denied; and it is but very faintly alled⯑ged by the Petitioner; for all ſhe can ſay on this head is, that it appears from Mr. Garden's compt-book, where he ſtates an [13] article, in his accompt with the Reſpondent, for drawing a Memorial to be given in to theſe Arbiters. How the Peti⯑tioner got acceſs to Mr Garden's compt-books, is not known; but from her ſtating it, it does not appear, whether this Me⯑morial was to be given in to the Arbiters, during the depen⯑dence of the firſt Submiſſion, or of the ſecond. Neither does it appear whether ever that Memorial was given in to the Arbiters: But, if it was given in to them, during the ſecond Submſſion, he poſitively denies that ever he gave Mr Gar⯑den any warrant or commiſſion to give in ſuch Memorial.

It is ſaid, in ſupport of his having homologate the Submiſ⯑ſion, that he made no challenge of it for ſome years, though he was at his full liberty all the while. Your Lordſhips will have obſerved, from the narrative of the caſe, that he was far from being at liberty; the Petitioner had no leſs than two Captions againſt him, one upon Mansfield's debt, and the o⯑ther upon the Decreet-arbitral, and the Meſſengers hired to watch him, in caſe he came out of the Abbey. It was, no doubt, the Reſpondent's intereſt to have brought his quarrel ſooner; but his want of liberty, and eſpecially his want of money to carry on the proceſs, was the occaſion of the delay; and if he had not got your Lordſhips gratis warrant, he muſt have been ſilent ſtill; at the ſame time, he apprehends, it would have been competent to him to have brought his action any time within forty years.

It is an affected pretence in the Petitioner to ſay, that ſhe has loſt the vouchers of her accompts, which ſhe looked upon as unneceſſary to be kept for ſo long a time, by which ſhe could have ſupported the Decreet-arbitral in every point; for your Lordſhips will have obſerved, that the Reſpondent, de recenti, refuſed to ratify and fulfil the Decreet-arbitral, and ſaid he would quarrel it whenever he had it in his power; whereupon, ſhe took a Caption againſt him; and that being the caſe, it is not probable that ſhe has loſt any one of her vouchers.

In ſupport of the reaſons of reduction before the Lord Or⯑dinary, ſeveral particular iniquities committed by the Arbiters, [14] were mentioned, and many more could have been inſiſt⯑ed on; but, as there Were Objections and Anſwers lying before his Lordſhip, to be adviſed when the Decreet-arbitral ſhould be ſet aſide, there were only a few noticed, which the Peti⯑tioner has endeavoured to take off, which makes it neceſſary for the Reſpondent to reſume them, though he thinks his re⯑duction well founded without them. The firſt was, That ſhe ought to have ſhown diligence for ſetting the houſes, and for recovering the rents and outſtanding debts, which the Ar⯑biters had not found her liable to do; upon which it is now ſaid that iniquity in Arbiters is no ground for reducing their Decreet-arbitral; and 2dly, That it would have been impro⯑per for an executor to waſte the funds of the executry in do⯑ing diligence for debts, where there was not the ſmalleſt pro⯑ſpect of recovery; but, at this rate, every executor might have it in his power to do what ſhe pleaſed with the executry without being liable to quarrel from any hand; whereas, It is an eſtabliſhed rule in law, That an executor muſt make up full inventaries in a cafe, where there is a competition of Clai⯑mants, whether creditors or heirs, and is liable to do diligence for making the executry effectual, and is obliged to find a cautioner for that effect. No body, to be ſure, would inſiſt that ſhe ſhould lay out good money in ſeeking in deſperate debts; but ſtill it was incumbent upon her to ſhew what of theſe debts were deſperate, which ſhe was not ordained to do by the Arbiters.

The Petitioner now has acknowledged, that ſhe has re⯑covered of the executry to the amount of L. 700 Sterling, and upwards; the Reſpondent believes ſhe has or might have recovered a great deal mare as it was reputed to be above L. 1600. But here a queſtion naturally occurs, What has ſhe done with this great ſum of executry intromitted with by her? The de⯑funct's moveable debts ought naturally to have been paid out of his executry. Has ſhe done that? it is believed ſhe will not anſwer in the affirmative; the debts of her Huſband were in and about L. 500 Sterling; and it appears from the liſt of debts now in [15] the Ranking, that they are all ſtill outſtanding, and not ſo much as the annualrent of any of them paid, though be⯑ſides this executry intromitted with by her, ſhe had nine years poſſeſſion of her huſband's heritable eſtate of L. 164 per an⯑num, except the two houſes poſſeſt by the Reſpondent; not⯑withſtanding whereof the Arbiters find her a Creditor on the ſubject for L. 101: 19: 11⅓ Sterling; and L. 95: 6: 6 Sterling.

It was noticed before the Lord Ordinary, that the Arbiters had committed iniquity in finding the Petitioner intitled to aliment for her children, which is now ſaid to be highly juſt, as their proviſions conſiſted in certain heritable ſubjects, which were liferented by their Mother, and that therefore they were intitled to be alimented with their Father's effects till they came to enjoy their own proviſions. Here an obvious anſwer will occur, The Father, by his deed in the 1738, diſponed to the Petitioners children, houſes which yielded upwards of L. 90 of rent; and as the Petitioner's two liferents, amounting to 1100 merks, or L. 61: 2: 2 ⅔ Sterling, was laid upon the Reſpondent's part of the heritage to the extent of L. 58: 5: 6 Sterl. it is evident that very little of her children's proviſions ſtood affected with their Mother's liferent: So that if ſhe had managed matters a-right, there was a ſufficiency to have aliment⯑ed her children out to their own proviſions; and ſhe had beſides the reſidue of the executry over payment of the debts made over to her by her huſband. But tho' that had not been the caſe, a queſtion would have ariſen, in caſe the eſtate be bankrupt, as ſhe pretends, Whether the Creditors would be obliged to maintain her Children or not, eſpecially when ſhe their Mo⯑ther was peaceably enjoying two jointures extending to 1100 merks, free of all publick burdens? And another queſtion would have occured, whether the Reſpondent, as matters ſtood by the deeds of his Father, would have been obliged to aliment his Brothers and Siſters, ſuppoſing the eſtate had not been bankrupt?

Another article of complaint againſt the Decreet-arbitral mentioned before the Ordinary was, That the expenses of [16] repairs of the houſes which ſhe had in liferent from her laſt Huſband were allowed her, through that was not provided in the Contract of Marriage, to which it is now ſaid that the huſband became bound that the houſes ſhould yield 600 merks free of all taxations and publick burdens. But repa⯑ration of liferented houſes, is a burden upon the liſerenter, and is neither to be accounted a taxation or publick burden.

The Petitioner, in the laſt place, endeavours to make an apology for the ſmalneſs of the rent accounted for by her for the five years of her intromiſſion preceeding the Decreet⯑arbitral, when compared with the five years rents uplifted by your Lordſhips Factor, when the eſtate was ſequeſtrate, and ſays, that ſundry of the houſes were waſte and in bad repair, and that the ſums laid out by her in reparing them, made them ſet better afterwards. But here it is to be obſerved, that, after all her repairs, the higheſt rent ſhe brings up the houſes to in the laſt year of her intromiſſion, is but L. 129 and ſome odd ſhillings, whereas the Factor's rental is L. 164.

And, upon the whole, the Petitioner concludes, that there is no good exception againſt the juſtice of the Decreet-arbi⯑tral, and that there is no relevant ground in law for reducing this Submiſſion, and that iniquity is no relevant ground for reducing the Decreet-arbitral. The Reſpondent apprehends, that he has much better ground to ſay, that the Decreet-arbi⯑tral is in every particular iniquous, and that whether it was iniquous or not, he is founded in law to reduce the Submiſſion, the ſigning of which was elicit from him and his Brother metu carceris; and that the petitioner, by her extraordinary, illegal and unwarrantable management of her huſband and childrens affairs, has occaſioned difficulties, and probably loſs, which may not be eaſily recovered from her, and ſhe in the mean time is quietly in poſſeſſion of 1100 merks free of public burdens, tho' ſhe has only now two of her ſix children with her, while the Reſpondent, the heir, has not a farthing of his Father's effects to live upon, which he hopes will merit the conſideration of the Court.