Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Thomas Calderwood v. Sir James Cockburn of Ryslaw
Date: 4 February 1710
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Thomas Calderwood, in Dalkeith, being creditor in considerable sums to Ryslaw, partly due to himself, and partly to Alexander Martin in Dunse, his father-in-law, he pursues a roup and sale of his lands on the statute of bankrupt: And, in the probation of the rental, several points came to be discussed; such as, that part of the lands holding black or simple-ward, and part taxed-ward; the Lords put eighteen years as the value of the simple-ward, and twenty for the taxed; and that teinds, being subject to many burdens, were only worth fourteen or fifteen years' purchase, where they had an heritable right, or long tacks and prorogations; but if they had no right but kindliness, then five or six years' purchase; and may be bought from the patron or titular for nine years; and that mill-rent, being casual, was of less value than land-rent; and there being a mill in the ground, though it was fallen down, yet, having the barony thirled to it, the same deserved a separate valuation: and they put £5 sterling per annum upon it. And, coming to advise the probation of the estate's being bankrupt, they found it very narrow and scrimped; for, at the price determined as the minimum quod sic, the price extended to £48,000 Scots, and the list of debts was but £52,000, so it only exceeded the price in £4000 Scots, and which was made up of the penalties of bonds, termly failyies, and other accumulations in the adjudications; and if these were deduced, the price was more than the debt. Besides, Mr Calderwood, in his oath upon the verity of his debt, confessed that he, and Martin his author, had been several years in possession; so it was contended, That, if he fairly counted, a great part, not only of his annualrents, but even of his principal sums, would be found paid; which would diminish the debt, and bring it to that pass, that the estate could not be reckoned bankrupt; besides, he was only cautioner in sundry of the bonds for Lanton and Cockburn, and so had his relief against them, which, when recovered, would still lessen his debt; so that he can never be called bankrupt.
Answered,—The £52,000 is all principal sums; and there is a liferent of £50 sterling a-year affecting the lands, which, at seven years' purchase, will augment the debt in 6300 merks more; so it is clearly overburdened.
The Lords thought this point deserved to be better cleared, how far it was a bankrupt estate: And therefore remitted it to one of their own number to hear the parties thereupon.
