Of Bills with clauses stipulating Annualrent and Penalty.
Lady Henrietta Gordon, Henry Lumisden, and - Gordon, Executor of Anne Stewart, v. The King's Advocate
Date: 2 November 1750 Case No. No 29.
A bill of this tenor, “pay to me, &c. with an year's annualrent, value of both instantly lent you in cash,” was found good. The annualrent was in reality a principal sum, and not the fruits of the principal sum.
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Lady Henrietta Gordon granted a factory, 17th January 1743, to William Taylor, writer in Edinburgh, to uplift the contents of the inventory given up by her as executrix, in the confirmed testament of Alexander Duke of Gordon, her father, impowering him to grant discharges, raise processes, if there should be need, and to prosecute the same until decreet; to do diligence, and, in general, every other thing which belonged to the office of factory: Whereupon he obtained Charles Gordon of Tarpersy decerned in payment of 110l. Scots to the Lady, and to him as factor, for his interest: And, upon Tarpersy's being attainted of High Treason, entered a claim for the same upon his estate, in name of his constituent, signed by him as her factor:—To which it was objected. That by the act of Parliament, all claims ought to be signed by the parties making the same, or by the attornies or factors of the parties having the interest claimed; from which it appeared it was intended the attornies should be specially empowered for the purpose of claiming.
Answered, The claim is signed by the Lady's attorney or factor, which is in terms of the act: But, supposing a general factory would not be sufficient, he is factor for recovering this debt, for which he has obtained decreet; and, that being directly to himself, he might have claimed in his own name.
The Lords repelled the objection to the subscription of Lady Henrietta Gordon's claim, and found it legally subscribed. See Writ.
Henry Lumisden of Cushney claimed a bill of 244l. Scots, dated 31st December 1744; to which it was objected, That by the statute, all assurances and conveyances, made after the 24th June 1742, were deemed fraudulent; unless the onerous cause were proven: And if this were not to be understood of debts, as well as real alienations, any estate might thereby be fraudulently carried off.
The Lords Sustained the claim. See Forfeiture.
——Gordon Lady Tarpersy, as executrix of Anne Stewart, her mother, claimed a bill of 333l. Scots, granted in these terms:
“Against the term of Whitsun day 1746, pay to me Anne Stewart, &c. with an year's annualrent thereof; value of both instantly lent you in cash;”
the date not apparent.—To which it was objected, The same was for a year's annualrent of the sum, which made it null: As also, it was only signed by the drawer's initials; and though bills so signed, by drovers or such like, had been sustained in favour of commerce, yet this was not granted in the way of trade; and also being betwixt conjunct persons, did not prove its onerous cause.
Answered: The bill was not for the sum with interest, till payment, but for one year's interest at the term of payment, which might have been added to the sum. It was signed in the only way Anne Stewart could sign, and her name was mentioned in the body of it: And it was no objection, though it should have been a gratuitous debt, which the Crown, coming in place of the forfeiting person, was bound to pay.
The Lords Sustained the claim.
Reporter, Strichen.Act. H. Home.Alt. A. Home.Clerk, Pringle.
Fol. Dic. v. 3. p. 75. D. Falconer, v. 2. No 157. p. 181.
