United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Alexander Robertson Esq. of Strowan v. Margaret Robertson, his Sister [1712] UKHL Robertson_55 (4 June 1712)
URL: http://www.bailii.org/uk/cases/UKHL/1712/Robertson_55.html
Cite as: [1712] UKHL Robertson_55

[New search] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 55↓

(1712) Robertson 55

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 16.

Alexander Robertson Esq. of Strowan, Appellant

v.

Margaret Robertson, his Sister, Respondent

4th June 1712.

Subject_Provisions to Children. —

Fountainhall, 12 Feb. 1712,

Forbes, 22. Feb. 1712.

A mother being put in possession of part of her eldest Son's forfeited estate for aliment to younger children, in a question with the Son after the estate restored, it is found that her intromissions, above the current interest of their portions, went in discharge of former interest due thereon and of current interest, but not in payment of principal, or of interest after the intromissions ceased.

Subject_Battery pendente lite. —

Circumstances inferring this crime: though decree taken in the civil action, recourse might also be had to the penal: the pains of battery not remitted by an act of general indemnity.

Subject_Costs.—

40l given against the appellant.

By contract of marriage in August 1663, between the father and mother of the appellant and respondent, the father bound himself, his heirs, executors, and successors to pay to the younger children of the marriage 10,000 merks scots among them for their portions at Whitsunday or Martinmas next after they should attain their ages of 15 years. The issue of this marriage were the appellant, the respondent, and three younger children.

The respondent attained her age of 15 years, on the 18th of May 1681, but before the had received any part of the interest or principal, her father died in November 1688, and her brother the appellant soon after went beyond seas, and became forefaulted, and all his paternal estate was seized by their then majesties. The younger children being thus left destitute, application was made to the Privy Council to have some part of the estate of Strowan allotted to the mother for their maintenance; and on the 5th of February 1691, the Privy Council, by an act allotted the saw miln of Strowan, with as much of the wood growing on the estate of Strowan as was accustomed to be sawed and wrought, and the whole profits and casualties thereof, and services thereto belonging, for the maintenance of the younger children during their pleasure, appointing the said profits, casualties, and services with the pertinents thereof to be paid and performed to their said mother, for her said children's aliment, during the Council's pleasure, upon her receipts and discharges which should be Sufficient to exonerate the payers thereof.

The mother and children continued in possession till 1704, when the appellant having returned to Scotland, his estates were restored to him. In 1708, the respondent brought an action against the appellant before the Court of Session, for payment of her portion being one fourth part of the said 10,000 merks scots, with interest since 1681, when she attained her age of 15 years.

In this action the appellant pleaded, at first that he had no part of his father's estate either as heir, or by other passive title, but that his intromissions were by other singular titles, and that

Page: 56↓

he was not liable to pay the said portions; but after examining Sundry witnesses on this point, the Court on the 15th of June 1711, found the passive titles proved, and the defender to be liable. The appellant then took another defence, that the portions of the younger children were more than fully paid principal and interest by their receipt of the profits, &c. of the said saw-miln; and the respondent contended that such receipt was merely in consequence of a gift to the mother for maintaining the younger children from government, and was not to be imputed in payment of the principal or interest of their portions: after sundry proceedings in this action and a proof of the intromissions allowed, the Court on the 20th of July 1711, “found that during such time as the pursuer was maintained by virtue of the act of Council out of the defender's saw-miln, there could be no interest due to her for her said portion; but suspended the determining how far the pursuer's super-intromissions should extinguish her said portion, or the interest thereof after the defender's entry, till the proofs of her intromissions came to be considered.”

Sundry witnesses were examined with regard to the profits of the saw-miln, and the pursuer's intromissions therewith, and the cause being afterwards heard, the Court on the 29th of December 1711, pronounced the following interlocutor, “The Lords having considered the debate with the state of the process and probation, find that the super-intromission above the interest of 10000 merks, being the younger children's portions during the mother's possession, was not only imputable to the payment of interest during that intromission, but to the payment of the former interest thereof, from the father's decease to the mother's possession by the act of Council, but found that the super-intromission was not to be imputed in payment of any part of the principal sum or interest since she ceased to possess, and found that the intromission continued till. Whitsunday 1704, and therefore decerned to the pursuer her said portion with interest from that time.” Against this interlocutor the appellant reclaimed, but on the 9th of January 1711–12, the Court adhered to their former interlocutor.

1594. c. 219.

While this action was in dependance the respondent presented a petition to the Court setting forth, that since the commencement thereof, in April 1709, the appellant with a design to force the respondent to relinquish her just right to her portion, and to give him a discharge, did cause her to be seized on a sunday by eight men armed with swords, pistols, and guns, and carried as a criminal five miles to the appellant's house at Cary, from whence she was by his command dragged away to his miller's house, and there kept prisoner with centinels till she made her escape; and therefore she prayed that, pursuant to the act of parliament 1594. c. 219., the appellant should be decerned to pay the respondent her said debt, damages, and expences. The appellant made answers, and the Court allowed a proof of the matters of facts. A proof was taken accordingly in this matter, and reported to the Court, but before procuring judgment thereon,

Page: 57↓

the interlocutor of the 29th of December 1711, was pronounced. The respondent aster this, petitioned the Court to take the proof of the said invasion into consideration; to this the appellant made objections, that it was now incompetent as she had taken decree in the civil action, and that the penal action was remitted by the late act of indemnity. These objections were repelled, and the Court on the 22d of February 1711–12, found the complaint proved in terms of the act of parliament, and therefore decerned the defender to pay to the pursuer the whole debt libelled with expences.”

Entered, 4 March 1711-12.

The appeal was brought from “an interlocutor or decree of the 29th of December 1711, and several subsequent interlocutors.”

Heads of the Appellant's Argument.

This provision to the respondent being constituted by the mother's contract of marriage, whereby the mother had an interest to fee to the payment thereof, the respondent's petition to have her mother put in possession of a part of the appellant's estate for that end can receive no other reasonable construction, but that the same was done for the full satisfaction both of principal and interest of these provisions contained in the contract of marriage expressly referred to in the application to the Privy Council.

By act of parliament in Scotland, no part of any forfeited estate is to be gifted away, and so long as there remains any debts upon the fame, the profits of the estate must be applied in the first place in discharging these debts; and had not this part of the estate been so applied for the use of the respondent, and the other younger children, it would have been applied in payment of other debts, and would have extinguished them.

Besides it plainly appears, shat the Privy Council were deceived in the value of this grant; for the respondent applied to the Privy Council, that her mother might be put in possession of that part of the estate for an aliment to the respondent, and the other children in the first place, with an order to the factor upon the said estate, to pay them the surplus, in case the said part should not prove sufficient. The Privy Council then probably intended no more than a simple aliment answerable to the interest of the children's provisions, and were made to believe that the part of the estate they were to posssess would scarce amount to so much. But now it appears plainly to be of a much greater value.

It is impossible to find any manner of reason for the distinction the Lords of Session have made by their judgment, viz. That the super-intromissions should extinguish the interest of the debts due before their possession but not after; for if it was purely to answer the interest during their possession, then it could not satisfy any thing due before that time; but if it was applicable towards satisfaction of what was before due, then there is all imaginable reason that their receipts should extinguish their debts, so far as they had received.

Page: 58↓

As to the sentence or judgment upon the complaint made against the appellant on the act 1594. c. 219., there is nothing proved against the appellant to bring him under that penalty; besides, it was prior to the act of indemnity, and the respondent having taken judgment in the civil action, could not afterwards insist in the penal.

Heads of the Respondent's Argument.

The profits of the saw-miln were only a gift of the government to the mother for the aliment of the respondent and the other younger children, who by the appellant's forfeiture were totally deprived of maintenance: and the respondent never intromitted therewith, otherwise than as a servant to her said mother, who discharged her of all such intromissions.

By the said act 1594. c. 219., It is provided “that if any person either persewer or defender suld happen to slay or wound to the effusion of blood, or otherwise to invade ane of them ane uther in any forte quhairupon they micht be criminally accused, after the raising of the summondes and precepts and lauchful execution thereof, or in ony time before the compleit execution to be recovered thereupon, the committer of the slaughter, blood or invasion in maner foresaid, gif he be the defender, he fall be condemned at the instance of the persewer, without any probation of the libel except summar cognition to be tane of the slaughter, bloodshed, or invasion before the justice, or any other judge competent there to.”

The acts of invasion which the respondent set forth against the appellant in her complaint to the Court, were within the provisions of this act of parliament; and of this invasion the respondent made full proof not only by witnesses, but also by letters under the appellant's own hand. She also complained to the Court of Session of another act of invasion, which occurred during the examination of the witnesses.

In July 1711, the Court ordered a state of the proof of the invasion which had been taken, to be prepared for their consideration, and afterwards declared they would consider the same with their first conveniency, but the respondent choosing rather to shew the justice of her debt, than the barbarity of her brother, did first proceed to the obtaining the said decree of the 29th of December 1711.

The act of indemnity, upon which the appellant founded part of his defence relates only to offences against the government, but not to any persons private right or damages.

Judgment, 4 June, 1712.

After hearing counsel, It is ordered and adjudged that the appeal be dismissed; and that the interlocutors or decrees therein complained of be affirmed: and it is further ordered that the said Alexander Robertson shall forthwith pay or cause to be paid to the said Margaret Robertson the sum of 40l. sterling for her costs sustained in defending the said appeal.

Counsel: For Appellant, J. Pratt. P. King.
For Respondent, Tho. Lutwyohe.

1712