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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mr. Walter Stirling Writer in Edinburgh v. William Gray, of Invereighty Ex parte (a). [1727] UKHL Robertson_590 (13 February 1727)
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Cite as: [1727] UKHL Robertson_590
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SCOTTISH_HoL_JURY_COURT
Page: 590↓
(1727) Robertson 590
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 132.
v.
Ex parte (a).
Edgar, 1 Jan. 1725.
Subject_Penal Irritancy. — Homologation. —
A collector of taxes, during Cromwell's usurpation enters into an agreement with a person who had a commission to sue, compound, transact, and agree on the part of the Crown: to this commissioner the collector granted bonds for certain sums, and the commissioner obliged himself to deliver to the collector, by a day certain, a release from the Crown, otherwise the parties to remain as they were before the bonds were granted: it is found that this no penal irritancy, and not to be purged after elapsing of that day.
A payment by the collector, after the elapsing of that day, was no homologation, or passing from the resolutive clause.
Subject_Prescription. —
Though 40 years elapsed after this alleged homologation, and no declarator brought on this resolutive clause, it was still comment to plead it.
Subject_Appeal. —
5 l. costs given against the appellant, who deserted his appeal.
Under the Commonwealth, and during Cromwell's usurpation, William Gray of Haystoun, the respondent's ancestor, was employed as collector of the taxations and other public impositions in the shire of Forfar. After the Restoration, in 1662, an act of indemnity and oblivion was passed in Scotland, but with a great many exceptions; one of which related to the accounts of persons who had intrometted with or received any part of the public money from the year 1639 to the year 1660.
In 1670, the then Earl of Dumfermling obtained a grant or commission from the Crown, under the privy seal, empowering him to call to an account, in proper processes before all or any of his majesty's courts, all intrometters with public money during the years abovementioned, and to recover all public monies in their hands unaccounted for. The commission contained a power to the earl of granting discharges or acquittances upon payment, and of transacting and compounding; and a clause, obliging the earl and his heirs to account to the Crown for his receipts.
_________________ Footnote _________________
( a) This statement is taken from the respondent's case only, the appellant not having appeared at the hearing, and, I presume, having presented no case.
Page: 591↓
The mode of proceeding with some of these debtors was to give them a charge of horning, and afterwards by compounding privately with them for such sums as they could afford; the earl, at same time, promising to procure them pardons and acquittances from his credit at court. Amongst others, the said William Gray of Haystoun was served with a charge of horning for a very large sum in 1670; but on the 10th of September that year, an agreement was entered into between the earl and him, in pursuance of which Mr. Gray paid to the earl 2000 merks in cash, and delivered up to his lordship a security from the Earl of Crawfurd for 14,0 merks; and he as principal, and his son William Gray of Invereighty as cautioner, also executed and delivered to the earl four bonds, blank in the creditor's name, two for 3000 merks, and other two for 4000 merks each; being in all 30,000 merks.
The earl, of same date, executed a release of Haystoun's intromissions, under the powers his lordship then had; and the earl also then executed a back bond obliging himself to procure under his majesty's hand a ratification of the said discharge, with a remission or pardon, and to deliver the same ratification and pardon to Haystoun between and the 10th day of November following, to the effect he might expede the same: or otherwise if the earl failed in procuring thereof he bound and obliged himself to pay back to; Haystoun the sums received, with the security granted by the Earl of Crawfurd, so that if he should not procure the said ratification and remission, he and the said Haystoun were each of them to be in their own places, as if there had been no agreement.
The earl having assigned two of these bonds to Sir William Sharp, he in 1671 brought legal distress against Haystoun for payment of one of them, which then became due, and which in consequence thereof Haystoun paid. No ratification of the earl's discharge, or remission by the Crown, had been granted in the mean time, nor were any such granted during the earl's life; and no farther demand was made on the other three bonds, during the lives of the earl and Haystoun.
The earl's assignee, the appellant, afterwards brought an action before the Court of Session against William Gray of Invereighty, the respondent's father, the cautioner in the said bonds, and upon his decease against the respondent himself. The respondent pleaded in defence, that the bonds were become void upon nonperformance of the quality in the back bond to procure and deliver the ratification on or before the 10th of November 1670. The appellant answered, that this was a penal irritancy, purgeable at any time, and which was actually purged by the son of the said earl, who had procured a ratification and remission some time after; and, further, that Haystoun, by paying up one of the bonds in 1671, after the irritancy was incurred, had homologated the bargain, and dispensed with the irritancy, which the respondent could not therefore insist upon.
Page: 592↓
The Court on the 1st of January 1725, “Found that the resolutive clause in the back bond, is no penal irritancy, and therefore not purgeable upon performance after elapsing of the day; and found that the payment made, after the said day was not a passing from the resolutive clause; but that Haystoun could at any time after the said payment insist to be reponed to his own place.” And on the 5th of February thereafter, the Court adhered to their former interlocutor, and refused the desire of the petition.”
Entered, 3 Feb. 1725–6.
The appeal was brought from “an interlocutor and decree of the Lords of Session of the 1st of January 1725, and the affirmance thereof the 5th of February following”.
The appellant, from the respondent's case, appears to have contended, 1st, that this was a penal irritancy, and purgeable; 2d, that Haystoun had homologated the transaction by payment of one of the bonds, in 1671 after the day of performance on the earl's part was elapsed; 3d, that it was again homologated in 1677, when Haystoun sold his estate, subject to the payment of the bonds to the Earl of Dumfermline; and 4th, that Haystoun's claim to be reponed, after payment of one of the bonds, was cut off by prescription.
Heads of the Respondent's Argument.
Though penal irritances are generally purgeable yet a clause inferring no penalty, but only resolving a bargain, and putting the parties in the same case they were in before the bargain was struck, as in the present case, neither was nor ever can be found penal or purgeable; if on the omission to perform, it had been provided, that besides the resolution of the bargain, the party should forfeit a sum of money, that forfeiture would clearly amount to a penalty, which in some cases might be purgeable; but when no such forfeiture is induced, and when no other hardship is stipulated, than that either party should be in as good circumstances as before the bargain was made, it is impossible that such a condition can be deemed penal. It is not the damage of the party which comes to be considered, where contractors have made it a plain, explicit provision, as in this case.
Though Haystoun, for several reasons, and after lapse of the day, was willing to stand to the bargain, as might be inferred from his payment of one of the bonds; yet the bargain he was inclined to stand to, was a contract which obliged the earl also to performance of his part, and gave to Haystoun a security for repayment of the sums advanced in case the earl did not specifically perform. And though it should be concluded that Haystoun dispensed with the non-performance to that period, yet it cannot be imagined, that he dispensed with the non-performance thereafter, nor for one minute longer than the date of the act of approbation Besides, he undoubtedly believed himself liable to be questioned for his life, as well as his fortune, when he agreed to give away so great a sum as 30,000 merks for a ratification and remission;
Page: 593↓
When Haystoun sold his estate, and referred to a list of debts, which the purchaser should be taken bound to pay, it was necessary that the said bonds should be inserted in the list, because by an inhibition used by the creditor, they had become real debts on his estate. In the disposition made of the estate of Haystoun, it is provided, “That whatever ease by composition or compensation beis obtained by the said Mr. Patrick Lyon (the purchaser) by friendly or amicable agreement, or legal sentence from the representative of the said earl of the sums given up to be resting by the said William Grays elder and younger, expressed in the list and inventory of their debts mutually subscribed by them, the said Mr. Patrick Lyon obliges himself to keep account thereof, and apply the same to the use and behoof of the said William Gray younger.” From this clause, it is obvious, that Haystoun intended to quarrel this debt, which he states only to be given up as resting, but does not say it was due. This further shewed that Haystoun at that time had a settled resolution to insist upon the back bond.
The respondent's right to be reponed, or the cause and foundation of that right, viz. the resolving of the bargain, gave him two distinct claims and interests; one, to have the money restored which he had paid; the other, to deny payment of the bonds, which by the irritancy incurred became void. It was plain he could not attain the first, without a suit for repetition, which after a lapse of 40 years would be barred by prescription: but the second being a right of exception, could not perish by prescription, but must remain perpetual, and endure as long as the bonds could possibly last.
The respondent made it appear by the writings themselves, that, the earl had no right or patrimonial interest in these sums; that his commission was only to transact and compound; that he was accountable to the Crown for his receipts; and that he had therefore no authority to take the bonds in an underhand hidden manner to blank persons, thereby to cover the extent of his receipts. It was plain therefore, that neither in law nor in equity had he a demand for ohe shilling.
Journal, 13 Feb. 1726–7.
Judgment.
This day being appointed to hear counsel, counsel appearing for the respondent, but no counsel for the appellant; and the respondent's counsel being heard, and being withdrawn, the answer of the respondent was read, and consideration had of what was offered in this cause; .
Counsel: For Respondent, Dun. Forbes.