United Kingdom House of Lords Decisions

After these actions had depended for several years, and M'Knight having died in 1811, his son and heir, William M'Knight Crawfurd—Mr Parker's son, (who also represented the heir of Mr Aitchison,) and Mr M'Cormick entered into the following agreement:—

“At Edinburgh, the 13th day of September, 1811 years. It is agreed by the subscribing parties, viz. William M'Kniglit Crawfurd, Esq. of Ratho, son, heir, and representative of his late father, Thomas M'Knight, Esq. of Ratho, William M'Cormick, Esq. of this city, and Charles Stewart Parker, of Glasgow, merchant, acting in virtue of a letter from his father, James Parker, now residing at Glasgow, the said James Parker taking burden on him for himself and the representatives of the late William Aitchison of Norfolk in Virginia, as follows: That whereas the said Thomas M'Knight deceased, William M'Cormick, James Parker, and the said deceased William Aitchison, were engaged in various branches of commerce together in America, before, during, and since the rebellion in that part of the world, both as copartners and individuals, under the various firms of Thomas M'Knight and Company, William M'Cormick and Company, and Aitchison and Parker, or whatever other firm or firms they, or any of them, may have been engaged in, or connected with; and that, owing to the rebellion breaking out in America, about the year 1775, at the places where their business was conducted, they, or the survivors of them, were compelled to abandon their residences in America, and fly for refuge to this country, leaving their affairs, in consequence of loss of property and vouchers, in a state of the greatest intricacy and confusion; and, in consequance of such intricacy and confusion, they were not able to agree among themselves as to a final settlement of their various accounts as individuals and partners, and were, from this circumstance,

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drawn to the disagreeable alternative of seeking redress from each other in the courts of law in this kingdom: That after a litigation having subsisted between the parties for nearly eight years, they, to their mortification, find that they are now, after having expended a great part of their substance at law, as far, or nearly so, from having their matters brought to a final issue, as ever they were: The subscribing parties, desirous not only to pass the remainder of their days in peace and mutual harmony, and forgiveness of past animosities, but to rescue whatever there may remain of the subject in dispute, from being swallowed up in further litigation, do hereby solemnly agree, namely, William M'Knight Crawfurd, Esq. as heir and representative of his said deceased father, William M'Cormick, and Charles Stewart Parker, acting under authority of his said father James Parker, who represents himself, as well as the heirs or assignees of the said deceased William Aitchison, that from and after the date hereof, there is, and shall be, an end of all farther proceedings at law; that they do hereby most formally bind and oblige themselves, those whom they represent, and their heirs and assignees, to grant full and competent discharges to each other, in full, of all bonds, bills, notes of hand, and vouchers of any description, either in process in Court, or out of it, whether the same vouchers be granted to or by each other, as individuals or partners, or whether the same, or any of them, be held by assignment, indorsation, or otherwise, and to deliver up such vouchers, fully cancelled, or that such vouchers, cancelled or uncancelled, be hereafter null and void, in or out of any court of law in this realm, or elsewhere; in short, to grant each other full and mutual discharges, on competent stamps, for all demands whatever, and relieve and relinquish any hold they have, or suppose they may have, on any sums of money anywhere deposited whatever, with these exceptions only, to wit, who shall pay the taxed costs in the reinvestment action; and that in the attempt to a final settlement of the affairs of William M'Cormick and Co. a difference has arisen, to the effect following: The said William M'Cormick claims from the said William M'Knight Crawfurd and Charles Stewart Parker, representing as aforesaid, the sum of L.2500, to be paid by both or either of the said William M'Knight Crawfurd, and Charles Stewart Parker, in full of all demands whatever; while, on the other hand, the said William M'Knight Crawfurd and Charles Stewart Parker contend, that they, or the parties for whom they appear, are only liable to pay the said William M'Cormick the

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sum of L.2000 sterling, each one half, in behalf of the parties they represent. They therefore agree to submit to arbitration, whether the claim should be restricted to L.2000, or L.2500; it being understood that it is on no account to be less than L.2000, or more than L.2500; and in case it shall be L.2000, to be paid in manner hereafter described: each an equal half, by Mr Crawfurd and Mr Parker; and if the sum awarded shall exceed L.2000, to be paid in manner following:—L.1000 by Mr Crawfurd, L.1000 by Mr Parker, and the remainder by both or either of them, as may be awarded by the arbiter or arbiters.”

This deed was drawn by Parker, one of the parties.

A submission on the point reserved was accordingly entered into, and in order to enable the arbiter to decide more easily, it was confined to articles contained in three accounts doquetted by the parties, with power to inspect the books and documents from which the accounts were taken; but although the bond of 1782, which related to a company transaction, was included in the accounts, yet that by M'Knight to M'Cormick in 1786, was not so.

By the above arrangement, Crawfurd became, at all events liable for L.1000 to M'Cormick, with annual interest until paid, and also for such sum as the arbiter should decree; and on that point no dispute arose. But after M'Cormick's death, on 16th January, 1815, a question occurred, whether the 1786 bond had been extinguished by the agreement and discharge, or whether it was still a subsisting debt.

It appeared that no interest had been paid by M'Knight from 1807 on that bond; and a small sum to account, paid immediately after his death, by his son, had been paid through ignorance that the debt was disputed. On 2d April, 1812, Crawfurd transmitted to M'Cormick a bank order for L.40, ‘in terms of the agreement of submission.’ Thereafter M'Cormick handed to Stewart (Crawfurd's man of business) a state, including interest on the 1786 bond, along with interest on the L.1000, and giving credit for the partial payment; but mentioning, that, as he did not understand the reference made in the order, he had applied the money “to the discharge of the old interest, and so much towards the new interest on the signed agreement,” and he sent a receipt accordingly, adding:—

“Should Mr Crawfurd object to the payment of the above, or any part of it, it shall be rectified.”

From November 1812 to November 1814, various sums were transmitted by Crawfurd to M'Cormick, ‘as per agreement and submission.’ There was no evidence, parole or written, that any demand (other than in the

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