Scottish Court of Session Decisions

Subject_1 EXECUTOR.

Sir A Grant
v.
Mrs Burrows, &c

(1752) 1753, July 23.
Case No. No. 21.

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Captain William Burrows, deceased, and Sir Archibald Grant had many great dealings together, and in September 1733 settled accounts together, whereby the balance in Burrows's favour was L.3800 sterling; but as Sir Archibald disputed sundry articles of the accounts, Burrows accepted in satisfaction an heritable bond by Sir Archibald on his lands in Scotland for L.2000 sterling,—and subjoined to the account there is a mutual release of all demands preceding the date. This bond Mr Burrows conveyed to his wife's father Mr Cartwright in January 1734, and he was infeft in March that year. Burrows is dead, and so is Cartwright, and Mrs Burrows and her two sisters daughters of Cartwright having served heirs to him sued Sir Archibald for the L.2000, whose defence was compensation by sundry debts due to him by or wherein he was engaged for Mr Burrows, and was forced to pay, and chiefly on account of a copartnery with sundry others in the Morven Lead Mines, wherein Burrows had a considerable share; and the other partners having failed, the creditors of the Company had recovered large sums from Sir Archibald, and he had also made large advances of meal to the Company. And on report 14th January last, the Lords found that the claims arising from these copartneries did not fall under the said general release,—but found it not competent to Sir Archibald after the general release to plead compensation or retention against Cartwright or his successors, not even for debts incurred before Cartwright's assignation or infeftment, (renit. Kilkerran, Leven, et me.) But found sufficient evidence that the bond was conveyed by Burrows to Cartwright for security and implement of the marriage-articles betwixt Mr Burrows and his wife for settling L.3000 for the use of both spouses, and the longest liver of them,—and found no sufficient evidence for Sir Archibald to plead compensation or retention to the extent of the annualrent of L.2000 during Burrows's life. Sir Archibald next insisted, that Mrs Burrows has as executrix administrated to her husband in England, and had possessed herself of effects to satisfy the L.3000, for security whereof this bond was conveyed to Cartwright, and therefore the bond was now in bonis of Burrows, and compensable with debts due by him;—and insisted that she should account for her intromissions, and this process be stopped till such account;—and on the other hand Mrs Burrows insisted that she could not be obliged to account in Scotland for an office she had in England. The Court was much divided upon this point. Against the accounting a judgment of the House of Lords was alleged in the case of the late Dutchess of Hamilton, and for the accounting a later judgment of this Court in July 1732, White against George Skene, (Dict. No. 54. p. 4844.) and therefore the Court delayed till either party should get the opinions of learned counsel in England, which was got, and printed copies given in to us. On the part of Sir Archibald by K. Evans and R. Hodson, and on the part of Mrs Burrows, by William Murray, Solicitor-General, and R. Wilbraham. Mr Murray's opinion was, that if such accounting should become necessary incidentally to a question before the Court of Session, he thought the enquiry might be made, making all the allowances which would be made in England. The rest in substance agreed with him; but the opinion of Sir Archibald's counsel was the notwithstanding of which the Court was much divided. Those against accounting, urged that that account behoved to be judged according to the English law, with which we were not acquainted, and did not know what debts had a preference in England and what debts had not, and that Mrs Burrows could not have the necessary compulsators for bringing other creditors or others having interest in the subject into Court. The other Judges again answered, That was no more than happened and behoved to happen every day where transactions or dealings in England or other foreign countries happened to become a subject of dispute here either by way of action or defence, or reply. However, it carried that she was not bound to account here, six and the President against five, in which last number I was. But then they found that action here must stop for such time as Sir Archibald may sue her in England, and for that they allowed two years, and in this last I did not vote, because I doubted, if she was not bound to count here, whether we could have any regard to the defence?—10th July 1754, On a reclaiming bill for Sir Archibald, and answers, which were remitted to the Ordinary and reported, we altered the first part of the above interlocutor, and found the compensation competent, but adhered to all the rest.