ANSWERS OR Poor James Thomson Son to the deceased Bailie
Andrew Thomson,
Brewer
Edinburgh; TO THE PETITION of Helen,
her
.
BAil
Andrew Thom
on
to
Jean Brown,
the Respondent's Mother, wh
ght with her a considerable estate in houses, and
and
money
far the
of the
was betwixt them and as a Contract of
it is not to be doubted but
Jean Brown
care to have suitable provisions to
marriage. But of these the Respondent can say
as the Petitioner did acknowledge before the
when the first submission depended, that she had burnt the said Contract; which is sufficient of itself to show the disposition of this woman towards her husband's children of the first marriage.
Jean Brown
died in the 1719, and left three Sons, and one Daughter; but Bailie
Thomson
finding it not convenient
keep house by himself, married the
titioner in the 1720▪ with whom he got an annuity of 500 merks, payable out of some houses in the
Cowgate
which she had from—
Gilchrist
her former Husband. But so far was she from bringing the money alledged with her, that her houshold-furniture was sold to pay her debt, and was not sufficient; neither could it be, as her first Husband was bankrupt, and his estate soon after brought to sale before your Lordships, and purchased by Bailie
Thomson,
for payment of which he sold part of the lands in
Potterow
which came by his first wife. During the subsistence of this marriage, Bailie
Thomson
purchaled some houses, and sold others, and carried on an extensive trade as a Brewer and Distiller, which was managed by the Respondent from 1721 to 1729; when the Petitioner wanting to have the Respondent away from his Father's presence, and from any management in his business, prevailed on the Father to take a Brewery for him; for which he promised to give him at the rate of 15 bolls of malt for all the years he had served in his brewery; part of which he got, but not near to the quantity promised; which was all the stock the Respondent had from his Father, and was far from being sufficient to enable him to carry on his trade.
But ab
ut the 1732, the Bailie finding his own Breweryaffairs going into disorder under the management of the Petitioner, be solicited the Respondent to come back again, and take upon him the management thereof; which he did, under the promise of ten pound
per annum,
to keep his pocket: which he never got. So that the Petitioner is in the wrong to say, that the Bailie's affairs were brought into disorder by any advancements or cautionry for him. It is true he became bound for
Andrew,
his second Son, at his setting up a cloth and silk shop, to the extent of L. 200; which will fall to be more particularly noticed afterwards: Basides this, the Bailie gave a portion with his Daughter when she was married; but the Respondent knows not what that was and he gave L. 20 to his third son
Adam,
who was bred a Surgeon, when he went abroad. This is all, so far as the Respondent knows, that the Bailie gave to his children of the first marriage; which was far from bringing his affairs into any disorder; for, after that he continued in very good circumstances, possessed of houses which yielded him L. 176 a-year of rent, besides his extensive trade as Brewer and Distiller.
The Bailie finding himself growing old,
1738.
of this date, thought it reasonable, to make a Settlement of his estate among his children of the first and second marriage; in which he disponed to the Respondent his houses in
Bristow
and
Potterow,
which yeilded L. 22 of rent; besides which, he had formerly, at making the purchase of the Brewery in the Grass-market, and some other houses in the Town, secured the fee of them to the Respondent; which made the share designed him by his Father to be about L. 80 a-year; but this was burthened with the Petitioner's liferent to the extent of L. 58: 5: 6. He likewise disponed to
Adam,
his third Son of the first marriage, lands in the West-port to the extent of L. 13, and to
John
his eldest Son of the second marriage, he gave lands about the foot of
Forrester
's wynd, and about the Meal-market and Exchange, which yielded L. 57: 15 s. of rent; and to
Joseph,
his second Son of the second marriage, he gave his lands in the
Cannongate
head, which yeilded L. 12: 10 s. of rent; to
Anne
and
Elizabeth,
he gave the lands in
Netherbow
and
Leith,
which yeilded L. 20, 15 s. of rent; to
Jean
and
Helen;
he gave some houses above Smith's Land: but as these were sold by himself, he, by an after-deed, burthened his executors with the payment of L. 100 to each of them; and to
Janet,
he gave his houses in
Niddrey
's wynd, which yielded L. 9, 5 s. and as the Respondent's part was so far affected with the Petitioner's liserent, the Bailie burthened
John
with the payment of 200 merks to him during the continuance of the liferent, and with a 100 merks to
Andrew
his second Son during his life, to whom he gave no part of his heritance.
Here it will be proper to inform your Lordships of
Andrew's
situation. It has been already observed, that the Bailie had become bound with his Son
Andrew,
at his setting up shop, for L. 200 to
Robert Pringle.
Upon this stock,
Andrew
carried on business for some time, and dealt with
Snee
and Company Merchants in London; but his sales not being able to answer his credit, and his Father refusing to become further bound for him, his London Creditors refused to give him any more advances, and were threating diligence: to prevent which, and to bring the Creditors into a composition, it was agreed that he should make over, by assignation, his whole shop goods, extending to near L. 300 to his Father, who, about this time. had got right to the debt for which he had become Cautioner. And the whole goods were put into his possession; but having got possession thereof, he was persuaded, by some very bad advice, to refuse to give the said Enlish Creditors, who were the only other Creditors of
Andrew,
any share thereof, tho' they were willing to have accepted ten shillings in the pound. And, for his further security, he executed a sham-poinding of these goods already in his own hands; which so irritated the Creditors, that they indorsed their Bills to Mr
Mansfield,
who brought a process against the Bailie for payment of their debt, extending to L, 197: 9 : 11; in which the Assignation and Poinding were reduced. But the Bailie dying before Decreet was pronounced, the process was transferred against the Petitioner, and all the Children of the Bailie of the first and second marriage, and Decreet was obtained against them all sor that sum. This circumstance, and perhaps some reflections by
Andrew
that his Father had not acted according to the agreement with him, was the reason why the Bailie, in the Settlement of his affair's, gave him nothing but the liferent-annuity of 100 merks.
The Bailie, about this time, finding himself a dying executed a Settlement of his moveables to the Petitioner,
1743
Mr.
Montgomery,
now Commissioner of the Customs.
William Wardrobe, John Bell,
and
Andrew Chalmer,
as Trustees for his five daughters of the second marriage, who were authorised to turn all his moveables into money, to be stock't out on annual rent, and to be liferented by the Petitioner for the aliment and education of her children; and in respect he had sold the houses disponed to
Jean
and
Helen
in the Settlement 1738, he ordained them to secure L. 100 Sterl to each of them, beside their share of the residue, which they were to draw with the rest of their Sisters, when the liserent ceased; But it is expressly provided, That, during the Petitioner's life and continuing unmarried, she was to have the sole management of these subjects, and the management of the other Trustees was only to commence when any one of these events happened: so that the Petitioner has no reason to complain that these Trustees refused to accept of the trust, seeing, during her life, they could have no power to act. In this deed, the Trustees are appointed to sell the houses in Cannongate-head, which he by the deed 1738 had conveyed to
Joseph,
who was then dead, and to pay the price thereof to the Trustees for the Creditors of Mr
Mantgomery
of
Wrae,
from whom he had bought it at a judicial sale.
Bailie
Thomson
having thus settled his affairs, wherein he did full justice to the Petitioner and her children, died soon after in opulent circumstances, as was reputed by all that knew him, both in heritage and moveables, and not above L. 500 of debt: and after his death, there was a meeting of some friends for the Respondent with the Petitioner; at which she complained loudly of the Bailie's Settlements, and alledged his affairs were in disorder, and that his effects would not be able to answer his debts, and the other purpose therein designed: upon which an offer was made for the Respondent, that if she would give up her right to the moveables, she should have sufficient security for L. 500 to herself and Children, and be freed of all her husband's debts. But this she absolutely refused; and as she had a right to the moveables, so she kept possession of them; and she has acknowledged that she likewise kept possession and uplifted the rents of all the houses belonging to her husband, except two or three little houses which the Respondent uplifted the rents of, which afforded him but a scrimp maintainence; and the Petitioner, after keeping possession of her Husband's effects, and carrying on the Brewing and Distilling as formerly, from the month of April, when her Husband died, to the month of December, she at last confirmed herself executor, but took care to give up as little in Inventary, as she could with decency do.
The Respondent being thus stript of his Father's inheritance, was about raising a Process for recovering his right, when a Submission was proposed, which was readily gone into by him and his Brother
Andrew,
who likewise thought himself injured, as they had not money to carry on processes; and their disputes were accordingly submitted to Mess.
George Boswal
and
Andrew Dechar,
who had several meetings with the parties and their Doers; but in all their meetings, especially after the 1745, he perceived an evident partiality in favours of the Petitioner, who got allowance of every article claimed by her. But this Submission happening to expire without any Decreet-arbitral being pronounced, the Respondent was resolved never to submit his affair again to these Arbiters, and brought a Process against the Petitioner before the Sheriff, to account for her intromissions with her Husband's effects, and for freeing him of his Father's moveable debts.
The Petitioner, afraid of being brought to account, and anxious to have the Submission renewed to the same Arbiters, fell upon this stratagem. She paid
Mansfield
's debt, and took right to his Decreet and Diligence in the name of
William Richaradson
her Trustee, which Decreet was against her and all the Representatives of Bailie
Thomson,
and which she, as sole intromitter with his effects, was obliged to pay; and upon this diligence a Caption was raised, and the Respondent was taken, and threatned with being put in prison, unless he would renew the Submission to the same Arbiters; which he alsolutely refused; whereupon he was put in prison on the 14th July 1748, an his Brother
Andrew,
who was then in a dying condition under a decay, came up in the afternoon to see him, and he was likewise arrested; but no intreaties, by his wife and her friends, representing the danger he was in of dying in prison, could prevail with Mr
Richardson,
the Petitioner's Trustee, and
John Walker,
her Son-in-law and ordinary Doer, to consent to his liberation, unless the Respondent and his Brother would sign a new Submission to these Arbiters: So they past that night in prison, in which
Andrew
had almost died, which, with the most earnest solicitations of
Andrew
's wife and her Cousin Bailie
Blackwood,
and of
George Balfour, Andrew
's Doer, induced the Respondent next day to sign this extraordinary Submission; but at the same time he declared, that he would rather have lain in prison till he rotted, than have signed the Submission to these Arbiters, had it not been out of regard to his Brother, and save his life. And here its to be observed, that these solicitors were all the friends of
Andrew,
and acting for him, but had no connection with the Respondent.
Upon signing of this Submission, they were soon after set at liberty, and not the least demand was made upon either of them for payment of the debt upon which they were laid in prison, nor of any corroborative security therefor. They had obtained the sole purpose for which they had execute the Caption; but they took care, that
Richardson,
in whose name the Caption was, should noit be a party-submitter; so that Diligence was still kept as an aweband over their heads, in case they should offer to quarrel the Submission on account of its being extorted from them
metu carceris,
it being in their power to put it in execution at any time.
Whether the Arbiters had any meetings afterwards before the signing of the Decreet-arbitral upon the 6th November following, the Respondent knows not; but one thing he is sure of, that he never met with them after, nor did he ever desire or impower his Doer
William Garden
to meet with them, or to give in any papers or Memorials to them; and, so far as he knows, Mr
Garden
never met with any of them, nor gave in any Memorials to them; for he had told him that he was resolved to quarrel the Submission whenever he was in a capacity to do it.
The Decreet-arbitral was no sooner put into the Register, than a Charge was given to the Respondent to obtemper the Decreet-arbitral; and upon his refusing, a Caption was taken out, which obliged him to retire to the Abbey, and there he was narrowly watched for several years with different Messengers, in case he should happen at any time to come out of the Sanctuary. As he was stript of all his Father's inheritance, and had nothing to live on but the charity of friends, it was no wonder that he was not able to bring his quarrel of this Submission and Decreet-arbitral sooner.
The Petitioner having got the Decreet-arbitral absolutely to her mind, she, for herself and children, and her son-in-law
John Walker,
led Adjudications against the estate; which obliged the other Creditors likewise to adjudge; and a process of Ranking and Sale was carried on in the name of
Richardson
the Petitioner's Trustee, in which a state of the debts was made out, where she, her children, and
John Walker
her son-in-law craved to be ranked for no less a sum than L. 1405: 3: 10 Sterling; which is more than the proven value of the estate, and would have been tanked accordingly, of the Respondent had not appeared, and opposed the same; and this over and above the Pettioner's,
with the whole moveables of her Husband, and the rents of his estate for 9 years, when the Respondent, the father's eldest Son, and heir to his mother, who brought so large a part of this subject with her, is stript of all.
The Respondent hopes he will be excused in giving your Lordships so full a detail of past transactions, which he thought himself obliged to do, that your Lordships might have a just and true view of the matter. He shall now proceed to consider the several arguments insisted upon for altering the Lord Ordinary's Interlocutor, twice adhered to by his Lordship.
The
first
is, That there is no legal evidence that the Submission was signed in prison. As to which, it is true, that Mr
Alexander Blackwood
is the only person who depones to the precise fact of the Submission being signed in prison; but as he was an instrumentary witness to their signing the Submission there, and the only surviving instrumentary witness, it is submitted to your Lordships, whether his single Deposition is not a sufficient proof of the fact, in which he could not be mistaken nor under any doubt, though he uses the precaution, which every witness is allowed to do, especially when deponing of facts which happened 12 years before,
That, to the best of his remembrance, he carried up a scrole of the proposed Submission to the prisoners, which they revised; and that they having agreed to the scrole, he afterwards carried up the Submission extended upon stamp paper; and that, to the best of his remembrance, he received both the scrole and principal Submission, either from Mr
Balfour,
or from Mrs
Thomson,
the prisoner's wife: and that, to the best of his remembrance, he saw both the said
James
and
Andrew Thomson
's sign the said principal Submission in the prison; to which, so far as he can recollect, he is a subscribing witness; and that the Deponent thinks they were very soon released after signing the Submission.
He also says.
That he remembers that both the said
James
and
Andrew Thomsons
seemed averse to enter into the said Submission; and that
James
in particular said, he was afraid it might hurt him with respect to some deeds execute by his Father in favours of him the said
James.
He swears likewise to
Andrew
's bad state of health, and that his wife was anxious for his liberation, and told him that their liberation was offered them upon condition of their signing a Submission; and that, at her desire, he went several times up to prison to perswade him; and that
George Balfour, Andrew
's Doer, was with him at some of these times.
This, the Respondent apprehends, is as full and satisfying a proof as can be desired, and as could well be expected, when the other instrumentary witness is dead. And it is confirmed in every other circumstance, except the signing of the Submission in prison, by
Maney Blackwood,
the widow of
Andrew Thomson,
who, as being more particularly concerned in the affair than Bailie
Blackwood,
is more pointed and clear as to several circumstances attending that transaction than he can be supposed to be at such a distance of time, and in an affair where he had but an accidental concern. And if this proof should not be thought sufficient, the Respondent could yet adduce two other witnesses,
Alexander Henderson
and
James Brown,
who came up to them in prison, after their signing the Submission, and were employed by them to go and seek money to pay the prison-dues, in order to their getting out.
It is next said, That though the fact of signing the Submission in prison was proven, yet it was not relevant to set aside the decreet-arbitral, which is indeavoured to be supported at great length, and several cases are taken notice of concerning transactions with debtors in prison for payment of just debts, or for granting additional securities therefore. But the Respondent apprehends, that the law is quite clear, by the Civil law the edict of Praetor was the rule,
Quod metus causa gestum erit ratum non babebo.
And in the 22d
l. dig. Quod metus causa in carcerem quem detrusit ut aliquid ei extorqueret, quid ob banc causam sactum est, nultius momenti est.
And Lord
Stair, tit. Reparation, parag.
8. That, by the Praetor's edict, and the custom of this and other nations, such deeds and obligations as are by force and fear, are made utterly void; and he cites a decision very parallel to the present case, 22d January 1667,
Mair contra Stewart
of
Shambelly,
where
metus
was sustained to reduce a Bond granted by a party taken by Caption, because he was sick. The Respondent apprehends, that there is no compulsitor in law to oblige a person to enter into a Submission: That can only be brought about by the free and voluntary consent of parties; and therefore the using a diligence, which is allowed by law, for recovering payment of a debt, for this purpose, is a perverting of the law; and the using it so against a person sick and in danger of dying, was a glaring and gross perverting of the law, which the Petitioner is forced to own will afford a ground for reducing these deeds as exported
vi et metu carceris.
The Respondent might add, That as the Petitioner had possessed herself of all her Husband's effects, and she has acknowledged that she had paid that debt, no doubt, out of the produce of her Husband's effects, as she had no other funds, he submits it to your Lordships, how far she could have used that diligence against the Respondent for re-payment of it to her, as she the executrix had already paid it out of the funds of her Husband the original debtor; and if she could not, then all her argument justifying the imprisonment of the Respondent and his Brother, falls to the ground.
The Respondent apprehends, he needs not take up much time in answering the several cases founded on by the petitioner in support of her claim; for in these the intention of imprisonment was to get payment or security, and the debtor was under an obligation to pay the debt, or to grant further security for it, and if he either paid it in prison, of granted new security for it, he did no more than the law obliged him to do; and therefore these transactions may be held good in law, though done in prison; and in these cases the debtor gave a full consent to the transaction; whereas here the Respondent gave no consent to the thing, and showed to demonstration that he only did it to save his Brother's life, and procure personal liberty to both. But, at the same time, it is certain, that if any iniquity was done to persons in prison by these transactions, they would be reduced on this head, which makes a very material difference between these cases and the present one; for here, if the submission be supported, the Decreet-arbitral following thereon, how iniquous soever, cannot be reduced, iniquity not being one of the grounds of law for reducing a Decreet-arbitral.
The Petitioner endeavours to justify her insisting on a Submission as a reasonable action for settling the mutual claims, which each party had on one another. But here it will be observed, that the Petitioner had no claim upon the Respondent, but to get him to confirm her illegal usurpation of all her Husband's estate. He indeed had a claim against her, to restore to him what part of his Father's inheritance he had left to him, and to free him of his Father's moveable debts, which she was obliged to do, as intromitter with his moveable effects. But, from past experience, he had found that he was in no likelihood to obtain this before the former Arbiters; and therefore, nothing but to save his Brother's life, could have induced him to submit his cause again to these Gentlemen. However good their character may be otherwise, their decerning such a sum to the Petitioner and her children, and, at the same time, stripping the Respondent is sufficient to show the iniquity of their Decreet-arbitral. But he apprehends his plea for reducing the Submission is good, upon the head of fear and force.
The Petitioner says, That the Respondent did homologate the Submission, when he was at liberty, by his Doer
William Garden,
giving in Memorials and other papers to the Arbiters upon the subject of the Submission. This has already been taken notice of, and denied; and it is but very faintly alledged by the Petitioner; for all she can say on this head is, that it appears from Mr.
Garden's
compt-book, where he states an article, in his accompt with the Respondent, for drawing a Memorial to be given in to these Arbiters. How the Petitioner got access to Mr
Garden
's compt-books, is not known; but from her stating it, it does not appear, whether this Memorial was to be given in to the Arbiters, during the dependence of the first Submission, or of the second. Neither does it appear whether ever that Memorial was given in to the Arbiters: But, if it was given in to them, during the second Submssion, he positively denies that ever he gave Mr
Garden
any warrant or commission to give in such Memorial.
It is said, in support of his having homologate the Submission, that he made no challenge of it for some years, though he was at his full liberty all the while. Your Lordships will have observed, from the narrative of the case, that he was far from being at liberty; the Petitioner had no less than two Captions against him, one upon
Mansfield
's debt, and the other upon the Decreet-arbitral, and the Messengers hired to watch him, in case he came out of the Abbey. It was, no doubt, the Respondent's interest to have brought his quarrel sooner; but his want of liberty, and especially his want of money to carry on the process, was the occasion of the delay; and if he had not got your Lordships
gratis
warrant, he must have been silent still; at the same time, he apprehends, it would have been competent to him to have brought his action any time within forty years.
It is an affected pretence in the Petitioner to say, that she has lost the vouchers of her accompts, which she looked upon as unnecessary to be kept for so long a time, by which she could have supported the Decreet-arbitral in every point; for your Lordships will have observed, that the Respondent,
de recenti,
refused to ratify and fulfil the Decreet-arbitral, and said he would quarrel it whenever he had it in his power; whereupon, she took a Caption against him; and that being the case, it is not probable that she has lost any one of her vouchers.
In support of the reasons of reduction before the Lord Ordinary, several particular iniquities committed by the Arbiters, were mentioned, and many more could have been insisted on; but, as there Were Objections and Answers lying before his Lordship, to be advised when the Decreet-arbitral should be set aside, there were only a few noticed, which the Petitioner has endeavoured to take off, which makes it necessary for the Respondent to resume them, though he thinks his reduction well founded without them. The
first
was, That she ought to have shown diligence for setting the houses, and for recovering the rents and outstanding debts, which the Arbiters had not found her liable to do; upon which it is now said that iniquity in Arbiters is no ground for reducing their Decreet-arbitral; and
2dly,
That it would have been improper for an executor to waste the funds of the executry in doing diligence for debts, where there was not the smallest prospect of recovery; but, at this rate, every executor might have it in his power to do what she pleased with the executry without being liable to quarrel from any hand; whereas, It is an established rule in law, That an executor must make up full inventaries in a cafe, where there is a competition of Claimants, whether creditors or heirs, and is liable to do diligence for making the executry effectual, and is obliged to find a cautioner for that effect. No body, to be sure, would insist that she should lay out good money in seeking in desperate debts; but still it was incumbent upon her to shew what of these debts were desperate, which she was not ordained to do by the Arbiters.
The Petitioner now has acknowledged, that she has recovered of the executry to the amount of L. 700 Sterling, and upwards; the Respondent believes she has or might have recovered a great deal mare as it was reputed to be above L. 1600. But here a question naturally occurs, What has she done with this great sum of executry intromitted with by her? The defunct's moveable debts ought naturally to have been paid out of his executry. Has she done that? it is believed she will not answer in the affirmative; the debts of her Husband were in and about L. 500 Sterling; and it appears from the list of debts now in the Ranking, that they are all still outstanding, and not so much as the annualrent of any of them paid, though besides this executry intromitted with by her, she had nine years possession of her husband's heritable estate of L. 164
per annum,
except the two houses possest by the Respondent; notwithstanding whereof the Arbiters find her a Creditor on the subject for L. 101: 19: 11⅓ Sterling; and L. 95: 6: 6 Sterling.
It was noticed before the Lord Ordinary, that the Arbiters had committed iniquity in finding the Petitioner intitled to aliment for her children, which is now said to be highly just, as their provisions consisted in certain heritable subjects, which were liferented by their Mother, and that therefore they were intitled to be alimented with their Father's effects till they came to enjoy their own provisions. Here an obvious answer will occur, The Father, by his deed in the 1738, disponed to the Petitioners children, houses which yielded upwards of L. 90 of rent; and as the Petitioner's two liferents, amounting to 1100 merks, or L. 61: 2: 2 ⅔ Sterling, was laid upon the Respondent's part of the heritage to the extent of L. 58: 5: 6 Sterl. it is evident that very little of her children's provisions stood affected with their Mother's liferent: So that if she had managed matters a-right, there was a sufficiency to have alimented her children out to their own provisions; and she had besides the residue of the executry over payment of the debts made over to her by her husband. But tho' that had not been the case, a question would have arisen, in case the estate be bankrupt, as she pretends, Whether the Creditors would be obliged to maintain her Children or not, especially when she their Mother was peaceably enjoying two jointures extending to 1100 merks, free of all publick burdens? And another question would have occured, whether the Respondent, as matters stood by the deeds of his Father, would have been obliged to aliment his Brothers and Sisters, supposing the estate had not been bankrupt?
Another article of complaint against the Decreet-arbitral mentioned before the Ordinary was, That the expenses of repairs of the houses which she had in liferent from her last Husband were allowed her, through that was not provided in the Contract of Marriage, to which it is now said that the husband became bound that the houses should yield 600 merks free of all taxations and publick burdens. But reparation of liferented houses, is a burden upon the liserenter, and is neither to be accounted a taxation or publick burden.
The Petitioner, in the
last
place, endeavours to make an apology for the smalness of the rent accounted for by her for the five years of her intromission preceeding the Decreetarbitral, when compared with the five years rents uplifted by your Lordships Factor, when the estate was sequestrate, and says, that sundry of the houses were waste and in bad repair, and that the sums laid out by her in reparing them, made them set better afterwards. But here it is to be observed, that, after all her repairs, the highest rent she brings up the houses to in the last year of her intromission, is but L. 129 and some odd shillings, whereas the Factor's rental is L. 164.
And, upon the whole, the Petitioner concludes, that there is no good exception against the justice of the Decreet-arbitral, and that there is no relevant ground in law for reducing this Submission, and that iniquity is no relevant ground for reducing the Decreet-arbitral. The Respondent apprehends, that he has much better ground to say, that the Decreet-arbitral is in every particular iniquous, and that whether it was iniquous or not, he is founded in law to reduce the Submission, the signing of which was elicit from him and his Brother
metu carceris;
and that the petitioner, by her extraordinary, illegal and unwarrantable management of her husband and childrens affairs, has occasioned difficulties, and probably loss, which may not be easily recovered from her, and she in the mean time is quietly in possession of 1100 merks free of public burdens, tho' she has only now two of her six children with her, while the Respondent, the heir, has not a farthing of his Father's effects to live upon, which he hopes will merit the consideration of the Court.
In Respect whereof, &c.
GEO. PRINGLE.