Scottish Court of Session Decisions

The late William Glendonwyn of Parton, had three daughters, Misses Mary, Ismene, and Xaveria Glendonwyn. The eldest, Mary, was married to Sir James Gordon of Gordonstone and Letterfoury, Bart., and by the marriage-contract, Sir James bound himself to pay to her the annual sum of £210, for her own use, exclusive of the jus mariti.

William Glendonwyn died on June 18, 1809. After his death, a minute was made at the opening of his repositories, bearing that, among other persons then present, were Sir James Gordon, and Francis Wilson, W.S., as agent for Sir James and Lady Gordon. The minute contained an inventory of title-deeds, and various other papers of importance, found in the repositories of the deceased; and it bore that, besides these, there was a large number of letters and other papers found, which it was thought unnecessary to inventory. Immediately after this meeting, Lady Gordon obtained leave to take away from these papers so much as consisted of her own correspondence and her husband's, and for this purpose she was allowed to have access to the papers. William Glendonwyn shortly before his death had sold his estates of Parton and Crogo for £60,500, and £12,000 under burden of the price, to his son-in-law, William Scott of Wimpson, the husband of Miss Ismene Glendonwyn. William Scott was unable to pay the price, and, in 1817, a ranking and sale of the estates of Parton and others was brought, in which claims were made by the creditors of William Glendonwyn, and by Lady Gordon and her two sisters as heirs-portioners, entitled to the reversion of the price, after the creditors of William Glendonwyn were satisfied. In prosecuting her claim, Lady Gordon and Sir James assigned her interest in her father's succession to a private trustee (Crombie of Phesdo), who appeared and claimed in the ranking. The affairs of Sir James Gordon were in a state of great embarrassment, and Lady Gordon at length lived separately from him. In 1829, she and a curator ad litem, made a separate appearance in the process of ranking, alleging that her interests had been neglected by her trustee, or sacrificed to those of her husband. Among other claims made by her, she presented a petition to the Court, in 1832, to open up the decree of certification which had been pronounced in the ranking in 1819, and to allow a claim for her to the amount of £1350, of principal, besides interest, in virtue of a provision to which she was entitled as a burden imposed by her deceased mother on the lands of Crogo, when disponing these lands to her deceased father, but which claim had been hitherto overlooked. The decree of certification was opened up, and, after a contest, Lady Gordon prevailed in having that debt ranked on the estate.

In 1833, and after the death of the private trustee above-mentioned, Lady Gordon raised an action against her two sisters, as executors, of her father, and heirs-portioners along with her, and craved decree of constitution of a debt of £500, composed of two sums of £300 and £200, which she alleged to have been due to her by her father at the time of his death. Sir James Gordon was also called for his interest. The right and interest of Mrs Ismene Scott or Glendonwyn, in her father's succession, having been onerously assigned to John Napier of Mollance, whose estates were afterwards sequestrated, defences were lodged by Miss Xaveria Glendonwyn, and by Robert Kemp, the trustee of Napier.

In support of her action, Lady Gordon founded on the following evidence, consisting partly of letters written by her to her father and her sister, Miss Ismene Glendonwyn, which she stated she had obtained from her father's repositories when allowed to have access to them after his death; partly of letters written by him to her; and partly of entries in his books.

It appeared that, on March 21, 1807, Lady Gordon wrote to her sister Miss Ismene Glendonwyn, intimating that she had some money which she wished to lend out at interest, and which she desired to keep concealed from her husband, who was in want of money, as she was resolved not to lend it to him. In the draft of another letter from Lady Gordon to her sister dated “Friday 8th, 1807,” it was stated that she now inclosed £70, and that she had thus sent three sums of £100, £55, and £70; and that “the remainder of my £300 goes by to-morrow's post.” Assuming these three sums to have been sent, the remainder would amount to £75. On May 11, 1807, Lady Gordon wrote to her father from Letterfoury:—“Before this reaches you, you will have made yourself sensible of having received from me £300, which sum I am anxious you would keep, if you are in the way of borrowing, and if not, that you would place it as your own along with other money you may have at interest, and for which you have undoubted security. I require five per cent, and of course shall allow it to remain one year for certain, giving also three months' notice should I lift it at the expiration of that time. As the south-country term answers me better than that of the north, I count from the 15th of this present month. I will be glad how soon you yourself would write me, acknowledging the receipt of this said sum of £300, and promising me five per cent.” This letter bore the post-mark, May 13, 1807. By a letter dated Tuesday, May 12, 1807, from William Glendonwyn to Lady Gordon, it was stated that “Your letter of Friday covering £70 was got at the post-office this morning, Tuesday.” A postscript dated Wednesday, 13th, was added in these terms:—“The £75 is come safe this morning, Wednesday, 13th.” This letter bore the post-mark of May 14, 1807.

In a letter dated, about a year afterwards, at Edinburgh, March (or May) 9, 1808, written by Lady Gordon to her father, she said “By Wednesday's post I send you part of my £200.” This letter bore the post-mark of May 10, 1808. By another letter, dated Edinburgh, Tuesday, May 10, Lady Gordon mentioned to her father that she was to send “at least £30 by Thursday's post,” and that “Friday and Saturday's will carry the remainder of my £200.” And by another letter dated Edinburgh, Wednesday, 11th May, Lady Gordon wrote to her father that she was to send him £100, by Friday's post. These letters bore corresponding post-marks. They expressed anxiety to keep concealed from every person the fact of her having any money which was lent out at interest. Her father wrote to her a letter dated Parton, May 14, 1808, acknowledging receipt of her four letters “and the 5 contents;” intimating that he would send to the post-office next day for another, and adding that lest she should have set out before his letter reached her, “I will not mention the contents for fear it fall into other hands.” On Sunday, May 15, 1808, her father again wrote to her “Your short letters came safe to-day, and I have noted the contents.” These letters bore post-marks of corresponding dates. It appeared from the tenor of Lady Gordon's letters that she sent the money in so many different post-letters, in consequence of distrusting the country post-office through which the letters had to pass, and in consequence of supposing that by that species of conveyance she could best gain her object of concealment.

William Glendonwyn was owing various sums of money, for many years before his death, to different parties, to many of whom he had granted acceptances. These debts he had entered in a book kept by himself from 1786 downwards to May 22, 1809, which was within a month of his death. And he was in the habit of entering there not merely the debt, when contracted, but the subsequent payments of interest, or of sums to account, and also the granting of acceptances, renewals, &c. Among other entries this book contained the following:—

Page 50.

1807 May 15.	Promised my Acceptance, of this date, to Lady Gordon of Letterfourie, for money remitted by her to me	£300	0	0
	1808. May 15. Paid the year's interest at 4 1 2 per cent, £13, 10s.
1808. May 15.	Promised my Acceptance for £200, farther remitted by her to me …	£200	0	0.”

Upon this state of the facts, the defenders pleaded that the letters founded on, and the entries in the books, did not prove that the sum of £500 had ever been lent by Lady Gordon to her father. But if it had been lent, the presumption was that the loan had since been paid, having probably been intended for some mere temporary purpose which was satisfied before her father's death. No notice had been taken in the minute made up after the death of her father, of the existence of this debt; and as Sir James Gordon, and an agent for Lady Gordon, attended at the examination of the papers, they could only have passed over this debt, in consequence of finding evidence in these papers that it was paid. Immediately after this examination, Lady Gordon had had access to these papers, and, for any thing that appeared, she might have found vouchers there for payment of the debt, and have carried them off and destroyed them. But, at any rate, as she was all along fully aware of the history of the debt, and possessed the same means of proof as she now founded on, it was impossible that she should have allowed twenty-four years to elapse, and decree of certification to go out in the ranking and sale, before claiming this debt, if she had not also been aware that the debt was satisfied. During the delay thus created by her, various persons had died, including the private trustee above-mentioned, who were well acquainted both with her affairs, and with the affairs of her father, and who, she probably knew, could have rebutted this claim by positive evidence. In the whole circumstances, the legal presumption was, that the debt had been satisfied or paid in the lifetime of her father; and this presumption was fortified by the fact, that the entry in his books implied, that on May 15, 1807, and again on May 15, 1808, he had “promised his acceptance” for £300 and £200 respectively. If these acceptances had been granted, which was to be presumed, unless the debt was paid, they were long ago prescribed; and it was impossible to allow to the entries in the book a stronger effect than if the promise stated in them had been fulfilled.

Lady Gordon answered, that the sums in question arose out of the annuity of £210, to which she possessed an exclusive right. Her husband was in great pecuniary difficulties, and she wished to keep concealed from him the fact that she had saved £500. Her letters to her father, and his answers, and the entries in his books, sufficiently proved the loan to him, and the payment of a year's interest upon the only part of it which had been so long due before his death. Though he had promised to grant an acceptance in her favour, he had never done so, the loan being vouched upon these letters and the entries alone. The debt had not undergone prescription; the lapse of time, therefore, was quite unavailing as a defence, and there were no other circumstances founded on. In particular, the loan was not meant for a temporary purpose, but as a permanent loan at five per cent. Accordingly she had received interest at that rate, deducting the income-tax on the sum of £300, which alone had been lent a full year before her father's death; and it had been stipulated that she should give three months' premonition before calling up the loan. As to the insinuation that she had removed any other papers from her father's repositories, relative to this debt, except those produced, it was altogether unfounded and unwarrantable. She had afterwards kept the existence of this debt concealed from her husband, and that prevented her from claiming it, as, until a comparatively recent period, she had not made a separate appearance in the ranking. She did so in consequence of considering that her interests had been neglected by her husband and the private trustee above-mentioned; and, by doing so, she had already established her right to a bond of £1350, and got it ranked on the estate, as a debt due to her by her father, which had previously been overlooked or disregarded by those who should have attended to her interests. The sum now in question, in this action, had never fallen under the conveyance to the private trustee, which reached only rights of succession, and not debts due to her by her father. The death of that trustee, therefore, could in no way affect the subsistence, or evidence of the debt. Its constitution was clearly proved, and she was entitled to obtain decree for the amount, as no relevant defence was established against her.

The Lord Ordinary “found that the evidence in process does not establish the debt sued for; sustained this defence, assoilzied the defenders, and decerned, and found the defenders entitled to expenses.” ^*

Lady Gordon reclaimed.

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“* Note.—The Lord Ordinary thought that this case ought to be settled by a verdict, and if it is to be litigated farther, he still thinks that this is the proper way to deal with it; but both parties were averse to this course, and, supposing that the pursuer might rest satisfied with a single judgment, the Lord Ordinary did not feel himself bound to enforce his view.

“On the merits he conceives the pursuer to have no case whatever. Some of the writings she founds on are not admissible as evidence for her, and, admitting them all, they don't sustain her case.”