April 2j . 1 77x. AWS
*
■April 2 j . 1 77 x.
M E M O R I A L for Dorothea Telfair, widow of Samuel Telfair innkeeper in Kirkcudbright, and now fpoufe to Hugh Shaw vintner there, D e fenders, Againft Jean Telfair, lifter of faid Samuel Telfair, and her hufband, Purfuers. g
^ A m u e l T e l f a i r , in the earlier part o f his life, ferved a gentleman in quality o f a groom ; and having . married Mary Macgowan, his firft fpoufe, they, about the year 1740, took up an inn in the town o f K irk cudbright; which fucceeded io w'ell, that they purchafed a tenement of houfes and yard in Kirkcudbright, then poffeffed by them as tenants. This purchafe was made in 17 5 5 '; and as they had no children, the wife was infeft in the tenement for her liferent: and they executed a mutual difpofition with refpetT to the executry; whereby it was agreed, that the longed liver fho'uld bruik all. Soon after this, Mr Telfair began to drink too "'freely; in which, it is faid, he was feconded by his wife. The confequence o f which was, that, in a little time, they fquandered away all their effects, and contra&ed confiderable debts; and nothing was left remaining but the forefaid tene ment o f houfes. To extricate themfelves from their difficulties, they, about the year 1760, borrowed L. 60, for which they granted he ritable fecurity upon the houfe and yard. The wife having foon thereafter died, and the hufband being unable to take proper care of his affairs, every thing went to ruin. The fur niture, and other things in the houfe, were embezzled, new deh£g(|ontra&ed, and the tavern deferted for want o f proper attendance. In thefe circumftances, the memorialifl Dorothea Telfair was married to Mr Telfair; and upon her entering home, file A found,
2 j
Apr. 8.
found, that the houfe ftoad in need o f every thing neceflarv, and that her hufband had no credit to procure it. She there fore, in order to avoid feiling the houfes, which were properly fit.uated for a tavern, uplifted fome money which fhe had ac quired during the courfe of many years fervice, and applied the fame for refurnilhing the houfe, and laying in a proper ftore of liquors, &c..; and by this means, and by her prudent management, (he brought people again to the houfe, and got tolerable good bufinefs. Samuel Telfair was then become old, and unable to take any management of the affairs within the houfe. He, with one of his fervants, chiefly attended the liable; and foon be coming fenfible of the alteration of his circumftances by his fecond marriage, he refolved, as he had done with his former wife, to fettle upon the memorialift every thing, both heri table and moveable, which he fhould die poflefled of. Accordingly, in fummer 1766, a general difpofition to this effect was executed by him ; but Mr Telfair coming after wards to uijderftand, that this difpofition would fecure his wife in his moveables only, and not in his heritage, he exprefled great concern thereat, and refolved to have her pro perly fecured by infeftment. 1767- Accordingly, of this date, upon a refignation by the de funct proprns mambus, the memorialift was inteft for her liferent in the forefaid tenement and yard. Upon the 1 ith of May thereafter. Samuel Telfair died, af ter being confined to his bed a few davs. At the time of ma king the refignation, he was in his ordinary Hate o f health, and perfectly found in judgement; and was then going, and for many days after did go, about his bufinefs in his ufual manner. Jean Telfair, the defunft’s filter, and apparent heir, ap prehending herfelf injured by the forefaid hferent-infeftment, has made up titles to her brother, and brought an action of reduction of the forefaid infeftment, on the head of death bed. This
[
3 ]
This procefs having been called, and great avifandum made with it, the Lord Pitfour Ordinary, to whom the caufe was remitted, allowed the purfuer a proof of her libel, and Feb 15.1769. the defender a conjunct proof thereanent; and a proof to both parties of all facts and circomftances they might think material. This proof having been accordingly led and reported to your Lordfhips, and a ftate thereof made up, you, of this date, allowed the parties to give “ in memorials on the caufe, Feb. s r .^ r 11 and ordained the fame to be in the boxes on the 25th A cc pril.” In obedience to this interlocutor this memorial is humbly offered on the part of the defenders. The queflion at ilTue between the parties is, Whether was Samuel Telfair, at the time he granted the above refignation 7 ^ and infeftment in favour of his wife, upon deathbed, or not ? if he was, the refignation and infeftment will no doubt by the law of this country fall to be reduced ; if he was not, then the memorialift’s right will fall to befudained. But before examining the proof which has been brought, in order to afcertain the point, Whether Samuel Telfair was on deathbed at the time libelled or not? the memorialift mull, in the entry, obferve, that all the facls which have been alrea dy dated to your Lordfhips with regard to his having decli ned in his bufinefs and circumdances during the time of his fird marriage and widowhood, and their being afterwards redored by means of the memorialid, are all clearly made out. It is proved by the oaths of the firlf witnefs William Lennox, of Adam Macwhannel the lecond witnefs, o f John Waddel* and by a variety o f other witnefles in procefs, that he and his fird wife were often in liquor: That during his lad marriage he was generally fober : That his bufinefs during the latter part of his fird marriage and widowhood declined ; and that he was in draitened circumdances; but that his bu finefs increafed from the time of his fecond marriage till the day of his death : That the memorialid paid a good deal of debt
[
4 ]
debt for him during the marriage ; and that the houfe was before*3
and entertam company than ever it had been
Thefe fads mud have the effed at lead to 1W that a fetdement made by her hufband upon the memorialift, was a rational and equitable thing ; and that, by every principle of juftice and gratitude, he was bound to provide, in the manner he has done, for his wife, to whom he was ^nder fo many obhgations; and accordingly all the witneffes who talked to M r Telfair upon the fobjed, agree that he had a ftrong fenfe o f the many favours he had received from the memorialiftand that he affigned this as his reafon for being anxious to’ have a fettlement made in her favour. But, altogether independent of this, the memorialift muft fubm.t to your Lordlhips, that there is no one circumftance contained in the proof adduced in this cafe, which will hat S a S
T , f egree
ad 7 ° Ur Lord{hiPs to conclude,
the r e fla t io n in favour o f his wife, of which The reducTon is now brought. As the memorialift hopes it O rl fP? r’ that the pr° of wIllch has been brought inftead of lupporting the purfuer’s plea, affords the nToft’convincing evidence that Samuel Telfair was not on deathbed w hen the above refignation was made by him and infeftmenr take" thereon by the memorialift, fte ?app“ ’h ™ d s ° . t X eft method for her will be, to ftate to your Lordlhips the depofitions o f the mod material witneffes as they ftand and from thefe your Lordlhips, without any argument upon the fUT ld fi a‘ bC ^ C { ° Judge on which fide truth ifes firft Wltnefs whom the memorialift fhall quote is ’ r 02). it ae. P- 3S^ot the State, who depones, “ That he was
■April 2 j . 1 77 x.
M E M O R I A L for Dorothea Telfair, widow of Samuel Telfair innkeeper in Kirkcudbright, and now fpoufe to Hugh Shaw vintner there, D e fenders, Againft Jean Telfair, lifter of faid Samuel Telfair, and her hufband, Purfuers. g
^ A m u e l T e l f a i r , in the earlier part o f his life, ferved a gentleman in quality o f a groom ; and having . married Mary Macgowan, his firft fpoufe, they, about the year 1740, took up an inn in the town o f K irk cudbright; which fucceeded io w'ell, that they purchafed a tenement of houfes and yard in Kirkcudbright, then poffeffed by them as tenants. This purchafe was made in 17 5 5 '; and as they had no children, the wife was infeft in the tenement for her liferent: and they executed a mutual difpofition with refpetT to the executry; whereby it was agreed, that the longed liver fho'uld bruik all. Soon after this, Mr Telfair began to drink too "'freely; in which, it is faid, he was feconded by his wife. The confequence o f which was, that, in a little time, they fquandered away all their effects, and contra&ed confiderable debts; and nothing was left remaining but the forefaid tene ment o f houfes. To extricate themfelves from their difficulties, they, about the year 1760, borrowed L. 60, for which they granted he ritable fecurity upon the houfe and yard. The wife having foon thereafter died, and the hufband being unable to take proper care of his affairs, every thing went to ruin. The fur niture, and other things in the houfe, were embezzled, new deh£g(|ontra&ed, and the tavern deferted for want o f proper attendance. In thefe circumftances, the memorialifl Dorothea Telfair was married to Mr Telfair; and upon her entering home, file A found,
2 j
Apr. 8.
found, that the houfe ftoad in need o f every thing neceflarv, and that her hufband had no credit to procure it. She there fore, in order to avoid feiling the houfes, which were properly fit.uated for a tavern, uplifted fome money which fhe had ac quired during the courfe of many years fervice, and applied the fame for refurnilhing the houfe, and laying in a proper ftore of liquors, &c..; and by this means, and by her prudent management, (he brought people again to the houfe, and got tolerable good bufinefs. Samuel Telfair was then become old, and unable to take any management of the affairs within the houfe. He, with one of his fervants, chiefly attended the liable; and foon be coming fenfible of the alteration of his circumftances by his fecond marriage, he refolved, as he had done with his former wife, to fettle upon the memorialift every thing, both heri table and moveable, which he fhould die poflefled of. Accordingly, in fummer 1766, a general difpofition to this effect was executed by him ; but Mr Telfair coming after wards to uijderftand, that this difpofition would fecure his wife in his moveables only, and not in his heritage, he exprefled great concern thereat, and refolved to have her pro perly fecured by infeftment. 1767- Accordingly, of this date, upon a refignation by the de funct proprns mambus, the memorialift was inteft for her liferent in the forefaid tenement and yard. Upon the 1 ith of May thereafter. Samuel Telfair died, af ter being confined to his bed a few davs. At the time of ma king the refignation, he was in his ordinary Hate o f health, and perfectly found in judgement; and was then going, and for many days after did go, about his bufinefs in his ufual manner. Jean Telfair, the defunft’s filter, and apparent heir, ap prehending herfelf injured by the forefaid hferent-infeftment, has made up titles to her brother, and brought an action of reduction of the forefaid infeftment, on the head of death bed. This
[
3 ]
This procefs having been called, and great avifandum made with it, the Lord Pitfour Ordinary, to whom the caufe was remitted, allowed the purfuer a proof of her libel, and Feb 15.1769. the defender a conjunct proof thereanent; and a proof to both parties of all facts and circomftances they might think material. This proof having been accordingly led and reported to your Lordfhips, and a ftate thereof made up, you, of this date, allowed the parties to give “ in memorials on the caufe, Feb. s r .^ r 11 and ordained the fame to be in the boxes on the 25th A cc pril.” In obedience to this interlocutor this memorial is humbly offered on the part of the defenders. The queflion at ilTue between the parties is, Whether was Samuel Telfair, at the time he granted the above refignation 7 ^ and infeftment in favour of his wife, upon deathbed, or not ? if he was, the refignation and infeftment will no doubt by the law of this country fall to be reduced ; if he was not, then the memorialift’s right will fall to befudained. But before examining the proof which has been brought, in order to afcertain the point, Whether Samuel Telfair was on deathbed at the time libelled or not? the memorialift mull, in the entry, obferve, that all the facls which have been alrea dy dated to your Lordfhips with regard to his having decli ned in his bufinefs and circumdances during the time of his fird marriage and widowhood, and their being afterwards redored by means of the memorialid, are all clearly made out. It is proved by the oaths of the firlf witnefs William Lennox, of Adam Macwhannel the lecond witnefs, o f John Waddel* and by a variety o f other witnefles in procefs, that he and his fird wife were often in liquor: That during his lad marriage he was generally fober : That his bufinefs during the latter part of his fird marriage and widowhood declined ; and that he was in draitened circumdances; but that his bu finefs increafed from the time of his fecond marriage till the day of his death : That the memorialid paid a good deal of debt
[
4 ]
debt for him during the marriage ; and that the houfe was before*3
and entertam company than ever it had been
Thefe fads mud have the effed at lead to 1W that a fetdement made by her hufband upon the memorialift, was a rational and equitable thing ; and that, by every principle of juftice and gratitude, he was bound to provide, in the manner he has done, for his wife, to whom he was ^nder fo many obhgations; and accordingly all the witneffes who talked to M r Telfair upon the fobjed, agree that he had a ftrong fenfe o f the many favours he had received from the memorialiftand that he affigned this as his reafon for being anxious to’ have a fettlement made in her favour. But, altogether independent of this, the memorialift muft fubm.t to your Lordlhips, that there is no one circumftance contained in the proof adduced in this cafe, which will hat S a S
T , f egree
ad 7 ° Ur Lord{hiPs to conclude,
the r e fla t io n in favour o f his wife, of which The reducTon is now brought. As the memorialift hopes it O rl fP? r’ that the pr° of wIllch has been brought inftead of lupporting the purfuer’s plea, affords the nToft’convincing evidence that Samuel Telfair was not on deathbed w hen the above refignation was made by him and infeftmenr take" thereon by the memorialift, fte ?app“ ’h ™ d s ° . t X eft method for her will be, to ftate to your Lordlhips the depofitions o f the mod material witneffes as they ftand and from thefe your Lordlhips, without any argument upon the fUT ld fi a‘ bC ^ C { ° Judge on which fide truth ifes firft Wltnefs whom the memorialift fhall quote is ’ r 02). it ae. P- 3S^ot the State, who depones, “ That he was
