The following letter was transcribed for us by Mike Salmon, email@example.com from his collection of Prince Edward Island Covers. This letter was one a series of letters to James Douglas, then Comptroller of Customs of Prince Edward Island, from his brother John residing in Scotland.
For those of you who may not note the historical significance of the dates of the Douglas letters, as Mike points out, they neatly bracket the change of name of our Island from St. John's Island to Prince Edward Island [ See Campbell's History, Page 3 ]. The Act which changed the Island's name received Royal assent in Feb 1799.
James Douglas was married Jan 31, 1789 to Waitstill Curtis Haszard, b. Mar 12, 1772, d. May 23, 1804
Edinburgh 15 May 1802Dear James,
Referring to my several letters of this year, I have now to acquaint you with the disagreeable circumstance of the Inner House yesterday having reversed Lord of Glenlees' Judgement.
The Judges present were Lords of Dunsimmuir, Craig, Methven, Armadale, Balmuts and the Lord President Campbell who voted for reversing Lord Glenlees Judgement - The following voted for adhering to that Judgement viz Lords of Polhemmet, Glenlee, Cullen, Hermond and Woodhouselee (a Judge lately appointed in place of Lord of Stonefield deceased).
You see the Bench were equally divided and by the casting vote of the President the cause was given in favour of Netherhouse - The President has no vote except in the case of the Court being equally divided as happened here. By advice of our Council Hon. The Henry Erskine and Mr. William Robertson a Reclaiming Petition will be presented to the Court in a few days (Mr. Jas. Montgomery is at present in London) And it will be our endeavour to obviate the several difficulties which were started by those Judges who voted against Lord Glenlees' Judgement. You will find the printed papers in a box I sent to you this spring - It was too late for the Clyde ships and was sent to Liverpool to be forwarded to Halifax to the care of Messrs. Dickie Montgomery Meredith, Halifax to whom you may apply if it is not received. Mr George Brown took such an interest in the question, as to come to Edinburgh to hear the Decisions.
The Judges who spoke against Lord of Glenlees Judgement thought the circumstance of our Father having purchased at public roup and having transferred the Lands to Allason who again sold them to Netherhouse with consent of Maidenhill could not be believed as giving Netherhouse only a right in security of the Lands, but as an absolute sale. That it was dangerous to the rights of proprietors if after possessing lands so long as Netherhouse had done upon fair titles their rights should be annulled from circumstances of so ancient a date as were produced in this case.
I went to Glasgow last month to see Messrs. Smellie & Lang, Chas. Campbell, an agent of Monro's has held up the whole papers for six months past and still delays to return them to the Arbiter after various meetings with those concerned I find from Smellies trifling manner of doing business that there is as little expectation as ever of his giving a decision soon.
I waited on him last week and requested if he did not resolve to finish the business immediately that he would give it up altogether, he is to take a few days to consider upon this proposition and I will be acquainted with what he is determined to do soon.
With regard to your Bill on Mr. Robert Spottiswoode, I have only to repeat what I formerly wrote viz. I sent to Mr. S on 3rd March last a copy of your letter to me which inclosed the Bill and contained an extract. Of the Custom House letter to you and I requested Mr. S. to inform me if the case of his having uplifted your money as stated in that letter was true as I behooved to write you explicitly on the subject. Mr. S. has thought fit to make me no answer -- I think you should stop any more of your money being paid to Mr. S. and consider what is the most effective and least oppressive way of recovering what may already have been paid to him.
I will do nothing further till I hear particularly from you anent this Affair.
A few days ago I saw Mr. Thos. Clark from Canada, he is a Cousin of Mr. Hamiltons' and lives about 20 miles farther down the river than Sandy. Mr. C. tells me that Sandy is doing very well in business and speaks much in favour of his Wife and Daughters. Mr. Clark returns to Canada this Summer, he has been ten years there, he served his prenticeship with Mr. Hamilton.
In the event of Netherhouse succeeding before the Court here I wish to hear from you on the propriety of carrying the cause before the House of Peers should our Counsel advise. I will do nothing in this respect till I receive your direction - The Expence of an Appeal to the H. of Peers will be 200 sterling at least.
If the Court here shall adhere to their present Judgement, upon advising your Petition the Cause becomes final in this Court.
Edinburgh 29 May 1802The foregoing is a copy of what I wrote you by a ship from Clyde to Newfoundland and directed in the way you desired - This goes by the Packet to Halifax in the usual way -. This day a Petition for you in Netherhouse's Cause was put into the Judges Boxes, it is drawn by G. I. Bell Advocate, a Gent whom Mr. Molle strongly recommended; Mr. Robertson who drew the last papers for you could not undertake to draw this Petition within the time limited by the regulations of the Court. He is procurator for the Church of Scotland, the General Assembly of which has been Sitting for some days past which takes up all his time - Next week your Petition will be moved in court and it is supposed Netherhouse will be ordered to give in an answer to it, in which case I fear there will be no Decision before the Court meets in Nov. it rises 12 July. Your Petition states N.s. former character in a much stronger light than Mr. Robertsons' papers do and I hope it will have the effect of causing the Court to alter their Judgement - I will write again by next packet should any thing be done in the cause this session. You will find on the other page a copy of some short notes that were taken of the Judges speeches when they decided the cause on the 14 instant.
I have not heard from Mr. Lang since I wrote you on the 15 inst.
All friends here and at Hamilton are well. With the best respects to Mrs. Douglas and your children
I am, Dear James
Your Afft. Brother
Edinburgh 14 May 1802Lord Hermond -- Question on whom lies the onus probandi, think it lies upon Netherhouse to show that this right under the disposition is absolute -- Many circumstances against an absolute Sale - 1st - Lands in 1764 were worth 20 years purchase - 2nd - Maidenhill held possession from 1764 to 1773 of the whole Lands 3rd - Maidenhill granted tacks, was involved in processes against tenants. The Statute excluded parole evidence in many cases, but not writing , or the strongest of all evidence, that arising from circumstances. The Disposition it is admitted falsely bears a price to have been paid - must prove aliunde - But the whole circumstances disprove the payment of a price, or that an absolute Sale was intended, but merely a Security.
2. Lord Craig -- A difficult case - and had difficulty in following Lord of Glenlees Judgement - to hold that at such a distance of time there were sufficient grounds against an absolute Sale - suspicions against a Sale were however strong. Independent of the Act of Parliament the evidence should be clear. There is a Scroll of a Backbond unexecuted show's an intention, but still no such bond executed.
3. Lord Woodhouselee -- Held disposition to Netherhouse to be nothing more than a Security for sums then advanced, and to be advanced - Incumbent on Netherhouse to prove that it was meant to give an absolute right to the property -- Netherhouse has not shown payment of Debts - and Maidenhill until his death occupied a great part of the land without rent. Upon the whole no doubt in own mind that the Disposition was intended merely for a security.
4. Lord Methven -- Much doubt in his mind - inference from all the facts that in 1764 a sale under reversion was intended - In 1773 matters took a different turn - understanding that the Sale was absolute. This view reconciles many difficulties - others remain. --But inclined to support Netherhouses' possession from 1773.
Lord Armadale -- Not go to the effect of declaring a Trust - The Disposition to Netherhouse is absolute - were the non payment of the Price to set aside a Disposition , many titles to Land may be reduced - Bond for price frequently granted when Disposition delivered -cannot go into such argument - If no exception lies against the form of the Disposition then this Act applies - The Scrolls - Backbond recovered shows a price and contains a declaration to Redeem within a limited time - Maidenhill while alive possessed a part of the Land - But from 1773 Netherhouse exercised sole acts of property - not to be denuded by circumstances - Proof by writing necessary. A Trust has always in view an object for which it is granted, for behoof of reditors etc. But here there is no scheme of management consistent with a Trust from 1773 -- altho' there are circumstances difficult to be accounted for.
5. Lord President -- If look into cases of the kind dependent on ircumstances will find one half decided one way, one half the other -- Disposition to Netherhouse is ex facie absolute -- presumption that it is so - cannot easily get over it, not to be done by parole evidence. The question on whom lies the onus probandi (suggested by Lord Hermand) falls to be answered in favour of Netherhouse -- Statute 1696 lays it on N. and the evidence requires to be of a particular kind. When attending to the whole circumstances it appears that parties meant it to be an absolute Sale conditionally at least - there were three absolute sales - Mr. Douglas purchased at public roup 1/ Sale to him absolute. Mr. Douglas from near connection gave up his purchase but stipulated a l---- of 120 - and redisposed to Allison, (2/ Absolute Sale) - Allison again from Neighbourhood agreed to denude - still advanced the price (from 1060 Mr. Douglas's price to 1300) and conveyed to Netherhouse (3/ absolute Sale) -- The Scroll Backbond will satisfy that it was not a Transaction between Debtor and Creditor, but between purchaser and seller - Disposition not perfected till 1769 -- No Backbond then -- But still Maidenhill allowed to remain in possession till 1773 -- then saw he could not recover himself - and possession given up, had then paid the 1300, and some hundreds more -- Conclusions of Netherhouses action brought in 1792 were improper. But upon what principal was Mr. Douglas apologized from the non-payment of the sums in the toadset Bond and Bond and Eik but because Netherhouse was held as proprietor and that these sums made part of the price, were Mr. Douglas formed in this action a different judgement should have been pronounced in the other .
6. Lord Balmuts The Scroll Backbond excludes the idea of a trust.
Lord of Justice Clerk, Asskerville, Meadowbank and Bannalyne were not in Court at the Decision.
Note what follows is on the outside of this folded letter:
Edinburgh 15th May 1802
Reversal Lord Glenlees order in Neth. Cause with the opinions of several of their Lordships - Reclaiming petition two whether to carry it before House of Peers -. Smellie & Robert Spotteswoodes opinion. Letter from John Douglas
Received 23 July 1802 4.1/2
James Douglas Esq.,
Comptroller of the Customs,
Prince Edwards Island,
Gulf of St. Lawrence
Care of Joshua Newton Esq.,
Custom House, Halifax, N.America
Edinburgh dated Bishop mark 29 May 1802
London tombstone Paid Jun 1 1802
Halifax straight-line transit Jul 19 1802
Carried by Falmouth Packet "Princess Amelia"
2/2 double rate letter in red therefore prepaid.
41/2 port to port Halifax to Charlottetown. Compare with 1798 letter when it is 31/2
Scottish and legal terms:
roup = auction
tacks = lease
anent = in line with