Factory, when revocable - when understood revoked.
Stewart v. Commendator of Paisley
1581.
February. Case No. No 1.
A churchman granted a factory for the factor's life, to uplift some bolls of victual, with a certain number of them to himself for his trouble. The Lords found, that a tack afterwards let by the churchman of the bolls, did not prevent the factor from having right to his salary.
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The Commendator of Paisley made one callit B. factor to him, to receive and take up frae the tenants of the isle of C., 40 bolls victuall, whilk appertained to him as for the teinds of the lands of the said isle, and band himself into the letters of factorie, that the factor should have four bolls victuall for his labour and travel. Thereafter, the said Commendator set ane tack of the said vietualls to ane Stewart, for the yearlie payment of 20 lib. This Stewart desyrit letters conform to his tack. Compeared he to whom the factorie was made, and alleged, that he having the factorie set to him for his lifetime, and having ane yearlie dutie for the same, he could not be prejudgit thereintill, but behoovit to be ansrit and obeyit conform to the same. It was allegit be the tacksman, that the tack could not be hinderit be reason of the factorie. The matter being reasonit among the Lords, some were of that opinion, that ane factory could not hinder ane tack; for he that made the factory abdicated not the power frae himself to set tacks; and so they might both stand, and a factory might be ay revokit and callit back again ad placitum of the setter, in respect it was to his use, weill, and commoditie, and not to their use and commoditie to whom it was made. It was reasonit upon the other part, that his factory was of the nature of ane tack “quia de jure ubi conventum inter partes est, interveniente mercede, nascitur potius locati obligatione quam mandati aut negotiorum gestorum, prout colligunt ex, ff. Locati;” for there was ane special duty nominate into the factorie, whilk was four bolls victuall for the lifetime of the factor. The Lords, after long reasoning. votit for the most pairt, and fand that the factorie should stand notwithstanding of the tack, and ordained the factor to be answered of his four bolls victuall.
