Rent being paid to a Factor, whether the Landlord's consent is presumed, so as to infer his passing from Irritancies, &c.
Lord Loudon v. Parishioners of Killimuir
Date: 12 February 1628 Case No. No 276.
In a spuilzie of teinds, found sufficient to liberate from spuilzie and wrongous intromission, that the defender had made payment of the King's taxation imposed upon teinds to the pursuer's chamberlain, who had paid it to the King's collector, tho' the pursuer had before served inhibition.
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In a spuilzie of the Lord Loudon against the Parishioners of Killimuir, the Lords found the payment of the King's taxation, imposed upon the teinds libelled, made by the defenders for the crop libelled, to the pursuer's chamberlain, who was his chamberlain and receiver of his rents that year libelled, and diverse years before, and who continued yet his chamberlain, and which chamberlain had paid to the King's collector, for the pursuer, the same year's taxation for these teinds, to be sufficient to liberate the excipients, who had so paid to the chamberlain the duty imposed upon the said teinds, for the taxation, as said is, from all spuilzie of that year, notwithstanding of the preceding inhibition, used against the defenders before any payment made by them to the pursuer's chamberlain of the said taxation; in respect whereof, and that the pursuer replied, That no deed of the chamberlains could prejudge the force of his inhibition, except the pursuer had given express warrant for the said receipts from the defenders, or that the chamberlain had given up his accounts to the pursuer, and had accounted and received allowance from the pursuer of these receipts from the defenders; which not being alleged but by the contrary, the chamberlain having in his hands much more of his rents, the time of the paying of the taxation to the King's collector, than these receipts received from the defenders, or the said taxation would extend to, the tenants could not ascribe the payment of the said taxation to be made out of the receipts from them, and so being done without consent or warrant of the pursuer, could not prejudge his spuilzie and inhibition, no more than a warning to remove might be prejudged by the chamberlain's receipt of the old duty from the tenants warned, except the master had consented thereto; notwithstanding whereof, the exception was sustained to liberate from the spuilzie, and also from wrongous intromission, whereto the spuilzie was restricted.
Act. Hope, Nicolson, Aiton, & Stuart.Alt. Cunningham.Clerk, Gibson.
Fol. Dic. v. 2. p. 159. Durie, p. 348.
