Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Lady Balcarras
v.
Seaforth and Others

Date: 26 June 1668

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The Earl of Seaforth's estate being comprised by the Earl of Balcarras for the lady's tocher; by a posterior contract he did allocate some lands to be possessed by a factor, who should uplift the maills and duties until he should be satisfied of the whole sums, by certain proportions agreed on to be paid yearly. Likeas, in the same contract, Seaforth, with consent of the lady, did grant a factory to one Mackenzie of Duchmalluch, for whom Sir George Mackenzie of Tarbet and Cromarty were cautioners, that he should do exact diligence, and make count, reckoning, and payment yearly, conform to the contract: whereupon both the factor and cautioners were charged. The letters were suspended by the cautioners, upon this reason,—That the Earl of Seaforth did never suffer the factor to enter to the possession; and that he had done diligence against the tenants, by obtaining decreets and letters of poinding; which he offered to execute, but was deforced by Seaforth, who had appointed his own chamberlains to intromit: which the factor did intimate to the lady by a missive letter.

Notwithstanding of this reason, the letters were found orderly proceeded; because the factor having made payment of the first year's proportion, and having sufficient power from Seaforth to intromit by the factory, the Lords found, That the writing of a missive letter was not exact diligence, unless he had instructed, by instruments taken, that he had done diligence debito tempore, by offering to poind, and sending the executions, bearing a deforcement, and had thereupon offered to give over his factory, or sent sufficient instructions to the lady for pursuing a deforcement.

And it being likewise alleged, That the cautioners were only obliged for a factor, and so were only subsidiarie liable after the principal was discussed, as had been decided in the case of cautioners for factors in Camphire, and for tutors and curators; the Lords found, That this factory was of a different nature, the factor being bound to do exact diligence, or pay a liquid sum yearly; and that he was sufficiently discussed, by being denounced for not-payment.

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