Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Lord Pitmedden and Alexander Seton v. The Countess of Dumferline and Alexander Auchindachy
Date: 5 January 1700
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Arniston reported the Lord Pitmedden, and Alexander Seton his son, against the Countess of Dumferline, and Alexander Auchindachy, her chamberlain, for repetition of the rents uplifted by her since 1694; in regard, by a decreet in foro, the Lords have preferred him to these rents.
Alleged for the said Alexander,—That he being the Countess's servant, any intromission he had was by her order, and he has counted to her, and obtained her discharge; which is sufficient to exoner him, whatever it may operate to make the lady restore; and, by law, velle non creditur qui obsequitur imperio patris et domini, l. 4. D. de Reg. Jur.; et quoad ea quœ not habent atrocitatem facinoris ignoscitur servis qui dominis obtemperaverunt, l. 157. eod.; et damnum dat qui jubet dare, sed ejus nulla est culpa cui parere necesse fuit, l. 169. eod. And, with us, servants acting by their master's command, in civilibus, obliges him, but not themselves; as was found, 17th November 1665, Howison; where a servant, giving a ticket for ware taken off for his master, was free of the price, unless he proved the servant applied it to some other use than his master's.
Answered,—The Lords having put a factor on this estate, which was known both to the lady and Auchindachy her servant, they were in mala fide, the one to give, and the other to accept, of a contrary factory, in contempt of the Lords' authority: and it is offered to be proven, that he knew of the Lords putting in a factor, and threatened him that he might not intromit, and that the tenants might not pay him; which was a kind of delictum, in which he should not have obeyed his mistress. And the laws cited relate to Roman slaves, who had no will of their own; and, though obedience and obsequiousness be required of Christian servants, yet they must not obey in things contrary to the law.
The Lords considered, if creditors, at their own hands, might put in factors where they had already named for the behoof of the haill creditors, there should be nothing but confusion; therefore they found the factor in this case liable, from the time of intimation of the Lords* factory to him, or of his getting knowledge thereof any other manner of way; to be proven scripto vel juramento.
