Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR HEW DALRYMPLE OF NORTH-BERWICK.

David French,
v.
Archibald Robertson, Factor for the estate of Carden

Date: 30 December 1701

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In the count and reckoning, at the instance of David French, purchaser of Carden, the pursuer charges the factor with annual-rent of his yearly intromission, within a year after the same fell due, conform to the Lords' Act of Sederunt last July, 1690.

It was alleged for the factor,—No such Act of Sederunt was intimated, or in the least known to him, nor is it in observance; neither could he be obliged to lend out his intromissions, seeing he made frequent payments by the Lords' warrants, and was obliged to keep a stock of money to answer the same.

It was answered,—That the of Act Sederunt was opponed, which is founded upon natural law and equity, laid down by the Lords, as a constant and fixed rule to be observed in all time coming, as has been frequently done by their predecessors, and was peculiarly proper to be done in relation to the management of estates sequestrated by the Lords' authority ; and they having resolved and determined, that all factors of their nomination, should be liable to annual-rent, there needed no special intimation to any factor. And it is without ground to allege, that the act is in desuetude; for, though many factors do too frequently manage creditors in such manner as they are not brought to exact accounts, yet the Lords did never give any countenance to such practices: and, if this factor were not made liable for annual-rent, then no other factor could be ever liable in any time coming; and such a decision would weaken the authority and respect that is due to Acts of Sederunt.

The Lords found the factor liable for annual-rent, conform to the Act of Sederunt.

No. 32, page 40.