Scottish Court of Session Decisions

Subject_1 FACTOR.
Subject_2 SECT. II.

Factors' powers.

Robert Edgar, Factor appointed by the Lords of Session upon the Estate of Provost Graham in Dumfries
v.
Andrew and James Whitheads, Tenants in Inglistoun

Date: 22 July 1714
Case No. No 8.

The Lords refused to allow a factor put upon an estate by themselves, to remove tenants who had taken tacks from him for an year, and obliged themselves to remove without warning, they having paid their rent, and offered more rent than was to have been paid by the persons he would have put in their room.

Click here to view a pdf copy of this documet : PDF Copy

Robert Edgar, by virtue of a factory from the Lords of Session, set to James and Andrew Whiteheads a tack, for the space of one year, of the half of the lands of Inglistoun, in which they had been ancient tenants and possessors without tack, in which he inserted an obligement by each of them to remove at the ish of the tack summarily without warning; however, that they might not be surprized he caused warn them 40 days preceding the term, and took a decreet of removing against them before the Baron Court, upon which they were charged to remove, and the factor set the lands to other tenants for the accustomed rent. James and Andrew Whitheads suspended the charge upon this reason, that they had not only punctually paid their rent, but had also offered more rent than was to be paid by the new tenants; and it could not be said but they were abundantly solvent: For the charger hath no power from his factory to dispossess a solvent tenant whom he finds in possession, in order to make way for his friend, or to satisfy his own humour and caprice; and he could as little take them obliged to leave their possession, as to turn them out without the said obligation. Nor did ever the Lords design to vest their factors with any such arbitrary power, which could never contribute to advance the interest of the creditors for whose behoof the factor is there placed.

Answered for the charger; 1mo, Unless factors have power to remove tenants, tenants if they pay their rents may do what they will, and insult the factors at pleasure. And ita est that the suspenders are notoriously guilty of cutting and destroying the wood growing upon the lands, which is of more prejudice than all the rent they pay. Therefore the charger thought his duty and trust obliged him to remove them off the ground. 2do, Whatever power the Lords factors may have in general, the suspenders having obliged themselves to remove at the term, that obligemeat should bind them, and the charger ought not to be left exposed to distress at the instance of the persons to whom he bona fide set the lands on the faith of that obligement.

The Lords suspended the letters simpliciter.

Fol. Dic. v. 1. p. 288. Forbes, MS.