Factor appointed by the Court of Session. - Act of Sederunt 1611.
Sir Patrick Home, Advocate v. William Robertson Factor for the Estate of Renton
Date: 6 July 1716 Case No. No 24.
A factor appointed by the Court on an estate sequestrated till the claims of two pretenders to it were discussed, was removed, for contravening the act of sederunt, 22d November 1711, though that act only refers to factors on bankrupt estates.
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By the judgment of the House of Peers, the estate of Renton having been ordained to be sequestrated, (upon a depending process anent the property thereof, betwixt Sir Patrick and Sir Robert Homes), and a factor appointed to be nominated by the Lords for managing the same for the behoof of the party who should in the event be found to have the best right; and William Robertson being accordingly appointed by the Lords for these ends, Sir Patrick, two years thereafter, moved by a petition that the said factor should be removed, as having contravened the act of sederunt 22d November 1711, articles 6, and 8, bearing, That, for the benefit of creditors, and that they may be acquainted with the state of the accompts of factors upon estates sequestrated, the Lords enact, that all such factors shall, within six months after extracting the factory, make up a rental of the estate, and of bygone rests, &c.; and art. 8. That the said factor shall once every year give in a scheme of his accompts to the clerk of the process, so that the creditors may have occasion of seeing them yearly, and provide themselves of proper means of checking them, &c.; and this on the pain of being removed, and fined at the discretion of the Lords.
To this it was answered for the defender; That the act of sederunt founded on did in no ways concern the present case, it being only intended (as is plain from the very words) to regulate the conduct of factors on bankrupts estates, the creditors on such estates being the only persons for whose sake that act was devised; and as it is specially conceived in favours of creditors, as the act itself expresses it, so the ratio of the law plainly points out, that it was for their behoof only that it was framed, in order to their being acquainted, as the act says, with the state and condition of the estate, and have yearly occasion to see the form of administering it: But the estate of Renton is not so much as pretended to be bankrupt; nor was it sequestrated on that account, the sequestration being made by ordinance of the House of Peers, as being alleged to be in Sir Patrick's person as a trust, and therefore sequestrated only to the behoof of him who should be found to have the best right: Nevertheless,
‘The Lords found the factor having failed to observe the tenor of the act of sederunt, they removed him conform to the said act.’
Act. Se.Alt. Hay.Clerk, M'Kenzie.
Fol. Dic. v. 1. p. 288. Bruce, v. 2, No 13. p. 16.
