Different securities on the Estate or Subjects of an Individual Debtor, how they are to be Ranked. - Ranking for Penalties or Expenses.
The Creditors of Kildonan v. Douglas, Heron and Company
Date: 16 June 1785 Case No. No 37.
Whether a disponee in security is entitled to charge the expense of a factor in levying the rents?
Click here to view a pdf copy of this documet : PDF Copy
James Chalmers of Kildonan disponed his lands to Douglas, Heron and Company, in security of certain sums owing by him. The disposition contained the usual clause, authorising the creditors to enter into possession, and to narne stewards and factors for recovering the rents; declaring, that they should be liable only for their intromissions, deducting all expenses in levying the said rents, and not for omissions or negligence of any kind.
Douglas, Heron and Company having assumed possession of the lands, and afterwards accounting with the postponed creditors for their intromissions, insisted for deduction of several sums as the salary of a factor, or as disbursed by him in the execution of his office, such as the expense of intimating his appointment to the tenants, and enquiring into the situation of the farms.
Observed on the Bench; An heritable creditor entering into possession, is to be viewed as a proprietor; and it would therefore be equally unreasonable, in this case, to allow a charge in name of factor-fee, or for any trouble undertaken in that capacity, as it would have been to award the like sums to the creditor himself when using, in person, those measures he thinks necessary for his security.
The Lord Ordinary had sustained these articles; but that judgment was altered by the Court, after advising a reclaiming petition for the postponed creditors, with answers for Douglas, Heron and Company.
Lord Ordinary, Justice-Clerk.For the Postponed Creditors, G. Ferguson.For Douglas, Heron and Company, Maconochie.Clerk, Menzies.
Fol. Dic. v. 4. p. 246. Fac. Col. No 209. p. 328.
