Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. VIII.

Power in the Court of Session to name Factors.

Carmichael, Petitioner

Date: 12 July 1700
Case No. No 177.

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Sir George Lauder of Iddington being deceased, and his immediate younger brother Robert, and apparent heir, being abroad as chirurgeon to a ship in the Indies, there is a bill given in to the Lords by my Lord Secretary Carmichael, and other creditors of the said Sir George, craving that, till the return of the heir, or certioration to be given him, they would appoint Mr Lauder, the youngest brother, to be factor, for shearing the crop, disposing of the stock on the ground, and uplifting the rents, upon caution, to hold compt to the heir, when he returns, and to the creditors medio tempore. The Lords demurred, because the estate was not encumbered, nor affected by diligence or adjudications, in which case only, during the ranking of creditors, the Lords used to name factors; yet, the case being extraordinary, they interposed their authority to his being factor only for a year, in which time the apparent heir might return, and only to intromit with what falls to the heir; for as to the bygone rents and stocking, these falling under executry, they might apply to the Commissaries, and get a warrant to dispose on these; for, where law has provided a remedy, we are not to recur to extraordinary methods. In such cases the Lords have varied, sometimes allowing a factor, and at other times refusing, and leaving parties to follow their own way, as they think best, without interposing their authority.

Fol. Dic. v. 1. p. 499. Fountainhall, v. 2. p. 103.