Scottish Court of Session Decisions

Henderson, writer in Edinburgh, “as factor and commissioner for the heirs and representatives of the deceased Alexander Colvill, Esq. of Lambhill,” raised action against Beveridge for payment of the contents of a bill, dated in 1833, alleged to have been drawn by Colvill upon and accepted by Beveridge. The bill was produced along with the summons.

As a preliminary defence against the action, it was pleaded, 1st, That the instance was defective and insufficient, the libel neither informing the defender with whom he had to contend, nor specifying the parties who had the interest to pursue; 2d, That no title to pursue had been either libelled or produced, no deed of factory, or other authority of that nature, having been produced to support the pursuer's alleged character of factor or commissioner.

Thereafter Henderson produced a deed of factory and commission in his favour, dated July, 1837, bearing to be granted by Robert Colvill, heir of line and conquest to the deceased Alexander Colvill,—Thomas Colvill, heir of provision of the said Alexander Colvill in the lands of Lambhill and others,—and Henry Russell, heir of provision of the said Alexander Colvill in the lands of Middlebank and others.

The Lord Ordinary pronounced the following interlocutor:—“Repels both preliminary defences hoc statu, in respect of the factory and commission produced, granted to the pursuer by parties who confessedly represent the drawer of the bill libelled on; and in respect of that bill being in the pursuer's possession and lodged by him along with his summons, and ready to be delivered up by him to the defender upon payment, reserving to the defender the effect of these defences when the record is closed.”

Beveridge reclaimed, contending that it was not admitted that the individuals granting the factory represented the drawer of the bill, and that the preliminary defences ought to be sustained, or at all events disposed of at the present stage of the process.