Scottish Court of Session Decisions

Subject_1 DILIGENCE.
Subject_2 SECT. VII.

Diligence Prestable by Factors and Mandataries.

The Viscount of Oxenford, and his Curators,
v.
The Lady Chappell

Date: 14 July 1676
Case No. No 51.

A factor is not bound to poind tenants, if they have sufficient goods, and corn to sow and labour.

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The Viscount of Oxenford and his Curators having pursued the Lady Chappell, as executrix to her deceased husband, who was chamberlain, for making payment for what was resting of the full years duty of the estate during his factory; it was alleged, That she ought to have defalcation of many rests given up in an account due by the tenants, which the Curators were acquainted with, and gave no order to distress them; likeas the forbearance of the tenants was necessary and profitable for the Viscount, seeing they were impoverished, and if the ground had been poinded, the lands would have been cast waste, which would have been greater loss than to forbear. It was replied, that the tenants being resting a whole year's duty, it was far better to have poinded them, than to have suffered the rests to run on to a whole year's duty; likeas the Curators did ordain diligence to be done long before it amounted to so much. The Lords did find, that a factor, or chamberlain, was not liable for poinding the tenants, if he can prove that they had more stock than would sow and entertain their goods and families for labouring, and that by poinding the ground would have been casten waste.

Fol. Dic. v. 1. p. 243. Gosford, MS. No 880. p. 562.