Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

John Dory
v.
Guthrie of Corseback

Date: 13 January 1693

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John Dory against Guthrie of Corseback. Alleged, You cannot poind the ground on this infeftment, because your father was factor, nominate by my tutors, and intromitted sundry years, and during the factory acquired in this right on my estate, who was your constituent's pupil; and none of them have yet counted; and so as it is presumed against tutors, that any debt they acquire against the pupil or his estate, during the office, is either to the pupil's behoof, or paid with his money and accresces to him, so the same presumption militates against their factor.

The Lords considered here, there was not only that extension, but also another presumption urged, that the factor's taking the right in name of one of his sons in familia made it be presumed that it was with the father's means; and that this was but a second son, and not his heir, and that he was not seeking up the principal sum, but only a poinding of the ground for his annualrent. Therefore the Lords, in this circumstantiate case, repelled the defence, and decerned in the poinding.

Vol. I. page 545.