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Hume v Hume. [1631] Mor 514 (29 January 1631)
URL: http://www.bailii.org/scot/cases/ScotCS/1631/Mor0200514-051.html Cite as:
[1631] Mor 514
Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by FACTORS and their CAUTIONERS.
Hume v. Hume
Date: 29 January 1631 Case No. No 51.
The relict and heir of a factor found not liable to pay the annualrent of principal sums for which he had been liable.
Act of Sederunt 1690, respecting judicial factors.
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Elizabeth Hume, relict of umquhile Robert Hume of Corsing, who, and her husband for his interest, had obtained decreet against one Hume, her father's brother, for payment of certain goods and gear, pertaining to her by her father's testament, wherein this Hume, who was decerned executor nominate and confirmed, and who had also accepted a factory from the said Elizabeth's tutor, the said Hume being deceased, and also the pursuer's husband; she now pursues the relict of the said factor, as intromissatrix and executrix to her husband, who before was decerned, and his heirs, to make payment of the annualrents and profits of the sums decerned, of all years and terms continually since the said factor's intromission, and in time to come, while the payment be made:——Wherein the Lords found, That neither the relict of the said factor, nor his heirs, were subject in law to pay the said profit, the sums being intromitted with by the said factor, by the space of thirty years since, or thereby, albeit decreet was recovered in anno 1620, or thereby, against the factor for the principal sums; but found, That her action for the said profits was competent to her against her own tutor, and not against the heir or executor of the factor.
Act. ——.Alt. Craig.Clerk, Gibson.
Fol. Dic. v. 1. p. 40. Durie, p. 561.
*** By act of Sederunt, 31st July 1690, it is declared, That where there is a sequestration of rents, and a factor named by the Lords, that the factor shall be liable for annualrent of what rents he shall recover, or by diligence might have recovered, within a year after the same are due, in respect the factor cannot safely pay to any of the competitors until the preference be concluded; and in like manner, that no aliment shall be granted to debtors or persons having right to a reversion or to the property after the distresses are purged, unless it be evident that there is a superplus rent over and above all the annualrents of the person's competing.
