Scottish Court of Session Decisions

Subject_1 DILIGENCE.
Subject_2 SECT. VII.

Diligence Prestable by Factors and Mandataries.

John Goldie, Trustee of Henderson's Creditors,
v.
Katharine Macdonald, Relict of George Keir

Date: 4 January 1757
Case No. No 63.

A person accepted a factory, empowering him to procure the constituent confirmed executor to a distant relation. He neglected to obtain the confirmation, and in the mean time, the constituent died, by which his relict was excluded from the executry. The Lords found the factor liable to the relict in damages to the amount of the loss sustained by his neglect.

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Andrew Garden died in Dumfriesshire in 1742. His nearest of kin were George, William and Janet Keirs, the children of his sister.

William Keir set up a claim to the whole executry, founding upon a letter wrote by the defunct; which induced George, who lived at Alloa, and acted as a writer, to come to Dumfriesshire; and, on the 19th August 1742, he granted a power or factory to John Henderson of Broadholm, who had been educated as a writer, and was then living in Dumfriesshire as a country gentleman, and acting as factor to the Marquis of Annandale.

By this factory, he empowered Henderson, either to procure him conjoined with his brother William as executor, and to receive his share of the effects, or to call William to account, if he should be confirmed alone; and the factory mentioned a reasonable gratification to be allowed him for his trouble.

Upon the 11th August 1742, he wrote to Henderson, and sent him a bond of cautionry in the confirmation, signed by Alexander Abercrombie; desiring, “That if any other thing occurred to Henderson that was incumbent upon him, he would please take the trouble to write him thereanent.”

Henderson employed a procurator at Dumfries; who, upon the 21st December 1742, obtained George conjoined as executor with his brother William. Of this sentence William obtained an advocation; but, in January 1744, the cause was remitted simpliciter, and the act and remit sent to Henderson. A petition was then given in to the commissary, by Henderson's direction, for a warrant to value the defunct's books; and, upon the 10th May 1744, two persons were appointed; who, upon the 13th June 1744, made their report. On the 17th April 1744, Alexander Abercrombie, the cautioner, became bankrupt and left the country.

In September 1744, a letter was wrote to the commissary of Dumfries, in name of George, inquiring why the confirmation stopped; and the commissary wrote an answer, That he knew no reason, and that George's doer might force it when he pleased.

Upon the 8th January 1745, George assigned to Katharine Macdonald, his wife, all his debts and effects, and particularly his share of Andrew Garden's executry.

In July 1745, George died; and, as no confirmation had been taken out, his brother and sister became the nearest of kin, and his relict was excluded from his share of the executry. She brought an action of damages against Henderson; and obtained decreet in absence for L. 212, as one-third of Garden's executry, said to have been lost to her by his negligence.

The Creditors of Henderson brought a reduction of this decree; and argued, That a factor could not be subjected to damages of this kind, of which it was impossible to say he was the necessary cause; for that, if George had thought him negligent, he had it in his power to have recalled the factory, and to have appointed another; or he might have acted himself, as he was apprised of the delay by the commissary's letter; and that, in this case, it was a chance whether the delay might not have proved advantageous to George, by the predecease of William or Janet. Besides, Henderson was not properly an agent acting before the courts at Dumfries, but had employed another; and, it was probable, the delay was owing to George himself, either because he did not furnish money, or provide a new bond of cautionry, or chose to run the risk of survivance.

Answered; The negligence is apparent from the dates of the different steps. The anxiety of George that the confirmation should be immediately taken out after the remit upon the advocation, is proved by the letter wrote in his name to the commissary; and the commissary's answer proves, that the delay was to be imputed to George's doer alone. Though George might have recalled the factory upon the suspicion of negligence, he was not bound to recall it; Henderson, who undertook the office, not gratuitously, was bound to execute it; and his negligence, in this case, was similar to that of a factor neglecting to insure a ship, or a messenger to execute a caption. The want of money, or of a new bond of cautionry, cannot be an excuse for the delay, unless Henderson had acquainted George that these were wanted.

‘Upon the 1st July 1755, the Lords repelled the reasons of reduction of the decreet quarrelled, and assoilzied.'

Upon a reclaiming petition, a diligence having been allowed to the Creditors for recovering writings, the cause came again to be advised.

‘The Lords adhered.'

Act. Johnstone, Th. Hay, Ferguson. Alt. Bruce, And. Pringle. Clerk, Kirkpatrick. Fol. Dic. v. 3. p. 182. Fac. Col. No 2. p. 3.