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Scottish Court of Session Decisions >>
Francis Heddrington of Astonbie v John-Henry Book and Thomas Dod, of London, Merchants. [1724] Mor 4047 (14 July 1724)
URL: http://www.bailii.org/scot/cases/ScotCS/1724/Mor1004047-004.html Cite as:
[1724] Mor 4047
Factory, when revocable - when understood revoked.
Francis Heddrington of Astonbie v. John-Henry Book and Thomas Dod, of London, Merchants
Date: 14 July 1724 Case No. No 4.
A factory was granted to a person during life. It afterwards appearing that he was unfit for the management, the Lords found the factory revocable.
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Messrs Book and Dods having entered into articles of agreement with Obadia Sedgwick, 11th August 1715, and convenanted, that upon their obtaining a tack of certain lands, coallieries, and iron-works, from the Dutchess of Buccleugh, he should be admitted a sharer for one fifth part, and have a salary of L. 150 Sterling yearly for managing the subject of the set. The tack was accordingly obtained in September 1715, and they, upon the 10th of that month, in implement of the articles, assumed him as partner for one fifth, and granted him a factory with the foresaid salary, to continue for the endurance of the tack, or his own life.
Mr Sedgwick entered upon the management, but soon discovered that he was unfit for it, by gross malversations and running in arrear to the partners, which obliged them in May 1717 to recal his factory, and grant a new one to John Davidson of Carnobie, which was intimated to the tenants in a baron-court, and at the church-door of the parish, and registrated in the books of regality, and thereupon the new factor entered to possess and manage.
In the month of August thereafter, Mr Sedgwick set leases to several persons, particularly to one Story, and to Mr Heddrington, who likewise got right to Story's tack; but the new factor had previous to these set the lands to other tenants; notwithstanding of which, Mr Heddrington warned away the possessors of the lands, and insisted in a removing; in which process Book and Dod compeared in defence of their tenants, and contended, that the factory to Sedgwick was revocable, and actually revoked by the factory to Davidson, which being legally intimated, Heddrington and Story were in mala fide to contract with Sedgwick, and consequently their tacks were null.
It was answered for Heddrington, That the right in the person of Sedgwick was not revocable, because it was a right of property stipulated in the previous articles, and in effect a condition of the tack; that there were irrevocable mandates, where the interest of the mandatar was concerned; and in the present case Mr Sedgwick appeared to have a very valuable one.
Replied for the defenders, That in the present question a share in the property of the tack was to be considered separately from the factory; that in law it was essential to all factories, that they are revocable, though granted for a number of years; yea, though it should be expressly stipulated, that the factory should not be revoked, as Voet observes, tit. mand. § 17.; and consequently this factory might be revoked, especially upon malversations and bankruptcy. And father, by the articles of agreement it was provided, “That all differences were to be determined by the majority,” and the revocation was done by them.
‘The Lords found, That the factory could be revoked for just causes, and that the publication of the new factory was sufficient, and that the tacks in question depended on the right of the setter, and therefore assoilzied from the removing.
Reporter, Lord Royston,Act. And. Macdowal.Alt. Ja. Boswell.
Fol. Dic. v. 3. p. 200. Edgar, p. 80.
