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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Purves v Smith. [1628] Mor 4049 (13 June 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor1004049-006.html
Cite as: [1628] Mor 4049

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[1628] Mor 4049      

Subject_1 FACTOR.
Subject_2 SECT. II.

Factors' powers.

Purves
v.
Smith

Date: 13 June 1628
Case No. No 6.

A wife who had a general factory, with a clause empowering her to do every thing the husband himself might do, &c. disponed some goods to another person and acknowledged him to be creditor to her husband. The Lords found the disposition null, unless the disponee could qualify how the husband was his debtor; for tho' the factory might be interpreted in the most extensive shape as to acts of administration, it could not carry a power gratuitously to alienate.


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In an action to make arrested goods furthcoming Purves against Smith, one compearing and alleging, that the goods arrested desired to be made furthcoming, could not be decerned to be delivered to the pursuer, because the wife of the husband, for which husband's debt the saids goods were arrested, disponed the saids goods to the excipient, long before any arrestment executed thereon by the pursuer, and that for satisfaction of a debt owing to the excipient by her said husband, which wife disponer had a factory and power given to her by her said husband, to pursue for all debts owing to him, and to intromit with the same, and bearing a general clause, “to do all and whatsomever he might do himself if he were present;” in respect of the which factory and power, and clause foresaid, ‘to do as if he himself were present;’ the defender alleged, that as the husband might have given the saids goods, either gratis, or sold the same to whom he pleased at that time, when his wife disponed and assigned the same to this excipient, seeing the husband at that time neither was put to the horn by this pursuer, neither were the goods then arrested, but long after the said disposition by the space of three months; and therefore he contended, that he had no necessity to qualify or show now, that the husband was his debtor, seeing the narrative in the disposition purported the same, and he had no necessity to keep the bonds any longer after the said disposition, which was given to him for payment, and which might lawfully have been received by him; albeit there had been no preceding debt, the husband not then being bankrupt. This allegeance was repelled, except that the excipient qualified a debt owing by the husband to him, answerable in sum and quantity, to the avail of the goods disponed by the wife; which being so proven, the Lords sustained the disposition made by the wife, and found it good, it being proven that by the factory she had power so to do; but if there was no preceding debt owing by the husband, the Lords found, that the factory (notwithstanding of the said general clause) gave her no power to dispone of any of her husband's gear, in prejudice of his lawful creditors, except there were a just and lawful cause alleged and instructed, showing the same converted to the use and necessary affairs of her husband.

Act. Sandilands. Alt.Belshes. Clerk, Hay. Fol. Dic. v. 1. p. 287. Durie, p. 374. *** Spottiswood reports the same case:

John Davie merchant in Edinburgh left a factory to his wife Isabel Johnston upon his going off the country, “to gather in all his debts, convene and pursue therefor, &c. and generally to do all that he might do himself in his own business during his absence.” She assigneth to one John Smith her husband's creditor, certain goods appertaining to her husband; afterwards one Purves, another of her husband's creditors, arresteth the same goods. In pursuing whereof to have them made furthcoming, compeared John Smith, and alleged they were his, by virtue of his assignation and intimation thereof long before Purves his arrestment, who contended that Isabel Johnston could not, by virtue of that factory, make an assignation, seeing it gave her only power to crave in her husband's debts, and not to pay any of his creditors at her pleasure. The Lords sustained the assignation in respect of the general clause foresaid contained in the factory, Smith always verifying the debt for which the assignation was made to be true and just, and owing to him by John Davie himself.

Spottiswood, (Factory.) p. 125.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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