Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Thomas, John, and Susanna Marshalls,
v.
William Milne

Date: 6 February 1677

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In an action pursued at the said Marshalls' instance, for payment-making to the said Thomas and Susanna Marshalls of the two part of the whole lands which belonged to their father, Thomas Marshall, upon this ground,—That their father, by an assignation, did dispone his whole lands in favour of Beatrix Bell, their mother, and the said two children, to be equally divided amongst them; which sums were to be uplifted and employed accordingly by the said Beatrix, with consent of the said William Milne, and John Marshall, their uncle; notwithstanding whereof, the said William Milne did take a translation from the mother to the whole debts and bonds, as solely belonging to her; and, by virtue thereof, did intromit with several sums, and might have intromitted with the whole, the debtors being at the time responsible; but, notwithstanding, he having kept up the bonds, and never having pursued but for so much as would satisfy his own debt due by the mother, nor never having offered to make a retrocession, it was concluded that he ought to be liable ex capite fraudis et doli, as being nominated a trustee for the children, and without whose consent nothing could be done in law.

It was alleged for the defender, That he being neither nominated a tutor nor factor for the bairns, he was not bound to act for them; nor could be liable in law for omissions, which is the only ground of law whereupon tutors, curators, or factors were liable for not doing diligence; whereas he, being a creditor to the mother, was in bona fide to take a translation for a just and onerous cause; and was only obliged to pursue for recovery of so much as would pay his own debt; and, never having been required to make a retrocession, was not liable for the superplus.

The Lords, having seriously considered this case, as being singular, the defender neither being tutor nor factor, and, on the other part, that, by his own translation to the assignation, he was nominated a consenter for the use of the bairns, as well as the mother; so that, without his consent, nothing could be done, which did imply a clear trust; and that he having intromitted with the whole bonds, did thereby satisfy his own debt; and did never offer to the children, nor their uncle, who was joined with him, to make a retrocession, or to concur against the debtors;—therefore they did decern the defender liable: albeit he was neither tutor nor factor; but that the trust being known to himself, and he being master of the whole bonds, was liable for their damage, in suffering the debtors to become irresponsible; the case of minors being most favourable, who cannot deal for themselves, and their defunct father having relied upon the defender, his care and diligence.

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