Scottish Court of Session Decisions

Subject_1 DILIGENCE.
Subject_2 SECT. VII.

Diligence Prestable by Factors and Mandataries.

Mrs Jacintha Dalrymple
v.
John Murray and Others

Date: 4 August 1784
Case No. No 66.

Trustees liable for factors, by the conception of the trust, removed a factor for mismanagement. Their second factor also acted improperly. A legatee, who had been dilatory in demanding payment, and to whom no fund now remained, was found not entitled to payment from the trustees, on the footing of their liability for their factors.

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Mr Robert Dalrymple, by a deed of trust, conferred on Mr Murray and others of his friends, the whole management and administration of his estate after his death. The declared purposes of this trust were, that the trustees should first of all discharge his debts, which were very inconsiderable, and pay his legacies, one of which was devised to Mrs Jacintha Dalrymple, his grand-daughter, and then make over the residue of his effects to Hugh Dalrymple, his grandson.

The trust-deed contained the following clause:

“Declaring, That the trustees shall not be liable for omissions, nor in solidum one for another, but each shall be liable and accountable for his own actual intromissions only; nor shall they be liable for any factor or cashier to be appointed or employed by them, further than that he is habit and repute sufficient and responsible for the time; being satisfied that my said trustees will act herein as if they were acting for themselves.”

The factor whom the trustees first appointed was one of their own number; a man in good credit at the time, but who afterwards became insolvent. Instead of complying with the direction of the trust-deed, by discharging the debts and legacies in the first place, he began with paying large sums to the residuary legatee. The trustees dispossessed him of the office, and named in his room a person not of their number. But he, too, made ample payments to the residuary legatee, insomuch that there remained not sufficient funds for the satisfaction of the other legatees and the creditors.

Mrs Jacintha Dalrymple, therefore, instituted an action against the whole trustees, as being personally liable to her in payment of her legacy; when, in defence, it was

Pleaded; The mismanagement of the factors arose not from any fault in the trustees. They nominated to that office persons, who, at the time, were possessed of credit and character; nor were they bound, either by the nature of their duty, or by the terms of the trust-deed, to watch every step in the conduct of their factors with a jealous eye. If any blameable negligence has occurred, it is on the side of the legatee, who was not restrained by a trust-settlement of this kind, as she might have been by a deed framed for behoof of creditors, from obtaining payment as soon as it became due.

Answered; The acceptance of this trust implied an obligation on the trustees to act in such a manner, with respect to the affairs of their deceased friend, as they would do in their own concerns. But to these, it is not to be presumed that they would have shewn such a degree of inattention.

The Lord Ordinary ‘assoilzied the trustees;’ and

‘The Lords having advised the petition for Mrs Jacintha Dalrymple, reclaiming against the above judgment, with answers for the trustees, and having heard parties procurators thereon, and upon the whole cause, found no sufficient ground, from the terms of the trust-right, or from the manner in which the trust has been executed, to subject the trustees personally to the payment of the sums pursued for.'

The Court adhered to this interlocutor, on advising a reclaiming petition and answers.

Lord Ordinary, Braxfield. Act. Maclaurin, H. Erskine. Alt. Lord Advocate, G. Ferguson. Clerk, Home. Fol. Dic. v. 3. p. 183. Fac. Col. No 174. p. 272.