WILLIAM MIRRLEES v BENJAMIN MATHIE (Court of Session)

No farther steps having been taken against Macintosh, the cause was brought under review of the Court by Mirrlees only. Lord Gillies, Ordinary, found the letters orderly proceeded; and Mirrlees acquiesced in his Lordship's judgment, having, in the meantime, raised the present action of relief against the defender, Mathie, on the ground that, as factor under Brodie's trust, he took the sole charge of dividing the funds in question. The Lord Ordinary, Pitmilly, having decerned in terms of the conclusions of the libel—

The pursuer stood in a very different situation. Holding the office of factor loco tutoris of Barr, junior, his plea of ignorance of the import of a settlement in favour of the pupil, could not possibly be listened to, seeing that either he, or his legal adviser in the pupil's affairs, was all along in possession of the deed.

But the defender committed the farther error in making payment without requiring confirmation, which, if it did not discover the true principle of distribution, would at least have afforded security against the consequences of paying to parties who were not in titulo to discharge effectually; Goldie v. Macdonald, 4th Jan. 1757, Mor. p. 3527; Mason v. Thom, 4th Feb. 1787, Mor. p. 3535; Bell's Com. vol. ii. p. 369.

The pursuer's conduct as factor loco tutoris for Barr, junior, is irrelevant to the present question. For the responsibility attaching to that character is not the ground of the action of which relief is now sought. The conclusion of that action was directed equally against Macintosh; and that could only be in his character of trustee under Brodie's settlement.

Lords Robertson and Pitmilly were of opinion that the defender was responsible even for erroneous payments made prior to the period when it appeared he was in the knowledge of Barr's settlement.