A trustee was found not liable to do diligence, though he did possess, but only for his actual intromission, he being bound to denude whenever the truster pleased.
Click here to view a pdf copy of this documet : PDF Copy
Dr Cass having taken infeftment of an annualrent out of the lands of Robertland, in name of Cockpen and Adam Watt, Charles Cass, as heir to the Doctor, pursues Mr John Watt, as heir to his father, for count and reckoning of the mails and duties; and charges him with the hail rental, being intromitted, or which ought to have been intromitted with by him and his father, by virtue of the trust in their person; and also Adam Watt took a gift of tutory to the pursuer, and so is liable as his tutor. The defender answered, That his father's name being borrowed on trust, could lay no obligation on him to do any diligence but what he thought fit, seeing, by his back-bond, he was obliged to denude himself whenever the Doctor pleased; and the pursuer has reason to thank him for what he did, and not burden him with what he omitted, seeing he had no allowance therefor; and as for the tutory, there was a multiplepoinding all the time thereof depending among five or six parties, pretending right by the dependence whereby the tutor was excluded. The pursuer answered, That the defender's name was not borrowed without his knowledge, but that he accepted thereof, and entered to possession; and as an appriser is not obliged to possess, but if he possess, must be answerable for the rents of the lands, conform to the rental, so must the defender.
The Lords found the defender not liable to diligence, by virtue of the trust, albeit he did possess, but ordained him to count for his intromission, and to condescend what diligence his father did as tutor, that if he be found deficient therein, there might be an additional account to what he intromitted with.
