Walter Gibson, late Provost of Glasgow, v. Mungo Cochran Merchant there
Date: 18 July 1710 Case No. No 57.
A factor on a sequestrated estate, who had got a trust disposition from the proprietor of the estate, was found liable to account at a rental, and not for his actual intromissions only, tho' the pro-proprietor had a promiscuous intromission.
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In the count and reckoning at the instance of Walter Gibson, against Mungo Cochran, for his intromissions with the rents of the pursuer's lands, as factor appointed by the Lords for the behoof of his creditors;
Alleged for the defender; Though a factor named by the Lords upon a sequestered estate, is holden to count to the debtor's creditors, conform to a rental; and the defender's intromission began by the factory for their behoof, yet he afterward got a disposition in trust from the pursuer, by virtue whereof he transacted all the debts; and how soon these came in his person, was no longer to be considered as the creditor's factor, but as trustee to the common debtor, who having intromitted promiscuously himself, can put the defender to answer only for his actual intromissions.
Replied for the pursuer; Mungo Cochran being empowered by the Lords to uplift the pursuer's rents exclusive of all others, he was obliged to do exact diligence, and to count for the same. His voluntary suffering the pursuer to intromit, could not invert or alter the nature of his factory and trust, but operate only a personal defence against the intromitter, That he cannot seek twice payment; and in so far as the pursuer did not intromit, the defender stands accountable for exact diligence; because only the defender had a title to intromit, or do diligence for payment; the heritor of a sequestered estate being quite divested, and his right not to be redintegrated by the factor's tolerance.
The Lords found the defender liable to count at a rental, and not for his actual intromissions only.
