The evidence of instrumentary witnesses admitted to ascertain a trust.
See Crawfurd No. 62. p. 12304. contrary.
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The Laird and Lady Stanipath having assigned to Francis Lyle their son, their right which they had to a certain yearly duty, which was due to them, and to the longest liver of them, for either of their lifetimes, out of some lands; the Laird being dead, and also Francis who was assignee being dead, the Lady pursues the relict of Francis, haver of that assignation, for production thereof, and the bairns of Francis to hear them decerned to repone her against the assignation, and to hear it found, that their son's name, who was made assignee, was but borrowed to their own behoof, and that he promised never to prejudge his father nor his mother in their rights, but to use the assignation to their behoof. There was neither back bond made by the son, nor any adminicle in writ to verify the promise, nor any other thing extant to verify, that the deed was done upon trust or confidence; and both the father, who was one of the cedents, being dead, and also the assignee; yet the Lords took trial thereupon ex officio, by examination of the witnesses insert in the assignation, who were all but simple and poor folks, and by examination of the relict of the assignee, who had no interest in the right, but was convened as haver; and upon their delarations, found the trust, and confidence, and promise made by the assignee sufficiently tried, and decerned in favours of the pursuer, without any other adminicle of probation.
Act. Cockburn.Alt. Nicolson.Clerk, Hay.
Durie, p. 141.
