In what manner modification and restriction of a trust are to be proved?
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The Earl of Abercorn having disponed the lordship of Paisley to the Earl of Angus, he gave back-bond to employ the price of the lands for relief of himself and the Earl of Winton of their cautionry. The Earl of Angus having thereafter sold the lands to the Earl of Dundonald for £.160,000; Winton pursues the Marquis of Douglas as heir to his father the Earl of Angus, for relieving him from paying of £.8,000 for the Earl of Abercorn. There is produced a disposition to Dundonald, bearing £.50,000 received by Angus. and £110,000 detained by Dundonald, to purge real incumbrances. The defender alleged that he could only be liable for £.50,000 received by his father, and that the remainder was employed for real incumbrances, as is expressed in the disposition, whereof the pursuer makes use as a probation for him, and therefore must admit of it as a probation against him. It was answered, That if the Earl of Angus had deponed in the terms of this disposition, his oath would have proved against him as to the receipt of £.50,000, but would not have proved for him, that he had allowed £.110,000 for real incumbrances, but it would have been rejected as an extrinsic quality, and he put to prove it, much more must this hold in this writ, otherwise if the disposition should acknowledge that all was detained for real incumbrances, that naked assertion of a party should have freed himself from counting.
The Lords found that the pursuer, might make use of this disposition, for proving against the defender the price, and his father's intromission, and that the defender behoved to instruct the real incumbrances that were on the estate, and did grant diligence against Dundonald and others for proving the same.
