The averment that a discharge had been granted upon trust, was found probable only scripto vel juramento.
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Elizabeth Gray, Lady Ballegarno, at the time of her marriage with David Fotheringham, having, with consent of her curators, and of the said David, her future husband, granted a discharge to Mr Patrick Hay, and Janet Hay his sister, of their office of curatory and tutory respective, and of all their intromissions and omissions, and of all actions of count and reckoning, restitution in integrum, and others; and which discharge is likewise with consent of the Laird of Powrie, the said David's father, who is taking burden for his son, and who is expressly obliged to move, and cause his son ratify and renew the discharge, at his perfect age of twenty-one years; and the Lady and her Husband having pursued a reduction of the said discharge, upon minority and lesion, against the relict and children of the said Mr Patrick Hay; and that they ought to be restored in integrum, seeing it was offered to be proven, by the Commissioners, that the discharge was granted upon trust, and therefore, notwithstanding thereof, the defenders, as tutors, ought to be liable to compt; the Lords sustained the first reason, founded upon minority and lesion, reserving to the defenders action against the Laird of Powrie for warrandice of the discharge, as accords; and found the second reason of trust only probable scripto vel juramento.
Fol. Dic. v. 2. p. 222. Sir Pat. Home, MS. v. 1. No 479.
