Scottish Court of Session Decisions

Subject_1 TRUST.

William Kennoway
v.
Robert Ainslie

1752, Jan. 22.
Case No. No. 15.

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George Ainslie disponed his tenement in Newbattle to his daughter Jean in 1721, and thereafter in 1723 disponed it to his brother Robert, on the narrative of sums of money paid. After George's death, Kennoway, the son of Jean Ainslie, alleged that the disposition to Robert was in trust and under back-bond; and pursued exhibition of that back-bond; wherein Robert compeared, and produced his disposition to exclude the pursuer. And in that process Mr Patrick Middleton deponed that Robert had granted a back-bond acknowledging and declaring the trust for behoof of George, in order to his carrying on a certain process; that the back-bond was lodged by George in his, Middleton's, hands, where it remained for several years, till George was on death-bed, when Robert came to him, and told him that his Brother George wanted to see the back-bond, upon which he gave the back-bond to Robert, and knew not what afterwards became of it. And William Junkison deponed that he heard Robert Ainslie own that he had granted to his brother a back-bond, and that it was lodged in Mr Patrick Middleton's hands, and that he had got it from him, and had burnt it. Kennoway next pursued a declarator of trust against Robert, and Lord Dun assoilzied, because there was no proof in terms of the act 1696. The pursuer reclaimed, and some of the Lords thought there was a fraud in Robert Ainslie, and therefore proveable by witnesses. I could not agree upon that footing, because every breach of trust may be accounted a fraud, so that would be a repeal of the act 1696. But I thought, that though the act made a written declaration of trust necessary, yet it did not follow that where such had been granted, and either lost casually, or stolen, or robbed, that therefore the right was lost, for still the tenor might be proved, or if stolen or robbed by the trustee, that theft or robbery might be proved by witnesses, and he obliged to make it up;—that here was sufficient proof against Robert of his unwarrantably abstracting and destroying the back-bond, and therefore the trust might be declared against him; and the Lords found accordingly; and renewed this interlocutor on a transference against his heir.