Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION V.

Proved, or not proved.
Subject_3 SECT. XIII.

Trust posterior to the Act 1696.

Colin Alison, Wright in Edinburgh,
v.
Elizabeth Forbes, Relict of Thomas Alison, and Anne and Margaret Alisons, his Daughters

Date: 31 July 1771
Case No. No 660.

Direct trust not competent, in terms of the act 1696, c. 25. to be proved by witnesses.

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The pursuer brought a declarator against the defenders, setting forth, that, in the year 1752, he had employed his brother Thomas to purchase a house for him, and had given him money for that purpose; and therefore concluding it should be declared. “That he had the only right to the said tenement, and that the defenders should grant a valid disposition thereof in his favour.”

Having stated a variety of circumstances, the pursuer made a farther offer of instructing the trust, by the examination of the defenders, and by the testimonies of Thomas Alison's man of business, who had written his settlements, and of his trustees and others, who had access to know the nature of the transaction betwixt him and the pursuer.

The Lord Ordinary refused this proof; and in a reclaiming petition,

The pursuer pleaded,

That this case did not fall within the act 1696; for though the truster, in a question with the Trustee was, on account of the dilectus personæ, and confidence, reposed, confined to a proof, by writ or oath only, there was no reason to hold that the same confidence existed, and that the same restriction was in force when the question occurred with his heir.

The statute applied only to persons who had granted dispositions ex facie absolute, without taking any back-bond or declaration of trust, whereas, in the present case, the pursuer had granted no disposition to his brother at all, but a mandate merely to purchase for him the house, and money to pay for it.

The statute had not, in late practice, been rigidly adhered to. Trusts, fraudulently denied, had, in repeated instances, been admitted to proof by witnesses. Tweedie against William Lock, as to the purchase of the lands of Garshall; Skene against Balfour Ramsay; Maxwell of Lechiebank against Maxwell of Broombrae*.

The defenders maintained, That the proof offered was incompetent; that it was excluded by the enactment 1696, c. 25. the words of which were general,

* These cases are not reported. See Appendix.

to trust-rights of every kind, or, as expressed in the statute, “any deed of trust.” And if the petitioner's distinction, founded on there having been no disposition ex facie absolute, granted to the trustee, was admitted, the statute would be of no use.

It was observed upon the Bench, That the cases of Maxwell and others, referred to in the petition, were not properly questions of trust, but challenges immediately brought of transactions as fraudulent. Here it was a direct trust.

The following interlocutor was pronounced:

“Find it not competent to prove the trust by witnesses; and therefore adhere to the Lord Ordinary's interlocutor reclaimed against, and refuse the desire of the petition, without prejudice to the petitioner, to prove the alleged trust, by the oath of the heir of Thomas Alison.” And, upon advising a petition and answers, the Lords “refused the same in hoc statu, but remit to the Lord Ordinary to examine the heir of Thomas Alison upon all pertinent interrogations to be put by the petitioner, and to do therein as he shall see cause.”

Lord Ordinary, Elliock. For Colin Alison, Maclaurin. Clerk, Campbell. For Forbes and Alison, D. Armstrong. Fac. Col. No 100. p. 299.