Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TRUST - PROOF.
Subject_3 Trust allowed to be proved by facts and circumstances.

Archibald Macarthur Stewart
v.
John Bannatyne and Others

Date: 8 July 1777

Click here to view a pdf copy of this documet : PDF Copy

[Supp. V. 631.]

Hailes. I would not wish to impinge on the Act 1696, which is a valuable statute. But this case falls not within the Act. The right of the defenders cannot surely be better under a general disposition than if the L.627 had been specially conveyed by Mrs Stewart. Now, even in this last case, I think that the proof was proper, and is convincing, for it tends to show that Mrs Stewart could not, without fraud, convey the L.627. Besides, there is written evidence coinciding with the depositions of witnesses, and proving that, here, in the sense of all parties, there was no real conveyance, but merely a trust.

Covington. Independent of the circumstances of the case, Mrs Stewart was creditor to her brother, and it is impossible to suppose that a donation was meant.

Braxfield. The Act 1696 is declaratory of what was law before. It is not competent to establish a trust by the evidence of witnesses; for the common law says that writ shall not be taken away by the evidence of witnesses; and this is founded on good sense and the reason of things. But witnesses may be allowed to prove facts sufficient to show that a writ has been taken away by payment. Even taking the Act of Parliament literally, I think that there is proof by writing here. There are no less than six docqueted accounts after the assignation. This plainly shows that Mrs Stewart did not understand herself to be a creditor in the L.627. On the other ground, stated by Lord Covington, the presumption in law is, that the assignation was given in payment.

President. There is real evidence of the trust arising from the writings as well as from parole evidence.

Gardenston. Slight evidence by writing, joined to strong parole evidence, will remove this case from the Act 1696.

On the 8th July 1777, The Lords found that there is sufficient legal evidence, from the writings produced, the parole evidence, and all the circumstances of this case, that the assignment by Blackbarony to his sister, Mrs Mary Stewart, was granted as a trust in her person, and for his behoof, that the debt might be kept up against the entailed estate; adhering to Lord Gardenston's interlocutor.

Act. Ilay Campbell. Alt. A. Crosbie.