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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Smith v. Hamilton
Date: 23 January 1700
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Smith, in Elgin, having pursued a declarator of trust of a bond against one Hamilton, the Lords had allowed a probation, before answer, of the qualifications of the trust, for expiscation; and sundry witnesses having deponed, and their testimonies coming to be advised, they seemed clearly enough to make out the trust, so as he ought to be countable for the money in the bond, or else for diligence, or, 3dly, to retrocess and repone the party. Yet, in regard they deponed on words wherein witnesses might easily mistake, and that the defender produced a discharge of the pursuer's, after counting, though it did not extend to this trust; therefore the Lords assoilyied from the declarator of trust, unless the pursuer would prove it by his oath, and that he was yet resting the money.
This is now cleared by the late Act of Parliament, that trusts can only hereafter be proven script o vel juramento. Before that, the Lords sometimes, ex officio, examined witnesses; but this was judged too large and arbitrary a power.
