Scottish Court of Session Decisions

Subject_1 TRUST.

Fothringhame
v.
Mauld

Date: 20 December 1679
Case No. No. 20.

Import of an oath relative to a trust.

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Fothringhame of Pourie having obtained a decreet of poinding of the ground of lands belonging to Mauld of Ballumby, he raised reduction on this reason, that Pourie having bought the lands of Muirhouse, and being obliged to procure himself infeft by the superior upon his own charges, he had taken a right from the Earl of Crawford, superior, to many years by-gone of the non-entry of these lands, in the name of Bandoch, his cousin-german as his confident, in trust to his behoof. This being a matter of trust, the Lords ex officio ordained Bandoch to depone, who accordingly deponed upon several interrogatories, given in for Ballumby, and his oath did bear, “That the gift was to his own behoof, and nowise to the behoof of Pourie,” which were the first words of the oath, and did also bear, “Answers to his special interrogatories;” which oath coming to be advised, it was alleged, that thereby the trust was proved, it bearing, “That Pourie was advised, that a gift in his own name of the non-entry, would afford him no more than what he paid for it, and that Pourie had paid the Earl of Crawford the composition, without bond from Bandoch, but that Bandoch had repaid him. It was answered, That Bandoch's oath being positive, “That the gift was to his own behoof, and not to Pourie's,” nothing else in the oath could be made use of to infer a trust, as the Lords had already practised, and resolved, that after a general interrogatory deponed upon negative, no special interrogatory expiscating the same thing, should be allowed, least parties might be ensnared, either to swear falsely, or by inferred contradictions, to be perjured. It was replied, That the Lords had only given warrant, that after any party had upon their interrogatories taken the deposition in general, that the deponent might not be examined thereafter upon particular interrogators, that might contradict the general deposition; but in this case the general interrogatory is last, and Bandoc his not examined precisely in order to the interrogatories, but begins his oath in answer to the general interrogatory, and then depones as to the rest, so that his oath must be considered as to the whole tenor of it; neither is the general deposition clear, for Bandoch might probably have been in the opinion, that there was no trust, because trust was not expressed, nor any promise of back-bond, which no cautious party uses to adhibit; but on the contrary, they are prohibited to have any promise, or back-bond, and it is a most proper trust, when the true meaning of the parties is, that he whose name is in a right, shall not apply the whole benefit of it to himself, but shall apply it in whole, or in part to another, which is properly fidel commissum.

The Lords found that the whole tenor ought to be considered, and ordained Bandoch to depone what his meaning was in his former deposition, that the gift was not to Pourie's behoof, whether that was only that he had given no promise or back-bond, to apply it to Pourie's behoof, or whether the true meaning and design was not, that Pourie put him upon it, upon confidence that he would apply the benefit of it to Pourie; whereupon Bandoch having deponed negative, as to both these points, the Lords found the oath proved no trust.

Stair, v. 2. p. 725.