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The defender pleaded in the record, upon the strict terms of the statute, 1696, c. 25, that there was no declaration or back-bond of trust lawfully subscribed by the person alleged to be the trustee, and the trust could only be competently proved by the oath of the party.
The pursuer, while he had no declaration or formal back-bond subscribed by the defender, recovered and founded on a variety of real evidence, scripto of the defender, which will be found commented on in the note attached to the following interlocutor by the Lord Ordinary:
There is a good deal more referred to in the condescendence, which, as real evidence, may be very important. The Lord Ordinary has only attended to what seemed to be properly the writs of the defender; and they appear to him completely to prove the case of joint property.
Dean of Faculty, (Hope,) and A. M'Neill .—The evidence must be such as imports a trust. The facts and circumstances founded on must be those only established scripto; but, upon a construction of them, a trust may be declared. Here, the written evidence scripto of the defender directly and irresistibly established the joint right of the parties.
Court .—The import of the decisions is, that there must be under the hand of the defender a sufficient admission or acknowledgment of trust.
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