Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Gibb
v.
Livingston

Date: 16 December 1763

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In this case the Lords determined that a reduction, upon the Act of Parliament 1621, is competent against the creditor-adjudger of the confident person as well as the confident person himself; and Lord Auchinleck said, it was decided in the 1755, January 28, in the case of one Neilson, that a reduction of a sale of land, upon the head of fraud and circumvention, was competent against the adjudger from the buyer; and Lord Coalston said, he remembered a later case, Michael Menzies against Gillespie, where the like was found. But, in regard that, in this case, the action was against the adjudger, and on account of the long delay and other circumstances of the cause, they found that the onus probandi of the insolvency, and the gratuitousness of the deed, was incumbent upon the pursuer.

25th July 1766.—This day they found that the pursuer might prove by writ or oath of party, and, consequently, that the defender was still to be considered as a conjunct or confident person, not as a stranger; for, in the case of a stranger, the narrative of the deed, bearing the money received, would have beenprobatio probata. See Fac. Coll. IV. p. 78.

See, in relation to this point, Home, 23d November 1725, Nairn, where the general point is very well argued; and a decision in Falconer, 21st June, 1737, Gartshore against Bell, where this point was overlooked, and an adjudger considered in the same light as a purchaser.