Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Andrew and Adam Steven
v.
Cornelius Neilson

Date: 8 July 1671

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In a reduction of a disposition, made by Andrew Steven to the said Cornelius, at the instance of Adam Steven, brother to the said Andrew, upon the Act of Parliament 1621, That it was done in defraud of the pursuer, who was a lawful creditor to his brother by a bond of 1000 merks; and that the disposition of the lands to Cornelius, being worth £10,000, was only made for 1000 merks, the said Cornelius being a conjunct person to his brother:—It was answered to the reason, That this reduction could not be sustained at the pursuer's instance, because the said Adam's bond was a mere donation; and the defender having charged Andrew for warrandice of his right, the said Adam had become cautioner in the suspension for his brother, who was granter thereof; et quem de evictione tenet actio, eundem agentem repellit exceptio.

It was replied, That his being caution in a suspension could not hinder the reduction; because, if he prevailed therein, the warrandice would be taken away with the disposition, and the bond of caution did fall in consequentiam.

The Lords did find the answer relevant, founded upon the bond of cautionary; and that he, being cautioner for warrandice of their right, could not reduce the same upon the Act of Parliament 1621, anent divours; but prejudice to him to insist upon the reason of fraud and circumvention.

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