Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. III.
Alienations in favour of Conjunct and Confident Persons.
Janet Gibb v. Alexander Livingston
Date: 25 July 1766 Case No. No 38.
In a reduction of a bond upon the first branch of the act 1621; found competent to redargue by parole evidence the narrative of the bond, bearing to be for borrowed money.
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Laurence Gibb, upon the narrative, that he had borrowed and received from Andrew Williamson, his son-in-law, the sum of L. 50 Sterling, granted an heritable bond for that sum, over a tenement in the town of St Andrew's. This bond was adjudged by Livingston, a creditor of Williamson.
Janet Gibb, a creditor of Laurence Gibb, having brought a reduction of this bond, upon the first branch of the act 1621, the first question was, whether a reduction was competent against the defender, a creditor-adjudger of the bond. The Court ‘Repelled the defence, that adjudgers from a conjunct and confident person, are not liable to the challenge arising from the act 1621; but, in respect of the particular circumstances of this case, found that the defender is not obliged to astruct the heritable bond in question.’
The pursuer having offered to prove by witnesses, that the bond was gratuitous, the defender contended, That parole-evidence was not competent to redargue the narrative of the bond; founding both upon the general principal, that writing cannot be defeated by witnesses, and also on the tenor of the act, which mentions only a proof by writing, or the oath of party.
Answered for the pursuer, A proof by witnesses is admitted in all cases of fraud, though the effect of that proof may be to cut down a writing. Had it been alleged that Laurence Gibb was imposed on in granting the bond, parole-evidence would have been unquestionably competent. It ought to make no difference that Gibb himself was a partaker of the fraud.
The act only says, That a proof by oath or writ of party shall be sufficient. But this is not absolutely exclusive of a proof by witnesses.
When the Court requires a proof, that a deed challenged upon this act was onerous, as is always done when the conjunct or confident person is himself the defender, parole-evidence is admitted; 5th July 1673, Home contra Smith p. 899.; 15th December 1671, Duff contra Culloden.* It seems reasonable, that the same species of proof ought to be received, when, from the circumstances of the case, as, here, the Court fees fit to lay the onus probandi upon the pursuer.
‘The Lords found, That it was competent to the pursuer Janet Gibb to astruct, by facts and circumstances, the grounds of her reduction, and allowed her to prove, both by witnesses and writing, the several facts mentioned in her condescendence.’
Upon advising a reclaiming bill and answers, the Lords ‘adhered’.
Act. Burnet.Alt. Rae.Clerk, Pringle.
Fac. Col. No 44. p. 78.
