An arrester was preferred to a party whose name was filled up in a blank bond, as the filling up was not intimated to the debtor before the arrestment.
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Marjory Sandilands having granted to Samuel Veitch a blank bond of 2000 merks, Telfer, being creditor to Samuel Veitch, arrests all sums in her hand owing to Samuel: She depones, That she was no ways debtor to Samuel but by a bond given blank in the creditor's name, and that she knew not whose name is filled up therein; compearance is made for Marion Geddes, whose name is filled up in the bond, and she alleges, she ought to be preferred to the arrester, because she offers to prove her name was filled up in the bond, and that, before the arrestment, the bond was registrate in her name; and that, before the said Marjory deponed, she had used inhibition thereupon, which she could not but have known. It was answered for the arrester, That he ought to be preferred, because albeit the bond was blank ab initio, yet, in rei veritate, Samuel Veitch was creditor, and so he behoved to be legally denuded, which could not be done by filling up any other person's name, without intimation thereof made to the debtor; for seeing a direct assignation was not valid without an intimation, much less should this indirect way, by the creditor's filling up another name than his own in the blank; which is in effect an assignation: And seeing the Lords have already found, that the debtor acknowledging that he gave a blank bond to any person, and knowing not whose name is filled up in it, is liable to any arrester, albeit he be under hazard to pay again to that person who has his bond; in justice it followeth, that such bonds must be intimated, otherways it will unavoidably infer double payment. It was answered, That the law requires intimation to an assignation as a necessary solemnity, but has not required the same to the filling up of a blank bond, the case whereof is not alike with an assignation, because, where the bond is blank, the debtor cannot pay any thing bona fide safely till he see the bond filled up; but where he sees the name filled up, he may pay bona fide to the cedent, not knowing of the assignation. It was answered, That the law did require to all assignations intimation, but the case of blank bonds was but a late invention, to defraud creditors, that if might not be known who was creditor: but seeing it is truly an assignation, it deserves no favour more than a direct assignation; and so should have as much solemnity.
The Lords preferred the arrester; but because the case was a leading case, and new, after a second interlocutor adhering, they allowed the advocates to offer, by bill, any new reasons; and, particularly, if it could be alleged, that the debtor, granter of the blank bond, had, before the arrestment, seen the blank bond filled up, and so had deponed, or could depone, that the time of the arrestment the debtor saw himself to be debtor to another person, filled up in the blank, than he for whose debt it was arrested; for, in that case, as the first creditor that got the blank bond might have caused his debtor retire that bond, and give a new one, before any arrestment, so the showing of the filling up of the blank was equivalent, especially if the debt could be proven no otherways but by the debtor's oath.
This case was not debated, nor was the hazard considered, that the debtor's oath might prefer one party to another; nor was the case alike to a renewed bond; because a renewed bond would bear a new date, and different witnesses, that saw the new creditor's name filled up, and would not depend upon the single testimony of the debtor.
December 1. 1665.———The competition between Telfer and Geddes, mentioned the 11th of November last, being this day again called, debated and reconsidered by the Lords at length: The question being, that Marjory Sandilands having granted a bond to Samuel Veitch, blank in the creditor's name, Samuel filled up Marion Geddes' name therein, whereupon she registrated the bond, and charged him; in the mean time, Telfer, as Veitch's creditor, having arrested all sums in Marjory Sandilands' hands, addebted by her to Samuel Veitch, and pursuing to make the same furthcoming, she depones, that the time of the arrestment she was no ways debtor to Veitch, but by a bond, blank in the creditor's name, and that she did not know whose name was filled up in it: But now Telfer the arrester compearing, craves to be preferred, because he had arrested the sum, as belonging to Samuel Veitch his debtor, before Samuel Veitch was denuded, by filling up Marion Geddes's name, and intimating, or showing the same to Sandilands the debtor; and that the filling up of Geddes's name, being but an assignation, did necessarily require to accomplish it, to denude the cedent, an intimation; for seeing express assignations do necessarily require intimation, to prefer them to arrestments; much more ought indirect assignations, which are suspect of fraud, and by which a debtor may keep all his estate in a cloud, that none of the creditors can reach the same, by arrestment or otherwise. And it being answered, That the bond being delivered blank, there was no present creditor, but a power granted to the receiver of the bond to make creditor whom he pleased; at least there was no certain creditor, so that Samuel Veitch was never creditor, but had only the power to make the creditor, and so needed not to be denuded, nor was there any law or custom requiring intimation of the names filled up in blank bonds, and if any such thing were done, upon the account of expediency, it ought only to be in time coming:
The Lords adhered to their former interlocutor, and found Veitch to have been the true creditor, and the filling up of the other name, to be a transmission equivalent to an assignation, and required intimation, as well for cases past as to come; for they thought that if Veitch, before the filling of the bond, had been rebel, it would have fallen within his escheat.
Fol. Dic. v. 1. p. 103. Stair, v. 1. p. 306. 318.*** Gilmour reports the same case:
The relict of Mr John Alexander, advocate, being debtor by bond to Samuel Veitch in a sum of money; it is arrested by Patrick Telfer, and thereupon a summons raised for making furthcoming, and at compearance the debt is referred to her oath, who depones and confesses the debt, but that she gave the bond blank in the creditor's name, and that she knew none other to have right thereto but the said Samuel Veitch. Compears Marion Geddes, and produces the bond registrated, and her own name insert therein, before the arrestment, and thereupon an inhibition served against the deponer before her deposition and oath. It was alleged for the arrester, That he ought to be preferred, because the bond being ab initio the evident and debt of the said Samuel Veitch, and being affected with the arrestment, before any intimation made to the debtor of inserting Marion's name (though Geddes's name had been inserted, and that the bond had been delivered to her before the arrestment), yet it was of no greater force than if the bond had been filled up in the said Samuel Veitch's name, and had been assigned by him to the said Geddes; which assignation could not have preferred her to the arrester, unless it had been intimated before the arrestment. It was answered, That the debtor having delivered the bond blank, no certain creditor was condescended upon; and therefore, till it was filled up, payment could not have been made in whole or in part to any body, but such as should be inserted and Geddes's name being inserted; and the bond delivered to her, and registrated before the arrestment, there being no law obliging her to make a formal intimation now, while the money is still resting, she ought to be preferred to the arrester, the debtor not being debtor to the arrester's debtor the time of the arrestment.
The Lords preferred the arrester.
Gilmour, No 164. p. 115.
*** See The same case by Lord Newbyth, titled Telfer against Jamieson, voce Competition.
