Mr Andrew Brown v. David Henderson and Thomas George
Date: 18 January 1668 Case No. No 8.
Where the blank in a deed was filled up, and intimated to the debtor before arrestment, the arrestment in-effectual.
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Mr Andrew Brown granted a bond of 700 merks, blank in the creditor's name, to George Short, wherein the name of David Henderson is now filled up. Thereon Alexander having arrested all sums due to George Short in the hands of Mr Andrew Brown, he raises a double poinding; wherein the competition arises betwixt the arrester, and the person whose name is filled up in the blank bond. It was alleged for the arrester, That he ought to be preferred, because he arrested Short's money; and, at the time of the arrestment, this bond having been delivered to Short blank in the creditor's name, Short was creditor ay and while not only another name were filled up, but also an instrument of intimation were taken thereupon; for Short's filling up of the name of Henderson is no more than an assignation, which requires intimation, and is excluded by an arrestment before the intimation, albeit after the assignation. It was answered for Henderson, That there needed no intimation to the filling up of a creditor's name in a blank bond, which was never required by law nor custom; and his bond being now in his own name, nothing could prove that it was blank ab initio, or that it did belong to Short, but Henderson's own oath; in which case, it would be sufficient for him to depone qualificate, that the bond indeed was blank ab initio, and delivered by the debtor to Short, and by Short to him, and his name filled up therein before the arrestment, or at least, that, before the arrestment, he had shown the bond filled up to the debtor, which is equivalent as if he had given back the first bond, and gotten a new bond from the debtor, after which, no arrestment (upon account of the prior creditor) could be prejudicial to him; ita est, he hath done more, for he hath proven, that, before the arrestment, the bond was produced, and shown to Brown the debtor. It was answered, That, in a former case, in a competition of the creditors of Veitch, (supra,) the Lords found, that the arrestment laid on, before intimation of the filling up of a blank bond, preferred the arrester; and that, otherwise, collusion could not be evited with these blank bonds, to exclude and to save creditors arresting.
The Lords preferred Henderson, whose name was filled up, and presented to the debtor before the arrestment; for, in Veitch's case, there was nothing to instruct that the bond was truly filled up, and presented to the debtor before the arrestment; and they found the filling up and presenting thereof sufficiently proven by the witnesses taken ex officio.
