How far the granting of a Blank Writ Implies Renunciation of Exceptions.
Grant v. Lord Banff
Date: 19 December 1676 Case No. No 3.
A bond granted for the price of land, blank in the creditor's name, out of the custody of the original creditor, was found effectual. The granter could not suspend payment on account of incumbrances not being purged.
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Grant having charged the Lord Banff for payment of a sum contained in his bond, he suspends, on this reason, that the bond was blank in the creditor's name, and was delivered by him to Lyon of Muresk, as a part of the price of the lands of Craigtoun, sold with absolute warrandice; and there hath lately occurred a distress, and therefore, the disposition of the land being the mutual cause, it is causa data non secuta. It was answered, 1mo, That the bond being granted blank, ab initio, the very granting of it in that way imports a passing from all objections, that it might pass to singular successors as currently as money, and therefore the Lords hare refused compensation against blank bonds, upon the debt of him to whom they were first delivered.
The Lords found, that this bond, though it had been blank ab initio, could not have been stopped upon the warrandice of the disposition of the lands for which it was granted.
The suspender further alleged, and offered to prove, that this bond was blank ab initio, and delivered to Muresk, who was then at the horn; and, therefore he being the true creditor, the bond fell under his escheat, and the suspender hath right to the gift of his escheat. It was answered, That law and custom allows, that, after denunciation, a creditor may obtain payment of debts anterior to the rebellion, by assignation, precept, delegation, or otherwise, and Grant offers to prove that he was Muresk's creditor before the rebellion; and, getting this blank bond, it was truly a delegation, and an innovation of the former obligation to Muresk, and more than if he had given an assignation to this creditor, who had thereupon discharged and gotten a new bond, which was lately found relevant, after much debate, in the case of Veitch against Pallat, See Competition; and, in this case, the debtor, by letters produced, declared that the bond should be as if any of Muresk's creditors had been filled up ab initio. It was replied, that though creditors getting satisfaction after denunciation are secure, if it be obtained before declarator; yet it hath never been further sustained than in these terms, that satisfaction of a debt, before rebellion, obtained before declarator, is sufficient: And though the favour of our Kings hath allowed the satisfaction of diligence of creditors out of escheats, yet when the escheat becomes a private right by a gift, complete by declarator, all deeds done after declarator by the rebel, have ever been repelled. It was duplied, That whatever the donatar might say, yet the Lord Banff by his letter having declared, that this blank bond being filled up by any of Muresk's creditors, should be holden as if his name had been filled up ab initio, this is a personal objection excluding Banff. It was triplied, That, long after that letter, Banff having acquired the right of the gift, he cannot be hindered to found upon the same, in the same way as the donatar might.
The Lords found the allegiance relevant, that a creditor for a debt before rebellion had obtained a blank bond to be delivered to him by the rebel before declarator, but not after; and that Banff's letter did not impede him to make use of the declarator, to which he had obtained right long after, and that no declaration of his, that it should be holden as filled up with this creditor's name ab initio, when it was not so truly done, could have effect against the donatar, or against Banff himself, in the donatar's right. See Escheat. See Personal Objection.
1677. January 17.—This cause being disputed upon the 19th of December 1676, The Lords found, That a creditor, for a debt before rebellion, getting a blank bond from the rebel before declarator, was secure against the donatar. It was now further alleged for the donatar, that, before this blank bond was alleged to be delivered, the escheat was gifted, and sufficiently intimated, by executing the general declarator against all the lieges, after which no other creditors could take any right from the rebel. 2do, The delivery of the blank bond could not denude the rebel, but only the filling up of the name, and intimation thereof to the debtor, it being in effect an assignation, which, as to its accomplishments, requires an intimation, as was found in the case of Veitch, see Competition; where an arrester was preferred to a person whose name was filled up in a blank bond, having arrested before the blank was filled up and intimated; and if it were otherways, not only escheats might be made of no effect by blank bonds, but arrestments of creditors. It was answered, that blank bonds, blank in the creditor's name, have been long in use, and are given and taken of purpose to exclude compensation upon the cedent's debt, and are equivalent to that formula of bonds, obliging ‘to pay the sum to the haver of the bond,’ which therefore passeth from hand to hand as current as numerate money, and needs no filling up of the name, much less intimation by a notary; but the having of it carries the right to it, unless an unwarrantable acquiry be instructed; and therefore, this creditor having the blank bond, it must be presumed to have been delivered to him ab initio, unless the contrary had been proven, that it had been in the rebel's hand after the declarator; neither can the summons of declarator be respected, though executed at the market cross, that being a transient act without a record; therefore, the Lords have ever rested on the decreet of declarator, which is upon record as an intimation of the donatar's gift; and there is no such thing as is alleged in the case of the creditors of Veitch; but, on the contrary, it is there found, that an intimation by instrument is not required; but the allegiance of the name being filled up, and shown to the debtor, was found sufficient, without any other intimation: And albeit, no further was alleged in that case, yet the having of the blank writ being proven by famous witnesses before declarator, did sufficiently denude the rebel; neither can witnesses in this case be rejected, where writ neither needs nor uses to be adhibited; but the keeping of the writ blank is an advantage to commerce to continue it current, against compensations and other allegiances, upon the account of the many authors, through whose hands it might have come.
The Lords adhered to their former interlocutor, and found it relevant to be proven, that the creditor had the blank bond in his possession before the decreet of declarator, in satisfaction of a debt due by the rebel before rebellion, although it had neither been filled up nor intimated. See Escheat.
Fol. Dic. v. 1. p. 103. Stair, v. 1. p. 481. & 495.*** Lord Dirleton reports the same case:
The Lord Banff, having acquired the lands of Craigtoun from John Lyon, did give three bonds to the said John Lyon, blank in the creditor's name, containing each of them 5000 merks. And, at the desire of the said John, did give a letter with the said bonds, with a blank direction, bearing, that the said John Lyon had disponed to him the lands of Craigtoun, for which he had become debtor by certain blank bonds containing 5000 merks; and therefore desiring that no person might scruple to take the said bonds: For it should be no dissatisfaction to him, that they took them without acquainting him; but that it should be holden as if they had received the bonds in the beginning, and had their names filled up therein at that time.
The said John Lyon did fill up the name of John Grant of Rossollis in the said bonds, and delivered the said letter to him, putting a direction upon the same, for the said John Grant: Whereupon the Lord Banff being charged, did suspend, upon that reason, that he ought to have retention, because the said bonds were granted for the price of the said lands, and in contemplation of a valid surety, free of all incumbrances; and the surety not being valid, in respect the lands were affected with hornings, inhibitions, and comprisings, equivalent to the sums contained in the bonds, he had in law condition, as being ob causam non secutam.
There was also compearance for the donatar of the said John Lyon's escheat, who did produce his gift, and decreet of general declarator; and alleged, that he ought to be preferred, because he had right to the sums due by the said blank bonds, in respect the charger's name was filled up in cursu rebellionis: And the said blanks being ab initio the rebel's, while they were blank, they fell under his escheat; and he could not fill up, or deliver the same, in prejudice of the fisk.
The Lords found, that the pretence foresaid, of condictio causa data, though competent against the said John Lyon himself, if the bonds had been filled up in his own name, would not be competent against the charger, if his name had been filled up ab initio; because, if the suspender had been content to give bond to him, it would have been delegatio, in which case the exceptions competent against delegantem would not have been competent against the person in whose favours the delegation was made: And that the charger was upon the matter in the same case, seeing the suspender by his letter was content, that the bonds should be holden, as if they had been filled up ab initio.
The Lords also found, that the said bonds being blank, though they continued blank, were the said John Lyon's proper bonds; and if he had deceased before the filling up of the same, they would have fallen under his executry; and, consequently, he being rebel, and his escheat gifted and declared, they fell under his escheat: And his Majesty, and the donatar, could not be prejudged by any deed of the rebel in filling up of the same.
It was also found, That albeit the Lord Banff, by his letter, was bound up, that he could not question the said bonds upon the pretence foresaid of condictio, or any other that might have been competent against the said John Lyon; yet, notwithstanding of the said letter, the King might have given, and he might accept, either a gift of Lyon's escheat, or a right from the donatar, and thereupon might claim right to the said sums. See Escheat.
Reporter, Thesaurer Depute.Clerk, Mr John Hay.
Dirleton, No 405. p. 198.*** Gosford reports the same case:
In a suspension raised at the Lord Banff's instance against John Grant of Rossollis, who had charged upon a bond, for payment of 5000 merks, upon this reason, that he was never debtor to the charger, but having acquired the lands of Craigton from John Lyon of Muresk, for the sum of 26,000 merks, in anno 1674, he did subscribe and deliver this bond charged upon with some others, blank in the name, to the said John Lyon, as a part of the price of the lands, which was the true cause thereof; and now seeing there are diverse incumbrances emergent, whereby the warrandice is incurred, the letters ought to be suspended, there being causa data non secuta; and the Lord Banff ought to have compensation or retention equivalent to the distresses, ay and while they be purged.—It was answered for the charger, That the reason was not relevant against him, and could only militate against Lyon of Muresk, who was obliged in warrandice; whereas the bond charged upon, bearing sums of money received by the Lord Banff, as the cause thereof, and being subscribed blank, and delivered, he thereby did consent, and give full power to fill up any creditor's name, and to pass from all objections that he could make against them, upon any pretence of warrandice in the disposition made by Muresk; and the charger having bona fide received this bond for a true and onerous cause, the Lord Banff is in pessima fide to suspend from payment; and it would open a door to stop all commerce and security. 2do, The suspender can never pretend that the charger is only in the case of an assignee, whose cedent's name had been filled up in the bond ab initio; so that whatsoever would militate against the one ought to militate against the other; because, after subscribing of the said bond, and while it was blank in Muresk's hand, he did write an express letter to Muresk, desiring him, in his name, to assure any person with whom he had to do, and was content to transact upon this bond, that the filling up of their names should be no disobligation to him, and that he should make honest payment to them of the sum contained in the bond.—It was replied to the first, That the reason stood relevant notwithstanding; and it being acknowledged, that the bond was blank ab initio, and filled up in the charger's name, after the warrandice of the disposition was incurred and publicly known, he was thereby only in the case of an assignee, as hath been often found by the Lords in the case of blank bonds; so it is, as if Muresk's name had been, ab initio, filled up, and he had granted assignation to the charger: Then whatsoever reason should have been relevant against Muresk would have been sustained against his assignee, upon the warrandice of the lands disponed, as was found in a late practick, the Earl of Kinghorn against the Earl of Winton, (see Warrandice) which already meets this case.—It was replied to the second, That the missive letter was opponed, which doth only bear, that the filling up of any party's name by Muresk, should be no disobligation or cause of offence; but doth not at all import that he did pass from all legal remedies, in case the lands disponed were distressed, as to which he was secure in law, both against Muresk, upon the warrandice, and his assignee. Thereafter compearance was made for the Laird of Meldrum, as donatar to Muresk's escheat, and thereupon it was alleged, that he ought to be preferred to the charger, and the Lord Banff ought to be decerned to pay to him, because the bond being granted to Muresk after rebellion, albeit blank in the name, yet it was truly his, and the filling up of any name after rebellion, could not prejudge the king nor his donatar.—It was answered for the charger, That the compearance in the name of Meldrum, was only for the behoof of Banff, the suspender, who was in mala fide to make use of any such title to free himself of the bond, filled up in the charger's name, with his consent, and to whom he had voluntarily constituted himself debtor. 2do, The charger being a lawful creditor to Lyon of Muresk, he might safely receive payment, by filling up his name in his bond, there being no declarator intented at the donatar's instance, before the filling up thereof.——The Lords, as to the first debate of retention and compensation, did find, that the Lord Banff had absolutely precluded himself by the missive letter, bearing a security to any third person whose name should be filled up, that he should be as fully his debtor as if he had given him bond for borrowed money ab initio proprio nomine; and so they did not give judgment upon the ground of law alledged in filling up of blank bonds, simply bearing borrowed money, albeit the true cause was the price of lands; but as to the second point, founded upon the donatar's interest, they did find, that the bond being blank when Muresk was rebel, and delivered after gift and declarator raised, the same did belong to the donatar, or any having right from him; which may seem hard, if there was no special declarator, and the charger Grant of Rossollis was a true creditor prior to the rebellion, and that the subject for which the bond was given, being land and heritage, could never fall under escheat to the king, if there had been no disposition, and so by the sale thereof, for payment of lawful creditors who might have comprised these same lands, could never have been affected by the King's donatar as to the property, but as to the liferent only. It may also seem strange, that the bona fide accepting of bonds for payment, as the price of lands and heritage, should not be secured; which may hinder all commerce and bargains of lands, and force creditors to comprise, as not being in tuto to take assignations for the price, or bonds in their own name, from the buyers of the lands.
