Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Lord Balmerino
v.
The Earl of Lothian

Date: 10 December 1680

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The Lord Balmerino,—having filled up the name of John Elphingston in a bond subscribed by the deceased Earl of Lothian, in anno 1653,—Lothian suspends, and raises reduction upon these reasons:—1mo. That this bond was a defective null paper, blank in the sum, wherein twenty thousand merks was filled up, with a distinct hand from the writer of the body, not designed, before the subscription, as filler up; likewise the creditor's name was blank; the lands, where infeftment and security were to be taken, was blank; the names and designations of the witnesses were blank: and found in the custody of Sir Thomas Nicolson, advocate, who tested upon all other sums, without mention of this. So Balmerino had no title to it, nor any other person, unless Sir Thomas had filled up and perfected it, and declared to whose behoof it was, and on what terms it was in his hand; which not being done, though Sir Thomas deceased three years after the date, the bond was unwarrantably delivered up by James Chalmers, who, at the date, was Sir Thomas's servant; and therefore it ought to have been delivered up to Lothian, as a depositated writ, whereof the terms were never known nor fulfilled. Likeas, by several contracts produced, Balmerino gave ease to Lothian in other bonds, and obliged him to pay Lothian sums; which he would never have done if Lothian had been his debtor in this sum.

The pursuer answered, That there was no defect in the bond in any essential, seeing the debtor and sum were expressed; and though there was a blank for hundred merks, for filling up the odd hundred merks above the 20,000, that could do no more but scoring up the blank, which was done; and the blank for the infeftment of annualrent was declared, by a schedule about the bond, written by Cockpen's hand; and the witnesses being Cockpen and David Murray, they were both known, and had deponed conform to the bond. 2do. It imported nothing that the creditor's name was blank; that being most ordinary, and doth ever import the haver of the bond to be creditor, and passeth from hand to hand, as current money, without assignations. Nor needs the haver prove the delivery thereof, more than if his name had been filled up ab initio: but the burden lies upon the debtor to prove that it was gotten out of his hand unwarrantably. And, in this case, Lothian has never pretended any rational cause upon which the bond was put in Sir Thomas Nicolson's hand; but Balmerino hath both condescended and instructed, that, when this bond was delivered, bonds, extending to a greater sum, were given up to Lothian. And it is beyond question, that there was rolled about the bond a schedule, all Written with Cockpen's hand, who was known to be the Earl of Lothian's greatest confidant: and it is not controverted, but if this schedule had been Sir Thomas Nicolson's hand, it would have made the bond to have belonged to Balmerino; for it bears Balmerino's name to be filled up in the bond, and bears the lands to be filled up in the blank for the security; which is equivalent, and rather more than if the schedule had been Sir Thomas's hand: whose declaration might have been suspected, he being Balmerino's great confidant; but Cockpen's could never be suspected for Balmerino against Lothian. And any presumption, through the not completing of the bond, is fully taken off by Balmerino's oath, upon Lothian's desire, and interrogatories how Balmerino got this bond, and for what cause; who has deponed, That the cause of the bond was a greater sum in other bonds delivered to Lothian, as his friends told him when they made the agreement, when he was in England; to which James Chalmers's oath and Cockpen's do agree; so that an oath, being the end of all controversy, there is no more place for presumptions or conjectures. And as to the inferences from posterior contracts with Lothian, they are taken off, by considering Balmerino's condition: whose father was engaged in the most part of the public debts; and his estate being at the ports of Edinburgh, all the creditors fell upon him, and forced him to flee, and did arrest all his sums, wherever they could be found; likewise, Bedford pursued him for vast sums of money; so that it was his interest to conceal this bond, and to let it ly in the hand of his confidant for preservation, in case his estate had been swallowed up. Likeas, Cockpen acknowledges, that, at closing of accounts of the filled-up bonds, Lothian desired a general discharge; which Balmerino refused, upon account of concealing this bond; which hath been the cause, though not mentioned, lest the design might have been thereby prejudged.

It was replied for Lothian, That the bond being blank in the creditor's name, and in Sir Thomas Nicolson's custody, not owned or disposed of by him, nor amongst his other writs, but in another box, in his closet; no man could claim right to it, unless Sir Thomas, the depositary, had declared the terms of the depositation. And no schedule by Cockpen's hand could be equivalent; and, if it could have any effect, his oath could not be refused, to declare upon what terms the bond was granted. And, as to Balmerino's oath, if litiscontestation had been made on any peremptor referred to his oath, and sworn, it had been something; but there is no such thing here, but only an oath ex officio, whereupon Balmerino was interrogated how he came to this bond, and if he delivered money at the subscribing of it.

The Lords having, ex officio, examined the Lord and Master of Balmerino, James Chalmers, and Cockpen; Balmerino's oath did bear,—That, at the subscribing of this bond in question, he being then absent, his friends who transacted for him, did declare to him, that there being many bonds due to him, by Lothian, for the price of Fairnieherst lands, containing 32,000 merks, or thereby, which were delivered up to Lothian, in place whereof the bond in question was granted, James Chalmers depones, That he found this bond, after Sir Thomas Nicolson's death, in a box, in his closet, with some papers of Balmerino concerning Fairnieherst; and this schedule of Cockpen's about it; which he delivered to the Master of Balmerino, as belonging to his father. Cockpen deponed, That bonds about 30,000 merks were given up to Lothian, by Balmerino's friends, about the time of this bond; and that this bond was trusted to Sir Thomas Nicolson: but the cause of the bonds of 30,000 merks was, that some part of the lands of Fairnieherst, disponed by Balmerino to Lothian, to which Balmerino had not sufficient rights; and that this bond, in question, was intrusted to Sir Thomas for relieving Balmerino of the public debt,—for which he was conjunct with Lothian,—and for Lothian's concourse with Balmerino against Bedford.

The Lords found, by the evidences adduced, That the bond in question was not delivered to Balmerino, but deposited in the hands of Sir Thomas Nicolson; and that no terms of depositation were proven, warranting the giving of the bond to Balmerino: and, therefore, suspended the letters simpliciter; and declared the bond null and void.

Vol. II, Page 813.