Effect of a Blank Writ after the Death of the Proprietor.
Buchannan v. Nairn
Date: 3 June 1680 Case No. No 14.
Found, that a blank bond lying by the creditor at his death, must be confirmed as in bonis defuncti, no person having right to insert a name in it.
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William Buchannan having charged Robert Nairn, upon his bond of 220 merks: He suspends on this reason, That the bond was blank in the creditors name ab initio, delivered to the charger's uncle, among whose writs it was blank at his death; and that his uncle's wife was in use to list his rents and sums, and so was præposita negotiis; all which was offered to be proven by the charger's oath of knowledge, and by the wife's oath, that payment was made to her of this sum. It was answered, That prepositure of a wife could not be inferred by use of receiving of sums without a warrant in writ, albeit such use might infer prepositure in the wife of a vintner, or shop-keeper, where writ uses not to be adhibited, which could never be extended to receiving payment of bonds by genlemen's wives. 2do, Though a commission were in writ, the wife's oath after the husband's death could not prove.
The Lords found the prepositure in this case could not be proven without a commission in writ, and that the wife's oath could not prove her receiving of the money after her husband's death; but found, that if it were proven to have been blank by the defunct at his death, it was in bonus defuncti, and so behoved to be confirmed before extracting. See Husband and Wife.
