Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Raploch
v.
Bailie Hall

1683, March; and 1684, February.

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Raploch, being incarcerated for £1200, raised suspension upon this reason, That the bond, being signed blank for borrowed money, for the behoof of his son Samuel, and delivered to him, thereafter the suspender got Monkland to advance the money; and Samuel pretending he had not the bond in town, gave a discharge on't before the charger, Bailie Hall, had intimated his right to the blank-bond;—Answered for the charger, That his name being filled up, non constat if it was delivered to him in blank, it being usual for debtors to take bonds in their creditors' name, and Samuel was debtor to the charger in £800; 2. Samuel could never have been designed to be creditor; for he and the writer are the only two witnesses. The Lords ordained Bailie Hall and James Edmiston the writer, to be examined if the bond was blank ab initio, and if it was not delivered to the Bailie by Samuel. And they deponed, that it was signed blank, but do not remember if it was delivered by Samuel, or the writer, to the Bailie. And Raploch having condescended on the onerous cause of the discharge, for that it was granted by a conjunct person, and offered to prove the same, the Lords resolved to examine Samnel; and he, being abroad in Holland, ordered the bill to pass, and Raploch to be set at liberty, upon granting a disposition conform to the act of sederunt, although the act declares that persons imprisoned are not to be set at liberty upon juratory caution; but Samuel's absence was the special motive.—March 1683.

Thereafter the suspension being discussed, and the oaths of Bailie Hall and the writer advised, who deponed that the bond was drawn and signed for the use of Bailie Hall, to whom Samuel owed a considerable sum of money, and that the bond was delivered to Edmiston or Samuel, to be delivered to Bailie Hall;—the Lords found, That although, when parties received blank-bonds at the second hand, from another creditor that took it blank, the second creditor ought to intimate it as an assignation to secure against the deeds of the first creditor, yet that a bond delivered blank to the first creditor needs no intimation; and therefore found the letters orderly proceeded.—February 1684.

Nota. This seems to frustrate diligences against blank-bonds; for the receiver of the blank-bond, to save the necessity of intimation by a second creditor, may allege that it was designed, ab initio, for that creditor or any other he pleases; and so it passes through many hands, and is secure upon that pretence; so, at least, it should be declared before the witnesses of the bond, to whose behoof it is taken, ab initio, otherwise the receiver of the bond to be reputed the first creditor.—Castlehill's Pratt, tit. Bonds, No. 145.

Page 40, No. 184.