Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Fletcher of Benshaw v. The Earl of Airly
Date: 16 December 1692
Click here to view a pdf copy of this documet : PDF Copy
Fletcher of Benshaw against the Earl of Airly. The Lords found a difference between a blank-bond and a blank assignation; and that it was not sufficient to prove that Airly had made payment to Fintry, who had first got this assignation blank in the assignee's name, from Goldman, the creditor, unless it were also proven, that the assignation was still blank when Airly paid it to Fintry, and that only scripto vel juramento of Benshaw, in whose hands it now is, and in whose name the assignation is now filled up; for they thought it no sufficient warrant to put Airly or any debtor in bona fide to pay, that they saw a blank assignation, unless they either saw it at the time of their payment still blank, or that it was then filled up; and in regard he had not paid it all at once, but in parts, therefore the Lords found, either the total or partial payments made by Airly to Fintry, sufficient to exoner,—it being proven by Benshaw's oath, that during these payments the assignation was still blank, in Fintry's hand, and his own name was not then filled up in it, and this at least to be liberate pro tanto; though some of the Lords thought, if Benshaw knew that any part was paid to Fintry, as then standing in the right, it should liberate quoad the haill. But the rest inclined to the contrary, in respect Fintry was broke, and the warrandice and recourse would signify nothing against him. But this, and many other intricate difficulties arising from blank-rights, convinced the Lords how necessary it might be to discharge such blank conveyances; for whatever they hold in of drawing assignations, &c. for dispatch and expedition of commerce, their inconveniency in being the foundation of fraud and confusion, does more than balance such advantage.
