Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Thomas Laurie and George Warrender v. Robert Ramsay of Blackcraig
Date: 24 November 1696
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Thomas Laurie and George Warrender against Robert Ramsay of Blackcraig, for payment of 3000 merks, contained in two bonds granted by Blackcraig to the deceased Gilbert Stuart, blank in the creditor's name, and afterwards filled up in Bailie Warrender's name and delivered to him. The reason of suspension and reduction was,—that when Gilbert Stuart filled up Warrender's name in thir two bonds, he gave a backbond and declaration, bearing, that these bonds were consigned in his hands for security of two bills he had given him; and it was declared, if these two bills were paid, the bonds should be void and null, and delivered back to Gilbert Stuart: Ita est, it is offered to be proven these bills were satisfied, and so the bonds are become extinct.
Answered,—Esto this were true, yet, Gilbert Stuart having new dealings with Bailie Warrender, by posterior bills drawn upon him by Mr Alexander Carstairs, factor in Rotterdam, Gilbert, for his security of those new bills, consigned the same bonds in Warrender's hands; and they agreed to retire and cancel the first backbond, and Warrender grants a new one in thir terms,—that, thir posterior bills being paid, the bonds should be extinct and given up; but thir last bills were never answered, and so the bonds subsist for security thereof.
Replied,—They being consigned for security of the first bills, on this express condition, that, if they were paid, the bonds should be extinct, no private transaction betwixt Gilbert Stuart and the Bailie could make them reconvalesce; for it was all one upon the matter, as if they had been granted in corroboration of the bills; in which case, the bills being satisfied, the bonds behoved to fall in consequence. And what if Gilbert had taken a discharge instead of the backbond. They could never have been used again; and this was equivalent, and the backbond became Blackcraig's evident, as well as Gilbert Stuart's; and, if conceived in his favours, could not be taken from him without some deed of his own, and his consent obtained.
Duplied,—Blackcraig having signed these bonds blank in the creditor's name, and delivered them to Gilbert Stuart, he has been probably debtor to him in the like sums, and gave him an absolute trust to use and dispose of the bonds as he pleased, to be a fund of credit to Gilbert, which he might transmit from hand to hand, and consign to severals, one after another, for promoting his trade; and Blackcraig is not concerned what use he made of them, seeing, if they were ten several times impignorated for facilitating commerce, yet he could pay the sum but once; which he had not yet done; and they needed not his consent to the renewing of the consignation for security of the two bills, seeing his trusting them blank to Gilbert empowered him to make use of these bonds as oft as he pleased.
The Lords found, That he was not concerned in the second transaction, and the bonds might be used for security of the two bills, without any new and special consent, the same being sufficiently transmitted by his trusting Gilbert with the blank bonds; and therefore repelled Blackcraig's reasons of suspension.
