Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Cromarty and Ross of Balnagown v. Gray of Warriston
Date: 12 December 1710
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Fraser of Beaufort being debtor to David Stewart, Commissary of Murray, in 616 merks; this bond is assigned to James Gray, merchant in Edinburgh, and he transfers it to young James, his son, who makes an assignation thereof in favours of the Earl of Cromarty; who craving payment of the debt from Beaufort, he produces a discharge of it from one Troup, a messenger, who had a factory and commission to uplift it from old James Gray, and had got the whole writs and progress delivered up to him by the said Troup. Cromarty, finding himself disappointed, pursues Robert Gray, now of Warriston, as representing his father and grandfather, who had contravened the warrandice, by assigning him to a debt whereof they had got payment.
Alleged,—The commission and factory produced, as granted by old James Gray, empowering Troup, the messenger, to uplift and discharge the money, is a null writ in law, having neither writer's name nor witnesses.
Answered,—They offered to prove holograph.
The Lords, before answer, allowed a conjunct probation, comparatione liter-arum, or otherwise, that it was all written and subscribed by the said old James. And sundry writs being adduced hinc hide, to evince the resemblance, or dissimilitude, of the writ; the Lords, after inspection of the fact, and shape of the letters, and air of the writ, generally thought they did not prove holograph.
Then it was contended, that, esto it were not holograph, yet, if it was subscribed by him, it was sufficient to sustain the commission: as was found 12th July 1632, and 14th February 1627, Pyrnon against Ramsay; and 8th February 1 671, Earl of Northesk; especially where the messenger had the principal writs in his hand, which easily infer a tacit mandate to uplift the money.
The Lords thought, creditors would trust messengers with their captions and other registrate writs, who would never allow them to uplift the money, and who would have more difficulty to draw it out of his hand than the debtor's; but, where they were trusted with principal papers, (as here he gave up both Gray's commission and Stewart's principal assignation to Beaufort, the debtor,) law presumes he had power to uplift and discharge: for, though a null paper cannot be supported nor adminiculated, seeing non entis nulla? sunt qualitates, yet it may presume his commission, where he has the principal writs: for captions and registrate bonds might be easily extracted, and the having them can never authorise a messenger to uplift. Though in poinding, if the debtor compear, and offer payment of the debt, the messenger may take it, and dare not proceed any farther in his poinding.
The Lords found, the messenger's having received from Gray the assignation and other principal writs; and having given a discharge, bearing his factory and commission from Gray, with his delivering up the haill writs to Fraser, the debtor; it proved against Gray, and was a contravention of the warrandice.
But it was then farther alleged for Gray, that he could never be liable, because all the warrandice his father had given was only from his own and his heir's facts and deeds. But so it was, the commission was no deed of his father's, who granted the assignation to Cromarty, but was his grandfather old James Gray's deed.
Answered, —You have conveyed to me the translation made by James to his son; which will virtually carry the grandfather's warrandice.
The Lords found, The commission not being granted by young James Gray, who is Tarbet's immediate author, but only by his father; and that he gives no warrandice in his assignation, but only from his own and his heir's facts and deeds: that therefore he had not contravened nor incurred the warrandice; and, for that cause, assoilyied him from this process of recourse. Perezius, ad tit. C. de Procurat. has a case parallel to this; that a procurator having his client's writs and evidents in his hands, presumes a sufficient mandate for that affair to which they relate, without producing a special mandate or factory for carying on that business.
