How far the granting of a Blank Writ Implies Renunciation of Exceptions.
Lord Alexander Hay v. Mr James Inglis of St Leonards
Date: 16 June 1715 Case No. No 4.
A conveyance of a blank deed supported, on the presumption that the party in whose custody it was, had right to it.
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Lord Alexander Hay pursues the said Mr James Inglis, brother to Mr Patrick Inglis, for 1100 merks, contained in a bond granted by Nairn of Saintford and Hay of Naughton, to the said Mr James, and assigned by him to a blank person: Which assignation being in the custody of the said Mr Patrick his brother, it was transferred by him to William Stuart, merchant in Edinburgh, before the act 1696, and by him to Lord Alexander; which sum, notwithstanding, was uplifted by Mr James the first cedent, whereby Lord Alexander alleged that the warrandice was incurred. And the question turning upon this, Whether the translation granted by Mr Patrick Inglis to William Stuart, did instruct that the assignation granted by Mr James (which is blank in the assignee's name,) did belong to Mr Patrick?
It was alleged for the defender, That it could not instruct the same, because, 1mo, The assignation mentioned in the said translation bears to have been granted to Mr Patrick, nominatim; whereas the assignation produced is still blank in the assignee's name, and so cannot be the assignation mentioned in the translation. 2do, The translation amounts to no more than Mr Patrick's own assertion, which is no legal proof.
Answered for the pursuer, 1mo, Though the defender's assignation be blank, yet it is proper and customary in such cases, for the granter of the translation to narrate the assignation as conceived in his own favours; and this does rather support the right, and shews that Mr Patrick did claim the assignation as his own. And the reason why he did not fill up his name in it, might have been to conceal it the better from his creditors, 2do, Although the translation itself be not a sufficient proof, yet the translation, together with the having the assignation, does fully evince Mr Patrick's right to it, especially when there is no other person pretends right; for otherwise the transmission of the greatest part of blank writs might be called in question. And it is jus tertii (now that it hath past through several hands) to the defender to controvert this, seeing he is denuded by the assignation, which is presumed to have been delivered, being out of his custody.
The Lords repelled the defence, and decerned; to which their Lordships adhered, after two reclaiming bills.
Act. Binning.Alt. Fleming.Clerk, Gibson.
Bruce, No 100. p. 122.
