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Scottish Court of Session Decisions >>
David Henderson v Mr Andrew Birnie. [1668] Mor 1653 (27 February 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Mor0401653-002.html Cite as:
[1668] Mor 1653
How far the granting of a Blank Writ Implies Renunciation of Exceptions.
David Henderson v. Mr Andrew Birnie
Date: 27 February 1668 Case No. No 2.
Found, that compensation could not be objected against a possessor of a blank bond, upon a debt of the original creditor.
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Mr Andrew Birnie having granted a bond to Alexander Short, blank in the creditor's name, he, for an equivalent cause, delivered the same to David Henderson, who filled up his name therein, and charged Mr Andrew therefor; he suspended on a reason of compensation, upon a debt owing to him by Short, to whom he delivered the blank bond, for whom he became cautioner before he granted the bond, and paid the debt, partly before, and partly after this bond; so that Henderson, by filling up his name, being assignee, and Short cedent, payment or compensation against the cedent, before the assignation, is relevant against the assignee. It was answered, That, in this case, compensation is not relevant, because the very delivery of a bond, in a blank creditor's name, imports that the receiver thereof may put in any man's name he will, and he may never make use of compensation against him whose name is filled up; otherwise why should the creditor's name have been left blank, which, if it had been filled up it behoved to have had an assignation, which is but a procuratory in rem suam, so that the procurator can be in no better state than the constituent; but the blank makes the person filled up creditor principally.
The Lords found compensation not relevant against a person whose name was filled up in the blank, being a singular successor to him who first received the bond. See Compensation.
Fol. Dic. v. 1. p. 103. Stair, v. 1. p. 538.*** Lord Dirleton reports the same case:
1668. January 17.—Mr Andrew Birnie having granted a bond, blank in the creditor's name, to his good brother Short, the creditor's name being thereafter filled up, Mr Andrew Birnie suspended upon double-poinding against him, and another creditor of Short's who had thereafter arrested.
The Lords preferred the person whose name was filled up; in respect he had shown Mr Andrew the bond before the arrestment, and desired him to satisfy the same, though he had not made intimation by way of instrument. This decision seemeth to justle with that of the 11th November 1665, Telfer against Geddes, infra Sec. 2. h. t.
