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Scottish Court of Session Decisions >>
Edward Brown v Archibald Ker. [1696] 4 Brn 299 (24 January 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040299-0652.html Cite as:
[1696] 4 Brn 299
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Edward Brown v. Archibald Ker
Date: 24 January 1696
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Phesdo reported Edward Brown against Archibald Ker, brewer in the Potterrow. The debate was upon a blank bond which Ker had delivered to the deceased Mr Alexander Stevenson, servant to the Master of Stairs, when he was King's Advocate; and, Mr Alexander being debtor to Brown in 1000 merks, he gave him also this bond instead of a cautioner, wherein Brown filled up his own name. Ker raised a declarator that the bond was granted for a gratuity to the King's Advocate, to get him an ease of his excise, which he never got; and so, being causa data non secuta, the bond ought to be declared null; and craved Mr Stevenson's oath anent the cause of it: which the Lords, ex officio, granted, he being then on death-bed; who deponed that the Master of Stairs refused to accept of the gift, but desired him to speak to Sir James Oswald and the other tacksmen; and that Ker bade him keep the bond to himself; and accordingly he gave it Brown to fill up his own name in it. The Lords falling to advise this oath, it was alleged for Ker, he had interpelled Brown by his declarator, and getting Mr Stevenson examined, before any intimation made of his name being filled up in the blank.
The Lords found, That in a competition among arresters, and other creditors of the party to whom the blank bond is delivered, intimation of the filling up of the name is necessary; as was found in the case of Geddes and Veitch, mentioned by Stair, 11th November, 1665; as also 19th December 1676, and 17th January 1677, L. Banff against Grant: Yet here, the competition being only betwixt the debtor, granter of the said blank bond, and the party whose name is now filled up in it, the objecting the want of intimation was not competent to the debtor himself, especially seeing the bond was offered upon so dishonest an account.
The Lords afterwards, on a bill, allowed Brown, whose name was filled up in the blank bond, to be examined, if he knew what was the cause of granting it, or was conscious that he had reclaimed against it, as not Mr Alexander Stevenson's money.
