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Scottish Court of Session Decisions >>
Craufurd v Craufurd and Kniblo. [1627] Mor 1661 (9 February 1627)
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor0401661-006.html Cite as:
[1627] Mor 1661
Found, that after arrestment, the arrester could not be prejudiced by the inserting a person's name in a blank obligation; but that the fact and the time could be ascertained only by the oath of the person whose name was inserted.
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In an action of double poinding, at the instance of Malcolm Craufurd, who was addebted to another Craufurd the sum of 260 merks, and this Craufurd being addebted to James Kniblo, burgess of Edinburgh, in a debt; for payment of this debt Kniblo arrests the foresaid sum in Malcolm Craufurd's hands, and Malcolm having consest that he was owing that sum to Craufurd this creditor, but that he had given his obligation to his said creditor thereupon, blank in the name, to be filled up with any person's name whom his creditor pleased to insert; and that he had understood, since that time, that there was insert therein the name of Andrew Craufurd of Baidland, who being called to this double poinding, the suspender is content to pay to any of the parties, who shall be found to have right; and Baidland compearing, and alleging that the sum should be found to pertain to him, because his name was insert in the bond; for albeit he had neither borrowing nor lending with this suspender, yet seeing his name was in the obligation, and that nothing intervened which could prohibit Craufurd, to whom the sum was owing, truly to fill in his name, nor to have given the sum to him, albeit it had been filled up with the creditor's proper name; therefore he ought to be preferred: Kniblo, on the other part, contended, that the suspender confessing that the sum was due and proper to his debtor, albeit the bond was blank, and that he had arrested the same as his debtor's money, in the suspender's hands, at which time of the arrestment the blank was yet unfilled up, that then it was his debtor's money still; thereafter the filling up of another person's name in the blank by his debtor, after the arrestment which affected it to him, cannot prejudge him; which filling up, since the arrestment, he offered to prove by the witnesses insert in the bond. The Lords found, that, after the arrestment, nothing could be done to the prejudice of the creditor arrester, by filling up thereafter of a person in the blank, by him who was the arrester's debtor; and so the Lords found the arrester's allegeance relevant, that, since the arrestment, Baidland's name was insert therein, but found that the same was only relevant to be proven by Baidland's oath, and not by the witnesses insert therein; for they could not take away the obligation from Baidland by witnesses, but by his own oath; and this being so proven, the Lords found, that Kniblo should be preferred; but if it had been alleged that the bond, albeit blank, had been really delivered to Baidland before the arrestment to his own use, that would have been found relevant against the arrester, and the inserting of his name therein since the arrestment would not have been enough to prejudge him thereof.
Act. Belsches.Alt. Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 103. Durie, p. 270.
