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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Elizabeth Cairns v Creditors of Garroch. [1742] Mor 1673 (21 December 1742)
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Cite as: [1742] Mor 1673

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[1742] Mor 1673      

Subject_1 BLANK WRIT.
Subject_2 SECT III.

Effect of a Blank Writ after the Death of the Proprietor.

Elizabeth Cairns
v.
Creditors of Garroch

Date: 21 December 1742
Case No. No 17.

A deed of settlement, originally-blank in the substitution, filled up after the death of the granter, was considered as still blank.


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James Cairns of Minnibuie, having two sons, Alexander and William, did in March 1694, lend the sum of L. 600 Scots to Alexander Cairns of Garroch, taking him bound, by his holograph bond, to repay the same “to him the said James Cairns, he being in life; and failing of him by decease, to William Cairns his lawful son, heirs or assignees, secluding executors.” From ocular inspection it appeard, that the bond had been written out with a blank for the name of the substitute, and the words, ‘William Cairns his lawful son,’ are filled up in a hand different from that of the debtor, who was the writer of the bond. James Cairns the creditor survived both his sons, the bond remaining in his possession till his death; and then Elizabeth Cairns, Alexander the eldest son's only daughter, made up a title to the same by a general service as heir of line to her grand-father. Upon that title, having first obtained a decree of constitution against the representatives of Garroch the debtor, and thereafter an adjudication, she produced her interest in a ranking of Garroch's creditors.

The objection moved against this interest was sustained, viz. That the service of Elizabeth, as heir of line to her grand-father, could not carry the bond; but that her title ought to have been a service as heir of provision. Elizabeth Cairns reclaimed against this interlocutor; and, among other particulars having suggested the above mentioned fact, that the substitution in the bond appeared to have been originally blank, and to have been filled up with a different hand from that of the writer of the bond, the Court pronounced the following interlocutor: ‘Having considered this petition with the answers thereto, and bond in question, find, That the same was originally blank in the substitution; and that it does not appear to have been filled up by the debtor, the writer of the bond, and so must be held still as blank in the name of the substitute: And the therefore find that the right to the said bond is established in the petitioner's person by her service as heir in general to James Cairns the original creditor; and repel the objection to the adjudication at her instance.’

As the bond in question did not fall under the sanction of the act 1696, concerning blank deeds, which has no retrospect, the following is a summary of the arguments used by the creditors in reclaiming against the said interlocutor. The checks which have from time to time been introduced in our law with regard to writings, such as designing the writer and witnesses, the subscription of the witnesses, &c. are all of them calculated for the sole end of guarding the lieges from being made liable upon false or forged deeds. If it be ascertained, that the deed is true and honest, with regard to the debtor, there is no occasion for any check with regard to the creditor; because there cannot readily occur any imposition upon him. The case of blank bonds is a plain proof of this proposition. A bond blank in the creditor's name, while it remains in that shape, is obviously null; for there can be no obligation without a creditor, more than without a debtor. But this objection is easily removed by filling up the possessor's name as creditor, or any other name the possessor pleases; and it never has been reckoned of any consequence what hand is employed to fill up this blank. The first statute requiring the writer to be designed, is in 1593, probably before blank bonds were known: If, by this statute, the inserter of the creditor's name must be designed, such a regulation would be a total bar to blank bonds; for surely a bond cannot be better where the creditor's name is left blank, than where it is inserted by whatever hand. In a word, the creditor's name is none of the essentials of the deed, to require the hand of the writer of the deed; but, before the act 1696 discharging blank deeds, might be filled up a quocunque. And if such was the practice, notwithstanding the statute 1593, appointing the writer's name and designation to be inserted in the body of the writ, the statute 1681 could make no alteration, since it goes no further than to declare, that the want of the designation of the writer and witnesses shall not be supplyable; and in fact, blank bonds continued current after the 1681, as well as before.

Thus the whole checks contrived by our statutes, tend singly to guard the lieges from being made liable upon false deeds, and not to secure creditors in the possession of the just rights they have by deeds done in their favour: A blank bond may be as readily abstracted, and a wrong name filled up, where it is accompanied with all the checks, as where it is deficient in all. There was no remedy for this evil but care and close repositories, till the act of Parliament 1606 prohibiting these securities altogether.

The creditors endeavoured to apply this argument to the case in hand; by observing, that there is no reason for any solemnity in writing the name of a substitute, more than in writing the name of the institute or creditor; that there is no law ordaining either to be done with any degree of solemnity; and therefore, that the name of the substitute, like that of the institute or original creditor, may be filled up with any hand; provided only it be done by the authority of the creditor.

There are many instances of dispositions mortis causa, with the disponee's name filled up ex post facto; not by the writer, but by the disponer. With regard to such deeds, it has often been made a question, whether it was to be presumed that the disponee's name was filled up in liege poustie, or on death-bed? but it was never imagined to be a nullity, that the blank was not filled up by the writer of the deed. And yet it will be difficult to six the precise boundary betwixt a disposition mortis causa, and a substitution; and no less difficult to assign a good reason for requiring more solemnity in inserting the name of a substitute, than of a disponee.

The only objection against blank substitutions filled up by the creditor, or by his authority, is, that were they indulged, the salutary law of death-bed would be totally evaded. But, in the first place, this objection must equally strike against all blank deeds whatever: A man executes a disposition of his land-estate in liege poustie, blank in the disponee's name, the filling up the blank upon death-bed will elude the law of death-bed, as well as the filling up a blank substitution: An heritable bond blank in the creditor's name may be filled up upon death-bed. And even a moveable bond, blank in the creditor's name, is liable to the same objection; because the privilege of the law of death-bed is competent to the children for their legitim, as well as to the heir. And accordingly, if this argument prove any thing, it proves too much; because it strikes against all blank deeds whatever. 2do, The argument, at any rate, cannot go so far, as to void all such deeds upon account of the danger of eluding the law of death-bed: Such a consideration might be a motive with the legislature to make a law, but with a judge can have no further effect, than to infer a presumption that the blank was filled up upon death-bed; unless the contrary be made out from circumstances, or by evidence. At the same time, it must be observed, that the Court has not even gone so far as to establish such a presumption. The cases that have occurred, have been determined upon circumstances, inferring, either that the blank has been filled up in liege poustie, or on death-bed. For example, in a late case betwixt Keith of Bruxie and Mary Seton, (see Death-bed.) where a disposition, granted in the 1693, of the disponer's whole estate, originally blank in the disponee's name; and filled up with the name of Thomas Seton of Menzie, being challenged upon the head of death-bed, the Court, the 25th June 1736, “Found, that the disposition challenged was, at signing, blank in the disponee's name; and in respect of the tenor of the disposition, and that it did not appear till long after the granter's death, found it not presumed to have been filled up or delivered when the granter was in liege poustie; therefore sustained the reason of reduction, unless the user of the disposition would prove, that the same was filled up or delivered by the disponer, or his order, while he was in liege poustie.”

The petition, notwithstanding, was refused without answers. see Service and Confirmation. see Death-bed.

Rem. Dec. v. 2. No 36. p. 57.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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