Extract of a registered bond found not to instruct the debt against the heir of a party whom the extract bore to have subscribed the bond, but only against the consenters to the registration.
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Acheson pursues the Earl of Errol, as representing his father, to pay a debt wherein his father was cautioner for the Earl of Mar; and for instructing thereof, produced the extract of a bond, registered by consent in the books of of session. The defender alleged no process against him; because the bond was not registered by any procurator for his father, because he was dead before the registration, and so cannot prove against him, neither being a principal writ subscribed by him, nor being a decreet of registrasion by consent of his procurator, nor upon citation. The pursuer alleged, that it was an authentic evident, and bore expressly sic subscribitur, Errol; and seeing by law and custom, the pursuer was necessitated to leave the principal at the register, when he registered the same, and that the registers are now lost without his fault.
The Lords refused to sustain the extract against the Earl of Errol, but yet would not put the party to an action of proving the tenor, but would receive adminicles to instruct that the Earl was cautioner; and therefore, ex officio, ordained the other subscribers of the bond, or any other person that could be adduced, for instructing the truth to be required ex officio.
