The jurisdiction of the Lyon was sustained in an action against the cautioners of a messenger, for damage and interest, on account of the messenger's neglect of duty.
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By the act of Parliament James VI. Parliament 11. cap. 46. it is ordained, that officers of arms should find surety to the Lyon, for observation of their injunctions, under the pain of 500 merks, with the damage and interest of the party grieved by the malversation, negligence, or informality of the officer.
In a process between the Lyon and ——, it was controverted, whether the cautioner might be pursued before the Lyon for payment of the debt, as damage and interest, by reason of the malversation of the officer of arms in a poinding. It was alleged, that the Lyon was a criminal Judge, and most competent as to the question, whether the messenger had committed iniquity, and malversed in his office, and whether he should be deprived; and he and his cautioner had incurred and should be liable to the pain aforesaid; but as to the civil action against the cautioner, there might be a good ground of action against the cautioner, upon the act of caution before the competent judge, but the Lyon, being judex pedaneus, was not judge of actions of that nature and consequence, in respect they may be of great difficulty and importance; for if the cautioner should be pursued for payment of the debt, being supposed to be 1000 merks, upon pretence of the malversation of the officer, and that he had not done his duty in poinding and comprising; it were hard and dangerous, that the Lyon and his brethren should be judges in a matter of that consequence; and it will not follow, that because the messenger had not done his duty in a caption or comprising, that his cautioner should be liable for the debt as damage and interest; seeing the caption and comprising might have been ineffectual, and the creditor could not thereby have gotten payment; and it appears by the said act of Parliament, that the Lyon is only judge to the penal conclusion of deprivation of the officer, and payment of the pain.
The Lords notwithstanding found the Lyon Judge competent to the action against the cautioner, for damage and interest; me inter minimos reclamante.
Reporter, Newbyth.Clerk, Gibson.
Fol. Dic. v. 1. p. 509. Dirleton, No 30. p. 13.
