John and Joseph Heriots v. James Fleming Messenger, and Cautioners
Date: 19 January 1666 Case No. No 356.
Found, that the Lyon was not competent to judge in an action of damages against a messenger and his cautioner.
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John and Joseph Heriots having obtained decreet before the Lyon, against James Fleming messenger, and his cautioners, depriving the messenger upon malversation; in so far, as being employed to execute a caption, he had taken the debtor, and had denounced, and apprized his lands, and suffered the debtor to escape, and would not subscribe the decreet of apprizing, whereupon he was deprived, and decerned to pay 500 merks, conform to the act of Parliament 1587, cap. 46; and both he, and his cautioners were decerned to pay the sum, as damage, and interest, to the pursuer. They suspend, and allege, that the decreet is null, in so far as it was pronounced by the Lord Lyon, without the concourse of the heralds, which is required by the said act. 2do, Albeit the Lyon be empowered to deprive messengers by the said act, yet their cautioners are not under his jurisdiction, nor the damage, and interest of parties by messengers' malversation, which is only competent to the Judge ordinary. It was answered to the first, Oppones the decreet wherein the cautioners compeared, and so acknowleged the Lyon's jurisdiction as he then sat, likeas the decreet itself bears to be by the Lyon, with the heralds. To the second, The cautioners having enacted themselves in the Lyon's books, they have made themselves liable, and for the damages, they are consequent to every jurisdiction; and the Lyons have been constantly in use to determine the same, as to this point.
The Lords were of different judgments, for they thought, that by the act of Parliament, the Lyon had no such power, but as to long custom, some thought nought it was sufficient to give that power, and there was no inconveniency seeing his decreets might be suspended. Others thought that custom being clandestine, and without the contradiction of parties, who might voluntarily submit themselves to any authority, could not be sufficient.
The Lords ordained, before answer, the Lyon's books to be prodnced, to see if there were such a custom, before it were decided, and how far that custom would work.
1673. June 27.
John and Joseph Heriots having employed one Fleming a messenger for apprehending James Heriot with caption, for not fulfilling of a decree-arbitral, who having taken him, suffered him to escape; and thereupon they pursued the messenger and cautioners before the Lyon, and obtained decreet, depriving the messenger for his malversation, and the messenger to pay 500 merks of penalty, conform to his bond of cautionry, whereby he became obliged for the messenger for faithful administration of his trust, under the penalty of 500 merks, and likewise to pay the whole sums contained in the decree-arbitral, as the damage sustained by the party, in not executing the caption. The cautioner suspended on this reason, that the Lyon was not judge competent to determine the damage of parties by the default of messengers, which is a process of very great importance; and the old and late acts of Parliament establishing the Lyon's Courts, gives him only power to deprive messengers, and to decern their cautioners to pay their penalties in their bond of caution, without any mention of the damage of parties. It was answered, That there is a particular unprinted act produced, ratifying the privileges of the Lyon, and including a power to determine the damages of parties. It was replied, that the said ratification, not being a public printed act, but past of course amongst the ratifications unread, was salvo jure, especially seeing the last act in the last Session of Parliament gives no such power, but only what the Lyon had by law or custom before.
The Lords having ordained the Lyon to produce his books, to instruct what hath been the custom of the Lyon before, they found no such custom proved thereby, and had no regard to the private ratification, and found the two public acts gave the Lyon no power to determine the damages of parties, and therefore reduced the decreet.
Fol. Dic. v. 1. p. 509. Stair, v. 1. p. 339. & v. 2. p. 195.*** Gosford reports this case:
1673. June 27.—In a suspention of a decreet of the Lord Lyon, King at Arms, against Fleming, who was cautioner for a messenger, who had malversed in his office; for payment, not only of the penalty of the bond, but of a certain sum of damage and interest to the party; upon this reason, that the Lyon was not Judge competent as to damage and interest; but only as to the case of malversation, he might deprive the messenger, and fine him and his cautioners in the penalty of the bond, which ordinarily does not exceed 500 merks. It was answered, that by the 46th act of King James VI. Parl. 11. the Lyons have power to hold courts upon all officers of arms, and their cautioners, and to punish them in case they malverse in their office; and all civil Magistrates are to concur with him to see his acts put in execution, which necessarily implies that they may cognosce of the prejudice the parties sustain, who employ them, likeas they have been in use to decide for damage sustained. The Lords, after inspection of the books, and registers of their decreets, bearing only that they had been in use to decern some small sum for expenses of plea, did find the reason of suspension relevant; seeing the damage of the creditor amounting to no less than the whole sums of money contained in the bonds; which may be of a great value, the liquidation thereof being the ground of a civil pursuit, should pertain to the civil judge; whereas the Lyon's office is to punish for a crime.
