The Lyon competent to judge of deprivation of messengers, and the penalties in their bonds of caution; but incompetent as to the damage of parties.
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Andrew Greirson having employed Patrick M'Ilroy messenger, to use inhibition and arrestment against Sir James M'Dougal of Garthland, and having failed to make use thereof in time before he disponed, did pursue him and——Houston of Cutreoch his cautioner, before the Lord Lyon, whereupon the said Patrick and his cautioner were decerned to make payment of 500 merks of penalty, and of the damage and interest sustained by the pursuer, to the value of the sums, whereupon the inhibition and arrestment should have been used. The messenger and his cautioner raise suspension and reduction, and insist upon this reason, that the decreet is null, as a non suo judice, because albeit the Lyon be authorised by act of Parliament 1587, cap. 46. to take caution for messengers' discharge of their office, and upon default may summon messengers and their cautioners, and may deprive the messengers, and decern them and their cautioners in the pains and penalty for which they became cautioners, yet the Lyon is not warranted thereby to determine the damage of parties, through default of messengers, which may be of the greatest moment and intricacy; and would be of dangerous consequence to give the Lyon such jurisdiction over all the kingdom. The charger answered, that the messenger was unquestionably liable to the Lyon's jurisdiction, and that both he and the cautioner had made themselves liable thereto, by enacting themselves in the Lyon's books, and granting bond registerable therein; and it would be great inconvenience to pursue messengers before the Lyon only for deprivation and penalty, and have need of another process for damage, and interest; and that the Lyon has been accustomed to decern cautioners so before.
The Lords found the reason of reduction relevant, and turned the decreet into a libel, but sustained the decreet as to the penalty of 500 merks, in which the messenger was enacted, but not for the damage and interest, neither against the messenger nor cautioner.
