Whether one is liable for the malversation of those under his authority? - Complaint raised in name of another without his authority.
Lord Justice Clerk v. Home of Linthel, the Procurator-Fiscal, and Officers
Date: 28 February 1668 Case No. No 73.
A Judge was not found liable for the fault of the officer, who in execution of a poinding directed to him in common form, poinded an ox in labouring time.
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The Lord Justice Clerk being fined in L.50 for his absence from the Lordi Home's head court of his barony; the officers poinded an ox in October, after the ploughing was begun. The Lord Justice Clerk pursues a spuilzie, as being poinded in labouring time, and insisted against Linthel as depute, who gave the decreet, and precept to poind, and as he who knew of the poinding of the ox by the officer, before he was delivered, and commanded to deliver him, and against the officer who poinded, and the procurator-fiscal, who, by the executions of the poinding produced, received the ox from the officer. At the advising of the cause, Linthel having deponed by his oath, that the officer had told him an ox was poinded, and he commanded the officer to deliver him and that he knew not he was a labouring ox; so that that member not being proved, the question was, whether Linthel, as depute, giving a precept to the officer to poind in common form, was liable for the spuilzie, if the officer did illegally poind, and so was answerable for the fault of the officer?
The Lords found him not liable, and therefore assoilzied Linthel; and found, That the execution of the poinding was sufficient probation of the delivery of the ox to the procurator-fiscal, especially seeing the defenders defended themselves with the poinding, and themselves produced the execution; and for the violent profits, the Lords decerned five shillings for every day, from October to May, inclusive, being labouring time, and that yearly, since the spuilzie till the sentence.
