Subject_1 PUBLIC OFFICER.
Date: The Clerk Register
v.
Sir William Primrose
19 February 1680
Case No.No 17.
The Clerk of Notaries is, by his office, bound to call in and keep the prothocals of notaries.
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The Clerk of Register having given in a complaint against Sir William Primrose, Clerk of the Notaries, that he did not attend that office, he not residing in town, and that he was not qualified therefor, and had malversed therein, in so far as, by the act of Parliament 1617, cap. 22. it is statuted, that the prothocal of notaries shall, within 15 days after the notary's death, be brought in to Edinburgh, and delivered to the Clerk Register, or his deputes, to be retained and kept by his deputes appointed to that effect; likeas, the said Sir William Primrose being admitted to the said office upon the first day of November 1666, by his commission, inserted in the books of Sederunt, he is specially entrusted to call in and pursue for the notaries' prothocals, and to keep the same; and yet, to this day, he hath never called for one prothocal, to the great detriment of the lieges, albeit he hath taken caution for all the notaries admitted, for
bringing in their prothocals within 15 days after their decease, whereby he had ready execution; and as, by his office, he is obliged to mark the prothocal books of notaries, and to give new books when the old books are produced to him, and by that great trust of prothocals, he ought to have perused the prothocals that were filled up, and if they were not authentic and formal, to have certified the Lords, that such notaries might be discharged, and no more books given them, and ought to have been ready, upon all occasions, to exhibit to the lieges prothocals for extending and transuming instruments; all which he hath neglected, and managed his place for mere profit, endeavouring to get all persons passed notaries, and thereby get compositions, the most ignorant being most ready to give the greatest compositions, and giving out books so large, that would last a whole life; so that it could never appear, whether the notaries malversed in their office; albeit it be evident, by the whole tract of the acts of Parliament, what care hath been taken for having qualified notaries, and their prothocals to be brought in, and kept for the use of the lieges. The defender alleged, Absolvitor; because, by his office, there is no more required, but to draw bills for admitting of notaries, and acts of admission, and to take caution for bringing in the prothocals, and marking their books, which he hath always done, which requires very little qualification; likeas, he hath power of deputation by his commission, and hath skilful deputes, and neither do the acts of Parliament expressly oblige any to bring in prothocals, but the wives, bairns, and cautioners of notaries; and there is no ground of deprivation upon so inconsequential an inference from one act of Parliament; and seeing Sir William is willing to take his directions in time coming, and that his predecessors in his office were not in custom to call in prothocals, his neglect cannot amount to a sufficient ground of deprivation. It was answered, That it appears by the records, that, before his time, prothocals were called in; and it is ridiculous to pretend, that the bonds for taking in of prothocals were to no effect, but that none were obliged to call for them, but the notaries' wives, bairns, and cautioners, might safely keep them, and that the Clerk to the Notaries, though he had these bonds, was never to put them in execution, though he is expressly commissioned so to do, which, though it be in the terms, with power to him to call in the prothocals, yet that is not a mere faculty at his discretion, but a commission or mandate, requiring diligence, which he hath wholly neglected; and albeit his commission bear a power of deputation, yet that doth not exempt him also from skill and attendance; and albeit the Clerk Register, by his commission from the King, hath power to depute, yet he cannot give power to deputes to constitute deputes, nam delegatus non potest delegare, though deputes may have servants under them, they can have no deputes that can sign for them, or perform the trust. The Lords found the Clerk of the Notaries, by his office, obliged to call in and keep the prothocals of notaries, which being special in his commission, and
being wholly neglected by him for so many years, is a malversation of knowledge and importance, inferring deprivation.
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