David Denholm v. Sir William Bruce and Walter Riddell
1681.
December. Case No. No 20.
Where the Clerk of the Bills had admitted a minor as cautioner whose bond was reduced, the clerk was notwithstanding bound to produce the bond, because there might have been an attestation on the back of it.
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David Denholm, as executor to William Denholm his father, having given in a bill of complaint to the Lords against Sir William Bruce and Walter Riddel his servant, craving, that they may be found liable to him for a debt, in in respect they had admitted an unsufficient cautioner in a suspension, being a minor who had obtained the bond reduced upon minority and lesion; as also, that the bond of caution was abstracted; answered for the clerks of the bills, That they could not be liable for admitting a cautioner that was minor, he being otherways sufficient, seeing they were not obliged to know his age; and they cannot be liable upon that ground, that the bond of cautionry is not produced, because it being reduced at the instance of the granter upon minority, it can be of no use to the pursuer. Replied, That the clerk of the bills ought to enquire as to the party's age that he receives cautioner, as well as to his sufficiency, and he ought much more to be liable if he admit a minor cautioner, than if he admit an unsufficient cautioner; because, that a party is minor, it may ordinarily be known by seeing of him, at least, may give a ground to enquire as to his age, whereas a party's sufficiency cannot be so easily known; and seeing the clerk of the bills gets such a large allowance, he ought to be liable for a more diligent and strict enquiry anent the condition of any person he receives cautioner; and albeit this bond be reduced at the instance of the cautioner upon minority and lesion, so that it cannot be effectual against him, yet the clerk must must be liable, unless the bond be produced, because there might have been an attestation upon the bond by another person, who, upon that ground, might be liable for the debt; and it is very presumeable, that the bond of cautionry has been attested, or otherways the clerk would not have received such a cautioner; but whether the bond may be effectual or not, is not the question, but the clerk ought to produce it, that the pursuer may make what use of it he pleases, otherwise the clerk should be liable for the debt. The Lords ordained Walter Riddel to produce the principal bond of cautionry betwixt and a certain day, otherways found him liable for the debt.
Fol. Dic. v. 2. p. 293. Sir P. Home, MS. v. 1. No 39.
