Where an inhibition had been marked as registered, but not in fact booked, the clerk and his representative held to be liable for damage and loss thence accruing.
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Scots, younger children of Tushilaw, pursue a reduction ex capite inhibitionis, served upon their bond of provision against Mr John Grieve of Pinackle, and Michael Anderson, who had purchased the lands after their inhibition was executed. Alleged, The inhibition is null, not being duly registrated within 40 days, conform to the act of Parliament 1617; in so far as, though it be marked as duly registrated, and recorded by the clerk and keeper of the shire's Register at Selkirk; yet, upon search, there is no such inhibition standing registrated in the book. Answered, Parties who inhibit, or do any other diligence or security, such as hornings, sasines, &c. can do no more but take out their inhibition marked by the clerk; and no law obliges them to see it actually put in the books; and the 19th act of Parliament 1686, has fully cleared this case, by declaring it shall be sufficient, if parties shew their rights marked by the clerk as recorded; and if it be not, the party prejudiced is to have reparation of his damage against the clerk and his cautioners. And, though the said act mentions only sasines and reversions, yet it bears also the general word of “any other writs,” so these have been only named for examples; and though it seems statutory, yet in other parts it looks like a declaratory law, and so ought to have a retrospect, as the act anent debtor and creditor had 1661, and the new act for obviating the fraud of apparent heirs in 1695. And it arose on a debate, in a case between Sir Daniel Carmichael and Sir John Whitford of Milton, see Appendix. The Lords considered this as a most inconvenient law in securing all buyers and purchasers, who can do no more but search the registers for inhibitions and other incumbrances; and finding none, think themselves in tuto to proceed in their bargains; whereas, if it shall be sufficient to produce an inhibition or sasine marked by a clerk, (though not inserted in the register books) then we shall be as much exposed to fraud as England is in their purchases, for want of registers; and seeing this seems to be the greater inconvenience, it may concern the wisdom of the Parliament to re-consider that act; but the Lords abstracting from the general point in this case, ordained the clerk, or his representatives, to be summarily and incidenter cited in this process, to answer why he should not be decerned to make up the parties' damage and loss, occasioned by his negligence or malversation, in giving a false attest of its being registrated, when it is not truly done.
Fol. Dic. v. 2. P. 342. Fountainhall, v.1. p. 695.
