Sir James Dick v. Adam Nisbet, and Provand and More, his Cautioners
Date: 30 November 1697 Case No. No 23.
A principal was bound to account quarterly. His cautioner was found to be bound only for one quarter of a year, altho' the principal was in arrear a large sum.
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Arbruchel reported Sir James Dick of Prestonfield against Adam Nisbet; clerk to his brewerie, and Provand and More, his cautioners, for payment of the damage and loss sustained through the said Adam's intromissions, or trusting irresponsal people with his ale.—Alleged for the cautioners, They cannot be liable, because by the contract they can only be charged conform to the fitted accounts under Nisbet, the clerk's hands; and ita est there are no such accounts produced: 2do, In the said contract there is a clause, that Nisbet should make his accounts quarterly with Sir James, his master, to be exhibited to the cautioners; upon which quality Sir James cannot subsume; ergo the cautioners must be free.—Answered to the first, Though there was no fitted account, yet Sir James had the equivalent; for he had discharged his clerk during the whole eight years service, of the hail subject of his intromission, except the sum of L. 23,000 not yet instructed by his clerk, and had taken an antapocha, or counter discharge from him, acknowledging the said balance: To the second, it was answered, The clause obliged Nisbet to compt quarterly, but laid no obligation on Sir James; so it was optional for him to fit accounts every quarter, or let them go on longer as he pleased; and if the cautioners thought themselves concerned, they should have interpelled Sir James, and required it; which they did omit for five years together; and they might have known his state, if they had called at Nisbet, the Clerk, for a sight of his store-books, which would have discovered his condition, without the necessity of any formal stated account between his master and him; which they neglecting to do, sibi imputent.——The Lords considered only the last defence, and found that clause of compting quarterly was not merely a clause of relief between the clerk and his cautioners, but that Sir James was likewise obliged thereby, and was introduced in favours of the cautioners, who having engaged for the clerk's fidelity and honesty, they could not know the same without fitting quarterly accounts; which method not being observed, the Lords found the cautioners liberate, except for the first three months allenarly.
