What the responsibility of the Clerks of the Bills relative to receiving caution? The consequence of the interference of the Court in that matter?
Click here to view a pdf copy of this documet : PDF Copy
Arniston reported Mrs Martha Temple, relict of Mr Edward Ruthven, against Hugh Wallace of Ingliston, and Murray of Spot and his Lady. Mrs Martha being provided to a jointure of L. 200 Sterling, out of the lands of Corstorphin, by way annuity; for her surer payment, she transacted with Ingliston, and quit it for L. 180 Sterling yearly, and when she charges him on his bond, he suspends, that it is arrested in his hands. Answered, They are only laid on upon depending processes against her, at the instance of John Baillie, apothecary, the Laird of Spot, Bailie Brand, and other creditors of her husband's, and so are loosable on caution, and she had offered sufficient caution, and yet the Clerk to the Bills had refused it. The Lords, to try if the claims on which these processes were founded were clear and liquid debts, allowed the arresters to be cited incidenter in this suspension; and after hearing them, it being urged that she might have up her money on the caution offered, viz, Alexander Bruce, her agent, and Sir William Bruce as her attestor, the Lords considered that they could not boc ordine discuss the several arresters' interests, they not being cited to that effect, but only to clear the Lords how far the caution might be receivable or not, and that it might be of dangerous consequence to interpose and judge as to the sufficiency of caution offered, that being the peculiar province of the clerks, yet if they should refuse cautioners beyond exception, no doubt the Lords had power to over-rule them: Therefore they ordained the cautioner and his attestor to be received, and the consigned money to be given up to Mrs Martha. The Lords had, in July last, declared the caution offered by Colonel Erskine sufficient, but that was in the roup of the Earldom of Kincardine, where the creditors had the estate in security as well as the caution; and the Lords were remembered that for loosing an arrestment which was laid on upon a decreet against Hay of Park, and allowing it to be done on caution, within these seven years, paid the debt to the party and took their hazard of an assignation to the creditor's right, as being loosed contrary to law. Yet they decided in this case, as is set down, supra.
Fol. Dic. v. 2. p. 293. Fountainhall, v. 2. p. 109.
