Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Sir John Johnstoun of Caskiben
v.
John Pedder, Commissary Clerk-depute of Aberdeen

Date: 30 December 1709

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Sir John Johnstoun having obtained a precept of poinding against several debtors, pursued by him before the Commissary of Aberdeen; and thereupon charged Isobel Drum, relict of Alexander Burnet, merchant there, for the sum of L. 111. 9s. contained in the precept as due by her: She suspended; and Sir John required from John Pedder, who signed the precept, an extract of his decreet, in respect the charge could not be discussed upon the precept. Which extract John Pedder refused to give out, because there was no decreet against Isobel Drum; but his servant had rashly extended the precept upon the decreet, against the whole debtors in the libel, without noticing precisely the persons decerned against; and he, following the servant's faith, had by inadvertency signed it. Sir John having nothing left to instruct his debt, but the decreet, which was refused, by Isobel Drum's dying in the mean time; he pursued John Pedder for payment of the L. 111. 9s. and for damages.

The Lords sustained the defender's giving out the precept without having a decreet for his warrant, relevant to make him liable for the L.111. 9s. mentioned therein to be due by Isobel Drum to Sir John Johnstoun. Albeit it was alleged for the defender, that his escape was innocent and pardonable, and such as might have fallen out in the hands of the most exact man.

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