An inferior commissary clerk gave out a precept of poinding against one of many defenders, although there was no decerniture against him. This being suspended, and the suspender dying in the meantime, the debt was lost. The clerk was found liable.
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Sir John Johnston of Caskieben, pursues sundry debtors before the Commissary of Aberdeen, and amongst the rest, one Isobel Drum, for the sum of L. 111 Scots, and takes out from John Peder Commissary clerk depute there, a precept of poinding against her; whereupon she being charged suspends; and Sir John finding the precept would not instruct his charge, when he came to discuss her suspension, he goes to Peder, the clerk, and craves an extract of the decreet. He answers, I have searched the warrants of that process, and find no decreet nor signature against her, and confesses his inadvertency and rashness in giving out the precept, which now he finds wanted a warrant. Sir John upon this requires him by way of instrument; which he refusing, there is a process raised against him for payment of the foresaid sum of L.111, and all his damages and expenses occasioned by his fault, the mean of probation being now perished by the said Isobel Drum's death. Answered, The giving out of the extract was a mere mistake, upon the apprehension, that there was a decerniture against her, as well as the other defenders called, and the multitude of them put him to that confusion; and to have given an extract against her would have been a real crime acd malversation, whereas the giving out the precept was a mere oversight et culpa levis at most; whereas Sir John truly lost his debt by not insisting against her, and taking her oath before she died, especially having discovered the mistake, and so had time enough to put her to her oath. Replied, It was impossible he could have brought her to depone, for if he had insisted to discuss the suspension, her answer was, you have no decreet against me; and if he had insisted in the commissariot or other inferior courts, her defence was unanswerable,—the cause is suspended, and tabled before the Lords, and so I am not bound to answer here; so by your default I have lost the debt. The Lords were generally clear that the clerk was liable; but in regard it might alarm all the clerks of the several judicatories, they laid hold on a circumstance informed on, that Peder, at her suspending, had become cautioner for her in the suspension, which if true, is a clear evidence of his dole to obstruct the discussing, which in eventu would have terminated on himself; and therefore ordained that matter of fact to be first tried; and if true, all agreed to find him guilty to refund the sum, and repair the damage cum omni causa.
Fol. Dic. v. 2. p. 342. Fountainhall, v. 2. p. 539.
