A writer was employed to raise horning and caption. The messenger denounced before the elapse of six days. The debtor incarcerated on this erroneous charge recovered damages from the creditor, who was found entitled to relief from the writer.
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James Wood having given to Mr Robert Fullarton, his agent, an executed horning at his instance, against William Mackie, in order to cause denounce him and raise a caption; Mr Fullarton put the horning and charge in the hands of Thomas Breakenrig, messenger, to denounce William Mackie, who did denounce before expiring of the days of the charge; and upon that denunciation, when registered, Mr Fullarton raised and signed a caption. James Wood being fined by the Lords in L. 20 Sterling, for imprisoning Mackie upon that unwarrantable caption; he complained to their Lordships, and craved that Mr Fullarton might be found liable to reimburse him of the fine.
Answered for Mr Fullarton; The law of nature and the civil law obligeth indeed to restitution where damage is occasioned dolo malo or by design; but here no dole or fault can be charged upon him. And albeit artificers affectare non debent quod non intelligunt; this is not to be extended to liberal sciences; otherwise a lawyer failing to propone a good defence that might have occurred to another, should be liable to make up the client's damages sustained through the omission; and Judges might be reached for damages, when their sentences fall to be reviewed and reduced; 2do, That which gave rise to Mr Wood's damages, was the fact of the messenger (a person held and reputed knowing in his office, a public officer whom the law hath entrusted for that end, and obliged to find surety to answer any demands upon him ratione officii) viz. the denunciation; which, having no obvious nullity ex facie scripturæ, and being duly registered, was a sufficient warrant to Mr Fullarton to raise a caption, without noticing the charge. And in a parallel case, Scot contra Banks, No 220. p. 6016. a messenger was found in bona fide to poind, although the decreet, upon which the letters proceeded, did not bear the person's name; 3tio, Et separatim, seing the messenger (whom Mr Fallarton had reason to presume to have executed his office faithfully) was the original occasion of Mr Wood's damages, through the wrong denunciation, he and his cautioner ought first to be discussed; Mr Fullarton, who had no accession to the executing of the denunciation, being at most but liable subsidiarie.
Replied for James Wood; He having put the horning in the hands of Mr Fullarton his agent, to raise a caption, and Mr Fullarton having employed such a messenger, and followed his faith implicitly, in raising the caption, without examining the charge and denunciation, both of which were his warrant, he was in culpa lata, quæ dolo æquiparatur, and must keep Mr Wood indemnis; either ex contractu mandati, as having accepted a mandate from him; or ex contractu locati, as having hired his pains to him. A lawyer's advice is not parallel to this case, for consilii non fraudulenti nulla est obligatio; and there is a difference betwixt giving advice and exercising a commissioned office. Again, writers to the signet are under other sorts of ties, as to writs presented to the Queen's signet and seals, concerning which the Lords do frequently inculcate injunctions upon them, than as to private writs and securities, drawn by them according to the agreement of parties. It cannot be pretended, that there is any such contract betwixt a judge and contending parties, as there is betwixt an agent and his client. Besides, whatever may be the instances of Judges and lawyers, incommodum non solvit argumentum; 2do, It is not Mr Wood's concern to dispute the case betwixt Mr Fullarton, and the messenger, both being in culpa, and liable to him. The case of Scot and Banks, is nothing to the purpose, for there the messenger poinded exactly conform to the letters, and was not bound to seek any other warrant; whereas it is not every denunciation that warrants a caption, but only a due and orderly denunciation (as the stile bears) which plainly refers to the execution or charge; 3tio, It is absurd to pretend, that the messenger must be first discussed; seeing Mr Wood hath directly nothing to do with the messenger, he employed only Mr Fullarton, who received the horning, and undertook to complete the diligence, whereof the denunciation is a part, and employed a messenger of his own choosing unknown to Mr Wood.
The Lords decerned Mr Fullarton to pay to James Wood L. 20 Sterling as damage paid by him to William Mackie.
Fol. Dic. v. 2. p. 342. Forbes, p. 443.*** Fountainhall reports this case:
1710. November 29.—One Mackie being debtor to James Wood merchant in Edinburgh, he gives the bond to Robert Fullarton writer to the signet, his ordinary doer and agent, to raise horning and caption thereon, who employs one Brackenrig a messenger, who gives Mackie the debtor a charge; and, either by mistake or ignorance, denounces him before the six days were expired, and gives it in to Mr John Mitchelson keeper of the register of hornings; and having got it marked, brings it back to Mr Fullarton, who thereon writes out a caption, wherein he expressly says, that Mackie was orderly and legally denounced rebel, and thereon Mackie is apprehended and imprisoned; but he discovering that he was denounced within the days of the charge, and the caption raised, he gives in a bill to the Lords, complaining of the riot and unwarrantableness of the denunciation, and consequently of the caption and imprisonment; which the Lords finding clearly proved, they fined Wood the creditor in L. 20 Sterling to Mackie, for his damages; but reserved action of relief against the messenger, the writer to the signet, and the register of the hornings. As to the first and his cautioner, there was no necessity, but the messenger was plainly liable and guilty for his malversation and ignorance; and as to the register keeper, there was as little ground to reach him, being no further concerned than to look to the denunciation. All the question arose as to Mr Fullarton the writer's accession; for whom it was alleged. That neither fraud nor design appeared in any thing he acted; for having delivered the horning to a messenger habit and repute knowing in his employment, who brought it back denounced and registered, he was obliged to notice no farther, but might warrantably raise a caption thereon; for esto he had omitted the three blasts of the horn, or not designed the witnesses, that can never make the writer culpable; for as the fox must pay his own skin, so he cannot be liable for misdemeanors of another office, but only when he fails in his own employment; and what if he had employed an advocate, who, by negligence, suffered a decreet to go against his client, must he be answerable for his mismanagement! The consequence of this may go very deep, to ruin the most innocent persons; this defect being no part of the subject of his employment, but only the messenger's province, of whom only he ought to seek reparation of his damage; et culpa suos tantum debet tenere auctores. Answered, Neither fraud nor ignorance come here to be considered, but Mackie's prejudice, and your, the writer's culpable negligence, who, by the very form and stile of the caption wrote by your servant, assert he was orderly and legally denounced rebel, which, if you had but never so little perused the executions, you would have found a falsehood; besides, the plea was intimated to you, and you did not defend Wood, who was his ordinary agent and doer, and should not have ensnared him an ignorant merchant as to law points, but adverted to his diligence that it might be legal. Put the case he had employed you to lend out 5000 merks on security, and you had taken a bond from the debtors, either holograph, or without designing the witnesses, would not you have been liable to make up his damage, if the bond had been found null, or not probative; and even so here. The lex aquilia made a chirurgeon qui imperite venam secuit liable in the expense of the cure, and why not you; nemo debet affectare seu profiteri id quod ignorat. The Lords, by plurality, found Mr Fullarton the writer liable to relieve Wood, which was looked on as a new decision, but judged necessary to cause men in public offices look better to the discharge of their duty, that the lieges do not suffer by their carelessness and sloth, to give it no worse name.
