Julian and Beatrix Dewars v. The Clerks of the Bills
Date: 10 July 1716 Case No. No 27.
Where a bond of juratory caution had been lost, and another substituted, the clerks of the bills were found no further liable than subsidiarie for any damage consequent on the omission.
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The deceased Sir James Cockburn having suspended a charge given him by the said Dewars, upon juratory caution, did find his son, Sir William, cautioner, and consigned a disposition in common form; which suspension being discussed by the chargers against Sir William, they obtained the letters orderly proceeded; and having applied to the clerks of the bills for the bond of cautionry, it was amissing; but Sir William, at the said clerks' request, renewed the same, which, together with Sir James's disposition, they offered to the chargers, which they refused, and gave in a complaint to the Lords, wherein they contended,
1mo, That the clerks were immediately liable, and not in subsidium only, because they were, by their office, obliged to reeeive a bond of cautionry, which, how soon the suspension was discussed, the complainers had interest to claim; and if the clerks neglect to take such a bond, or (which is the same thing,) pretend that it is lost, they are liable for the debt and damage, as was found, 17th November 1680, Ogilvie against Riddel, voce Reparation.
2do, That they were not obliged to accept of a new bond of cautionry in place of the old; because, whatever was given in to the clerks, at passing of the suspension, the complainers had right, at discussing, to demand the same specifice; and the clerks could not otherwise free themselves of that obligation to them, than by delivering the same specific writs which they got, and they are liable for the informalities thereof; for, if they should take a bond of cautionry, without date or designation of witnesses, the party would not be obliged to take the bond, but the clerks would be liable.
Answered for the clerks, to the first, That, since the first institution of their office, there was never an extract required of a bond of cautionry taken in the way of juratory caution, so constantly and universally have they been looked on as mere formality; nor are the clerks bound to regard either the present sufficiency of such cautioners, or their becoming such; wherefore, (though the mislaying of a bond of this kind may be reckoned an omission of the utmost exactness, for which, perhaps, no office in the nation, nor no man can be sufficient), yet it were highly unreasonable, for so small an omission, to decern them in payment of the sum.
To the second answered, That the second bond must, in all respects, have the same effect with the first, and from the same date; because it is a full proving of the tenor, in regard the date of the bond of cautionry is proved by the signet letters of suspension, and by the disposition granted by Sir James, consigned in the clerk's hands, all which three writs must necessarily be of the same date; and, as to the tenor, it is a common unalterable form; so that the second is the very same with the first, as to all intents and purposes.
“The Lords founds the clerks can be no further liable than subsidiarie for damages, and sustained the defence, that, at the time of granting the second bond, Sir William Cockburn was in no worse condition than at the time of granting the first.”
Act. Colvil.Alt. M. Lumsden.Clerk, M'Kenzie.
Fol. Dic. v. 2. p. 293. Bruce, v. 2. No 14. p. 17.
