Scottish Court of Session Decisions

Subject_1 PUBLIC OFFICER.

Dame Margaret and Dorothea Primrose,
v.
The Commissary Clerks of Edinburgh

1737, July 1.
Case No. No. 6.

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We were much divided in this case on the point of discussion, not indeed whether decreet could go against these clerks till the executor and cautioner were discussed; for we all agreed, that no decreet could go even superseding execution; and I own I have a difficulty how there can be such a decreet in any case where there is privilegum discussionis, since that gives the party power to suit execution, that is to use diligence, whenever he thinks the principal is discussed, though many questions in law may arise what is sufficient discussing,—though that has for some time been the general practice; but the question was, Whether the pursuer could insist in his declaratory conclusion to determine the point of law till the executor and cautioner were discussed?—and it carried that he could, (though by a very small majority.) The next question therefore was, Whether the Commissaries and their clerks were obliged to exact and take caution from executors nearest of kin, and what sort of caution? As to the first, the only thing that made it a question, was the pursuer's overlooking the instructions 1563, where they are expressly directed to take caution from the nearest of kin;—and upon my reading them, we all agreed. As to the other, Kilkerran observed, that in many cases caution is taken, but he knew no law or precedent for making the Judge liable if he took insufficient caution, as in the cautio damni infecti, and by ward superiors, liferenters, &c. except allenarly the case of caution for tutors and curators. But I distinguished betwixt the case where a Judge is enjoined ex officio to take caution, though nobody ask it, and where it is only to be taken at the suit of a party demanding it. That in this case, if the party who was in Court did not object, it might be deemed an acquiescence in the sufficiency, if not insidious; but that did not hold in the case where a Judge was bound to exact caution, whether demanded or not. The edicts were also mentioned, that summon all and sundry to object to the confirmation and caution; but as I believe these edicts say nothing of objecting to the caution, which is not taken in Court, but by the clerk before extract, in which the Judge does not interpose, and other parties, except the clerk please, have no opportunity, so that argument would equally conclude to the case of caution for tutors and curators. I thought however, that the Commissaries were not liable; because by universal practice that is none of their province, but only their clerks, whose office it is. (However Arniston thought even the Commissaries liable by the instructions.) As to this question therefore we all agreed that they could not accept of elusory caution; 2dly, that it was not necessary that the cautioner should in reality be sufficient or responsible even at the time, if he was habit and repute so; 3dly, that it is not in all cases necessary that the cautioner be habit and repute responsible or sufficient for the whole inventory, exampli gratia, if the executor himself had a good free estate, especially in land, and was reputed a frugal man. Therefore upon the whole the interlocutor we gave was, that the clerks were bound to take such caution as was habit and repute reasonable good caution, according to the circumstances of parties at the time.