Clerk of the Bills, how far liable for cautioners in suspensions?
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In a suspension of a charge for L 8: 8s. Sterling, in which two persons were bound as principals, and a third as cautioner, the Clerk of the Bills accepted as cautioner a journeyman shoe-maker, who, though not a householder, appeared to be in a good way of bread for his situation in life.
The clerk did not consult the charger, as to the sufficiency of the cautioner; but it appeared he had taken out a copy of the bill.
Ultimate personal diligence was done against the original obligants, all of whom took the benefit of the act of grace. A poinding was likewise attempted against them, and against the cautioner in the suspension; but the messenger returned an execution, bearing that they had not a pound's worth of effects among them.
Upon this the charger brought an action against Charles Inglis, deputy-clerk of the bills, upon the act of sederunt, 27th December 1709, concluding for damages, for accepting of an insufficient cautioner.
Pleaded in defence; As the clerk of the bills cannot be acquainted with all the cautioners who are offered to him from every corner of Scotland, his practice is to inquire at the agent for the charger, and to take no cautioner who is not approved of by him. And he constantly follows this rule, unless where a copy of the bill is taken out by the charger, in which case, he thinks himself safe to take any cautioner, who is habit and repute good for the money, if he be not put upon his guard, by a caveat lodged at the bill-chamber. The cautioner in this case, an industrious tradesman, was believed to be abundantly sufficient, especially as there was reason to suppose, that the suspenders themselves were able to pay the money, since no caveat had been lodged by the the charger.
The clerk of the bills is not bound as a subsidiary cautioner; he cannot be made liable, unless he has been guilty of such a malversation in his office, as may subject him in damages.
“The Lords sustained the defence, and assoilzied.”
Act. G. Buchan-Hepburn.Alt. Macqueen.
Fol Dic. v. 4. p. 197. Fac. Col. No 90. p. 341.
