How far the Clerk of the Bills is liable for the insufficiency of a cautioner in a suspension?
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Sibbald pursued Mr Inglis, Depute-clerk of the Bills, in an action of damages, for his having received an insolvent cautioner in a process of suspension of a charge at the pursuer's instance. The charger's agent did not appear in the bill-ehamber an the occasion; and the clerk trusted to the representation of the cautioner's sufficiency, given by the doer for the suspender, and aided, as he supposed, by the circumstances of the smallness of the debt, it being under L. 7, and the cautioner's bearing the designation of “late deacon of his trade in the town of Cupar.”
Pleaded for the defender; The Clerk of the Bills must, in general, be supposed to know nothing personally of the cautioners offered to him; and from the distance of their residence, he will most frequently, too, be prevented from obtaining information concerning them. To interpret literally the act of sederunt of 18th February 1686, so as to render him liable in damages, not only for receiving an insufficient cautioner, but for refusing one that eventually may be found to have been solvent, would be in effect to subject him to the hazard of becoming responsible for the debt, in almost every instance in which the charger or his agent did not authorise him to accept the caution tendered. It cannot be the purpose of the law to reduce any public officer to so hard a situation and accordingly it has been found; that if the Clerk of the Bills be free of any malversation or culpable negligence, he is not answerable for the solvency of cautioners; 1st March 1769, Stannars contra Inglis, No 41. p. 13131.
Answered; The uniform opinion of lawyers, and a train of decisions of the Court, give countenance to a literal construction of the enactment in question; Stair, p. 775. et seq.; Bankton, vol. 1. p. 459.; Erskine, p. 475.; Fountainhall, v. 1. p. 2. Arrestments; (see Appendix) Stair, 2d Dec. 1680, Alston contra Riddel, voce Reparation. In the case of Stannars, the charger's agent had appeared and taken out a copy of the bill, without lodging any caveat against the receiving of the cautioner, which was considered as a tacit approbation of him; and it is admitted, that the same defence would have been valid in the present instance; but no degree of acquiescence can here be shewn.
The Lord Ordinary “assoilzied the defender.”
The Court, however, “altered the Lord Ordinary's interlocutor, and found the defender liable in damages and expenses to the pursuer.”
The defender reclaimed; but his petition was refused without answers.
Lord Ordinary, Stonefield.Act. D. Williamson.Alt. H. Erskine.Clerk, Menzies.
Fol Dic v. 4. p. 197. Fac. Col. No 201. p. 315.
