Scottish Court of Session Decisions

Subject_1 PUBLIC OFFICER.

Thomas Coutts and his Attorney
v.
Sir Robert Anstruther and Thomas Smith, Principal Clerks to the Bills

Date: 5 December 1797
Case No. No 51.

The Clerks to the Bills found not liable in damages, for accepting insufficient cautioners, the minister of the parish where they resided having previously certified in writing, that, to the best of his knowledge, they were able to pay the debt.

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Thomas Coutts and his Attorney obtained decree against John Tannahill, for L. 303, 19s.; and a bill of suspension having been presented, the chargers consented to its being passed, on caution. Four cautioners were offered, whom the minister of the parish, where three of them resided, certified in writing to be “to the best of his knowledge in good circumstances, and able to pay” the sum charged for.

The caution was immediately accepted by the Depute clerk of the Bills, without giving any intimation to the chargers.

The letters were found orderly proceeded, to the extent of L. 283, 19s.; and ultimate diligence having been done against the suspender and his cautioners, it turned out that the latter were unable to pay the debt, and had been so when the caution was accepted. The chargers then brought an action for the debt against Sir Robert Anstruther and Thomas Smith, the Principal Clerks to the Bills, and

Pleaded, It is the duty of the Clerks to the Bills, where appearance is made for the charger, either to intimate to his agent, the caution found, or take attesters in terms of the act of sederunt, 27th December 1709, especially in cases like the present, where the chargers consented that the bill should be passed on caution. If the pursuers had received such notice, or if the Depute-clerk had delayed, for a short time, accepting the caution, they would have established, which they still offer to do, that the cautioners were not, as required by the act of sederunt, 18th February 1680, reputed sufficient for the sum charged for when their bond was accepted. See Stair, 2d December 1680, Alstoun against Riddel, voce Reparation; 23d February 1785, Sibbald against Inglis, No 49. P. 13139.

Answered, The Clerks to the Bills are bound to accept, as cautioners, any persons reputed solvent at the time; and, as it is impossible for them to know the circumstances of every person offered to them, they mast act upon the best information they can obtain. The information received in this case was so respectable, that it would have been their duty to have accepted the cautioners, although the chargers had appeared and objected, 1st March 1769, Stanners against Inglis, No 41. p. 13131. It is not the practice, in any case, to give intimation to the charger; and doing so does not free the clerks from their usual responsibility.

The Lord Ordinary assoilzied the defenders.

Upon advising a petition, with answers, the Lords “adhered.”

Lord Ordinary, Glenlee. Act. Tait. Alt. Inglis. Clerk, Sinclair. Fac. Col. No 49. p. 114.