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Scottish Court of Session Decisions >>
Alstoun v Riddel. [1680] Mor 13957 (2 December 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor3213957-043.html Cite as:
[1680] Mor 13957
The clerk of the bills found liable for a debt, for taking as cautioner in a suspension a person who had been long dead.
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James Alstoun pursues Walter Riddel, sub-clerk of the bills, upon this ground, that Walter had expede a bill of suspension, upon caution by a person whose name was put to the bond, though he was dead eight years before, albeit the pursuer required Walter to take sufficient caution, and protested for damage, by an instrument produced. The defender alleged absolvitor, because all that he was obliged by the constant custom of the office, was to take information of the sufficiency of cautioners, which he did in this case, and is content to depone thereupon; but it was impossible for him to know the verity of the subscriptions, nor can he certainly know the condition of the cautioners, and so can be no otherwise liable unless by his oath it appear that he hath colluded with the suspender, or neglected to take information from persons living near that place where the cautioner resides. The pursuer answered, That the trust of the clerk of the bills, is to take sufficient caution, which he must do at his peril; and albeit he might be deceived, whether the cautioner were sufficient, yet he should always know that the cautioner is reputed sufficient; 2do, In this case the pursuer having required him by an instrument, he ought to have intimated to his agent, or the writer of the bill, the name of the cautioner offered.
The Lords found the clerk liable, in respect of the instrument being attested by the witnesses' oaths, seeing he did make no intimation to the suspender, or the writer of the bill, of the name of the cautioner; but in case the instrument was not approved, the Lords declared they would hear the general case in their own presence, how far the clerk of the bills is liable for the sufficiency of cautioners, or what diligence he ought to do for finding the same. See Public Officer.
