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Document : 286

Title: Petition for the Rent of Land

Author(s): Maclaurin, Lord John

FEBRUARY 8. 1786.
UNTO THE RIGHT HONOURABLE
THE LORDS OF COUNCIL AND SESSION,

THE
PETITION
OF
Sir MICHAEL STEWART of Blackhall, Bart. ;
HUMBLY SHEWETH,
THAT James Robertſon, the petitioner's tenant in the lands of
Thurſcraig and Craighead, having run in arrear of rent, the
petitioner cauſed charge him with horning, to make payment
thereof; of which charge, he offered a bill of ſuſpenfion, obtained
ſiſt, and the petitioner conſented to the bill paſſing upon caution.

A bond of caution, ſigned by William Mitchell tenant in Seedhill-mills
of Paiſley, was offered to the clerk to the bills; but his
ſuſſiciency being doubted, the clerk to the bills returned the bond
to Mr James Buchan, writer to the Signet, the ſuſpender's agent,
for the expreſs purpoſe of getting it atteſted.
It was returned accordingly, atteſted by Allan and Company,
merchants in Glaſgow ; but their ſufficiency being likewiſe doubted
of, and having ſtopped payment in a few days, their atteſtation
alſo was rejected, and the bond was again delivered to the ſuſpender's
agent, to be further atteſted.
Accordingly, it was returned atteſted by Robert Baird grocer in
Glaſgow ; but next day, Mr Baird thought proper to write to the
clerk to the bills, deſiring him not to accept of his atteſtation, as
he would not abide by it, alleging he had been intoxicated at the
time he ſigned it.
The ſuſpender's affairs having become embarraſſed, his agent
alleged, that he did not think himſelf obliged to produce the bond
of caution with the atteſtations.
The matter was ſtated by the different agents in a repreſentation
and anſwers to the Lord Rockville, Ordinary on the bills, and his
Lordſhip, of this date, after reporting the caſe, pronounced the
following interlocutor: "The Lord Ordinary having conſidered
"this repreſentation, with anſwers for James Buchan, and after
"adviſing with the Lords, Refuſes the deſire of this repreſenta"tion."
Which judgment, the petitioner ſubmits to review, and
makes application for an order on the ſuſpender's agent, to deliver
up the bond of caution, and atteſtations above mentioned.
Mitchell the cautioner never demanded up his bond, and the atteſtation
by Baird was not rejected by the clerk to the bills, never
having been yet offered to him, nor would it be ſo, the petitioner
being willing to accept of the bond and atteſtations; but
though Mitchell had demanded up his bond, the petitioner conceives,
that he was not entitled to have it ; upon the bond being
lodged, the petitioner had a jus quæſitum to the ſecurity. If the
clerk to the bills, who is liable if he takes an inſufficient cautioner,
did not chuſe to accept this bond, he might have rejected
it altogether, and then the petitioner would have been entitled
to a certificate, that caution had not been found, and to proceed
in diligence ; but if the clerk to the bills choir not to take this
method, but to indulge the ſuſpender with an opportunity of getting
the bond atteſted, that could not Mole the ſecurity ariſing
from the bond as it was. And if the plea of the ſuſpender's agent
were to be liſtened to, it would afford a handle to ſuſpenders,
who are generally in ſtraitened circumſtances, for delaying from
time to time, by offering inſufficient cautioners.
The accident of the ſuſpender's affairs becoming embarraſſed,
can have no influence on the queſtion, by reaſon of its having
happened while the bond was in the ſuſpender's agent's hands,
any more than if it had happened while the bond was in the
clerk's hands. The ſuſpender's agent was in poſſeſſion of the
bond of caution, with the atteſtations on it, for above a month
before he heard of the ſuſpender's affairs being embarraſſed, during
which time, he and the petitioner's agent had many meetings,
trying to aſcertain the balance due by the ſuſpender. The
agent took it up for the expreſs purporſe of getting it atteſted;
and therefore, as ſoon as he got that done, he ought to have
offered it to the clerk of the bills; but as he has with-held it, he
certainly does ſo for behoof of the charger. And as to Mr
Baird's allegeance of intoxication, that will be entire to him in a
reduction of the atteſtation by him on the bond, if he chuſes to
inſiſt in one, but can afford no pretence to the ſuſpender's agent
for not lodging it with the clerk.
To conclude Your Lordſhips know, that it is ſometimes neceſſary
for the clerks of Seſſion to give out bonds of caution for the
price of lands ſold judicially, to be atteſted after they have been
put into the clerks offices, for further ſecurity to the creditors;
but, it was never underſtood, that the cautioners in ſuch bonds
had it in their power to retract, as in moſt caſes, the conſequences
would be highly prejudicial to the creditors, by obliging them either
to recur on the preceding offerer, or to ſell the lands of new;
on the contrary, it is held a ſufficient delivery, to put ſuch bonds
into the clerks hands, ſo that afterwards they cannot be given up,
but by conſent of the creditors, or authority of your Lordſhips.
May it therefore pleaſe your Lordſhips, to review the Lord Ordinary's
interlocutor, and to ordain Mr Buchan, the ſuſpender's
agent, to ledge the bond of caution, and atteſtations above mentioned,
in the clerk's hands.
According to juſtice, &c.
JO. MACLAURIN.
Edinburgh, February 11. 1786.
I Alexander Campbell, clerk to David Stewart, writer to the
Signet, agent for the petitioner, did intimate to James Buchan,
writer to the Signet, That copies of this petition were to be put
into the Lords boxes this day, in order to be moved in Court on
Tueſday next. This I did, by delivering to the ſaid James Buchan,
perſonally, a printed copy of this petition, with a note thereon,
intimating as above, betwixt the hours of 10 and 12 forenoon,
before theſe witneſſes, David Beatſon, and William Anderſon,
both writers in Edinburgh.
ALEX. CAMPBELL.