Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

William Stuart
v.
Patrick Ged

Date: 16 November 1636

Click here to view a pdf copy of this documet : PDF Copy

It is the custom almost in all inferior courts, that the defender find caution when he is first drawn to judgment, to answer as law will; which is nothing else but satisdatio judicio sisti; of which obligement the cautioner is relieved, if the cause be advocated from that judicatory to the Lords of Session. But the custom before the Admiral is, to make the defender find caution, not only judicio sisti, but likewise judicatum solvi; which, if he do not, they will cast him in prison until the pursuer be secured that way. This is done apparently for this reason, because they use more summary process before the Admiral than in any court else,—the matters that come before them being ordinarily amongst seafaring men and strangers, who cannot attend long without great prejudice to their affairs.

There was an action of this kind pursued before the Admiral at the instance of William Stuart, son to Sir William Stuart of Garntully, against Patrick Ged, a skipper in Burntisland, to whom the said William had delivered a trunk with some clothes in London, to be brought home, for delivery of his trunk, and that which was within it. In this action, according to the custom, the defender, Patrick Ged, found Archibald Hutcheson cautioner for him, judicio sisti et judicatum solvi. This cause being thereafter advocated to the Lords, the cautioner desired it might be declared that he was free of his cautionary, in respect the action was transferred from the Admiral Court (where he was bound,) to another judgment. Answered, That were against all reason to put the pursuer in a worse case than he was before the Admiral, especially seeing the advocation was procured by the defender to his prejudice. Neither could the cautioner be free in any case, except the cause had been advocated from the Admiral, as not being competent judge; in which case only, the cautioner should be freed, and no otherwise. The Lords found this answer relevant, and declared that the cautioner stood still bound de judicato solvi.

Page 306.