Subject_1 CAUTIO JUDICIO SISTI, ET JUDICATUM SOLVI.
Stuart v. Gedd
Date: 16 November 1636 Case No. No 3.
A cautioner in the Admiral-court judicio sisti et judicatum solvi, was found not liberated by advocation of the cause.
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One William Stuart having action against one Gedd, skipper in Burntisland, and Edward Little, customer in Edinburgh, before the Admiral-deputes in Leith, for delivery to him of a trunk, with certain abulziements being therein, which he received from——in London, in the pursuer's name, to be brought home and delivered to him; in which Court the defender Gedd having found caution, not only judicio sisti, but judicatum solvi; which cause being advocated to the Lords, and being agitated after advocation, and disputed before the Lords, it was questioned by the defender, that, in respect of the advocation, his caution found in the Admiral-court should be freed. And the pursuer answering in the contrary, that seeing caution was found in that court to him judicatum solvi, it was no reason to loose his cautioner by the advocation, seeing the advocation is not raised, nor granted upon any reason of incompetency of judgment, as that the Admiral was not proper Judge to the parties, or that the matter controverted was not a subject falling within his jurisdiction, or that the Admiral had done any wrong to the parties in that process, or upon any such reasons, which might be declinatoria fori, or exeem the parties as not liable to that court, quo casu if it had been so, with more probability might the cautioner in this judgment before the Lords be found to be freed; but the advocation being upon no such ground, no reason the cautioner should be found freed. The Lords, in respect of the pursuer's answer, which they acknowledged to be good and relevant, and that the cautioner found before the Admiral was per expressum bound, and bore judicatum solvi; and that thereafter the Lords had tried, and found, having called Mr James Robertson before them, who was Admiral-depute, by whose declaration they found, it has been the constant custom of the Admiral-court to take such caution, not only de judicio sisti, but also judicatum solvi, and which custom the Lords thought not unreasonable, nor unjust, in respect matters handled in that court are frequently either betwixt strangers, or skippers, or mean seafaring men and passengers, or such others, who, if they were not urged to find such caution, might and usually so do go out of the country, and sometime never return, or after a long space some may return, whereby pursuers are frustrate of the just effects of their pursuits, if such caution were not taken; therefore the Lords found, that the cautioner ought not to be loosed by the advocation, but declared that he remained still cautioner; but in other matters, where caution is found, in other inferior courts than the Admirals, as before the Bailies of Burghs, or such like, the Lords found they would take it to their consideration, as the like question occurred, if the caution should be loosed after advocation, or not, quo casu if the cautioner was only de judicio sisti, he might be loosed; but if it was also judicatum solvi ut supra, if it was advocated for imcompetency of the prior judge, the caution might be found free, otherwise to stand. In this process, it was also questioned, if the pursuer's claim should be sustained in that part, where it bore the quantity of the clothes put in the foresaid locked chest, was offered to be liquidate by the pursuer's own oath, as the pursuer alleged was admissible in law, Titulo Nautæ, Caupones, Stabularii, &c. But this was referred to be considered in the end of the process, after the pursuer had deduced all his other probation, upon the receipt of the trunk, to which time the Lords superceded to give answer as to that part.
Act. Advocatus & Stuart.Alt. Nicolson& Mowat.Clerk, Hay.
Durie, p. 821.
