After advocation was admitted, the cautioner judicis sisti, having judidicially produced the defender; Found the party might warrantably be imprisoned by the bailies, not withstanding of the advocation.
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The laird of Balnigoun being arrested in Edinburgh, for a debt due to a burgess, Hugh M'Culloch became caution for him in these terms, That he should present him to the diets of process, and should make payment of what should be decerned against him, if he did not produce him, within terms of law, pedentelite. Balnigoun raises advocation, and at the same diet that the advocation was produced judicially before the bailies, Hugh M'Culloch also produced Balnigoun, and protested to be free of his bond as cautioner. The bailies did not incarcerate Balnigoun, but refused to liberate Hugh M'Culloch, till they saw the event of the advocation. The cause being advocate, and decerned against Balnigoun, who succumbed in an allegeance of payment; the pursuer craved sentence against him, and Hugh M'Culloch his cautioner.—It was answered for Hugh M'Culloch, That he was free, because he had fulfilled his bond, in presenting Balnigoun, and protesting to be free, albeit the bailies did not free him, that was their fault.—It was answered, That the advocation being raised, hindered the bailies to incarcerate, because they might not proceed after the advocation; and therefore the cautionry behoved to land, otherwise all acts of caution, to answer as law will, might be so elided.
The Lords found the cautioner free; and found that the bailies, notwithstanding of the advocation, might incarcerate the principal party, unless he had found new caution; for, seeing if he had found no caution, a principio, but had been incarcerate till the cause had been discussed, the advocation would not have liberate him; and whensoever the cautioner produced him judicially, and protested to be free, he was in the same case as if he had been incarcerate, and therefore the bailies might have detained him in prison, not withstanding of the advocation, which did sist the cause.
