Subject_1 CAUTIO JUDICIO SISTI, ET JUDICATUM SOLVI.
Goevy and Duperrow v. Elphingston
Date: 18 February 1696 Case No. No 6.
In an action for repetition of the cargo of a vessel, which had been condemned by the Admiral, but the decree reduced, the defender, though no stranger, was decerned to find caution judicatum solvi, according to the custom of the Admiral-court.
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The reduction pursued by Arent Goevy and Jean Duperrow, Dutchmen, against Elphingston of Lopness, of a decreet of adjudication of their ship, as Admiral of Orkney, was advised; and the Lords found the depositions of the crew and company not probative, in regard they were neither subscribed by the judge, nor the sworn interpreter; who, upon re-examination, confessed, that many things were otherwise insert in their oaths, than they had expressed the same; and though these formalities had not been omitted, yet their depositions could not amount to declare the ship a prize; for all they said was, they heard a rumour, ere they came from Amsterdam, that the ship was going to France; whereas others deponed they were bound to Lisbon, which agreed with their passes. The strangers insisting, now after reduction, in their action of repetition; Lopness's procurators denied the value of the ship and goods; and insisted on their decreet at least as a libel, and offered yet to prove the ship was going to an unlawful port. And the Hollanders producing the invoice to instruct the worth of the cargo, and craving he might now find caution judicatum solvi, conform to the custom of the Admiral-court, or else be decerned to restore: It was replied, 1mo, That caution was only exacted from strangers: 2do, The pursuers ought first to give their oaths of calumny on the value, else they might libel such a vast sum for damages as might deter any from becoming caution for him. The Lords, considering the strangers were gone home, and so could not presently give their oaths, and that it was only sought to stop restitution, they decerned, unless Lopness should find caution for what should be decerned, betwixt and the 25th of this month, in which case they would assign the strangers the 1st of June to prove their damages, by seizure of their ship and goods.
Fol. Dic. v. 1. p. 121. Fountainhall, v. 1. p. 711.
