An Englishman being apprehended on a summary warrant for a debt; liberation was refused till he found caution judicio sisti, although the warrant was granted by an inferior judge.
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George Ayrie merchant in Newcastle, being debtor by bills to John Chatto in Kelso, and there being mutual processes betwixt them, and Chatto dying, his heirs procure a warrant from the Sheriff of Teviotdale and Bailie of Kelso, to arrest the said Ayrie; whereupon he is imprisoned, and gives in a bill of suspension, craving to be set at liberty as unwarrantably incarcerated, 1mo, That there was no law for summar attachment at the instance of creditors, much less of their executors and representatives; and whatever the Lords of Session or Privy Coucil have done in extraordinary cases, when the parties were in meditatione fugæ, as in Mason's case, 30th November 1665, voce Meditatione Fugæ; yet inferior judges never attempted it; and by the 8th act 1672, it is only allowed to burgesses for payment of meat and drink, and other such accounts. 2do, That this was done lite pendente, after litiscontestation in the cause, contrary to the common law, that, during the dependence, nibil est innovandum.—Answered, That by the English law any man may be arrested on a claim for debt; only, if it was found malicious, he had his expenses for the wrongous imprisonment; and that it was the constant custom of the Borderers to seize upon one another, there being no way to reach their effects; and which custom was sustained by the Lords on the 13th of January 1676, Bell contra Robertson, No 41. p. 4827.; and the-act of Parliament 1672, expressly relates to the subjects of this kingdom, and not to strangers. And it does not alter the case, at whatever step of the process the attachment be made, especially where Ayrie was not personally present at the beginning, but only appeared by his procurator; and there was no more required but that he should find caution judicio sisti et judicatum solvi, upon which he was to be liberated; and this was daily exacted from Scotsmen deprehended in the English borders; and therefore retorsione juris iniqui (if it were so) eodem jure uti debent.——The Lords thought it inconvenient to alter such a general custom; and therefore refused to set him at liberty, unless he found caution judicio sisti, &c.; but judged it likewise equitable, that the pursuers should also find caution to him in case they succumbed, to refund his damage and loss by the wrongous imprisonment.
Fol. Dic. v. 1. p. 328. Fountainball, v. 2. p. 108.
