Subject_1 CAUTIO JUDICIO SISTI, ET JUDICATUM SOLVI.
Lord Ross v. Houston
Date: 15 February 1710 Case No. No 7.
An Admiral's decree being suspended and turned into a libel, the defender was not obliged to find caution in initio litis, judicio sisti et judicatum solvi, as is done before the Admiral.
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The deceased Patrick Houston, brother to Sir John, being employed as supercargo in a ship wherein my Lord Ross had a share, he is pursued before the High Court of Admiralty, to count for the profit of the voyages he made to Lisbon and elsewhere, and a decreet is obtained against him for not finding caution judicio sisti et judicatum solvi, conform to the practice of that Court; and he dying shortly after, my Lord pursues George Houston, his son, for paying the sum decerned, on the passive titles; and he having raised a reduction of the Admiral's decreet on this ground, that the signature for the interlocutor was not signed by the Judge contra the act of Parl. 1686, c. 3. the Lords turned the Admiral's decreet into a libel; and my Lord insisting against him, contended he could not be heard to propone any defence against his libel till first he found caution judicatum solvi, according to the form of the Admiral-court. Answered, This process is against him, as representing his father, and whatever might have been required of him if alive, the same cannot militate against the defender. Yea, though his father was living, and had suspended the decreet, and the Lords had turned it to a libel (as they have now done) the caution would have fallen, and be liberate, as it was in suspensions before the act of sederunt made this Session; and the process being now lifted from the Admiral to the Lords, its nature is so far transmuted, that it must be ruled by the forms used before the act of sederunt made this Session, and not by the Admiral's custom. Besides the design of that caution is, that most of the defender's in the Court of Admiralty are either strangers, or sea-faring men, oft called abroad, so it was fit to cause them fix a domicil and secure the pursuer; but Mr Houston, the defender, is not in these circumstances, but is both law biding and solvent, Replied, The pursuer can be in no worse case than if the process were yet depending before the Admiral, and the change of the Court cannot alter the privilege which goes alongst with the cause through the second instance as well as the first. And it is a case purely maritime, and therefore ought either to be remitted back to the Admiral, conform to the 16th act 1681, or enjoy the privilege; and Duvie has remarked a case near approaching to this, 16th November 1636, Stuart contra Gedd, No 3. p. 2033. where the Lords took the declaration and opinion of Mr James Robertson, Admiral-depute, on this point. The Lords, by a plurality of six against five, found he was not obliged to find caution before the Session, as they do before the Admiral.
Fol. Dic. v. 1. p. 121. Fountainhall, v. 2. p. 568.*** Forbes reports the same case:
In the cause at the instance of the Lord Ross against George Houstoun, as representing his father, for payment of his proportion of fraughts, and profits of a ship and cargo, intromitted with and disposed of by him while employed as supercargo by the pursuer and others; contained in a decreet in absence, obtained by them against him before the Court of Admiralty, for not finding caution judicio sisti et judicatum solvi: The Lords, July 15. 1708, having reponed the defender against the decreet, because the warrant thereof was not subscribed by the Judge; he thereafter craved to be assoilzied from the process, in respect the pursuers did not insist.
Alleged for the pursuers: Before they insist, the defender ought to find caution judicio sisti et judicatum solvi; as if the process were depending before the Admiral-court.
Replied for the defender: There is no shadow of pretence for his finding caution judicio sisti et judicatum solvi as the process stands; seeing albeit such caution is introduced by custom before the Admiralty, for that matters there tabled do mostly concern strangers and sea-faring men, whose residence is uncertain: Yet where the Admiral's decreet and procedure is overturned, and the libel de novo insisted in before the Lords, not against Patrick Houstoun himself as supercargo, but against his heir, upon the passive titles, who is not a stranger, or person of uncertain fortune or residence; there is no law nor precedent for obliging him to find caution. And suppose caution had been found before the Admiral, it would have fallen after his decreet was turned into a libel.
Duplied for the pursuers: The son, against whom the original process against the father is continued, ought to be liable to the same things that might have been required from his father. Turning the decreet into a libel alters not the case; seeing the pursuer is allowed to proceed upon the libel as first raised before the Admiralty, and therefore may do it with the Admiral's privilege. And it is a mistake to think, That by an Admiral's decreet being turned into a libel, the cautioner therein judicio sisti et judicatum solvi would be assoilzied: For he is not like the cautioner in a suspension of a decreet, who is only bound in case the letters be found orderly proceeded, but is liable even to the event of a reduction of suspension before the Lords; being obliged for whatever shall be decerned upon such a libel. Again, it is all a matter, whether the parties be strangers or not, where the cause is maritime; seeing the act 16. Parl. 1681, obligeth all parties without distinction before the Admiralty, to enact themselves and find caution, both for compearance and performance. And if the defender should be exempted from finding caution in this cause, he who is pursued in any maritime cause before the Admiralty, has no more to do but suffer a decreet in absence to pass against him for not finding caution, and then to get himself reponed to his defences by a suspension and reduction; whereby the privileges allowed by the act 1681 to the Judge of Admiralty for obliging defenders in causes before him to find caution, would be altogether evacuated, and rendered elusory.
Triplied for the defender: It is true indeed that parties are often under necessity to let Admiral decreets pass against them, and betake themselves to the legal remedy of suspension and reduction; there being nothing more ordinary before the Admiral-court, than for pursuers to libel extravagant sums designedly to incapacitate the defender to find caution, and so to overtake him by a decreet in absence for not finding caution, which passeth of course.
The Lords found, That the defender is not bound to find caution judicio sisti et judicatum solvi in the process as now stated before the Lords.
