Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.
Subject_2 KILKERRAN.

John Herries
v.
Thomas and John Lidderdale and Thomas Carlisle

Date: 7 March 1755

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This case is reported by Lord Karnes, (Sel. Dec. No. 86. Mor. 2046.) and in Fac. Coll. (Mor. 2044.)

Lord Kilkerran's note of what passed on the Bench is as follows:—

“On advising this complaint, with the answers, it was agreed, that whatever was competent in the case of a foreigner's coming into this country, for his creditors to do, was in this case competent, as the debtor in this case had his fixed residence in a foreign country. And then the question was, Whether a foreigner could be arrested till he found caution, judicio sisti et judication solvit?

And that he could not be obliged to find caution judicatum solvi was given up, as that is in no case allowed but in the Admiralty, and that in causes properly maritime.

And as to the caution judicio sisti, the question turned upon this, whether as arresta jurisdictionis fundand gratiaœ were allowed in this country, of effects, it was also competent to arrest the person, which some thought to be competent in no case but where there was a meditatio fugœ. But on the other hand, it being observed, that even the arrestment of effects was, for the first time known in Scotland, in the case of Captain Hamilton and the East India Company, from the example of other nations, there was thought more reason (from the example of other nations) to extend it to the arrestment of the person ; and accordingly, the Lords ordain the Magistrates not to dismiss the prisoner, unless he found caution judicio sisti in any process to be brought in the space of six months.”