Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CAUTIO JUDICIO SISTI ET JUDICATUM SOLVI.
Subject_3 The security of a cautioner judicio sisti, is not entirely at an end by the obtaining of decree, without requiring the cautioner to produce the person of the debtor. Such requisition may be made at any time before the lapse of the period allowed for extracting decree.

Charles and James Brown and Company
v.
William Wilson

Date: 25 June 1790

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[Dict. 2059.]

Eskgrove. Messrs Brown ought not to have extracted the decree: it was their business to secure the body of the debtor: now an extract put the cause out of Court. They probably expected payment, or a surrender by the debtor; but, finding he had absconded, they brought another action before the Sheriff: it ought to have been brought before the magistrates; but this was within the six months.

Henderland. A caution judicio sisti is, that the debtor shall be presented usque ad sententiam. The next claim ought to have been for caution judicatum solvi.

President. The bail-bond was to present at any time during six months. An action is brought: the action would have continued even during six years: it went on, and a judgment was given. Had the cautioner been called, he must have presented the debtor. Even at the moment of the sentence pronounced, he might have required the cautioner to prolong caution until there was an opportunity of putting the debtor in prison. Instead of that, he hung up his cause, suffered the debtor to escape, and then went into another Court.

Justice-Clerk. Six months do not terminate the action against the cautioner. The bond relates to all the diets of Court. The debtor must be presented whenever the pursuer requires the cautioner so to do. The cautioner, by presenting, is free; but the pursuer ought to have intimated thus, “I am to take decreet; bring the debtor by next Court day.” If action be concluded without the requiring the cautioner to present, the cautioner is free. Were he not free after decreet, he would not be free in less than forty years; which is absurd.

On the 25th June 1790, “The Lords sustained the defences.”

Act. David Cathcart. Alt. Wm. Robertson. Reporter, Dreghorn.

Diss. Eskgrove, Swinton.