Subject_1 CAUTIO JUDICIO SISTI, ET JUDICATUM SOLVI.
Charles and James Brown and Company, v. William Wilson
Date: 24 June 1790 Case No. No 17.
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.
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Messrs Brown and Company having arrested a debtor of theirs, as being in meditation fugæ, Wilson became bound as cautioner for him in the usual form, “that he should appear personally before any competent court in Scotland, and answer to any action which might be tabled against him at the instance of Charles and James Brown and Company, touching the debts specified in the warrant of arrestment, at any time within six months after the date of the bail-bond, when lawfully summoned for this effect, and that he should attend all the diets of the Court touching said action.”
The date of this cautionary obligation was 20th November 1788. On 27th November, the debtor was personally cited before the Magistrates of Dumfries; and on 29th November decree in absence was pronounced, which the pursuers, on account of the defender's bankruptcy, were authorised to extract without waiting the ordinary induciæ. To these proceedings the cautioner was not made a party; nor was the decree ever extracted by the pursuers.
The debtor remained in Scotland till 12th January 1789. On 24th February 1789, after he had left the country, a new action was brought against him and his cautioner in the Sheriff-court of Dumfries. The Sheriff having found the cautioner liable, a bill of advocation was preferred; when, in support of the judgment, Messrs Brown and Company
Pleaded: The purpose of a meditatio fugæ warrant, is to oblige the party to remain within the jurisdiction of the courts in Scotland, not only till the claims against him are constituted by a decree, but also till an opportunity is given of compelling payment by imprisonment in the ordinary course of law. The obligation of the cautioner, who interposes to prevent the immediate execution of the warrant, ought therefore to be so explained as to insure the accomplishment of this purpose. Hence, if before extracting the decree the debtor shall escape from Scotland, the cautioner must be liable for the debt. Accordingly it seems to have so been found, 15th December 1774, Telfer contra Muir, No 15. p. 2054.
It is of no consequence, that in the present case a decree in absence had been obtained, without making the cautioner a party to the action, and without requiring him to produce the person of the defender. It is in the power of a pursuer at any time to desert the action which he has commenced; and as the latter process, as well as the former, was instituted before the lapse of the six months from the date of the bail-bond, the cautioner has no reason to complain. Indeed, although no second action had been brought, the situation of the parties would have been the same. A decree in absence, as it has not the effect of foreclosing the defender or his cautioner, ought not to introduce any forfeiture of the pursuer's right. And the determination of the case must be the same, as if, before pronouncing any sentence, the cautioner had been required to fulfil his obligation; Erskine, b. 1. tit. 2. § 21.; Stair, b. 4, tit. 47. § 23.
Answered: The origin of meditatio fugæ warrants in Scotland, is to be found in the Roman law, by which the defender in any action might be required to find security judicio sisti. Hence, till judgment is given, the cautioner is obliged, when required, to produce the person of the defender. But after this period, although, on a new application, the judge will authorise a second arrest until a proper warrant of imprisonment can be obtained in the ordinary way, the cautioner is necessarily released from his obligation. The universal practice accordingly is, that the pursuer, before any definitive judgment is given, requires the cautioner to fulfil his engagement. Otherwise the obligation of the cautioner must be supposed to subsist during the course of the long prescription.
In the present case, after decree had been pronounced in the action originally brought, the obligation of the cautioner was at an end; nor could it be revived by the unwarranted measure of bringing a new action, which was calculated for no other purpose than to subject the cautioner, after the debtor himself had been allowed to elope; Voet. ad lib. 2. tit. 8. Dig. § 11.; Sir James Cockburn contra Inglis, 1776.
The Lord Ordinary, ‘advocated the cause, and assoilzied the cautioner;’ but after advising a representation, with answers, he took the cause to report.
The opinion of the Court was, that by the mere act of obtaining judgment, without requiring the cautioner to produce the body of the defender, the security of the creditor was not entirely at an end, but that such a requisition might be made at any time before the elapsing of the period allowed for extracting the decreet.
The Lords adhered to the judgment which had been pronounced by the Lord Ordinary.
Reporter, Lord Dreghorn.Act. Cathcart.Alt. W. Robertson.Clerk, Mitchelson.
Fol. Dic. v. 3. p. 115. Fac. Col. No 142. p. 282.
