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Scottish Court of Session Decisions >>
James Thomson v Binnie. [1666] Mor 2034 (10 July 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor0502034-004.html Cite as:
[1666] Mor 2034
Subject_1 CAUTIO JUDICIO SISTI, ET JUDICATUM SOLVI.
James Thomson v. Binnie
Date: 10 July 1666 Case No. No 4.
A person became cautioner ‘as law will.’ He was considered to be cautioner judicio sisti, aut(not et) judicatum solvi, and was relieved by putting the debtor in ward.
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There being a decreet obtained against Binnie, his creditors finding him at Linlithgow, secured him, and he found two burgesses, caution as law will, who being convened for payment of the debt, alleged absolvitor, because they were only in common form obliged as cautioners as law will, which doth not import judicio sisti, et judicatum solvi, but judicio sisti, aut judicatum solvi. Ita est, They sisted the party for whom they were cautioners, and put him in the Provost's hands, who put him in ward; and protested to be free, conform to an instrument produced. It was answered, non relevat, because they only sisted him judiei, but not judicio; they ought to have presented him in the Court when that cause was called; and the pursuer was not obliged to know, or take notice, what they did otherways, which might be by way of collusion.
The Lords found the allegeance relevant, for there was no collusion condescended on, providing the defenders prove by the witnesses, insert in the instrument, that it was so acted: For they thought, that if the cautioners put the debtor in ward, at any time during the process, the pursuer was not prejudged; for if he insisted in his process, and upon not presenting of the defender protested, the cautioners would either then allege that he was in prison, or otherways it would import collusion.
