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Scottish Court of Session Decisions >>
Hodge v Story. [1680] Mor 2034 (20 January 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor0502034-005.html Cite as:
[1680] Mor 2034
Subject_1 CAUTIO JUDICIO SISTI, ET JUDICATUM SOLVI.
Hodge v. Story
Date: 20 January 1680 Case No. No 5.
A defender, who had found caution judicatum solvi, dying before sentence, it was found, that the cautioner was not bound for what might be decerned against the defunct's representatives. See No 8. p. 2038.
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David Hodge having pursued John Finlay, master of the Margaret of Leith, for an account of a loading of coals, before the Admiral, who to evite prison, according to the custom of the Admiral, who secures parties persons, unless they find caution judicio sisti & judicatum solvi, the said John Finlay found Gilbert Story caution; but, before sentence was pronounced in the cause, Finlay died; whereupon Hodge obtained a decreet of transference before the Lords against the representatives of Finlay, and Story as cautioner for umquhile John Finlay. It was alleged for the cautioner, that his bond judicatum solvi being granted for the deceast John Finlay, he could never be decerned, being dead before sentence; and albeit the action may be transferred against the defunct's representatives, yet it can have no effect against the defunct's cautioner judicatum solvi, he not being obliged for what should be decerned against the defunct's heirs, but against the defunct personally; and bonds of caution in suspensions were ever so interpreted, that if the suspender were not decerned in his own life, the cautioner was free, until, by an act of sederunt, it was changed for the future. It was answered, Hæres & defunctus sunt eadem persona in jure, and what is decerned against the defunct's heir, is alike as against himself.
The Lords found that the obligement judicatum solvi could not extend to what might be decerned against the defunct's representatives, but only against himself.
