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Scottish Court of Session Decisions >>
Mary Collins v Lord Boyd. [1759] Mor 4648 (6 February 1759)
URL: http://www.bailii.org/scot/cases/ScotCS/1759/Mor1104648-010.html Cite as:
[1759] Mor 4648
Can a foreigner be appointed a tutor here. Can a foreigner be received as a cautioner. Who understood to be a foreigner. Can a foreigner be sued in this country.
Mary Collins v. Lord Boyd
Date: 6 February 1759 Case No. No 10.
A person residing without the jurisdiction of the Court, cannot be received as a judicial cautioner.
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In the question betwixt Mary Collins and her trustees against Lord Boyd, 2d July 1755, voce Papist, the Court ordered Lord Boyd to pay the whole sum to the pursuer, on her finding caution, that Janet Boyd, the nun, would never claim her share due by Lord Boyd.
Lord Boyd objected to the cautioner, That he did not live within the jurisdiction of the Court; and that as this was a judicial act or obligation, the cautionry being ordered by the Court, no cautioner could be received who was not amenable to it.
Answered, This is not a cautio judicio sisti et judicatum solvi. It is not properly a judicial act or obligation. It is a common cautionary obligation, that a person living in a convent shall not claim her share of the money due by Lord Boyd; and therefore any responsible person may be received as cautioner, whether amenable to this Court or not.
‘The Lords refused to accept of a cautioner residing out of the kingdom.’ This question was advised upon a report, without any pleading, or any papers given into Court upon it.
For Lord Boyd, Lockhart.
Fol. Dic. v. 3. p. 231. Fac. Col. No 161. p. 288.
