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Scottish Court of Session Decisions >>
Edward Pearson v James Maxwell. [1716] Mor 4642 (6 January 1716)
URL: http://www.bailii.org/scot/cases/ScotCS/1716/Mor1104642-003.html Cite as:
[1716] Mor 4642
What Caution exigible from Foreigners in law suits. - How far their Attornies liable for them.
Edward Pearson v. James Maxwell
Date: 6 January 1716 Case No. No 3.
A foreigner being arrested in jail on a caption, offered a bill of suspension on sufficient caution, which was passed, and thereafter offered a new bill on juratory caution. The Lords allowed the suspension to be expede on sufficient caution only.
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Mr Edward Pearson being arrested in the tolbooth of Edinburgh, on a caption raised upon an accepted bill of exchange, he offered a bill of suspension on sufficient caution, which was passed; but thereafter offered a new bill upon juratory caution, and with it a petition to the Lords, desiring the reasons to be reconsidered, whereof the chief reason was, that he was imprisoned by the Government upon suspicion of disaffection; and having cleared himself of that suspicion, he could not be detained by virtue of any arrestment upon a caption for civil debt, but ought, ante omnia, to be put into the same state of liberty he was in when seized by the Government; and this was the ordinary practice of the Privy Council of Scotland, who never suffered any prisoner of State to be detained for civil debt; which was more necessary in the petitioner's case, because he was a stranger, having his residence in Ireland, and in no condition or capacity to find caution in Scotland; and therefore his suspension ought to be passed on such caution as he can find.
It was answered, There is no need in this case to consider the general point, how far a prisoner of State may be arrested for civil debt; because the defender is in a special case, in as far as being a stranger having no estate or residence in Scotland, and yet having accepted a bill, payable at Dumfries in Scotland, if he be set at liberty without sufficient caution, the sum would be lost to the charger; and albeit, by the common course of diligence, parties are at liberty till caption be raised on bonds, bills, or decreets, yet in special cases, where parties are lurking, or are strangers, the Lords are sometimes in use to give warrant to secure such parties, for preserving the just interest of lawful creditors, unless they find caution judicatum solvi. And no case can be found more favourable than this, the bill being accepted payable in Scotland, and the party a stranger, ready to withdraw his person long after the term of payment of the bill, and ultimate diligence upon it.
‘The Lords adhered to their former interlocutor allowing suspension to be expede on sufficient caution only.’
