Scottish Court of Session Decisions

Subject_1 CAUTIO JUDICIO SISTI, ET JUDICATUM SOLVI.

John Rowand Senior, Merchant in Glasgow,
v.
John Freeman and Company, Merchants in Bristol

Date: 9 January 1755
Case No. No 10.

Caution judicio sisti et judicatum solvi, can be exacted before the Admiral-court, only in maritime causes.

Click here to view a pdf copy of this documet : PDF Copy

In November 1753, John Rowand wrote to John Freeman and Company, in these words:

“Inclosed you have invoice of sundry goods; which please ship on my account and Company, addressed to Rowand, Wells, and Rowand, merchants in Charlestown, South Carolina.”

The good were accordingly shiped; and Freeman and Company brought a process against John Rowand, before the High Court of Admiralty, for payment of the price.

John Rowand pleaded compensation upon the price of certain goods which he had sent to the pursuers: They contended he could not propone any defences till he found caution judicio sisti et judicatum solvi: The Judge-Admiral ordained him to find such caution; which he having failed to do, decreet went against him for the sums libelled.

John Rowand applied to the Court of Session for a suspension of this decreet; and pleaded, That the extraordinary powers of the Judge-Admiral, whereby he obliged parties to find caution judicio sisti et judicatum solvi, could only be exercised in maritime causes, were the Admiral has an exclusive jurisdiction in the first instance; but where he has only a cumulative jurisdiction, as in mercantile causes, he cannot exerce any such extraordinary powers: For it would be unreasonable, that the pursuer, by chusing to bring his action before that court, should put the defender to greater hardships, than if the action had been commenced before the Judge-Ordinary or Court of Session. And he contended, That this cause was not maritime, but only mercantile; seeing the essence of the bargain or contract did not consist in any thing to be done at sea or on shipboard, but consisted in the delivery of goods, for the price of which the suspender might have been pursued before the Judge-Ordinary or the Court of Session.

Answered for John Freeman and Company: That the Judge-Admiral may, in all causes which come before him, oblige parties to find caution judicio sisti et judicatum solvi; for he is entitled to observe the particular forms and privileges of his own Court in all causes. And,

2dly, The present case is properly maritime; for the bargain behoved to be implemented by delivery of the goods on ship board, before the suspender was liable to pay the price; and whatever is contracted to be performed at sea, or within the limits of the shore, can be judged of in the first instance by the Admiral alone.

Observed on the Bench: That it is the practice of the Admiral-court to grant orders, of course, in all cases, to find caution judicio sisti et judicatum solvi; But, upon the defender's representing to the Judge, that the cause is not mari time, such order is in use to be recalled.

2dly, That this cause was not maritime; for though the goods were to be sent by sea to Carolina, yet the bargain had no connection with the sea, no more than if the goods had been to be sent to the suspender at Glasgow; in which case the sending them by land or water would have made no difference on the nature of the action, which the chargers would have had against the suspender.

‘The Lords passed the bill without caution.’ See Jurisdiction, Admiral.

For the Suspender, Lockhart. For the Chargers, Ferguson et Johnstone. Fol. Dic. 3. p. 113. Fac. Col. No 123. p. 182.