Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Park v. Storie
Date: 6 January 1680
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One is cautioner for another judicio sisti et judicatum solvi; whereupon being pursued, pendente lite the principal party dies, and there is a transferring of the state of the process raised against his heir. The cautioner compears, and Alleges he ought to be freed, because his obligement was personal, and died with the principal party. And the meaning of his accessory obligation is only this, If you had obtained sentence against him in his lifetime, then I was to be liable for it. And where one is cautioner in a suspension, if the decreet be turned into a libel, then the cautioner is free. Stair, tit. 10.
Though this allegeance seemed unreasonable to some, yet, it being reported, on the 20th January 1680, the Lords found a cautioner judicio sisti et judicaturn solvi, liberated, in respect the principal debtor died pendente lite, though after litiscontestation; and though the cautioner had delayed its coming to a sentence by advocating the cause.
This seems agreeable to the Roman law, De Fidejussore judicio sisti et judicatum solvi; see Bartholus and Broderodii de Repertor. item Accurs. Glossar.
