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Cautioners for a messenger found subsidiarie liable in solidum, as other cautioners are.
1685. January 15.
Thereafter it was alleged; That the cautioner for a messenger was but liable subsidiarie, after the messenger was sufficiently discussed; and personal discussion, by a registrate horning, was not enough; for, with us, in the case of cautioners, of tutors, executors, factors, &c. who have the beneficium ordinis et discussionis, where the pursuer condescends on a real estate in lands or goods, the principle must be discussed really, by apprising or poinding; December 2. 1662, (see Legal Diligence;) and it is always so decided in the discussing of heirs.
The Lords found, that the defender-cautioner condescending on goods or lands belonging to the messenger, and giving his oath of calumny on the condescendence, the pursuer ought to discuss the same, by poinding or apprising.
Fol. Dic. v. 1. p. 249. Harcarse, (Cautioners) No 242. p. 58.
