Found in conformity with M'Math against Monteith, No 2. p. 9449.
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Cunningham of Barns being cautioner in a suspension for John Wilkie and others, wherein a decreet was obtained, but again suspended by Wilkie and Barns; in which suspension, Hog and Bigger of Wolmet were cautioners; the creditor in the bond assigned the same against the principal and cautioners therein, and against the cautioners in the second suspension, but not against Barns, the cautioner in the first suspension, whom he discharged. The assignee having pursued Hog, who alleged, That he being cautioner for Barns, who was a suspender, and principal quoad him, and Barns being discharged, he must be free also;
Answered for the pursuer; The discharge given to Barns was without an onerous cause, and but pactum de non petendo, which cannot profit the defender.
The Lords found the answer relevant.
Fol. Dic. v. 2. p. 18. Harcarse, (Cautioners.) No 244. p. 58.
