In order to free the cautioner, he must present the debtor in terms of the bond, and take instruments.
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On a petition given in by Alexander Pitblado writer, against Isobel Mayne in Dumfermline, it fell to be argued, where a prisoner in the messenger's hands grants a bond of presentation, with a cautioner, to sist himself such a day, or else pay the debt; if it be sufficient to exoner the cautioner, to allege that none for the creditor or messenger appeared at the diet prefixed, to accept or require the prisoner, and to take instruments on his absence or not compearance; or if it be incumbent on the debtor to attend at the time limited in the bond of presentation, and to enter his protest on his readiness to deliver himself to the messenger and his employers, and take instruments in their absence, and so protest that the cautioner must be free of his bond——The Lords found, though the messenger did not attend, yet that did not excuse the other party's absence; but the cautioner, for his liberation, ought to present him at the place and time appointed, and take instruments if there be none to receive him; even as it would be no excuse to say in an order of redemption, I needed not come and offer the money, because I can prove you, nor none for you, were present to have received it, though I had come; for it was your duty to have attended, and you could not divine whether the other party would come or not.
Fol Dic. v. 1. p. 114. Fountainhall, v. 1. p. 680.
