Cautioners who have not the benefit of Discussion.
John Balfour, Skipper in Kirkaldy, v. William Hutton, Tenant in Kilgraston
Date: 11 February 1708 Case No. No 40.
A cautioner in an indenture found not to have beneficium ordinis in a pursuit for the penalty incurred by the apprentice deserting his master's service.
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John Balfour having charged William Hutton, who was cautioner, and took burden on him for James Menzies, apprentice to the charger, in his calling of navigation, for payment of the penalty in the indentures, in respect the apprentice had deserted the charger's service, William Hutton suspended upon this reason, That he was but a cautioner, and could not be discussed before the principal.
Answered for the charger; A cautioner in an indenture, taking burden upon him for the apprentice's dutiful behaviour, was never allowed to plead beneficium ordinis in the point of discussing; for apprentices being ordinarily minors, their obligement is principally relied upon; which would subsist though the principal's obligement should fall, upon the account of some special privilege.
Replied for the suspender; There may be many defences competent to the principal, which cannot fall under the cautioner's knowledge; upon which account the benefit of discussion was never denied to cautioners taking burden upon them for others, who stand bound ad factum præstandum.
The Lords found, That the cautioner in the indentures had not beneficium ordinis, but might be insisted against without discussing the apprentice.
