Cautioners who have not the benefit of Discussion.
Alexander Montgomery of Kirktonholm, v. Ensign William Brown
Date: 18 June 1713 Case No. No 41.
Found in conformity with Dunbar against Lord Dundee, No 38. p. 3584.
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In a process at the instance of Alexander Montgomery against Ensign William Brown, for payment of 1000 merks, contained in a bond granted to the pursuer, by the deceased Alexander Moodie as principal, and Adam Brown, late Provost of Edinburgh, as cautioner; The Lords sustained process against the defender, as representing the said Adam Brown his father, without necessity to discuss previously the principal debtor; albeit Adam Brown the cautioner was not bound conjunctly and severally with the principal; in respect he was bound as full debtor with and for him, and the principal died insolvent; now the benefit of discussion is not competent to a cautioner, but where the creditor may have paratam executionem against the principal debtor; and by the Novel. 4. c. 1. the privilege of discussion is not necessary, in case of the principal debtor's absence or insolvency.
