A cautioner, in loosing arrestment, has not the benefit of discussion.
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It was pleaded for a cautioner in the loosing of an arrestment, That cautioners, by the law of Scotland, have the benefit of discussion, as well as by the Roman law; and that a cautioner, in loosing of arrestment, is entitled to this privilege by the very conception of his bond; for he only becomes bound for the common debtor, that his goods arrested shall be made furthcoming. On the other hand, it was urged, That caution in loosing of arrestment comes in place of the arrestment; and therefore that the cautioner must be liable in the same manner as the arrestee would be upon a decree of furthcoming recovered against him.
‘Found, That a cautioner, in loosing an arrestment, has not the benefit of discussion.’
Fol. Dic. v. 3. p. 116. Rem. Dec. v. 2. No 49. p. 77.
