Cautioners who have not the benefit of Discussion.
Dickie v. Thomson and Lang
1743.
December. Case No. No 42.
Cautioner in loosing an arrestment, has not the benefit of dicussion.
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Pleaded for a cautioner in the loosing of an arrestment, that cautioners by our law, as well as the Roman, have the benefit of discussion; and that a cautioner, in loosing an arrestment, is entitled to that 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.—Answered, Caution in loosing an arrestment comes in place of the arrestment; and therefore the cautioner must be liable in the same manner as the arrestee would be, upon a decree of furthcoming recovered against him.——The Lords found, That the cautioner in loosing an arrestment had not the benefit of discussion.
