When the principal is abroad, and cautioner in the kingdom, it is not necessary first to discuss the principal.
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Adam Fisher, when at New York, having commissioned a quantity of broad cloths from John and Robert Elams of Leeds; and they having informed his father, James Fisher of Inveraray, thereof; James, in answer to their letter, wrote them, “That he would stand good for the price, upon twelve months credit from the time of shipping the goods, in case his son failed in his circumstances.”
Upon this letter, Messrs Elams furnished the goods, which arrived at New York.
When the price of the goods fell due, which was in a year, Messrs Elams wrote several letters to Adam Fisher for payment; but had no answer. When they inquired for his funds in Britain, they found he had none there; and there appeared on record some arrestments and hornings against him, subsequent to the furnishing. Upon this they brought a suit against Adam on the furnishing, and against James on the above letter; in which decreet went in absence against Adam.
But James's defence was, That though Adam had no effects in Britain, it was incumbent on Messrs Elams to pursue Adam in America; and until they showed, that they could not recover payment from him there, they could not come upon James.
Answered, Where a creditor has a cautioner for his debt in Britain, there is no necessity for him to discuss the principal debtor, except in Britain.
‘The Lords found James Fisher liable for the debt.’
Act. J. Dalrymple.Alt. Alex. Hay, Montgomery.
Fol. Dic. v. 3. p. 117. Fac. Col. No 64 p. 110.
