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Decree being given against a messenger and his cautioner for payment of a debt in a diligence which the former had repeatedly delayed to execute, notwithstanding of peremptory orders from his employer, it was urged in a suspension for the cautioner, that the creditor could qualify no damage, as the debtor remained still solvent. Answered, There is no necessity to qualify actual damage, it is enough that the messenger has not done his duty, which, if he had done, the debt, in all probability would have been paid. Another reason of suspension was, that the diligence was in the name of a company which was dissolved before it was issued, therefore there was no proper warrant. Answered, This is a matter that does not fall under the cognizance of a messenger, who must execute every diligence that is ex facie formal. The Lords found the letters orderly proceeded on. See Appendix.
