Scottish Court of Session Decisions

Subject_1 DISCUSSION.
Subject_2 DIVISION II.

Discussion of Principal Debtors and Cautioners.
Subject_3 SECT. II.

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.

Fol. Dic. v. 1. p. 248. Forbes, p. 678.