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M'Millan v Hamilton of Oliverstob. [1729] Mor 3390 (21 January 1729)
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[1729] Mor 3390
Subject_1 DEBTOR AND CREDITOR. Subject_2 SECT. III.
A Creditor receiving payment from a Cautioner, must assign every separate security for the debt. By passing from his separate security he liberates the Cautioner.
M'Millan v. Hamilton of Oliverstob
Date: 21 January 1729 Case No. No 39.
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A creditor having apprehended the principal debtor upon a caption, and kept him some days in the messenger's hands, and thereafter set him at liberty; this was not found sufficient to liberate the cautioner. It was yielded that a creditor can pass from no consummate diligence or security to disappoint the cautioner's relief, but he may begin, without being obliged to finish any diligence: Thus, though he may take out a horning, he is not bound to charge or denounce, or take out a caption, or put that caption in execution; and if there were not a discretionary power left to the creditor, it would tie the occasion of most unmerciful distress; neither is there any thing more usual than for the creditor to stop when the messenger has touched the party, and to take a bond of presentation, or such other security as he can obtain. See Appendix.
Fol. Dic. v. 1. p. 226.
*** The like was decided in a case, Grahams against Little, 16th July 1730. See Appendix.
