Penalty modified against a cautioner in a bond to the ordinary annualrent of the sum, the bond bearing no annualrent.
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Mr George Semple having charged Bryce Semple as cautioner to pay a sum contained in a bond made to Mr George for the penalty, the letters were found orderly proceeded for the principal sum of 500 merks. The question being for the penalty, I proponed, that albeit the cautioner was bound conjunctly and severally, yet it was notour by the bond that the debt was not his, and the cautioner so long as he was not charged, had probable opinion that the principal had been paid; and finding the contractor by the charge, did his duty by offer and consignation of the principal. But, it being known by the process, that Bryce had known that the principal was not paid, because he had paid two years annual for continuation; albeit, the bond contained no annual, the Lords found the letters orderly proceeded for so much of the penalty as answered to the annual unpaid.
