Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Lord John Hamilton v. Sir Hugh Campbell of Calder, &c
Date: 23 June 1694
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The Lords having rejected an article of 5600 merks, alleged paid by Calder, as cautioner, in regard it was instructed that the principal tacksman had paid it before; and he being only a cautioner, should have known that, and not have paid till he had informed himself, or got an incident diligence for proving it; and the principal was not obliged to intimate his having made payment to him: a bill was given in against this interlocutor, by Calder; and, founding upon the common law, l. 42. D. de R. J. that fidejussores eorumque hœredes justam ignorantiam allegare possunt; and l. 29. D. mandati is positive that the debtor ought to have acquainted his cautioner that he had paid, that he might not be ensnared; and Mœvius, Decis. Lubec. anno 1655, shows it was so decided there.
The Lords adhered; reserving his recourse against Dumfermline, who received twice payment, as accords; seeing the cautioner's second payment could not be said to be bona fide made.
