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Henry Allan writer in Edinburgh, was cautioner for James Lord Balmerino, in a considerable sum, which he was obliged to pay, together with the interest due thereon, and with L. 7 of expense of diligence used against him. This payment was made after the principal debtor's death, and after a forfeiture incurred by his brother and heir Arthur Lord Balmerino.
Mr Allan claimed upon the Lord Balmerino's estate. for the sums paid by him.
Answered, His claim can only be sustained for the principal and interest; but with regard to the expenses recovered against him out of the penalty in which he was bound, it is enacted, “that no decree shall be made for any sum or sums on account of penalties, for failure of payment, at the day it became due, or for any other penalty whatsoever.”
Replied, Mr Allan will recover no part of the penalty in his bond of relief; but what he has paid of the penalty of his own bond the Lord Balmerino was bound to relieve him of; and it is no penalty.
