Premonition and consignation made on a Sunday, sustained.
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In a redemption L. Newark against his son, the Lords sustained the order of redemption, albeit it was quarrelled by the defender, as not orderly deduced, seeing he alleged, that the time of premonition, the reversion was not showen, nor read to the party premonished, which was repelled, and found not necessory, especially in this case, where the charter given to the defender's brother, of the lands desired to be redeemed from this defender, as apparent heir to him, was given under reversion, and so the reversion was in corpore juris rei, and needed not be shown and read to him; and also the order was sustained, albeit it was alleged, that the same being done upon a Sunday, upon which it was not lawful to execute any such civil acts, it ought therefore to be found null; which allegeance was repelled also, for they would not find the order null therefor, especially where the sum of the reversion was only a rose-noble, and so needed not to distract the parties over long a space in the numeration, and nevertheless thought it expedient, that such acts should not be done on Sunday again; likeas the consignation was made on Sunday, because the premonition was made to that day, the reversion providing that redemption might be made at any time, upon six days warning, and not restricting the order to be mate before any term. See Sunday.
Act. Belshes.Alt.——.Clerk, Gibson.
Fol. Dic. v. 2. p. 323. Durie, p. 377.*** Spottiswood reports this case:
1628. January 26.—The Laird of Newark having disponed certain lands to his son, William Maxwell, under reversion of a rose-noble, after William's death made premonition to Alexander, another of his sons, apparent heir to William, to come to such a place on such a day, conform to the reversion, to receive the rose-noble and to see the lands out-quitted and redeemed. This being drawn before the Lords; alleged, 1mo, against the order, That in the premonition, it was not said” that the reversion was made to Alexander, when he was premonished; 2do, The day assigned to him to come and receive the sum was a Sunday, which was not a legal day for such a fact. The Lords sustained the order, notwithstanding of both the allegeances, because there was no necessity of the first; and for the last, the sum contained in the reversion was not great, which needeth much telling, being only a rose-noble.
Spottiswood, (Redemption.) p. 264.*** Auchinleck also reports this case:
1628. June 26.—It was excepted against a declarator of redemption, that the reversion was not produceds the time of the premontion; 2do, The premontion being upon eight days, conform to the condition of the reversion, which eight days fell to be upon a Sunday, upon which it was not lawful to make any redemption. The Lords repelled both the allegeances.
1629. January 16.—The Laird of Newark pursues a declarator of redemption against the apparent heir of his umquhile son, William Maxwell, to, whom he had disponed certain lands under redemption, Certain, of umquhile William's Creditors compeared to stay the declarator, and alleged, That the father had given a posterior infeftment to his umquhile son, of the said lands, irredeemable, which was relevant and equivalent to a discharge of the reversion. To which it was answered, That the pursuer sought only a declarator conform to the reversion of the first charter, without prejudice to the creditor, to make the advantage of the posterior infeftment, if any be. The Lords decerned the redemption of the infeftment, with the declarator aforesaid.
1629. March 19.—In the same action of declarator of redemption, it was alleged by the Creditors, That Newark could not have a declarator of redemption, because they offered them to prove, that the reversion was discharged. It was replied, That the defender's creditors ought to condescend in whose favours the same was discharged. The Lords found it relevant to allege that it was discharged simply.
1635. February 21.—A reversion is not needful to be produced the time of redemption, while the reversion is contained in a mutual contract, in the defender's hands.
Auchinleck, MS. p. 181. 182. & 183.*** Kerse also reports this case:
1628. February 7.—Found that a procuratory for resignation, which infers a clause irritant of the tining of the reversion, might be read the time of the requisition, the place designed, and the party present to attend and verify at the place.
