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In an order of redemption, the defender quarrelling the instrument of consignation, because it bore not, That the money was numbered and told before it was consigned, as all such instruments bear; and therefore alleged, That the order ought not to be sustained, seeing redemptions are strictissimi juris; the Lords repelled the allegeance, because the instrument bore, That the redeemer made offer of all and whole that sum contained in the reversion, viz. and that he consigned the same; which words (of all and whole) the Lords found supplied the not numeration, and for want of the other words, they would not cast the order.
Alt. Belshes.Clerk, Hay.
Durie, p. 503.*** Spottiswood reports this case:
In an order of redemption used by N. Grierson against John Gordon, the instrument bore, That Grierson compearing in the place appointed in the reversion, produced a bag, wherein was contained the whole sum of 400 merks (whereupon the lands were redeemable) and did really offer the same to Gordon; alleged against the order, that it was null, because it bore not that the money was told, which should have been done, all reversions being stricti juris. The Lords sustained the order, and found it not necessary to prove the real numeration by witnesses; though some of their number were of that opinion.
Spottiswood, p. 265.*** A subsequent part of this case is reported by Auchinleck.
1630. January 21.—After declarator of redemption, because the money was consigned in a gentleman's hands the time of redemption, and lying unuplifted by the consigner, as was alleged, by the space of ten years, the Lords ordained the consigner to deliver to the defender the money; and upon his supplication, letters were granted to the consigner to charge the person in whose hands the money was consigned, to make payment of the money, with certification other letters of horning should be directed to denounce him; and in respect of the first letters being granted of good judgment, that likewise the other letters should be granted; but it was thought, by many of the Lords, hard to have granted the first letters, except the same had been pursued by way of action, seeing the consigner had no other ground of his first charge but the instrument of consignation, which could hardly bind the parties in whose hands the money was alleged to have been consigned, being but the assertion of a notary.
Auchinleck, MS. p. 180.
*** Durie's report of this part of the case is No 49. p. 10117. voce Periculum.
