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Where the reversion bears the money to be consigned in case of a refusal, in a responsible landed man's hands, and does not contain the name of any special man; when declarator is sought upon consignation, the pursuer of the declarator must produce or pay the consigned money, and must pursue the person for the same, in whose hands it was consigned, and the defender will not be put to pursue the consignatar, because the pursuer or consigner may make choice of the person himself, and he must make it furthcoming.
Fol. Dic. v. 2. p. 59. Auchinleck MS. p. 208.*** Durie reports the same case:
1631. December 7.—In a redemption of lands conform to a reversion, the defender alleging, that no declarator could be granted before the money, whereupon the lands were redeemable, with the annualrent of all years since the consignation, were exhibit to be given in unto the defender; and the pursuer replying, that he could not be compelled thereto, seeing he had consigned the same according to his reversion in a responsal man's hand, within the parish, as the reversion appointed, where it has ever since remained unuplifted by the pursuer, and he has no power to compel the depositar to exhibit the same: The Lords found, that the declarator of, redemption should proceed, but before extracting of sentence, the money should be exhibited to be given up to the defender; and therefore they ordained letters to be direct at the pursuer's instance, and also at the defender's, if he please to charge the depositar to exhibit the same, to the effect foresaid; but the Lords found the pursuer was not astricted in any annualrent for the money since the consignation, seeing that it was never alleged, that the pursuer had uplifted the same, or made any use thereof, but that it has lain still in the depositar's hands ever since.
Act. Miller.Alt. Gilmour.Clerk, Hay.
1632. January 21.—In a redemption, whereof mention is made, December 7. 1631, the depositar being charged, as was ordained and mentioned the day foresaid, to exhibit the money consigned, by letters under pain of rebellion, and he not having obeyed, by exhibiting the same, nor yet suspending the charge; the party desiring the Lords to direct letters simply against him, to denounce him; and it being controverted, if such letters should be direct so summarily, the depositar not being called in this process of redemption, nor any compearance made for him, but that it was called in doubt, if horning could so proceed, except that he had been convened and pursued in some ordinary action for the money, where it might be lawfully tried if the money was really consigned and remained still in his hand; for as the instrument of the alleged consignation was not enough, nor could not be found enough, if he being pursued for the money, denied the consigning thereof; so it could not be found enough now, he not being heard, nor pursued via ordinaria, to be put to the horn for the same; notwithstanding whereof the Lords found, that letters of horning should be direct to denounce him, seeing he suspended not the first charge; albeit it was granted only incidenter against him in an action of redemption, wherein he was not called, nor was a party.——See Redemption—Summar Diligence.
