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Bessy Scot having charged Somervail, who was cautioner in a suspension, for payment of a sum of money contained in a bond suspended; he suspends on this reason, That the money was consigned in the hands of Mr George Gibson, clerk to the bills for the time. It was answered, That Mr George Gibson was now out of office, and insolvent, and the consignation behoved to be upon the peril of the consigner. It was answered, That the consignation must be upon the peril of that party who was the cause of consignation, and that was the charger; in so far as it was instructed by an instrument produced, that the suspender offered the annualrent, and so much of the penalty as the charger would have declared upon her oath, that she had truly paid, which she refused, unless the whole penalty were paid, whereupon he consigned through her fault.
The Lords sustained the reason, and ordained the notary and witnesses to depone upon the truth of the instrument, for instructing thereof.
