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An order being used for redeeming a wadset, the executor creditor of the wadsetter pursued the person in whose hands the consignation was made for payment of the sum consigned; and in the process the user of the order was called, and decree was obtained; but before it was extracted he deceased; and there was debate upon the oath of the consignatar. The Lords found, That the user of the order being a person having interest, and called ab initio, nothing could be done until the process was transferred against some person representing him.
In the same process, it was argued, amongst the Lords, Whether a sum being consigned upon an order of redemption, the user of the order may pass from it, and lift the sum without consent of the wadsetter? and it was remembered by some of the Lords, That upon an instrument of consignation process was sustained at the instance of the wadsetter against the depositar, in whose hands the sum due upon the wadset was consigned, for making the sum forthcoming; but in this case nothing was done.
It appeareth, that after consignation, jus is quæsitum to the wadsetter; so that the sum, being consigned and sequestrated to his behoof, cannot be uplifted without his consent.—See Wadset.
