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The like case (as the above) was decided betwixt Ogilvie and ———, where this was farther represented, that the summons could not be sustained, unless the offer had been made by way of instrument before the summons; yet the Lords sustained the offer instantly made to have effect ab hoc tempore, but not from the citation. It was also further alleged for the defender, that there was now no caution offered. It was answered for the pursuer, that there needed no caution, if the wadsetter chused to retain the possession, because the wadset itself was sufficient security. It was answered, That they were not obliged to declare their option, till caution was first offered by the granter of the wadset, and the statute behoved to be strictly observed. It was answered, That there was here no detriment to the wadsetter, and the granter of the wadset might be so poor as not to be able to find caution.
The Lords found, in respect of the act of Parliament, that caution behoved to be offered, and would not exceed the terms thereof.
