Procuratory, not called for, may be produced before extract.
Click here to view a pdf copy of this documet : PDF Copy
The Lord Lovat pursues the Lord M'Donald to count for the superplus of a wadset, from the date of his instrument of requisition in anno 1663, whereupon he had raised a summons in anno 1667. It was alleged, That the instrument was at the defender's dwelling-house, when he was out of the country, and bore no production of the procuratory, and only an offer of a bond, with a clause of infeftment in all Lovat's land, and did not bear an offer of caution. It was answered, that the act did not require requisition by instrument, but quævis insinuatio sufficit, and the instrument bore delivery of a copy to the defender's Lady in his house, there being no procuratory, for the pursuer offered now to produce the same, and a surety by infeftment was sufficient, the act of Parliament mentioning no caution.
The Lords found, That the requisition behoved to be by letters of supplement at the cross of Edinburgh, and pier of Leith, seeing the defender was out of the country; but sustained the same as to the procuratory, it being now produced, and sustained the offer of surety, and ordained it to be produced, reserving the objections and answers of either party thereanent.
Fol. Dic. v. 2. p. 323. Stair, v. 1. p. 734.
*** Gosford's report of this case is No 50. p. 3715, voce Execution.
*** A similar case is reported by Stair, 28th June 1, 671, Home against Lord Justice Clerk, No 67. p. 5688, voce Homologation.
