Found in conformity to Jardine against Johnston, No 46. p. 13466.
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Master John Forrest, as assignee to the reversion of some tenements in Edinburgh, and having used an order of redemption, pursues declarator. It was alleged for the defender, That he was not accountable for the rents since the order, because it was but simulate, by producing the bags without telling of the money, and that it was taken up again by the consigner, and the general clause for all other debts was not fulfilled. It was answered, That the pursuer having used the order, and presenting the money, was obliged to do no further, seeing the defender compeared not to demand either compt or payment, nor did instruct any further due by the clause, and the consignation being upon the peril of the consigner, he might very lawfully take up the sum for its preservation, seeing he produced the same at the bar in the process.
The Lords found the pursuer only liable for the annualrent of the money, since he took it up; and found that he had right to the rent of the lands since the order.
