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James Davie having enacted himself to cause William Cassils compt and pay to David Kennaway some excise uplifted by him, or to return him to prison by such a day, or otherwise to pay the debt; whereupon Kennaway pursues for payment:—The defender alleged absolvitor, because he had fulfilled, in so far as Cassils had offered himself to the Bailie upon the precise day agreed upon, being Saturday, and upon Monday thereafter had actually entered to prison, and there continued several months, which being modica mora, was sufficient.—It was answered, That implement could only be in the terms of the bond; and if need be, it was offered to be proven that Cassils was set out by the Bailie, with Davie's consent, without the consent of Kennaway, or by order of law.
The Lords found, That Cassils' entry being the next lawful day, it was modica mora, and was sufficient implement, unless the pursuer could instruct a detriment to him betwixt the days; and found also that reply relevant, that Davie consented, to the prisoner's liberation, to make him liable.
