Found in conformity to Jardine against Johnston, No 46. p. 13466.
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The deceased Mary, Countess of Buccleuch, having right to a right of reversion of lands wadsetted to Thirlstori, did thereupon use on order in anno 1655; and now this Duchess, as heir to her and the Duke, pursues a declarator of redemption. The defender alleged, 1mo, No declarator, because the instrument of premonition does not bear that the reversion was shown, 2do, The consignation was only simulate, and the sum was immediately taken up, and therefore there ought to be no declarator, or at least it can only take effect from the sentence, and the wadsetter must enjoy the profits of the land medio tempore. It was replied, That the reversion was shown at the consignation, and that it was in Thirlston's own hand, being then tutor to the Countess. To the second, That it does not infer simulation, that the sums were lifted by the consigner, in respect the sums were at her peril, if the consignatar had proved insolvent.
The Lords repelled the defence, and declared; the pursuer always before extract, producing the principal sum and whole annualrents since the consignation, and found the wadsetter accountable for the duties since that time.
Fol. Dic. v. 2. p. 324. Stair, v. 2. p. 123.*** Gosford reports this case:
1672. November 28.—In a declarator of redemption of the lands of Tranlawhill, pursued at the instance of the Duke and Duchess against Sir Francis Scot, for payment of the duties of the lands since the using of the order, which was in anno 1655, it was alleged for the defender, Absolvitor, because, by the instrument of premonition it is clear, that the Duchess's right to the reversion was not then produced. 2do, It was offered to be proved, that the consignation was simulate in so far as the money consigned immediately after the consignation was taken up again, and therefore, at most, he can be liable only from the time that it is now offered to be paid and made out, and so ought to be free of all bygone duties. It was replied to the first, That the defender's father, against whom the order was used, was one of the Duchess's tutors, and so could not but know her right, and not having controverted the same, there was no necessity to produce in this case, albeit orders of redemption are stricti juris, and wadsetters being premonished, ought to see it clearly instructed, that the users of the order not being the granters of the wadset have the right of the reversion settled in their persons. It was replied to the second, That the money being truly once consigned, the taking up thereof did not take away the order, it being reproduced with the whole annualrents thereof since the consignation.
The Lords did repel both the defences in respect of the replies, and decerned the defender to make payment of the whole bygone duties of the lands, in respect that the principal sum, with the whole annualrents, were refunded.
Gosford, MS. p. 280.
*** A similar decision was pronounced, 19th February 1674, Borthwick against pringle, No 51. p. 13473.
