Found, that money consigned is not at the risk of the consigner, if he consign warrantably sine culpa.
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Marcus Mowat having charged James Lockhart upon a decreet arbitral containing many distinct articles, he did suspend, and consign L. 200 for the value of certain gilders, which by the decreet arbitral was modified to 40s. the gilder, and he consigned 22s. for the gilder in the hands of Henry Hope, treasurer of the Court in anno 1658, and Henry having broken, the consigned money is lost; and in the discussing of the suspension, the question arose, Whether the consignation should be upon the peril of the consigner, or of the charger.
Whereanent, the Lords found that it was not upon the peril of the consigner if he consigned warrantably sine culpa; and found, that he being charged for the whole articles of the decreet arbitral, and that by the decreet discussing the suspension less was found due than he was charged for, that he was not in culpa to consign, albeit he had no reason of suspension against the article for which consignation was made, without necessity to him to have offered what was due as to that article before consignation; because having received one charge for the whole articles, upon six days, he neither should nor could seek the charger to offer the sums due by that article before consignation; and found, that albeit the gilder was now modified by the Lords to 30s., and that the charge was for 40s.; that the consignation of 22s. was not the consigner's fault, seeing it was the order of the Judges for the time who ordained 22s. to be consigned for the gilder, and caution for the rest.
