An order of redemption used by an assignee to the reversion, was found defective, the assignation not being produced; but, upon subsequent production, the order was found to take effect.
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In anno 1593, the Lord Borthwick gave a wadset of Cumrig, redeemable for 700 merks. This Lord Borthwick used an order of redemption in anno 1665, and raised a declarator in anno 1660, and now insists. The defender alleged, That the order was null, this Lord Borthwick not being heir to the granter of the wadset, but assignee; and not having produced his assignation to the reversion, albeit the instrument of consignation bear that it was required, and the consignation was only simulate, my Lord having taken up the sums, and never insisted till now, so that the defender was in bona fide to continue in possession, and to enjoy the fruits; and though the order could be sustained now, when the assignation to the reversion is produced, the defender cannot be accountable for the mails and duties. It was replied, That the order is valid, and that the not production of the assignation cannot be respected, because the defender acknowledged the pursuer's right, by offering a charter to him as superior, to be received in this wadset. 2do, The defender could pretend to be no more in bona fide after the assignation to the reversion was judicially produced in the process, in anno 1655. And as for the taking up of the money, it infers no simulation, and was very allowable, seeing the defender refused to receive it, and the consignation was upon the consigner's peril; and now he offers the same cum omni causa, the defender accounting for the rents, which is most reasonable, seeing by the act of Parliement betwixt debtor and creditor, all wadsetters, preceding the act of Parliament, are accountable for the surplus; and albeit the act require an offer of caution, which the pursuer did not, having used an order, yet the foresaid offer of the money was equiva lent and more.
The Lords found the order defective ab initio, through not production of the assignation to the reversion; but found, that it was supplied so soon as the said assignation was judicially produced and seen by the defender; and found the defender accountable for the rents, from that time, in so far as exceeded his annualrents, and sustained the order, the pursuer producing the principal sum at the bar; but found no ground of an account upon the act of Parliament, there being no offer made conform thereto, and the offer of the money by the consignation was long before the said act.
