Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Jolly
v.
Paterson

1683. March.

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It being alleged against an instrument of consignation, That the order was null: For that, 1. The instrument did not bear that a procuratory was produced or shown;—Laird of Bass against Wachops, 13th November 1622: Nor, 2. That the money was numerata, but only, that there was a bag of money produced, which, by ocular inspection, contained the 2300 merks: 3. It was null for not bearing the expenses were consigned. Answered, There was no occasion to produce a procuratory, the creditor being absent; and, de facto, there was a procuratory, which is now produced. 2. It was in vain to tell the money in the church when the party was absent: but, immediately thereafter, it was numerate, and consigned in the hands of the dean of guild of Edinburgh, as appears by the instrument. And 3. The sum to be consigned being only 2000 merks, the odd 300 merks was consigned in lieu of expenses; and, if the expense be more, the superplus is offered at the bar. The Lords sustained the order.

Page 242, No. 848.