The objection, that the instrument of premonition did not bear production of a procuratory was repelled, a sight of it not having been demanded.
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Lauderdale reported James Livingston of Westquarter against the Earl of Calander, It was a declarator of an order of redemption of a wadset made by his father to the Earl's predecessor. Alleged, The instrument of premonition and consignation was null, for it did not bear six knocks given, nor to whom the copy was delivered; 2do, It mentions not the production of the principal reversion, nor of the procuratory and warrant to require the wadsetter to accept his money. Answered, The act of Parliament does indeed require six knocks in the execution of summonses, but neither law nor practice has extended it to premonitions; and as to the copy, the instrument bears it was delivered, and in fortification he offers to prove the doors were open, and it was given to the Earl's governor, et ea interpretatio sumenda est ut actus potius valeat quam pereat. As to the second, there was no necessity to shew his procuratory and mandate, unless it had been questioned, and a sight of it demanded, as was found, 18th January 1662, Veitch contra Lyel of Bassenden, No 7, p. 12266.; and for the principal reversion, he was not master of it, but he had a copy, which has been sustained by the Lords, 19th February 1662, Children of Wolmet against Mr Mark Ker, No 41. p. 13463.; and 17th February 1663, Colonel Montgomery against the Heirs of Robert Haliburton, No 42. p. 13463. The Lords sustained the order of redemption, and granted him a diligence for recovering the principal reversion or wadset where it is engrossed; but in respect of the informalities, allowed the Ordinary to hear the parties, on whom the loss of the annualrent since the consignation should fall.
Fol. Dic. v. 2. p. 323. Fountainhall, v. 1. p. 806.
