An heritable debt being payable to one in liferent, and another in fee, the Lords found a requisition null, because used only at the instance of the liferenter, and not of the fiar, although, by the clause of requistion in the bond, the liferenter had power to uplift and re-employ for his liferent use.
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Ogilvy of Ascreavy grants an heritable bond for 2000 merks to James Stormont in liferent, and Thomas his son in fee, containing a clause of reversion on premonition of 60 days, and also a clause in favour of the annualrenters, empowering them to use requisition in the same manner, and thereupon they are infeft. Ascreavy in August 1700, uses an order of redemption against them, and premonishes them to receive their money on Martinmas thereafter; and in respect of their absence, consigns it, and pursues a declarator, and obtains a decreet of redemption in July 1701. Stormonts, on this, do likewise use a requisition and charge for their money, and suspend his decreet of declarator; which brings in the whole affair. Objected by Stormonts, That Ascreavy's premonition was illegal, it being only made to the son, and not to the father, liferenter, though the clause of reversion bears, that both ought to be premonished. 2do, The attendance and consignation was on the day after Martinmas, and so is disconform to its warrant, which bears Martinmas day. 3tio, His instrument bears, that he only attended betwixt ten and twelve, whereas the clause is between sun-rising and sun-setting. 4to, The decreet of declarator is stolen forth in absence, and not put up in the minute-book. Answered to the 1st, It was personally intimated to the son, and he required to advertise and premonish his father, which was sufficient. To the 2d, Martinmas that year falling on a Sunday, he could not use the order and consignation that day, but did it the next lawful day, being Monday. To the 3d, It is offered to be proven, the annualrenters came no part of that day, and so he needed not attend the whole day. To the 4th, You being lawfully cited, and contumaciously absent, the decreet must bind you aye till you refund his expenses, and it can yet be put up in the minute-book. The Lords found the premonition and decreet of declarator both null and disconform to the clause of reversion in the bond; and that where the term falls on a Sunday, the order and consignation should rather be the day before than the day after. Then it was objected against the annualrenters their requisition, that it was also null, being used only at the instance of the liferenter, and not of the fiar, and is not fully attested by the notary. Answered, The liferenter has power to uplift and re-employ for his liferent use. But the Lords found it likewise informal, and therefore assoilzied both parties from being liable to penalties, termly failzies, or expenses to one another; but would not burden the annualrenters to uplift it from the consignator, but found the letters orderly proceeded against Ascreavy for principal and annalrent, and no more, aye and while he paid the same; for the consignation being illegal, he ought to be at the trouble of lifting it. See Redemption.
Fol. Dic. v. 1. p. 549. Fountainhall, v. 2. p. 167.
