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Mr Duncan Robertson v Mr Patrick Smith. [1694] 4 Brn 219 (5 February 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040219-0498.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr Duncan Robertson v. Mr Patrick Smith
Date: 5 February 1694
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The Lords advised part of the debate between Mr Duncan Robertson and Mr Patrick Smith, about the assignation which Mr Duncan gave of the inventory of the executry; whether it was a consigned evident, or delivered in obedience to the decreet, though the receipt did not bear borrowing, but delivery.
The Lords having examined the clerks, with the extracter and Ordinary, they found there was no warrant for giving it up as a delivered evident, but only to lie in the process till the suspension were discussed; and, therefore, found that Mr Patrick Smith had unwarrantably taken it up, so as to make use of and registrate it. But the Lords thought, third parties who had transacted with Mr Patrick on the faith of that assignation, (as my Lord Stair had done,) were secure; this not being a vitium reale, but only striking against Mr Patrick himself. However, that point fell not in upon this process.
