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Scottish Court of Session Decisions >>
Hary Baird, Merchant in Edinburgh, v Janet Hardy. [1693] 4 Brn 103 (15 December 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1693/Brn040103-0240.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Hary Baird, Merchant in Edinburgh, v. Janet Hardy
Date: 15 December 1693
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The Lords found his taking the precept upon one of her tenants was not to be presumed to be in satisfaction of the debt, but only in farther corroboration; but found it behoved to ascribe in part of payment to him, in this case, because he was required to give it back to her upon payment, and he refused; and allowed them to adminiculate, and astruct their instrument by the notary and witnesses inserted; whom they appointed to be examined. Only, it was questioned if he should be accountable, and his debt compensated for the whole sum of one hundred merks contained in the precept, or only for the fifty merks for which the tenant had only accepted. And though this was not clearly decided, yet several of the Lords seemed to incline, that it could only extend to the sum contained in the acceptance;—though the drawer will say, If you had returned the precept to me when I required it debito tempore from you, and when he was not broken nor removed, I might then have recovered the whole from him.
