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Scottish Court of Session Decisions >>
Hope of Craighall v Erskine of Otterstone. [1680] 3 Brn 358 (4 June 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Brn030358-0465.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Hope of Craighall v. Erskine of Otterstone
Date: 4 June 1680
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Hope of Craighall pursues Erskine of Otterstone, his vassal, for non-entry. Alleged,—Absolvitor, because he is infeft on a precept of clare constat. Replied,—The precept is null, for his act of curatory appoints three to be a quorum; and it is only subscribed by one of them, viz. Mr Archibald Hope. Duplied,—That is nullitas facti, and so only receivable in a reduction. 2do, Offers to prove, by production of seven or eight several evidents, that Mr Archibald acted as sole curator; which is sufficient warrant to assoilyie him from an odious non-entry.—This seemed relevant, but it was elided by this triply,—They offered to prove that the precept was never delivered to him, but viis et modis unwarrantably got up from one in whose hands it was conditionally consigned, and that without performance of the condition. This triply was sustained.
