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Upon advising minutes on the import of the oath, the Sheriff, ‘in respect the defender has not sworn that the furnishings made by him were agreed between him and the late Mr Granger to be imputed in satisfaction of the account libelled, finds, that the quality adjected to the defender's oath is extrinsic; and in respect the constitution of the debt has been admitted by the defender on oath, decerns against the defender as libelled, and for expenses of process.’
The Lord Ordinary authorised ‘the record to be opened up, to the effect of allowing the advocator to state his claims of compensation against Mr Granger's accounts, and also his objection that these accounts had not been taxed, but that only on condition of the advocator's previously paying to the respondents all the expenses incurred by them in the inferior court.’
Lord President .—This interlocutor will not affect the oath. Whatever is decided by the oath must stand, and the party will get the full benefit of it. The advocator might, notwithstanding the judgment in this case, bring a new action for the sums pleaded in compensation; but instead of doing that, it is surely better to allow him, (upon paying all previous expenses,) to amend his record, that these pleas of compensation may be discussed in this process.
Lord Corehouse, Ordinary. For Advocator, Rutherfurd, Wm. Bell. Lockkart, Hunter & Whitehead, W. S. Agents. For Respondent, Keay, Whigham. John Hannay, W. S. Agent. D. Clerk.
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Common Room
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