THOMAS BEVERIDGE and MISS M'LARTY v LIVINGSTONE (Court of Session)

A second bill was presented, in which Livingstone argued, that Miss M'Larty could qualify no injury in consequence of the process not being returned when the caption was issued; and with regard to the supposed loss of the summons, that was completely supplied by a new summons, in the same terms, raised and executed by him, with permission of her agents; and, therefore, there was no principle on which he could be required to find caution.

Neither is it a relevant ground for staying execution of the diligence that a new action would be necessary for instructing the damage occasioned to the pursuer by the loss of the process. She is not here seeking any damages; but if the suspender is unwilling to submit to imprisonment, his only remedy is to extinguish the interest to insist in the diligence.

Lord Meadowbank .—The proposition from the chair seems to me to do ample justice to the parties, and this is all which the pursuer can ask. I do not see what interest she has to go farther; for as to the punishment of the party supposed to be in fault for not returning the process, that would be a question, not for the pursuer to insist in, but for the Court itself to take up, if there appeared ground for such proceeding.

The Court altered the interlocutor, so far only as to require caution, ‘to make good to Miss M'Larty all she can legally claim under her original action, and on account of the loss of the process, together with the expenses she may have incurred there-anent.’

Lords Ordinary, Balgray and Cringletie. For Suspender, P. Robertson, J. Anderson. Hugh M'Queen, W. S. Agent. For Chargers, Dean of Fac. (Hope,) Cowan. Hunter, Campbell & Cathcart, W. S. Agents. F. Clerk.