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The Lord Ordinary has taken no notice of the statement as to the decree of the Sheriff of Stirlingshire, because the process being lost, there is no proper evidence of the fact of its existence, and it is not admitted.’
The Court was unanimously of opinion that the Sheriff's decree ought to be set aside, upon the grounds stated by the Lord Ordinary; but some of their Lordships thought, that the first point that remained for investigation, under the petitory conclusion of the action, was, whether Macfarlane could shew that, acting as trustee for the creditors of Macnee, he had exhausted the whole of the trust-estate; for if it should appear that he had not, it was impossible that he could be allowed to keep this reversion without imputing it pro tanto towards payment of the bill.
The Court therefore adhered to the interlocutor, in so far as it reduced the decree; but quoad ultra recalled it, and remitted to the Lord Ordinary to allow a farther investigation into the intromission and payments of Macfarlane, in his capacity of trustee for Macnee's creditors.
Lord Moncreiff, Ordinary. For the Pursuers, Keay, Shaw. John Livingston, W.S. Agent. For the Defender, Dean of Fac. (Hope,) Houston. Robert Burn, W.S. Agent. F. Clerk.
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