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This action, in which a new trial was granted 19th February 1830, (ante, p. 454,) was brought for the balance of the price of building a chapel in Portobello for a congregation of the Associate Secession Church. The action was originally directed against a great number of individuals; and appearance was made for upwards of thirty, amongst others for Dickson and Miss Hobertson. The defences were generally, that the work had not been performed agreeably to contract; and that the defenders were not members of the congregation or committee.
The pursuer acquiesced in Lord Corehouse's judgment; and it was prefixed to the issues, which were now sent to trial as the law of the case. The issues were in these terms:
‘1. Whether, in the years 1824 and 1825, the pursuer was employed to erect, and did erect, a chapel at Portobello, in the county of Edinburgh, for the United Associate Secession Congregation, at the price of L.1733, to be paid by instalments? and whether the defenders, or any of them, are indebted and resting owing to the pursuer in the sum of L.388, as the balance of the expense of erecting the said chapel, and of the sum of L.46:6:4½ for extra work, or of any part of the said sums, with interest on the said sum or sums?
Whether, in the year 1824, the pursuer was employed to fit up, and did fit up, a temporary place of worship for the congregation aforesaid? and whether the defenders, or any of them, are indebted and resting owing to the pursuer in the sum of L.11, 3s. 4d., or any part thereof, with interest thereon, as the expense of fitting up the said place?’
In balloting for the Jury to serve, Dean of Faculty claimed a right of six challenges for each of the four defenders for whom he appeared, on the ground, that as each was separately liable, they must therefore be looked upon as separate parties entitled severally to challenge, and that in practice this was always allowed; the expression in the act of ‘each party’ meaning every separate person in the action.
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