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The Lord Ordinary (14th May 1839) sustained the defences, and assoilzied, with expenses. His Lordship observed, in a note,
‘The Lord Ordinary can see no competent or relevant ground on which the decree-arbitral in this case can he set aside.
Alston and others reclaimed , and Solicitor-General was heard in support of the reclaiming note.
Lord Medwyn .—If, after this affidavit had been put in, the arbiter had not allowed the parties to judge of the evidence he was to hold sufficient, it might have come under the principle of the cases referred to. But the parties were fully heard, and made no request to the arbiter to allow the affidavit to be corrected. They were going on the evidence as quite proper, no doubt thinking that they would make their case upon it. I must therefore agree with the Lord Ordinary.
Lord Ordinary, Moncreiff. Act. Lord Advocate, (Rutherfurd,) Sol.-Gen. (Ivory.) Alt. Dean of Fac. (Hope,) Buchanan. Simon Campbell, S. S. C. and John Cullen, W. S. Agents. T. Clerk.
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