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In an action originally at the instance of John Stewart and James Whyte, afterwards insisted in by Macgavin, as trustee on their sequestrated estate, against James Stewart, the Court of Session, after considerable litigation, sustained the defences, assoilzied the defender, and found him entitled to expenses.
The pursuer having entered an appeal, the defender obtained interim execution for the expenses, which were paid.
The Counsel for the petitioner submitted, that the Court had no power to do any thing but to apply the judgment. It might be attended with difficulty how the party could carry it into execution; but still it was the duty of the Court to apply the judgment, leaving to the parties to extricate the matter as they best could.
Lord Gillies said—The judgment contains instructions to the Jury Court, but there is no such court now in existence.
The petitioner's counsel stated—That, as the terms of the remit were somewhat doubtful, he had no wish to object to the course which the Court proposed, in so far as related to the remit. But as the judgment contained a reversal, the petitioner was entitled to repayment of the expenses, which he had paid on security for repayment in case of reversal. To this extent he was entitled to have the judgment applied.
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