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A record having been made up, the Sheriff allowed the parties a proof prout de jure of their respective averments, in so far as not admitted, and to each party a conjunct probation. For the evidence which was adduced on both sides, reference is made to the Session papers. The estates of Maclachlan having been sequestrated, Allan Cuthbertson compeared as trustee thereon, and was held as duly sisted as defender in the case. On the 3d of April 1834, the Sheriff-substitute recalled the interdict, and assoilzied the defender from the action, finding expenses due.
Paul brought an advocation. Additional pleas were thereupon lodged for both parties. The Lord Ordinary (6th February 1838,) ordered cases.
I. The present action is incompetent; because the conclusions for restitution of the wood, and count, reckoning, and payment, cannot be maintained in a summary form, and the prayer for interim interdict, being subsidiary to these conclusions, is also inept and ineffectual; Gray, 22d Dec. 1803, Mor. 14,983; Macallum, 19th May 1837.
IV. The advocator is barred from insisting in his present claims, in respect he acquiesced in and homologated the sale to Maclachlan, and the proceedings which followed thereon, not only for months subsequently to the bankruptcy of the seller, but for nearly a whole year after his application for an interdict was presented.
The Lord Ordinary (19th June 1838) made avisandum with the cases to the Court, subjoining the following note to his interlocutor:
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