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The pursuers afterwards gave in a minute of reference, in which they proposed to prove, by the respective oaths of the defenders, ‘1 st , That they did each sign the bill libelled on as acceptors; and, 2 dly , That the sum therein contained, with interest, is still resting owing and unpaid, under deduction of the partial payments by Mr Robert Meldrum's trustees, specified in the summons.’
The defenders objected —That the summons contained no allegation whatever on which, as apart from the bill, the constitution of any debt could be rested; and that the reference was therefore incompetent under it; because the only matter which could be referred to oath (the bill being extinguished) was the separate constitution, and present subsistence of the debt.
The Court allowed the reference as proposed, thinking that it was sufficiently broad to embrace all the defences competent to the defenders in their answers to it.
Act. Graham Bell. Alt. Ivory. James Robertson, W. S. and Gibson-Craigs and Wardlaw, W. S. Agents. F. Clerk.
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