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Griffin brought an action against M'Kechnie before the Magistrates of the Gorbals, concluding for count and reckoning; and, farther, to have it found that the defender was bound to relieve him from an action for payment of L.14. 14s. which had been brought against the pursuer at the instance of James Boaz, accountant in Glasgow.
The defender presented a bill of advocation of this judgment, and found caution for the expenses in terms of the statute 6 Geo. IV. c. 120, § 41. His bill, accordingly, was passed without discussion.
The Lord Ordinary ‘Repelled the objection to the competency of the advocation;’ and explained his reasons in the following note:— ‘The Lord Ordinary thinks that the interlocutor of the inferior judge was not interim, but final, and was intended to be all that the pursuer was to ask under the action. The only doubt was, whether he was to have so much; and this doubt was solved by reserving the defender's right to claim.’
The respondent reclaimed ; and the Court altered the interlocutor, and dismissed the advocation, on the ground that the judgment of the inferior judge did not exhaust the libel; and that the advocator had not taken the steps pointed out by the statute for advocating from a judgment which is not final.
Lord Ordinary, Mackenzie. Act. Jameson, Russell. Alt. Sol.-Gen. (Hope) A. M'Neill. Ritchie & Miller and Cha. Fisher, Agents. T. Clerk.
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