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The defender pleaded —1 st , The said James Keith, being a pupil, has no persona standi in judicio to pursue an action of the nature of that brought against the respondent; and the summons in the said action, bearing to be at the said James Keith's instance, setting forth, that damages are due to him, and concluding, that damages and expenses should be paid to him, is incompetent, and has been properly dismissed by the Sheriff: That the said action, in the circumstances stated, is also unfounded on the merits, and ought therefore, in any view, to have been dismissed with expenses.
‘The Lord Ordinary having heard counsel for the parties, remits to the Sheriff, with instructions to alter the interlocutors complained of, and to proceed in the cause as shall be just: Finds the advocator entitled to the expenses incurred by him in this Court, subject to modification, and decerns; appoints an account of said expenses to be given in, and remits to the Auditor to tax and report.’
But as there has been an unnecessary departure from the ordinary style, as prescribed by all the formalists from Dallas to Darling, the Lord Ordinary thinks that the expenses of process found due to the pursuer should admit of a small modification, to mark that the Court does not approve of the manner in which the summons is framed.’
Lord President .—I am inclined to adhere, without going into all the grounds in the Lord Ordinary's note. We find here that the summons is raised at the instance of the father, as well as with his concurrence. The instance therefore is perfectly good; and I think the conclusions are also good, because the instance follows to the end. A discharge from the father, as acting for his son, would be a good discharge.
Lord Balgray .—I am of the same opinion. I think the instance is right, and that the summons is a good one, though I would perhaps have been inclined to have framed it somewhat otherwise; but I am not inclined to think that the slight error in the conclusion should deprive the pursuer of his action.
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