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The defender founded on the following authorities: Fraser v. Keith, 16th Dec. 1668, Dict. 1953; Reids and Campbell v. Napier, 3d July 1651, Mor. 6993; Stewart v. Earl of Galloway, 16th Feb. 1770, Dict . 7004.
The defender having reclaimed, the Dean of Faculty founded on Horsburgh v. Davidson, ( M. 6985,) and pleaded, that the diligence was not assigned to Henderson.
Lord Glenlee .—The object of the inhibition was to prevent injury to any decree he might obtain. Here the party obtained a decree, which was allowed to be extracted in the name of his agent; but still the decree was in his own favour, although payment was to be made to his agent for him. If the pursuer had brought his action alone, without the concurrence of his agent, there might have been an objection, for the defender might have said he was only bound to pay to the agent; but this is obviated by the concurrence.
The other Judges being of the same opinion the Court adhered to the interlocutor, so far as it repelled the first and second pleas in defence, and remitted quoad ultra to the Lord Ordinary.
Lord Ordinary, Cockburn. Act. M'Neill, Shaw. Alt. Dean of Fac. (Hope,) Pyper. John Cullen, W. S. and John Nairn, S. S. C. Agents. T. Clerk.
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