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Mrs Paxton lodged defences, in which she pleaded, that on the 8th of March 1839, or one or other of the days of that month, she was delivered of a living female child, who lived for about ten or eleven hours after her birth, and then died, and that on this account the action was unfounded. The statement of the pursuer, that the service was obtained ex parte , was denied. It was also averred that he was a minor, and his curators were not parties to the action.
The case having been remitted to the issue clerks, the following draft was prepared by them.
‘It being admitted that the late William Paxton was infeft in a share, or one-half of the twenty-shilling land of Burn;
Whether, on or about the 26th day of July 1839, the defender, by the service of terce, of which No. 7. of process is an extract, was wrongfully served and cognosced to a terce or third part of the said lands?’
Counsel having been heard thereon before the Lord Ordinary, his Lordship, on 26th May 1840, made avisandum with the cause to the Court, adding the following note:
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Common Room
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