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Lord Justice-Clerk , (with whom Lord Ivory concurred.)—In this case, as the consulted Judges are only asked, whether the interlocutor of Lord Fullerton should be adhered to or not, I do not consider myself called upon to say more, than that, looking to the terms of the call in favour of the pursuer, the statements in the record, and the pleadings of the parties, I am of opinion that the interlocutor, which merely authorises farther investigation, should be adhered to.
Lord Jeffrey .—I concur in the opinion of Lord Medwyn; and should indeed have been for assoilzieing the defenders de plano , and on the evidence already in process, if they had reclaimed against the interlocutor of the Lord Ordinary.
I think this clear enough, upon the documents and admitted facts already before us. But it may probably be made still clearer by the investigation allowed by the Lord Ordinary; while it will at the same time be open to the pursuer, in the course of that investigation, to establish, if he can, that there was in truth such a personal obligation as he alleges.
Lord Moncreiff .—I am of opinion that the interlocutor of Lord Fullerton ought not to be adhered to.
But, laying this aside, I am of opinion, that the pursuer has proved his case of debt upon contract; and that the proposed evidence of understanding is altogether inadmissible.
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