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The Lord Ordinary found the oath to be negative of the reference; and suspended the letters and charge simpliciter.
The chargers reclaimed against this interlocutor, and pleaded —That the suspender having admitted that he subscribed this bill, and that he never paid the contents, the reference of resting owing was clearly made out by his oath, upon the principles laid down in the cases of Hannay's Trustees v. Blair, 21st Jan. 1825, and Laidlaw v. Hamilton and Dickson, 31st May 1826.
The Judges concurred in opinion, that the circumstances of this case were very different from those of the cases of Blair and Laidlaw, referred to by the chargers. In this case, while the suspender admits that he subscribed the bill, he swears, at the same time, that it was never intended that it should constitute a debt against him; this was pars contractus between the parties; and, although the case might have been different in a question with an onerous indorsee, yet in a question with the original party or his trustees, it was plain, under this oath, that there was no debt contracted.
Lord Eldin, Ordinary. Act. J. A. Murray, Jameson. Murray and Inglis, W. S. Agents. Alt. Sol-Gen. (Hope) Marshall. Macritchies, Bayley, and Henderson, W. S. Agents. S. Clerk.
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