James M’Gavin v James Stewart

James M’Gavin, (Trustee for the Creditors of John Stewart and Co.)     Appellant


James Stewart,     Respondent

Oct. 18, 1831.

Subject_Appeal. —

An order for the examination of three parties before a jury discharged, in respect of two of them being dead.

In July 1830, (Vol. II. p. 536,) the House of Lords remitted this case (which related to an accounting between partners) to the Court of Session, with a direction to submit it to a special jury, and a recommendation that the three partners should be examined on oath before the jury. *

The agents for the parties now attended by order of the House, and being called to the bar, and questioned by their Lordships, stated, that two of the partners on one side, directed to be examined upon oath, were dead.

_________________ Footnote _________________

* See 9 S. D. B. 17, ante procedure on a motion to apply the judgment in the Court of Session.

Page: 808

Lord Chancellor.—My Lords, there can be no doubt whatever as to the proper mode of proceeding in this case. When your Lordships made the order directing that the parties should be examined upon oath, your Lordships meant that they should both be examined, or neither. It would be unjust to examine one of them, without both being examined. But two of the parties intended to be examined are dead. This was a fact unknown at the time of your Lordships’ order. I have conversed with my noble and learned friend who attended the hearing of the cause upon the subject, and know his opinion; and I will now move your Lordships that the clerk of the House do strike out the direction to examine the parties.


Source: https://www.bailii.org/