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Scottish Court of Session Decisions >>
Richard Cunningham v The Duke and Duchess of Hamilton. [1688] 3 Brn 676 (00 January 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1688/Brn030676-1044.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1687 and 1688.
Richard Cunningham v. The Duke and Duchess of Hamilton
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See the first part of the Report of this case, Dictionary, page 12,328.
1687. July 14.—In Richard Cunningham's case against the Duke and Duchess of Hamilton, mentioned 18th March 1686:—it was alleged,—This being a debt of Duke James's in 1637, and the present Duchess, his daughter, having the estate, not as heir of line to him, but as heir of tailyie to Duke William, her uncle,—his heirs of line must be first called, and discussed; seeing they condescended on a subject of discussion, viz. the Lady Southesk is infeft as heir served to Duke William, her father, in the barony of Innerwick.
Answered,—This is a dilator defence after peremptors of payment were proponed, and after acts, commissions, and reports in the cause, and witnesses led on presumptions of payment.
Replied,—It was already proponed, but received no answer; and so, not being repelled, is yet entire; and the acts are only before answer. And whereas it is alleged, that it is needless to call the Lady Southesk, seeing she will allege that the heirs of line of Duke James are bound to relieve her; it is answered, —There is another daughter of James's yet uncalled, viz. the Lady Cassilis: and the Lords found co-heirs behoved to be called, Stair, 24th January 1672, Laird of Lusse, where they would not so much as allow the heir of line to be called incidenter in the same process.
The Lords here found the heirs of line to Duke William behoved to be both called and discussed, ere the present Duchess (who is heir of tailyie,) be obliged to answer; but allowed an incident diligence for citing them in this same action, in regard that defence got no answer before by the act. Vide 13th June 1688.
Vol. I. Page 466.
1688. February 24.—Richard Cunninghame's action against D. Hamilton being called; the Duke craved that Sir John Dalrymple, who was not yet admitted a Lord, might be allowed to plead for him. The President told him that could not be done, he being now entered on his trials. The Duke contended, that Sir John Gilmore had pleaded for his son-in-law, Sir John Nicolson, after he was President. But that was because he was declined from judging in it; so the cases were not alike.
Vol. I. Page 500.
1688. June 13.—The case of Richard Cunningham, and the Duke of Hamilton, mentioned 14th July 1687, was decided; and the Lords sustained the adminicles and presumptions adduced by the Duke, as sufficient to instruct, that either there was no real debt, or, if there was, that it has been paid, or included in posterior bonds and transactions betwixt them.
A bill was given in against this, and the Lords refused it, unless they adduced other qualifications to fortify and astruct the bond, than what were already made use of in the decreet.
Thus the Duke did not lose all his causes, as he pretended.
