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In a competition against Lady Carse, she having proponed the peremptory defence of res judicata, upon a decreet of absolviture by the court of Holland, relating to the same subject;
It was answered for the pursuer; That the absolviture in Holland proceeded on this ground, That the causa petendi there was but a copy of a military testament, which the Dutch judges looked on as a charta blanca, as the decreet bears; whereas now the testament itself, or, which is equivalent, letters acknowledging it, and venditions of a part of the defunct's estate by virtue of the testament, and other homologations thereof, are produced, which new grounds afford novam causam petendi, that by the civil law excludes the exception of res judicata.
The Lords repelled the defence of res judicala, in respect of the answer. Thereafter this affair ended in a submission.
Fol. Dic. v. 2. p. 207. Harcarse, (Decreets.) No 411. p. 110.
