Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Lady Semple v. Colonel Cuningham
Date: 10 January 1699
Click here to view a pdf copy of this documet : PDF Copy
The Lady Semple pursued reduction and improbation of a mutual tailyie, by way of indentures, past betwixt the deceased Brigadier Richard Cunningham, her last husband, and Colonel Cuningham, his brother; in which action, she not insisting when it was called, protestation was granted for not insisting. Thereafter a bill was given in for the lady, craving it might be stopped, and she allowed to insist. Which being ordered to be seen by the Colonel, he was content to stop his protestation, but craved a commission to London and Dublin to examine witnesses on his brother's subscription. For preventing whereof the lady takes up her bill, and declares she will make no opposition against his taking out the protestation; and so, that instance perishing, there is no depending process whereon he can crave a commission.
Answered,—There was litis pendentia when he sought it, and her withdrawing her bill and process ought not to prejudge him.
The Lords found, in strict law, she might renounce that process; but when he insisted in his counter-action, and that it were seen and returned, then they would consider how far they might issue forth the commission craved; but till then it had no foundation, the former dependence of her action having been at an end.
