Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

The Lady Ormiston or Whitlaw, and Cockburn of Ormiston, Lord Justice Clerk, now her husband,
v.
J Hamilton of Bangour and his Tutors.

1711.

and

1712.

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1711. July 3.—The Lady Ormiston gave in an appeal and protest for remeid of law to the British Parliament, against J. Hamilton of Bangour and his Tutors, complaining of several interlocutors pronounced against her, in her process for payment of the £7000 sterling bond, granted to her by the deceased Lord Whitlaw, her former husband: and particularly one given on the 29th of June last, finding she could not insist for her claim of the funeral charges in that process, because that lis erat finita by extracting her decreet; which she alleged was but partial. But the Lords had found otherwise.

Vol. II. Page 655.

December 8.—The Lady Ormiston and her husband gave in a second appeal to the British Parliament against John Hamilton of Bangour and his Tutors, reclaiming against a late interlocutor of the Lords, whereby they modified £3000 Scots to be retained by Bangour, as heir, out of the first and readiest of the heritage; with this quality, that if, in eventu, my Lord Whitlaw's heritable estate should not be solvendo for all his debts and obligements, then the Lords would consider how far they would diminish this temporary modification. For Ormiston had consented to allow the expenses he had wared out in serving himself heir cum beneficio, and in making up the inventary; but objected against the farther account given in of 3 or £4000 expended in defending thir processes against her. Which the Lady Ormiston contended was so far from tending to the preservation of the heritage, that it is a plain destruction and dissipation thereof.

Bangour, on the contrary, alleged,—That he had cast out sundry of her claims, and restricted others; which shows he was neither calumnious nor litigious.

Vol. II. Page 685.

1712. February 5.—The Lady Ormiston and her husband brought down a warrant from the House of Peers against J. Hamilton of Bangour, for introducing their appeal into the house, (de quo supra, 8th December 1711;) but it had this more in it than the former, that it was executed against the clerks of session, who scrupled to give him a full extract of the process, as being discharged by the Lords. But rather than underlie the censure of the Peers, they gave out the extract as demanded; and left Bangour to remeid himself only by a protest in the contrary. Vol. II. Page 718.

July 30.—The Lady Ormiston gave in a protest for remeid of law against Hamilton of Bangour, because the Lords had found the value of the liferent of the house behoved to deduce off her £7000 sterling bond, quia debitor non prasumitur donare; and had found the Peers' judgment and decree did not concern the prescription; and that all the accounts of the funeral charges were prescribed, where she was not contractor and employer; and that the executrix's assignation to her gave her no right to the expenses of confirmation so as to affect the executry.

Vol. II. Page 763.

[See the numerous other parts of the Report of this Case, pointed out in the Index to the Decisions.]