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Scottish Court of Session Decisions >>
Lord Archibald Hamilton v The Countess of Rutherglen and Earl of March. [1745] Mor 11988 (20 June 1745)
URL: http://www.bailii.org/scot/cases/ScotCS/1745/Mor2811988-043.html
Lord Archibald Hamilton v. The Countess of Rutherglen and Earl of March
Date: 20 June 1745 Case No. No 43.
There is no need of summoning the heirs of a litigant, who appealed and died, on the cause being returned to the Court, but it is otherwise if the other party appealed, though the heir answered.
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Lord Archibald Hamidton brought an action against the Earl of Selkirk, in which several interlocutors were pronounced, from some whereof Lord Archibald appealed.
The Earl of Selkirk died, and the Countess of Rutherglen and Earl of March, as deriving right from him by deed to the subject in controversy, appealed from other of the interlocutors, and Lord Archibald also called them as parties to the discussing of his appeal.
The House of Peers reversed all the procedure, and remitted to the Lords of Session to re-hear the cause; and Lord Archibald gave in a petition, craving they might proceed, to which the Lady Rutherglen and Earl of March answered, That no procedure could be had against them till they were summoned.
The Lords found, That the Countess of Rutherglen and Earl of March, not being parties in the original cause, were not obliged to answer to any conclusion in the libel, except the articles in the said libel, upon which they brought an appeal against the petititioner, without the process were transferred, and they made parties thereto by a proper summons, although being made parties to the appeal brought by the petitioner, they appeared therein as respondents; but found the Countess of Rutherglen and Earl of March, by lodging an appeal against an interlocutor of the Court, did thereby make themselves parties, and that there was no necessity to summon them with regard to any article determined by that interlocutor.
Act. Graham, sen.Alt. R. Craigie.Clerk, Forbes.
Fol. Dic. v. 4. p. 147. D. Falconer, v. 1. p. 106.
