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Marion Aitken v Willjam Hamilton. [1680] 3 Brn 338 (20 February 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Brn030338-0455.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Marion Aitken v. Willjam Hamilton
Date: 20 February 1680
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In an advocation raised by Marion Aitken against William Hamilton, the Lords remitted it back to the bailies, because there was litiscontestation in the cause, though they had raised a blank reduction of that Act; and the Lords found no iniquity in sustaining process against her, notwithstanding of her absolvitor, and her exception of res hactenus judicata, because she was now convened by him super alio medio. Yet Petrus de Ferrariis, and the doctors, think a man by pursuing, omne suum jus in libellum deducit, and an absolvitor should terminate all. See 10th Jan. 1627, Thornton.
Vol. I. Page 86.
Anent turning Decreets into Libels.
There is a great difference betwixt turning a decreet into a libel, and debating the cause as if they were in a libel; for, in the first case, the denunciation, and all the diligence used thereon, falls; in the second it stands, if the letters shall be found orderly proceeded. 2do, If a decreet be turned into a libel, then the cautioner in the suspension is free; but not so in the other case.
