Subject_1 ARRESTMENT. Subject_2 Decree of furthcoming after the common debtor's death. Subject_3 *** In an arrestment upon a dependence, if the common debtor die before the claim be established against him by decree, the process must be transferred against his representatives; but, if decree be recovered against the common debtor himself, there is no necessity for transferring it after his death against his representatives; calling them alone is sufficient to found the arrester in his action of furthcoming; arrestment not falling, by the death of the common debtor, as it is does by the death of him in whose hands it is laid.
Fol. Dic. v. 1. p. 58.
Thomson v. Edgar
Date: 8 July 1623 Case No. No 108.
Found necessary to have a defender in the furthcoming called, hoc nomine to represent the deceast debtor.
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In a pursuit by one Thomson contra Edgar, for making arrested goods furthcoming as belonging to umquhile Clement Edgar, debtor to Thomson the pursuer, wherein a decreet being produced, in which umquhile Clement Edgar was found his debtor, after the decease of the which debtor, it was transferred against Edward Edgar, apparent heir, and brother and nearest of kin, to the said umquhile Clement; cognitionis causa, to the effect that the creditor thereof might have execution, not against the brother, and apparent heir foresaid, by personal execution, but contra bona defuncti, who was his debtor: This decreet being given before the Lords, but the party absent, was found null summarily in this process, to make arrested goods furthcoming, by way of exception, because there should have been some person called hoc nomine, to represent the debtor deceast, viz. either as heir, or as charged to enter heir or executor, or renouncing to be heir or executor to the defunct; neither whereof being done, but only the apparent heir called, which was not enough, albeit called only cognitionis causa; the Lords would not sustain the sentence, seeing in effect it was given without any party called, and without any defender to represent the debtor.
Act. Cheap.Alt. Nicolson.Clerk, Gibson.
Durie, p. 71.
