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.
Stirling v. Tenants
Date: 15 June 1626 Case No. No 109.
In transferring the action, and calling the apparent heir, it is not necessary that he be charged to enter.
Click here to view a pdf copy of this documet : PDF Copy
James Stirling pursues the tenants of Old bar, in whose hands the farms addebted by them to the Lady were arrested; and the Lady being called for her interest, for making of the farms furthcoming to the pursuer, for satisfying of a debt addebted to him by the Lady: Litiscontestation being made in the cause, and the probation renounced, before the advising the Lady dies; whereupon the Lords found, that the process could not be advised, until the same should be transferred in some person to represent the Lady, who was principal debtor; and therefore the transferring being raised at the pursuer's instance against her son, who was convened only as apparent heir; and the defender alleging, That the process could not be transferred hoc nomine against him, as apparent heir, seeing he was neither charged to enter heir, nor called as charged to enter heir, but only as apparent heir, which was not nomen juris: The Lords sustained the transferring against the apparent heir, in respect of the state of the process, which was concluded before the decease of the Lady; and that no execution was craved against the Lady, or her heirs, but only upon the arrestment against the tenants; and found no necessity of a charge, nor any other title in the person of the defender: but adjudications are not so sustained against apparent heirs.
Act. Hope.Alt. ——Clerk, Gibson.
Fol. Dic. v. 1. p. 58. Durie. p. 202.
