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.
Somervel v. Herriot
Date: 13 March 1628 Case No. No 110.
Found that, even where the debt was liquid against the defunct, transference was necessary against his representatives. See Spittle against Scott, No 107. p. 779.
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Somervel contra Herriot, relict of Robert Kincaid, pursuing to make arrested goods furthcoming, Robert Kincaid being debtor in some moneys to the pursuer, conform to a contract registrate against him, whereupon arrestment being executed in the Provost and Bailies of Edinburgh's hands, of some moneys addebted by them to the said umquhile Robert; after the making of the arrestment the said Robert dies, and now the pursuer in this action pursues the relict of the said umquhile Robert, and Marion Kincaid his only bairn, and the said Town of Edinburgh, to make the saids goods furthcoming; and it being controverted and alleged by the relict, that this action to make arrested goods furthcoming could not be sustained, while the registrate contract, which was the sentence against the defunct, were first transferred in some person to represent him, and then this action was competent, being the execution of a sentence; and the pursuer contending, that he needed no sentence of transferring, because Mr Alexander Lockhart, who was executor confirmed to the defunct, was that only person in whom of law he ought only to transfer, and he needed not to transfer in him, seeing he compeared, and declared (as he did indeed) that he would not propone that exception but that he was content that this process should be sustained against the defenders, sicklike as if transferring had been obtained and decerned against him. The Lords, notwithstanding of this compearance of the executor, and his consent foresaid, found, that no process could be granted in this cause, to make arrested goods furthcoming, while first the sentence was transferred in some person of law, to represent the defunct, who was debtor, and after that sentence, action to make arrested goods furthcoming might be pursued.
Clerk, Scot.
Fol. Dic. v. 1. p. 58. Durie, p. 360.
