No necessity to call the rebel in transference of a process relative to his escheat.
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John Murray and John Bannatine (for my Lord Tester's behoof) both donatars to the Laird of Drumelzier's escheat, contested who should be preferred: Shortly after John Murray died, and my Lord Yester sought to have an act of interlocutor given in his favours against John Murray while he lived, transferred, in his son David Murray. Alleged, all parties having interest were not called, viz. the Laird Drumelzier, for whose escheat they were striving. Answered, He needed not in this case, where he was only seeking one to represent the defunct, but after he had established the judgment so, then he behoved to call the rebel before he got process. The other contended, That this being a part of the process, and a special act therein, the rebel who was most concerned in the business, should have been called thereto. The Lords found there was no necessity to call the rebel in the transferring.
Spottiswood, p. 341.*** Durie reports this case:
In a transferring of a declarator of the L. Drumelzier's liferent, at the instance of one Bannatine donatar thereto, wherein litiscontestation being made by the compearance of a contrary donatar, who was admitted for his interest; and a reply proponed and admitted, for eliding of an exception proponed by him; which donatar dying since litiscontestation, this process was desired to be transferred in one representing the said donatar; to the which transferring the Lords found no necessity to summon the principal party defender in that declarator, seeing he was living, and so needed not to be summoned; albeit it was alleged, that the process wherein he was principal party, could not be moved nor meddled in by any judicial deed, except he were cited thereto; this action being for procedure, in a process wherein he was party principal, wherein nothing could be done, except he had been legally cited, this being a diet in the same process; which allegeance was repelled, and the transferring sustained without necessity to cite him, seeing he would be summoned after the tranferring by a wakening.
