Citation in Process of Forthcoming. - In Adjudication. - In Reduction ex capite inhibitionis.
Stuart v. Stuart and Inglis
Date: 17 March 1637 Case No. No 109.
An arrester pursuing forthcoming, and referring the verity of the debt arrested, to the oath of the party in whose hand the arrestment is laid, and summoning him to a day to depone, must also summon the original debtor to the same day; or, if that is neglected, the oath may be taken to lie in retentis, but no decreet can go out till the principal debtor be summoned, and the days of the summons run.
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Captain Stuart having obtained sentence against Lieutenant-Colonel Stuart, decerning him to pay him some moneys, for payment whereof having arrested in John Inglis merchant, burgess of Edinburgh, his hands, some moneys pertaining to the Colonel, he pursues the Colonel and the said John Inglis for making of the said moneys furthcoming; and having cited the Colonel to this pursuit, at the day of compearance he refers the verity of the debt owing by John Inglis to the Lieutenant-Colonel, to the said John Inglis's oath, and summoned the said John Inglis to a day for that effect, to which day the debtor to the pursuer, viz. the Lieutenant-Colonel, was not summoned; and it being alleged, that no process could be granted therefor in this cause, because the said Lieutenant-Colonel was not summoned to that diet of the process, without which had been done, the process could not be sustained; and the pursuer contending in the contrary, that there was no necessity to summon him over again to this diet of the process, seeing he was summoned by the first summons in this cause; and there was no necessity to summon him to this term, seeing the debt was referred to John Inglis's oath, whom he could not hinder to depone upon his conscience what he pleased;——The Lords found no process, because the principal debtor was not summoned to this diet, as he ought to be to all the diets of the process, (he not compearing therein); but the Lords ordained, in the mean time, John Inglis his oath to be taken, seeing the pursuer had no other probation of the debt, owing by John Inglis to the Lieutenant-Colonel, but his oath; and if the said John Inglis die before the Lieutenant-Colonel, who is not within this realm, could be summoned, it were inquity that the pursuer should be prejudged in his probation; therefore ordained his oath to be taken, as said is, and to be retained and keeped, to be extant while the event of the process.
Act. Johnston.Alt. Gilmore.Clerk, Hay.
Fol. Dic. v. 1. p. 141. Durie, p. 839.
