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.
Lesly v. Bain
Date: 6 December 1666 Case No. No 111.
It was once understood, that, arrestment being only an inchoated and incomplete diligence, furthcoming could not proceed after the common debtor's decease; but the sums arrested being in bona defuncti, ought to be confirmed.
Click here to view a pdf copy of this documet : PDF Copy
In a pursuit to make furthcoming, after serious deliberation and debate amongst the Lords, as in a case daily occurring, and wherein the decision would be a preparative and practique, it was found, That a pursuit to make furthcoming a sum of money due to a debtor, is in effect execution, and equivalent to a poinding; seeing money being in nominibus, and not in specie, could not otherways be affected and poinded; and therefore could not follow, but upon a decreet, and not upon a bond not registrate. 2do, It was found, That an arrestment is but an inchoate and incomplete diligence; and, notwithstanding thereof, the sum arrested remaineth in bonis of the debtor; seeing notwithstanding thereof, goods belonging to a debtor may be poinded: As also arrestment being a negative diligence, whereby a sum arrested is secured, so that the debtor cannot uplift; and the person, in whose hands the arrestment is made, cannot pay or give away the same in prejudice of the arrester; and as, in immobilibus, inhibition doth not establish a right in the person of the creditor, unless he deduce a comprising, but doth affect the same, so that the debtor cannot prejudge the creditor, and his diligence if he comprise: there is eadem ratio in arrestments in mobilibus. Upon these grounds it was found, That the debtor deceasing, the sums arrested being in ejus bonis, ought to be confirmed; and that the creditor could not have action against the person in whose hands the arrestment was made; and the apparent heir of the debtor called for his interest; but should confirm himself executor-creditor. (See Legal Diligence.
