Diligence without Decree. - Diligence before the term of Payment. - Diligence in name of an Assignee or Defunct.
George Leslie v. The Lord Lindores
Date: 6 December 1666 Case No. No 16.
A process of forthcoming cannot follow but upon a decree, and not on an unregistered bond.
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There is a bond of 3000 merks granted by umquhile Patrick, Lord Lindores, and his cautioners, to George Leslie, in anno 1616, to which George Leslie, the Charger, has right by progress; who having recovered decreet against umquhile James, Lord Lindores, as representing Patrick, the granter of the bond, did thereupon raise letters of arrestment, and arrested in the hands of Mr John Bain, sums of money wherein he was debtor to the Lord Lindores in anno 1657, and doth now pursue the said Mr John Bain to make forthcoming, wherein he calls James, now Lord Loindores, apparent heir to the said James, Lord Lindores, against whom decreet was recovered. It was alleged for the defender, That there could be no process for making forthcoming, unless the debt were transferred by a decreet of transferring against the Lord Lindores, as representing his father, by some other of the passive titles. This being a point of form, the Lords found there could be no process for making forthcoming, unless the debt had been constituted by a sentence against this James, now Lord Lindores, as representing his father or his uncle, or otherwise that the pursuer had confirmed himself executor creditor.
Fol. Dic. v. 1. p. 537. Newbyth, MS. p. 86.
*** See Dirleton's report of this case, No 111. p. 781. voce Arrestment.
