Who must be Cited in a Process on the Passive Titles.
The Master of Saltoun v. Lord Saltoun and Arthur Forbes
Date: 18 January 1672 Case No. No 2.
Found, that process was not to be sustained upon any debt of a defunct, unless the whole heirs-portioners were called.
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The Master of Saltoun, as assignee to a debt due by the deceast Lord Saltoun, pursues this Lord Saltoun as heir of line to him, or as charged to enter heir, and he having renounced, he insists for adjudication. Campearance is made for Arthur Forbes, as having disposition from the deceast Lord Saltoun of his estate, who alleged that this adjudication was by collusion betwixt the father and the son, to burden the estate disponed to him, and therefore had interest to defend; and alleged that all parties having interest were not called, viz. the rest of the heirs-portioners of the deceased Lord Saltoun; for this Lord Saltoun being heir of line by a woman, the rest of her sisters and their representatives are also heirs-portioners, and must be called; who if they were called, they or some of them may have writs, whereupon defences may be proponed. The pursuer answered, That he might well adjudge against the one heir-portioner pro rata, according to her proportion of the debt, and of the estate; and, though the rest were compearing, they could not hinder him, for he might discharge some of them, and pursue the rest; and the pretence that the other heirs-portioners might propone and instruct defences, has no more strength, than if one or more co-principals, or cautioners, being pursued, should allege the same, which has been often repelled. It was replied, That process cannot be sustained upon any debt of the defunct's, unless those representing him be called; ita est, the whole heirs portioners do represent him jointly in heritage, as well as executors in moveables, against whom there is no process till all be called; and, though formerly this defence was repelled as to one heir-portioner, who, though not called, compeared, concurred, and renounced to be heir, the defence is now proponed for the other heirs-portioners.
The Lords sustained the defence, and would not allow to continue the summons against the other heirs-portioners; but found that all of them behoved to have two citations, which could not be upon this summons.
