In a transference, a passive title libelled, which was not in the former process, was sustained.
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The deceased Sir James Edmonston of Duntreath, and William Edmonston, his son, became obliged to pay 6000 merks to Mr. John Edmonston, son to Sir James; whereupon Jean Edmonston, as having right from Mr. John, her father, pursued Duntreath, as representing his goodsir, and he having died pendente lite, there is a transference of that process pursued by Anna Dalgleish, as heiress and executrix to the said Jean Edmonston, her mother, against Duntreath, as son and apparent heir to Archibald Edmonston, his father, who was son and heir to the said William Edmonston, party obliged with his father; and the process being thereupon transferred, the said Anna insisted in the principal cause, and a term was assigned to prove the passive titles; against the extracting of which act, it is now alleged for Duntreath, No process inthe principal cause, upon the transference, because the principal cause is libelled against Archibald Edmonston, who is brother to Duntreath, and not against Duntreath himself, whose name is William; 2do, In the transference there is a new member libelled against Archibald, the second brother, “as he who received the disposition from his father, with the burden of his debt;” which form allows not to be accumulated in one process with a transference, which is wholly heterogeneous. It was answered for the pursuer, as to the first, That albeit, by mistake, he be named Archibald, yet an erroneous designation hath no effect, ubi constat de persona; for the christened name was not necessary to be expressed; but if it had been “——Edmonston, son and apparent heir to Duntreath,” it would have been sufficient; and here William is designed “eldest son and apparent heir to Duntreath. As to the second, There is no inconsistency in a transference against the apparent heir, to adject a conclusion of payment against the second brother, as undertaker of the debt.
The Lords repelled the first defence upon the wrong name, the pursuer abiding by the executions, as truly given to the eldest son; and repelled the second defence, the matter being for payment of the same debt, upon a several passive title.
