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.
Riddel v. Maxwell
Date: 20 January 1681 Case No. No 113.
Arrestment found effectual, although no process of furthcoming was raised till after the common debtor's death, and the arrester was preferred to an executor-creditor, who had obtained decree, but had not proceeded to poind.
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James Riddell being creditor to John Riddell in Leith, arrests all sums due to him, in the hands of Mr Patrick Bell; but, before intenting action, to make furthcoming, Riddell dies, and now James Riddell pursues Mr Patrick Bell to make furthcoming, and cites therein the heir of John Riddell, his debtor; Bell raiseth a double poinding against James Riddell, and Mr William Maxwell, who had confirmed himself executor-creditor to John Riddell, in the sums due by Bell, who alleged, that an arrestment of moveables, being only a legal prohibition as an inhibition of immoveables, therefore, as the inhibition dies with the person inhibit, so must the arrestment with the debtor whose money is arrested.— 2do, Though the arrestment could have effect after the debtor's death, yet it was a more regular and timeous diligence, to confirm the sums as in bonis of Riddell the debtor, and thereupon obtain decreet against Bell: For, if Mr William had poinded, he would never repeat; seeing it is certain that arrestment hinders not poinding.—3tio, James Riddell can have no sentence till he call one representing John Riddell the debtor, who must be his executor, or his nearest of kin, whereas he has only called his heir, who represents him not in mobilibus.—It was answered, That there is no consequence from an inhibition to arrestment, because inhibition is against the debtor, prohibiting him to sell, but the arrestment is against the creditor, prohibiting him to pay; and, therefore, if Bell had died, the arrestment could not operate against his heir, because he was not inhibit; but the death of Riddell, the debtor, hinders not the effect of the arrestment; neither needs the executor be called, seeing Mr William is executor, who as executor compears.
The Lords found the arrestment effectual, albeit no process was raised thereon till after the death of the debtor, whose money was arrested, and preferred the arrester to the executor-creditor, though having obtained decreet, seeing he did not poind thereupon. (See Competition.)
