Mr Andrew Ramsay of Abbotshall, v. Mr John Lauder younger of Fountainhall, &c
Date: 8 February 1712 Case No. No 39.
A party in a pursuit for constituting a debt against four heirs portioners, called them all; but one of them died pendente processu. The Lords refused to grant a diligence to call the next heir, till the year and day were run.
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Mr Andrew Ramsay, now of Abbotshall, having obtained an assignation from Squire Law, to a debt owing him by the deceased Sir Andrew Ramsay of Abbotshall, and resolving to adjudge, to fortify his disposition of these lands, he charges Mr John Lauder younger of Fountainhall, Lady Monkton, Lady Whitefield, and James Forbes younger of Thornton, as the four heirs-portioners of line to the said Sir Andrew, to enter heirs; and during the dependence of the process, the said James Forbes dies, which stopt farther procedure till his next brother were called, as representing Catherine Ramsay, his mother, one of the heirs-portioners; whereupon the said Mr Andrew gave in a bill to the Lords, representing the said James's death, and that he cannot proceed against the other three till one be cited to represent the said Catherine, seeing all the four must be in the field, and therefore craved, seeing he could not divide his process, and that he could not be obliged to raise a new one, because of this unforeseen emergent of one of the heir's deaths, that the Lords would grant diligence to cite the next eldest son of Thornton cum processu, and his father as tutor and administrator of the law to him, that he be not put to a separate process against him, or to wait the annus deliberandi ere he can be cited; and seeing the Lords, by the late act of sederunt in November last, have declared, that if the debtor, or his apparent heir, or other defenders, shall die, the process shall stop no longer than till the next apparent heir be cited on a diligence, without waiting the outrunning of the annus deliberandi, and that the parity of reason was the same in that case. But the Lords thought there was a great difference betwixt processes of sales and ranking, to which the act of sederunt only related, as being summary processes and the constitution of a debt against apparent heirs, which was the present case; and remembered that, in the case of Sir William Nicolson, the creditors were twice stopped by the death of two apparent heirs, and put to stay the year of deliberation; and, on this account, they refused the said Mr Andrew Ramsay's bill, and would give him no diligence to call the next heir till the year and day were run.
Fol. Dic. v. 1. p. 468. Fountainhall, v. 2. p. 720.
