Lord Forbes and Others v. The Earl of Kintore and Others
Date: 18 February 1747 Case No. No 187.
How one of more defenders dying, his heir is to be called into Court.
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One of more defenders dying during the dependence, all of whom were necessary to be made parties, as being in society, and his heir being called by an incident, the question was, whether this was sufficient, or if it was not necessary to call him by an orginal summons or transference, in common form. Ratio dubitandi; where there are more defenders, the death of one does not throw the process out of Court; which is the case where a single defender dies during the dependence.
But the Lords had no regard to this distinction, and “found no process.”
It has been a form established since the foundation of the College of Jusice, that where a defender dies, the action must be transferred against his heir passive; where it is only necessary to intimate a process to another party, that party, or his heir, may be called by an incident; but no decree can go against a man called only by an incident.
N. B.—In processes before the Commission for Plantation of Kirks, &c. the Lords allow even principal parties to be called by an incident.
Fol. Dic. v. 4. p. 149. Kilkerran, (Process) No 6. p. 435.*** D. Falconer reports this case:
Certain Heritors on the river of Don pursuing several others inferior to them, for regulating their cruives, possest in common, it was objected, That all parties having interest were not called, in respect that William Brebner was summoned; whereas the right, at the time of the citation, was in James his father; although, when the action came to be insisted in, James was dead, and William had succeeded him; whereupon the pursuers, on a new summons, called William Brebner.
Objected, That there could be no process on this summons, the execution not bearing the names of the whole defenders, in terms of Act 6. Parl. 1672.
Answered, The intent of the act was, that executions should be particularly applied to a particular summons, and not be so general as to be applicable to any; which was done here, the whole pursuers being mentioned and designed; and it never was the practice, where there were many defenders, to resume them all in every execution, as in processes of ranking and sale, improbations and actions against debtors; besides, here William Brebner was the only defender called on this summons.
The Lord Ordinary, 3d December 1747, “repelled the objection.”
On bill and answers, observed, That it might not be necessary to name the whole defenders, where their interests were separate; but here the cause could not go on against one without the rest.
The Lords sustained the objection.
Act. Fergusson.Alt. H. Home.Clerk, Kirkpatrick.
D. Falconer, v. 1. No 241. p. 326.
