Form and steps of the process. Real creditors not in possession, how to be called? Creditors to bring a sale, must be in possession of the estate.
Montgomery and Other Adjudgers of the Estate of Maxwell of Arkland, Petitioners
Date: 6 January 1750 Case No. No 17.
Whether after the death of the pursuer in a sale, the other creditors can take it up without calling the last pursuer's heir?
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Upon the death of the pursuer of a sale, the other creditors applied to be allowed to take it up; which the Lords granted, and “found no necessity to call the last pursuer's heir.”
Some of the Lords urged, That whereas by the fifth article of the act of sederunt 1711, it is enacted and declared, That in case of the death of the debtor or if any of the creditors, defenders, compearing and producing, shall happen to die, the process thereupon shall stop no longer than till their apparent heir be cited to compear upon a diligence, &c. so that if no person appear in the place of the common debtor, or creditor deceased, the Lords declare they will proceed in the process where it last left, &c. as when parties alive do not compear; it is impossible to think the Lords could mean, that in case of the pursuer's death, his heir should not have the same privilege of being called as any other creditor would have, though the clause is ill expressed.
Fol. Dic. v. 4. p. 208. Kilkerran, (Ranking and Sale.) No 10. p. 472.
*** D. Falconer's report of this case is No 118. p. 2240, voce Citation.
