Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. II.
What Right go against Heirs.
Montgomery v. The Representatives of Walker
Date: 17 July 1752 Case No. No 34.
Pænales actiones transeunt in hæredes ubi lis est contestata. When lis is with us understood to be contestata explained.
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A process being brought against Emanuel Walker collector at Port-Glasgow, at the instance of Robert Montgomery, mariner in Lairn in Ireland, of wrongous imprisonment, oppression and damages; Walker, the defender, died, after having proponed several defences in jure; and the process being transferred against his Representatives, the Ordinary found them liable in damages and expenses, and appointed them to give in a condescendence thereof.
Against this interlocutor the defenders reclaimed, and, inter alia, contended, That this was a penal action quæ non transit in hæredes.
When the petition, with the answers, came to be advised, in respect of certain allegeances made for the defenders, the same were remitted to the Ordinary; meantime; it is not amiss to observe, that on this occasion, it was admitted to be a point certain, that even penal actions transmit in hæredes ubi lis fuerit contestata cum defuncto; and that with us lis is understood to be contestata by an extracted act. Only, where the question is in jure, lis is understood contestata cum defuncto, when the matter has so far proceeded, that the defunct has proponed a defence in jure.
Kilkerran, (Personal and Transmissible.) No 6. p. 401.
