A defender dying during the dependence of a process before the Sheriff, his representatives living out of the kingdom, must be called by a transference before the Court of Session and the other process advocated.
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During the dependence of an action at the pursuer's instance, against Alexander Maxwell, before the Sheriff of Haddington, Alexander died. The pursuer called, by letters of supplement, George and James Maxwells, both resident in London, as Representatives of Alexander, to appear before the Sheriff; the Sheriff found they were not legally summoned. And the case being brought by advocation, upon the head of iniquity, before the Court of Session, it was reported by Mr Thomas Hay of Huntington, Lord Probationer.
The Lords seemed to be of opinion, That, in cases of this kind, the proper form of proceeding was to have called the defenders by a transference to appear before the Court of Session; and then to have advocated the cause from the Sheriff, not for iniquity, but for defect of jurisdiction. However,
“They advocated the cause, and remitted to the Ordinary to proceed.”
