M'INTOSH v M'ANDREW (Court of Session)

M'Intosh raised an action against George M'Andrew, and John M'Andrew, his son, for payment of a bond in which they were joint obligants. The summons was executed against them, and an arrestment used on the dependence. Pending the induciæ, however, and of course before the action was called in Court, George M'Andrew, the father, died, and a summons of transference was executed against the son, as his representative, and as liable passive for his share of the debt.

The Lord Ordinary reported the point to the Court; and their Lordships, after hearing counsel for the parties, and after taking the cause to avizandum, unanimously repelled the objection; found that there were termini habiles for a transference; and remitted the cause to the Lord Ordinary to proceed accordingly.

The Lord President further observed—That, at all times, after a summons was executed, arrestment was considered competent as upon a depending action; Ersk . iii. 6, 3. The action might then be said to be begun, and, consequently, was a valid ground of arrestment. By the word process was meant the proceedings after a certain progress had been made in the action. But it was a depending action from the moment the summons was executed against the defender. But, properly speaking, there was no such legal term as the word process.

Lord Craigie also concurred, and observed that the style of the summons of transference in Dallas , 1st edit. p. 305, appeared to apply to the case now before the Court.