Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SERVICE OF HEIRS.
Subject_3 Necessity of a General Service in order to transmit personal rights in burgage tenements.

Mrs Jean M'Conochie, and Her Husband,
v.
James Marshall and Thomas Ruthven, Cumming's Creditors

Date: 4 December 1783

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[Faculty Collection, IX. 210; Dict. 14,446.]

Eskgrove. I doubt whether magistrates in burghs can give such infeftments in personal rights.

Braxfield. A service is necessary in order to transmit from the dead to the living. In burgage tenements this is not necessary, for the magistrates are supposed to know the rights of parties. This is the case when the predecessor died infeft. There may be more difficulty as to personal rights: but I should think that, even in that case, the magistrates might have given infeftment causa cognita: but it seems to me that they did not properly inquire, and that they have mistaken the fact; for they supposed that Jean M'Conochie was fiar. Now, from the case of Lord Napier, it is plain that not she, but Beveridge, was fiar.

Elliock. I think that a service is necessary; for, without it, nothing more will be carried but the personal rights.

Monboddo. The power of the magistrates goes not so far as to enable them to grant infeftment more burgi in personal rights, without cognition.

On the 4th December 1783, “The Lords sustained the objection;” altering the interlocutor of Lord Alva.