Decisions of the Court of Session (Volume 1); From November 1825 to [20th July 1841]

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1826 Excerpt: ... service is required; and the only use of a service and kenning, in the case of the widow, is to give her a real right in the lands. But the personal right is vested in her by 21 Feb. 1826. the husband's infeftment, which is not only the measure, 1, 'M'Cleisho. but the constitution, or her claim; so that any declara-liennie. tion of it appears unnecessary. The necessity of a service to this effect has, no doubt, in some cases, been assumed, as in the case of M'Auley; but this was at a time when the erroneous doctrine prevailed, that an ap-parent heir did not transmit to his representatives'the rents arising during his apparency; and, in the other cases referred to by the defender, the question was treat-ed only incidentally; so that theuthorities on his side can only be considered as obiter dicta. They would no doubt be of weight if they stood alone; but there are direct authorities which establish that, to this effect, a service is not necessary; Fea v. Trail, 26th Jan. 1731, Diet, voce Title to Pursue; Mor. p. 616; Sank. B. ii. tit. 1, p. 662; Boyd v. Hamilton, 7th March 1805; Mor. p, 15,874. In the present case, Mr Rennie saw, from his own title-deeds, that the sale of the property was made under the burden of any claim of terce that might be made; and it must have been sold for so much the less ou this account; so that the purchaser was bound by it. A majority of the Court were of opinion that there was no room for the present claim. It was observed, that the widow's right to one-half of the goods in communion transmitted to her representatives without a service, because her right to this vested in her, in virtue of the joint possession of her and her husband; but the right to her terce required a title, at least to the effect of rendering it transmiss...