Agnes Campbell, Shopkeeper in Edinburgh v. James Campbell of Burnbank
Date: 19 February 1709 Case No. No 4.
Beneficium inventarii not allowed to an heir who gave up inventories after the service, tho' within the annus deliberandi, and before he had any intromission, or was cited by any creditor, or infeft on the service.
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In a cause at the instance of Agnes Campbell, against James Campbell of Burnbank, as served heir to Mungo Campbell his father, for payment of a debt due by him to the said Agnes Campbell,
Alleged for Burnbank; He ought to be assoilzied, because he is served cum beneficio inventarii, and the inventory exhausted by debts.
Answered; Burnbank cannot claim the beneficium inventarii, because inventories were not given up by him, in the terms of the act of Parliament, before the service.
Replied; 1mo, The service containing the special lands, to which the heir was served, is equivalent to an inventory. 2do, The act of Parliament requires no more than that inventories be given up within the annus deliberandi, before the heir intromit; as an executor decerned in moveables may safely confirm and give up inventory any time within the year. Inventories cannot always be given up at the time of the service, seeing, where lands lie in several shires, it is impossible that all the respective Sheriffs and Sheriff clerks, who must subscribe the inventories, can be present at the service; and here inventories were made up, not only before the heir intromitted, or was cited by any creditor, but also before his service was completed by infeftment. 3tio, By the civil law inventories may be made up after the service, l. 26. C. de Jure Deliberandi.
The Lords found Burnbank universally liable for the debt.
