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Scottish Court of Session Decisions >>
Bailie v Stewart. [1741] Mor 15600 (23 November 1741)
URL: http://www.bailii.org/scot/cases/ScotCS/1741/Mor3515600-130.html Cite as:
[1741] Mor 15600
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The act 1685 was introduced for the security of creditors, as well as for the security of entails; and therefore a declarator of irritancy having been obtained against an heir of entail, who possessed the estate upon a general service, for neglecting to insert in the retour the limitations of the disposition of entail, with which he connected by the service, his debts were found good against the next heir, the tailzie not being recorded in the terms of the act 1685, which they would not have been at common law, in respect of the provisions in the right itself, which was sufficiently qualified thereby, at least while it stood as a personal right without infeftment: And it was found, That the estate might be affected for these debts, though, by declarator of irritancy, the same was established in the person of the heir, who did not represent the defunct debtor, and so the estate was now neither in the debtor’s person, nor in hæreditate jacente of him; which the Lords did not regard, -because, as to the creditors, the case was the same, in virtue of the act 1685, as if the debtor had been absolute proprietor. See Appendix.
