Neil Earl of Roseberry v. James Baird, and other Creditors
Date: 22 June 1765 Case No. No. 142.
The act of Parliament 1685 was found to have retrospect to entails not only made, but completed by infeftment, before the date of that act, and recorded in the register of sasines.
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The predecessors of Niel Earl of Roseberry executed an entail of the estate of Primrose, which, in the subsequent transmission of that estate to the sereral succeeding heirs, had been regularly recorded, with all its clauses, of whatever kind, in the register of sasines. This entailed estate having come into the possession of the present Earl, he was pursued by the creditors of his predecessors, notwithstanding of the entail prohibiting the contraction of debt, as it never had been inserted in the particular record established for the registration of tailzies by the act 1685.
In opposition to this claim, it was pleaded by his Lordship, That the act founded upon, in the same manner as every other law, could have no retrospect, and was only intended to provide a remedy against future emergencies. He insisted, too, that though the House of Peers, in the case of Rothes, No. 138. p. 15609. had declared, that the act 1685 was to regulate tailzies prior to the date of it, yet that the case itself, which was the foundation of that sentence, explained the sense in which it ought to be received. The tailzie, in the case of Rothes, was never completed by infeftment; consequently, the decerniture of the supreme Court could only have relation to tailzies in the same imperfect situation, but could never be intended establish a rule for those upon which infeftment had followed, and which, like the present, were recorded in the public register of sasines, patent to all the lieges.
“The Lords found, That the tailzie was not effectual against the creditors, as it had not been recorded agreeable to the statute.”
Act. Lockhart.Alt. Burnet.
Fac. Coll. No. 17. p. 30.
