Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Spenser Boyd
v.
-

Date: 4 March 1766

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This case was before the Court 22d January last, and this day the Lords adhered. Lords Pitfour and Coalston gave it as their opinion that a personal right to lands was affectable by every personal obligation relative to the lands; yet, if it was intended that the proprietor should be debarred from alienating or contracting debts, it must be done in the form of prohibitory, irritant, and resolutive clauses; because, although the Act of Parliament 1685 does not relate to such personal rights to lands, yet, by the common law, before that Act was made, a proprietor could not be restrained from the free use of his property except in that form, and it would be unjust that a man’s debts should not affect his estate, and yet that he should be allowed to enjoy it. The only difference, therefore, in this matter betwixt a personal and a real right to lands, is, that, where the right is real, there must be two registrations, both of the tailyie and of the sasine, whereas in the case of a personal right there is no occasion for any recording at all.