Baird, and other Creditors of Primrose, v. Neil; Earl of Roseberry
Date: 16 July 1766 Case No. No 17.
Click here to view a pdf copy of this documet : PDF Copy
In the question between these parties, of date 22d June 1765, recorded voce Tailzie, after the entail had been found ineffectual against creditors, as not being recorded, it came to be disputed, Whether the Earl was liable in solidum for the whole debts, or only in valorem of the estate?
Pleaded for the Creditors; The Earl had it in his power to have served cum beneficio; but, in place of doing so, he chose to serve heir of tailzie and provision; and, therefore, now that the entail is set aside, he must be liable for the whole debts.
Answered; An heir of provision is not an heir in the proper sense of the word, he does not succeed in universum jus, but to the special subject provided, and, therefore, can only be liable in valorem.
2do, When the succession opened to the defender, the tailzie was supposed to be effectual. For that reason, he did not think it necessary to serve cum beneficio. But, now that the tailzie has been unexpectedly set aside, he must be considered in the same light, as if he had availed himself of that privilege, which he would have exercised, had he known that the estate was to be held in fee-simple.
“The Lords found the Earl liable only in valorem.”
Act. Lockhart, Sir David Dalrymple.Alt. Burnet.
Fol. Dic. v. 4. p. 234. Fac. Col. No 40. p. 267.*** This case was appealed.
The House of Lords, (3d April 1767,) Ordered and Adjudged, That the appeal be dismissed this House, and the interlocutor therein complained of be hereby affirmed.
