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deavour to part with it, or contract it shall be lawful to his Majesty's debt whereby it might be taken away subjects to tailzie * their lands and from him by his creditors, then his estates; and to substitute heirs in act and deed in such attempt should their tailzies with such provisions be void and null. The resolutive and conditions as they shall think clause, again, is the counterpart of fit, and to effect the said tailzies with that one, and while that other clause irritant and resolutive clauses :" and makes the deed done ineffectual, this it is afterwards declared, “ that such one, namely, the resolutive clause, tailzies shall only be allowed, in declares, that the power of the con- which the foresaid irritant and resotravener shall instantly cease, and lutive clauses are inserted in the procome to an end. As the awful writ- curatories of resignation, charters, ing on the wall declared that the precepts, and instruments of seasine, kingdom of Belshazzar should pass and the original tailzie once produfrom him, in punishment of his trans- ced before the Lords of Session judia gressions ; so the resolutive clause of cially, who are hereby ordained to an entail declares that the heir, acte interpose their authority hereto; and ing contrary to the restrictions of it, that a record be made in a particular shall fall from his estate ; and this is Register-book, to be kept for that considered to be, not only a penalty of effect, wherein shall be recorded the this disobedience, but strictly necessa names of the maker of the tailzie, Ty, to give effect to the irritant clause. and of the heirs of tailzie, and the This latter idea that the deed ac- general designations of the lordships tually done should become null by and baronies, and the provisions and the supposed previous demolition of conditions contained in the tailzie, the contravener's power, arising from with the foresaid irritant and resoluthe contravention, and yet that that tive clauses subjoined thereto, to redemolition should be the conse- main in the said register ad perpequence only of that very deed is not tuam rei memoriam.” a little abstract. So it is, however, This short view of the law on this and casuists may find it as difficult subject will, we trust, render the to settle the consistency of this, as of case of which we are to treat easily many other matters of the law: but intelligible; and the following are the validity of such clauses to effect its facts and circumstances : the intended purpose came early to Miss Margaret Agnew, only child trial in the noted case of Stormont, of R. Agnew of Sheuchan, was in 1662, when it was supported by a married to John Vans of Barnbarroch majority of no more than one vote on Esq., and a contract of marriage was the bench of the Court of Session. entered into on the occasion, dated It was not, however, considered to be 29th December 1757. According to safe to leave a matter of such consee it, R. Agnew paid to T. Vans £.3000, quence to the determination of com- and entailed on him and his future mon law, where there had existed so wife, his own (R. Agnew's) daughmuch doubt; and then was enacted ter, his lands of Sheuchan. J. Vans, the well-known Statute 1685, c. 22. as a counterpart, entailed his estate of Were we certain that our friend the Barnbarroch on HIMSELF and Mara laird had the Scots Acts, or that, garet Agnew, his spouse, and the sure being possessed of them, he could vivor of them ; whom falling, to the readily lay his hands on them, we heirs of the marriage; whom failing, should satisfy ourselves with a mere to the heirs of the body of the said reference to it; but having good Margaret Agnew, in any subsequent reason to think, either that he has marriage; whom failing, to the other them not, or that the leddy, in her persons therein named. rage for redding up her house, and These mutual entails were regu“ having all things in order," has larly protected, by irritant and resoactually tumbled them up into the lutive clauses, against selling and garret, we recite the words of the contracting debt, the nature of which Statute, which declares, " That has been already explained ; and it
• Tailzie is the Scotch law-term for Entail, derived from the French Tailer to cut ; whence also comes the word Tailor.
must be specially remarked, first, discussion in the Court of Session, that those clauses in Mr Vans's en. at the instance of John Vans's credi. tail were expressly directed, not only tors, in 1784. We regret that our against the heirs of entail, but against limits do not admit our quoting the Mr John Vans himself, as institute, speeches made on the occasion, upon or person first named; and, secondly, the Bench, by Lord Braxfield, and that the tailzie by him was not exe- the other great Judges of that day, cuted, as generally takes place, gra, but they found that the tailzie was tuitously, but for the two onerous a subsisting deed; but that the estate considerations of a sum actually paid of Burnbarroch was still affectable by down, and of a counter-entail of the the debts due by John Vans of Barnbarlands of Sheuchan.
roch AT THE TIME OF HIS DEATH." The entail of Barnbarroch was ree This decision was considered to be corded in the record of tailzies very well founded at the time. It found soon after its execution in 1758; but, in substance, that in no case could a as shown from the act, to render it man entail his lands to the prejudice effectual, an additional step was ne- of his own just and lawful creditors. cessary, not only at common law, be- An Act of Parliament was accordingfore 1685, but by the enactment of ly obtained on it, for selling this enthat year; and that was, that infeft tailed estate, so far as necessary, to ment should follow, and be registered, pay John Vans's debts; and had the on the entail, reciting all its condi- matter been carried speedily through, tions, and irritant and resolutive the whole of his £.11,000 of debt clauses. This step, which was abso. would have been paid off under it. lutely requisite for the completion of The business, however, was in no the tailzie, did not, however, follow such forwardness. Robert Vans Aguntil 1775, viz. at the distance of new, the son of J. Vans, died, while seventeen years; and let us next ob- yet little more had been done. We serve what happened in the mean should have been apt to suppose that time, and before that sasine took the Act of Parliament would have place. John Vans had, at the date, shut the chequer, but such acts beand the recording of the entail in ing always periculo petentis, have 1758, owed £.1500 ; and from the no such effect. John Vans Agnew, time of that recording, down to the now of Sheuchan, son of Robert Vans full completion of the entail, by re- Agnew, succeeded him; and on corded infeftment, in 1775, he con coming of age, and returning from tracted £.8000 more debt ; so that abroad, he appealed to the House of before his entail was completed, by the Lords against the decision of the last of the two requisites having been Court below, when the Peers remitcomplied with, he actually owed ted the case for consideration to that £.9500. In point of fact, we may Court ; and the Lords of Session, on just add, that, from the recording of 2d June 1818, on perusing printed the infeftment on the entail, down to informations for the parties, adhered his death, he contracted debt to the to the sentence of their predecessors in amount of £.1500 more, so that his 1784, finding also expences to be due debts, before he died, amounted in by Mr Vans Agnew. all to £.11,000 sterling.
Recourse was then had to a second Keeping the circumstances in view, appeal, on hearing which, the House that this onerous entail was executed of Peers, on 14th July 1822, mateby John Vans himself, and that the rially altered the decision of the limitations were directed against hime Court here, for they “ found, that self as well as others, the question the estate was affectable only by the arose, whether any, and what part debts of the said John Vans AT THE of those his debts were good against DATE OF THE DEED OF TAILZIE OF his own estate of Barnbarroch, or 29TH DECEMBER 1757, AND WHICH whether that estate ought to descend REMAINED DUE AT THE TIME OF free from his debt, to his own heir, HIS death, and by such other debts Robert Vans Agnew, (the son of his of the said John Vans, if any, as had marriage with Miss Agnew,) who, become real charges upon the estate beafter his father's death, made up fore the infeftment on 20th May 1775. titles to it. The case came into This is the judgment of the House of Peers referred to in our title to “ Considerations, &c.” M. De this paper; and, as admitted by Mr Lolme, in his celebrated Essay on the Mundel, Solicitor in London, (who is British Constitution, says, that in known to be the author of an article this free country, one of the most useon the subject in the New Edinburgh ful purposes of Journals, of all kinds, Review of October last,) it “ produ- is to acquaint the people with the ced an uncommon degree of sensation" decisions of the courts of law, and to in the country; for its clear import try their value ; and availing our. was, that though John Vans's debts, selves of the opportunity which ours due at the date of his entail, could affords us, we shall, in as far as in us not be affected by it, yet that all his lies, consider the various merits of posterior contractions were unavail. these judgments, and of the opinions able against it, unless where the of those writers. We approach the de. estate was attached by adjudication cisions, however, with becoming diffor any of them, before the infeft. fidence, and the greatest respect; bement took place on that entail ; and ing aware that it may occur to some, as such attachments must have been that it is not a little presumptuous very few, owing to his good credit, in us to impugn the ideas of great we may reckon that this judgment of and learned Judges, pronounced not the Peers cut out creditors of the only from the Bench, but from the entailer to the large extent of nearlyW oolsack. £.8000 sterling, all of whom would The decison of the Court of Sese have been paid, according to the sion (which is approved of by Mr Court of Session's decree. As a pre- Sandford) is founded on this general cedent, this decision in the Court of conception, that no man, by his own last resort was most naturally the entail, is entitled, in any case, to cut source of great anxiety, because it out any of his own creditors whata amounted precisely to this, that a ever; and on this general idea, man who stands in the fee-simple of men of business have always consihis estate, may onerously execute an dered the transference to an entailer's entail of it ; and that that tailzie, bond as one of the best securities for after lurking in his repositories for money; because it was held to be for many years, during which he has good against an estate, which, by the been contracting large debts of all tailzie, is safe from all future cona kinds, may be brought forth by those tractions. having interest in it ; and being, in The judgment of the House of the course of a few days, put into Peers, which Mr Mundel, on the the record of tailzies, and followed other hand, approves of, admitted no by a recorded sasine, will cut off such general principle ; but holding every one of those lawful creditors, an onerous entail, like that of John perhaps to the utter ruin of them: Vans, to have been of the nature of selves and their families. We shall a sale to the heirs of tailzie, they now set ourselves to inquire when were led, by that analogy, to give efther or not it is well-founded in the fect to the sasine on it, so as to exlaw of the country; and recollecting clude such of the entailer's own crethat, whether right or not, it will re- ditors as had not, previous to that ingulate future judgments, it ought feftment, actually attached the estate next to be considered what should by adjudication. be the remedy of so great an evil as Now, with the utmost deference, the existence of such a law.
we are not satisfied with the prinIn this writing land of ours, all ciples of either of those judgments, matters of general importance become and shall proceed to state why we the subject of public discussion, and differ from them. Those who have accordingly this one has engaged va- perused Mr Swinton's little work, rious able authors; the chief of will find that we arrive at nearly the whom are Mr Mundel, whom we same conclusions with him, though have already alluded to; Mr Sand by a different demonstration. ford, who treats of it in his valuable In considering any plant or aniBook on Tailzies : and Mr Archibald mal, or any other matter in natuSwinton, W. S. who has handled it ral history, one of our first inquiin bis excellent pamphlet entitled ries is, “to what species does it be
long?" and following the same mode in? It was doubted, in the first place, here, let us examine whether, in the whether Mr John Vans, or any other law of Scotland, such a writing as entailer, could impose limitations that which was executed by John and restrictions on the institute, or Vans was by species an entail, or a person first named by the tailzie, deed of sale. Should we find it to and affect him with irritant and rehave been an entail, we shall then solutive clauses; and, secondly, it was inquire whether there was any such contended that, esto, he could so respecialty in it as to give it an effect, strain his institute, should that incontrary to the general nature of stitute be any other person ; he could tailzies, of excluding the just and not do so in the event of his namlawful creditors of the entailer. ing himself the institute of his en
What, then, was this writing? Our tail. answer is that, having a destination Now, on the subject of the first of with conditions, provisions, restric- these, founding on the terms of the tions, limitations, and clauses irri. Statute 1685, which we have already tant and resolutive, and all the other quoted, it has been said, that that parts of the machinery of an entail, Act gave no authority to impose rewe must hold it to have been an entail strictions on institutes, or the persons just as certainly as we admit a large first named in each entail, but only engine, consisting of all the wheels, on those after nained, who alone are mill-stones, and other apparatus ne said to be meant by the term “heirs." cessary for grinding grain, to be a in the act. It is really mortifying corn-mill. It is true, that there was to see how much mischief has been here a particular reason for the deed, done in the world, and how many a quid pro quo, such as generally takes of the lawsuits in it have arisen place in sales; and that by the terms from the imperfection of language, of the dispositive clause of this writ- and the looseness of expressions, not ing, John Vans “sells, alienates, and only in formal writings, but in the dispones,” &c. But is not such a laws of countries, which, like the quid pro quo only the result of the Sphynx's riddle, or the effusions of agreement which had been made to the Delphic Priestess, may often be execute mutual tailzies, as much as it interpreted any way. The present would have the consequence of one is an instance of such uncertainty; to make mutual sales and this may but the best key to all such puzzles be safely conceded, without con- is to resort to evident design. Now founding the two kinds of rights to is it conceivable, when our Legislature gether. As for the term “ sells" allowed men “ to tailzie their lands used by John Vans, it seems little to and estates," that they did not mean the purpose, because it is well known, that they should have chiefly power in the tautology of our Scotch deeds, to do so, against the acts and deeds not necessarily to mean what is or of the eldest son, say of the entailer, dinarily understood by sale, but often whom he might name first, making to denominate, in fact, no more than him thus institute, and whose profuse a strong expression of lien, which habits might be the chief cause of appears from the use of it in ordinary his entailing at all? Dalrymple says heritable bonds, (not even disposi gravely, that an English estate fretions in security,) where no sale is quently stands out against two geintended, and where nothing farther nerations of profusion, but that a is, in truth, meant than the constitu- single profligate very often ruins a tion of a real burden over the land *. Scotch one. Suppose, then, that the
We humbly think, therefore, that sorrowing father of such a son had, the writing of John Vans was truly an after the 1685, come to the great ENTAIL; and we shall next consider lawyers of that time, who had just whether there were any specialties in prepared the entail act of that year, it, to prevent its being governed by and asked them, whether it gave him the ordinary rules and law of tailzies power to tie up his son's hands, sbould
But what may it be supposed that he leave his estate to him, by such specialties may have consisted straightway disponing it to him, re
* See Juridical Styles, Vol. I.
serving his own liferent? The an. gratuitous deed ; and is it not usual swer must have been " Certainly it for men of profuse habits to tie up does ? It was for the benefit of such their own hands by bonds of interunfortunate persons as you, in a great diction, which, when duly proclaimed measure, that the act was made, and and registered, have the effect of reyou must not suppose that our work straining them? It is true, that the has been so deficient as to miss al. Act 1685 says nothing on the subject; most our sole purpose;" besides, in and the reason is, that it was unneanswer to what may be founded on cessary, it being completely underthe expressions which seem to limit stood, that, at common law, a prothe word heir, so as to make it mean prietor could restrain himself. The substitutes, and not the institute of statute wasonly suppletory of the coman entail, we hold that such interpre- mon law, as to confirming powers, tation is far too narrow; and proba. and for the institution of the means bly the decisions in the case of Dun- of promulgation of all restraints by treath, and other actions, proceeded entail, wherever imposed ; so that from the notion so prevalent in those there seems to be little doubt, that days, that entails were stricti juris ; a talzie, duly recorded, and followed an idea now in a good measure dea by a registered infeftment, ought to be parted from. The point for determie held good against the entailer himself, nation there, however, was not whe- as well as others, providing that he is ther, according to the Statute 1685, duly constituted institute, and that an entailer could bind the institute, the irritant and resolutive clauses but whether, in particular instances, are made applicable to him. Lord he had actually bound him. We may Redesdale, in the able speech made further add, that the Roman law by him on this case, preserved in the was much more prevalent in this Appendix to Mr Sandford's Treatise, country in 1685 than it is now. Ace stated, that he considered it to be cording to the analogy of it, the in competent for an entailer to bind stitute was more the hæres than the himself as institute of his entail, and substitute ; and it is fair thus to ar he referred to two cases as confirmgue, that, instead of protecting the ing his opinion. The first was that institute against the imposing of res of the Duke of Athole, in 1810. His strictions, it was the direct intention Grace possessed the estate of Tulliin that act to lay them on him, as bardine, which was entailed, and more properly an heir than any other. that of Wester Kinnaird, which was But farther, in point of actual practice, unentailed : he obtained an Act of is it not quite customary for an en- Parliament for loosing the first of tailer to bind the institute as well as them from the entail, and for entailthe substitutes of his entail ?
ing the other in its place; and the There seems to have been no in Court of Session, in fixing the terms competency, therefore, in John Vans of the new entail, ordained that His having bound the institute of his Grace should make it to “ himself entail by the irritant and resolutive and the heirs whatsoever of his body, clauses in it. The question is a little whom failing," &c. In the other case, more difficult, whether it was com- which was that of Mr Kennedy of petent for him to constitute himself Dunure, in 1817, where unentailed the institute, and so bind himself by lands were substituted for others those clauses? But there appears to which were entailed, and Mr Kennehave been nothing whatever incom dy, also, by the Court's authority, dispetent in thus binding himself, ac- poned the unentailed lands to himself, cording to the genius of our law, as institute, and bound himself by for, according to the spirit of the Act all the conditions of the new entail. 1621, men are presumed to be al- From these two cases, it appeared lowed to dispose of, and, a fortiori, that it is competent for an entailer to to bind their estates and themselves bind himself as institute; but there even gratuitously, except in so far as might be, besides, this special reason they are obstructed by that Statute: in both of these instances, that the besides, is it not competent for a land- Duke and Mr Kennedy were already holder to reduce himself even to the bound, as substitutes holding the old situation of a liferenter by his own entailed estates, and these obligations