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SCOTCH ENTAILS, AND THE Ascog Case, For determining the point, whether an Entail, though defective in certain respects, may yet be effectual for obliging the Heir in Possession, who has sold the Estate, to vest the Price thereof in Lands or Heritable
, Security, taken to the same series of Heirs, and under the sume conditions us those in the Broken Entail,
TO THE EDITOR.
This your Journal being a cona mately be ended on the arena of the tinuation of the Old Scots Maga- House of Peers. ' As it is amusing zine, which has now subsisted for to read of a warfare during its provery many years, and which forms, gress, where we have the charte de in truth, one of the most valuable pays, and know the subject of quarrecords which there are of the affairs rel, these I shall endeavour to furand progress of any country, it is nish here, and, like all other news. right to insert in it those great cases mongers and politicians, I shall have which occur in our Scotch Courts, no hesitation in saying which of the particularly when they relate to contending parties 1 conceive to be questions which are in some de- in the right, and in giving my reagree peculiar to our own jurispru. sons for thinking so. dence.
in the early stages of society, the The Law of Entail, as we have it, pride of ancestry, and a respect for is in a great measure our own; and the avos atque proavos, is particularfor that reason, in one of your Num- ly strong. It is naturally then conbers of last year, you gave your nected with property in land; and readers (as I understood, much to the the term " gentleman” of old meant, satisfaction of those of them who in England, none else than a 'squire, took the trouble to read it carefully,) and in Scotland, a laird. In Sir Anan account of the noted Agnew Case, thony Fitzherbert's curious Agricul. decided both here and in the House tural Treatise, written in England of Lords. This season the attention in the days of Henry VIII., where of both lawyers and country gentle- he allots a chapter for instructing men in Scotland has been much at- young“ gentlemen” how" to thrive," tracted by another case in Entail he means young owners of landLaw, having most important conse- estates. In Scotland, the same quences; and I shall now employ a meaning is affixed to the term, in few pages in laying it before your Lord Kames's Gentleman Farmer. readers. It has already been tried Rob Roy, a small landed-proprietor, by the Court of Session, and, I had despised the Glasgow manufacturers almost said, decided; but with us a
weavers; and old Miss trial, as is well known, does not al. Nicky Murray, who ruled the Edinways import a decision ; and all that burgh assemblies in the days of yore, I mean to say is, that, after a full with as imperious a sway as Beau pleading, technically called a hearing Nash did those of Bath, generally, in presence, and long printed argu- it is said, contrived to refuse dans ments on each side, styled informa- cing-tickets to every young lady ap. tions, to the First Division of the pearing on the boards, who had Court, and with the aid of printed vulgar bluid in her veins," and opinions from the Judges of the Second who was not distinctly understood to Chamber, their Lordships of the First be Miss, or one of the Misses SuchDivision pronounced a judgment or a-Thing of Such-a-Place; it being interlocutor. It is understood that thereby directed, that if she had not the losing party are petitioning such titles as showed that she had against it: their petition will be an- sprung from a race of landbolders, swered, and thus the battle will be she should not figure there among fought over again on Scottish ground; people of good family. but the war will be transferred to in Scotland, the idea of entailing England, and the contest will ulti- was at a particular time fostered by the wish which landed proprietors he did the deed, and it must have had to secure their estates to their stood good ;) but it was to work, by families possessing them, though his ceasing to be proprietor at the they might be lost by forfeiture to very time the fatal act of contraventhose individuals of such families" tion was done. The very doing of who'might incur the displeasure of the deed made him cease to be owner Government, by supporting the un- at the time he did it, and it was successful party in the State. The that circumstance alone that was to devices of lawyers were natural render the contravention null. enough. They made the proprietor Your readers who are of the proattempting such expedient to destine fession, know that the irritant and his lands to a series of heirs expresa resolutive clauses are those expedients sed, and to insert in his writing strong to which I allude; and the lawyers prohibitions against selling the es- who invented those mysterious means tate, giving it away, or altering the were well aware, that any thing less ordained order of succession ; and strong would have been quite ineffecthey at first supposed they had at- tual in restraining the actual right tained their end by supporting such of property, which each succeeding prohibitions by the diligence of in- beir would hold in the estate. hibition, which they found already I shall not detain you by any parexisting in our law, but applied to ticular account of the well-known the securing of ordinary debts. case of Stormont, but merely men
Maturer consideration, however, of tion, that it led to obtaining the Act the strong right of property, made 1685, which, being the great statute them soon aware that those measures of Entail Law, deserves particular were feeble, and that, where that attention. It enacted, that lands right was regularly vested, he who might be entailed by the use of irripossessed it could not be prevented tant and resolutive clauses, and by from taking the amplest use of it, no other means. merely by being forbidden, or pro- Among those who were infested hibited to do so; while they came to in no small degree with the passion doubt the force of the measure of of family-making was John Murray inhibition as a remedy for the de- of Blackbarony. He was already fect, seeing that that was a diligence possessed of certain lands, called applicable merely to common debts; Ascog, in the Isle of Bute, and he and they saw that the use of it was had considerable moveable property. erroneously taken for granted, that These, his lands, therefore, he rem a mere prohibition could restrain the solved to entail strictly, and he wishright of a proprietor.
ed, besides, that his moveable for The lawyers, therefore, then set tune should be expended in the purthemselves to invent new plans; and chasing of other lands in Scotland; they tried to make clauses, not to be entailed in the same manner, such as merely prohibited to part and to the same series of beirs to with the estate, which they had whom he meant to devolve his old found to be quite inefficient, while estate. the right of property remained with With such feelings, and in these the heir in possession. The intendo views, he, on 28th May 1763, exeed operation of these new clauses cuted a writing, which he meant to was founded on an abstract, and not be a strict Entail of Ascog, the oute & very distinct idea.
It was not set of which specially merits attenonly to declare the deed of contra- tion. Although he had hitherto vention, that is, the deed which was been called Alexander Murray of prohibited, to be null, but also to or- Blackburony, he there styles himself dain the right of the granter of it also by another name and designato be at an end, by the doing of the tion, meant by him thenceforth to prohibited act; and the force of be borne by his successors as conthis curious expedient was to oper- nected with Ascog-calling himself ate, not by the forfeiture of the Alexander Stewart of Ascog; and in contravener, in consequence of the the writing he distinctly states his contravention, (because, in that view, object, thai his successors should be he must have been proprietor when a standard Scottish family, as poke sessors of that estate of Ascog. The themselves, as if the same had not beginning of that deed was there- been made, and shall be noways fore in these words,—“Be it known valid for affecting and burdening the to all men by these presents, me, lands and others foresaid, or any part John Murray of Blackbarony, alias thereof, to the prejudice of the next John Stewart of Ascog, heritable succeeding heirs of tailzie, their proprietor of the lands underwritten, peaceable possessing, bruiking, and ---forasmuch as I am resolved, for enjoying of the same, free of the said the standing of my family, to make debts, deeds, and burdens thereof; this taillie and settlement."
but also the said heir, contravening His anxiety to form a family as for him or herself alone, shall, ipso proprietors of that estate, further ap- fucto, lose and amit the benefit of peared in sundry other places of the this present tailzie ; and the lands deed. Thus, he was minute in dis- and others foresaid shall fall and poning to his successors his “seat accrue to the next heir in the lands in the kirk of Rothsay, (the pa- and estate." rish church of Ascog,) and burial - From this it will be perceived, place in the quire thereof ;” and he that though these denunciations of expressly ordained, that “ his heirs vengeance are distinctly issued by of entail, and the husbands of the the entailer against the heirs who heirs female, shall be bound and might, contrary to the Entail, wadobliged to use the name, and bear set, yet there is an omission of such the arms of Stewart of Ascog;” add- expressions of wrath, and its direful ing this strong enforcement of the consequences, against selling the condition, that any of the heirs lands, though the sale of them was the omitting to do so should lose the very thing which the proprietor was, estate.
of course, most anxious to prevent. But if Mr Murray, alias Stewart, That this, however, was a mere acciwas on his part so anxious about con- dent, is clear from all the circumstituting a family estate in Ascog, stances. and securing its descent to his re- Scotch lawyers do not require to mote progeny and connections by be told how much this was a “ stickproper entail, his agent was woefully ed taillie,” or, Anglicé, a blundered deficient in his endeavours to accom- deed of Entail ; but our readers who plish his purpose. In preparing a are not lawyers at all will under-. right Entail, it is not enough to for- stand the defect of it, when we tell bid any thing, as already shown : it them, that, in making a clock, you is also necessary to declare, not only may as well forget to put on the hands, that what is done in contravention or, in mixing a bowl of punch, to of orders shall be null, but also that pour in the spirits, as, in preparing the contravener's right to the estate à Scotch Entail, you may neglect shall instantly cease; and those de- an accurate insertion of the irritant clarations, as just said, constitute and resolutive clauses, containing what, in Entail Law, are called the those severe penalties against selling irritant and resolutive clauses. and putting away the lands. Yet
Now, in this writing of Mr Stew. such was the omission in this case ; art's, those clauses were extremely but the matter did not stop here, defective ; but whether that defect for the lands of Drumfin and others arose in the writer's head, or his having been, according to directions clerk's fingers, is uncertain, and in the same deed, bought with the avails not, but it went on thus,“ de- money-part of Mr Murray, alias claring, that if any of the heirs of Stewart's succession, those lands tailzie above-mentioned wadset any were afterwards entailed, or rather of the lands, and others foresaid, were meant to be entailed, on 17th except so much allenarly, or such a July 1783, by the heir in possession ; part and portion of the same as and as he was obliged to conform shall be found necessary for relieve strictly to the other deed, he imiing, satisfying, and paying the debts tated the school-boy in copying every and obligements of the entailer," blot, as well as every letter, of his then, not only " the deeds so to be copy-line, for the new writing was done shall be void and null in prepared with all the errors of omis
sion and commission, defaults, de entailer, be summoned from his fects, and deficiencies, and clauses, tomb, placed at the foot of the clerk's blotched, bungled, and blundered, table, and JUDICIALLY EXAMINED of the said former tailzie.
AS TO HIS INTENTION AND DESIGN The last of these things happened in the deed which he made? We do more than forty years ago. It is not discover, from the proceedings in said a blot is not a blot until it is that case of Logan, who was clerk hit. Whether these blots were hit to it; but probably be was no such or noticed until lately, I have no proper person, for a cause of the opportunity of knowing ; but there kind, as the clerk to the present +, having been a great stir of late years who, as being a kind of Vates, with among heirs of tailzie ; probably the dominion over the spirits of the Ascog heirs have been roused in it vasty deep, can either himself raise among the rest, and the question up Ascog, as the witch of Endor has lately come into full discussion. did Samuel, or he may call to his
In this leading case of Ascog, the aid, for the purpose, some sybil of Lords of the First Division having Derncleugh, or some Norna of the had the aid of the whole other Fitful-head; so that the citation Judges' opinions, they pronounced might be answered, and Ascog coman interlocutor, finding that the pear at the hour of cause, just as proprietor of Ascog, who sold cer- certainly as if, in an ordinary case, tain parts of that imperfectly-entail. it had been given by Allan Grant, ed estate, must reinvest the price of or George Williamson, the most the lands sold, and take the rights eminent messengers-at-arms of their to the same series of heirs as in the day. Ah, then what a scene would Entail. Another trial, however, of the First Division of the Court the case is to take place before the exhibit! what a “rattling of dry Court on new papers, as I have als bones," on the part of Ascog-far ready said, and the whole will be greater than if the skeleton man were soon submitted by an appeal to the to coine and make his appearance decision of the House of Peers. there !-and what a pushing and
The point at issue is, whether is squeezing of clerks and counsel, writhe person who has sold the lands ters and writers to the signet, withbound to reinvest the price to the out any regard to parties' privileges same series of heirs as those in the or particular seats." Sit down, Mr other deed, or not? Now, I may Stewart,” would then the presiding remark in the outset, that the most Judge say ; “ you have had a long important matter in all deeds is to journey, and must be weary. Bring ascertain the intention of the granter the gentleman a chair. Sir, we have in making them. On this subject I thought it proper to send for you to have already shewn, from this writ- put a question to you, your answer ing, what seems from it to have been to which will enter deeply into the the general meaning of the maker of decision of a very important case. it, nor shall I here revert to those Those eyes, which you glare withterms ; but as the matter must be al, long unaccustomed to the light sifted to the bottom, I have a sug- of day, must be weak; but pray look gestion to make, which, though it at that writing, signed by you, in. may startle the timid, and alarm the tituled on the back, “ Taitzic of superstitious, yet may throw much Ascog;" refresh your memory by light on it. The forefathers of our examining it carefully, and tell the Judges, as Dr Robertson acquaints Court what was precisely your des us, once tried a dead man; and our sign and intention in making it." readers will remember, that Logan “Oh," then would the spectre say, of Restalrig was actually dug from my Lord, did you know of how his grave, placed at the bar, and little importance all such matters are tried for his supposed accession to to us who have shuffled off the morthe Gowry conspiracy*. Now, if that tal coil, and entered upon eternity, could be accomplished then, why you would not wonder that I should may not the old Laird of Ascog, the have somewhat forgot such frivolous
Robertson's Scotland, Book 8th.
+ Sir Walter Scott.
concerns as these ; but being called occupiers of which would have had on so solemnly as I now am, I an- no votes at elections, no seats on the swer, that, to the best of my recol- bench of justices,--would have been lection, the indorsation, or backing of no weight about roads and railof the writing, denotes distinctly ways, kirks, kirk-yards, manses, or wbat was my meaning in it. It is ministers' stipends, which, in the days styled A Tuilzie of Ascog, and I of my flesh, I ever found to be the meant it to be such. It was a tailzie most interesting subjects under the that I desired my lawyer to prepare, sun? With a mere money income, and nothing else ; but (turning my descendants would probably have over the leaves with his long and had no other objects than living lank fingers,) observe,” he would quietly on their income. When in add,“ how particular I have been terest was good, they might have in it, in setting forth that I made it been Bath loungers, or London for the standing of my family, in idlers; and when low, they might ordering my heirs to use my naine have paced about the streets of some and arms ; above all, in disponing to county town all their forenoons, and them our family seat in the parish spent their evenings, equally uselesschurch, and our burial-place in the ly, in playing whist with elderly quire thereof. Ah! my Lords, how ladies. “But all these things were nearly and how importantly are far from iny wish ; and if I had had these two places found to be united any intention of my representatives by us who have passed the great enjoying my fortune in the shape of bourne, and how much a serious oc- cash, instead of lands, I would have cupation of the first leads to an left it to them free, without restraint, easy possession of the latter of them!" to be valuably embarked as capital " These things have I noticed,” in trade and manufactures ; so that would the Lord Examinant say; my heirs, instead of being drones, "but answer me this question, and which, as money-annuitants, they do it correctly : Had you any inten- would infallibly have been, might tion whatever, in making that deed, have been Leith merchants, or Glasof entailing money ? and on the sup- gow manufacturers; or, like Mr Jara? position that, through some acci- vie, an old acquaintance of mine in dent, your purpose had failed of the Saltmarket there, they might have handing down, to your heirs named become even Bailies, and attained to by you, the actual lands and estate the honours of the magistracy.". of Ascog, was it your intention that Here might end the examination ; the value or price of that estate and no cock having crowed at that should be tailzied, and that all the time to cause the spectre vanish, he heirs nominated by you should be- would make his bows, and withdraw. come a long line of liferenters of The Court would then probably, acthat price, extending to the end of cording to custom, order further pathe world ?" The ghost would stare pers; and the following, I think, at the question ; Value ! price! might be the outline of the arguchain of liferenters !” he would say ; ment on both sides. It is only a "I hardly follow you: my writing sketch I give you, because many of said, that I meant to make a family of your readers, not being limbs of the landed, and not of moneyed proprie- law of any description, are apt to tors; and Ascog I meant to be the think that many words darken counland which all generations of them sel, and that there is no more ready should possess. In the fond ima- way of perplexing a natter, and pregination of my vain heart, and in venting the justest views of it from my sublunary state, I figured a long appearing, than loading the subject series of barons descending from me; with moniplies and much printing. of weight as free-holders, governing FOR THE PARTY CONTENDING the poor and parish meetings, presiding at quarter-sessions, and full
INVESTED, the case might be pleadof wise saws and modern instances :" ed thus :—We admit that we have but with all these things as my aim, no right to the estate itself, because how could it have been accomplished it is only by the use of irritant and in your tailzie of money, the annual resolutive clauses, in terms of the
HE PRICE SHOULD BE RE