ד the wish which landed proprietors had to secure their estates to their families possessing them, though they might be lost by forfeiture to those individuals of such families who might incur the displeasure of Government, by supporting the unsuccessful party in the State. The devices of lawyers were natural enough. They made the proprietor attempting such expedient to destine his lands to a series of heirs expressed, and to insert in his writing strong prohibitions against selling the estate, giving it away, or altering the ordained order of succession; and they at first supposed they had attained their end by supporting such prohibitions by the diligence of inhibition, which they found already existing in our law, but applied to the securing of ordinary debts. Maturer consideration, however, of the strong right of property, made them soon aware that those measures were feeble, and that, where that right was regularly vested, he who possessed it could not be prevented from taking the amplest use of it, merely by being forbidden, or prohibited to do so; while they came to doubt the force of the measure of inhibition as a remedy for the defect, seeing that that, was a diligence applicable merely to common debts; and they saw that the use of it was erroneously taken for granted, that a mere prohibition could restrain the right of a proprietor. The lawyers, therefore, then set themselves to invent new plans; and they tried to make clauses, not such as merely prohibited to part with the estate, which they had found to be quite inefficient, while the right of property remained with the heir in possession. The intended operation of these new clauses was founded on an abstract, and not a very distinct idea. It was not only to declare the deed of contravention, that is, the deed which was prohibited, to be null, but also to ordain the right of the granter of it to be at an end, by the doing of the prohibited act; and the force of this curious expedient was to operate, not by the forfeiture of the contravener, in consequence of the contravention, (because, in that view, he must have been proprietor when he did the deed, and it must have stood good ;) but it was to work, by his ceasing to be proprietor at the very time the fatal act of contravention was done. The very doing of the deed made him cease to be owner at the time he did it, and it was that circumstance alone that was to render the contravention null. Your readers who are of the profession, know that the irritant and resolutive clauses are those expedients to which I allude; and the lawyers who invented those mysterious means were well aware, that any thing less strong would have been quite ineffectual in restraining the actual right of property, which each succeeding heir would hold in the estate. I shall not detain you by any particular account of the well-known case of Stormont, but merely mention, that it led to obtaining the Act 1685, which, being the great statute of Entail Law, deserves particular attention. It enacted, that lands might be entailed by the use of irritant and resolutive clauses, and by no other means. Among those who were infested in no small degree with the passion of family-making was John Murray of Blackbarony. He was already possessed of certain lands, called Ascog, in the Isle of Bute, and he had considerable moveable property. These, his lands, therefore, he resolved to entail strictly, and he wished, besides, that his moveable fortune should be expended in the purchasing of other lands in Scotland; to be entailed in the same manner, and to the same series of heirs to whom he meant to devolve his old estate. With such feelings, and in these views, he, on 28th May 1763, executed a writing, which he meant to be a strict Entail of Ascog, the outset of which specially merits attention. Although he had hitherto been called Alexander Murray of Blackbarony, he there styles himself also by another name and designa tion, meant by him thenceforth to be borne by his successors as connected with Ascog-calling himself Alexander Stewart of Ascog; and in the writing he distinctly states his object, that his successors should be a standard Scottish family, as pos sessors of that estate of Ascog. The beginning of that deed was there fore in these words,-" Be it known to all men by these presents, me, John Murray of Blackbarony, alias John Stewart of Ascog, heritable proprietor of the lands underwritten, -forasmuch as I am resolved, for the standing of my family, to make this taillie and settlement." His anxiety to form a family as proprietors of that estate, further appeared in sundry other places of the deed. Thus, he was minute in disponing to his successors his "seat in the kirk of Rothsay, (the parish church of Ascog,) and burial place in the quire thereof;" and he expressly ordained, that "his heirs of entail, and the husbands of the heirs female, shall be bound and obliged to use the name, and bear the arms of Stewart of Ascog," add ing this strong enforcement of the condition, that any of the heirs omitting to do so should lose the estate. But if Mr Murray, alias Stewart, was on his part so anxious about constituting a family estate in Ascog, and securing its descent to his remote progeny and connections by a proper entail, his agent was woefully deficient in his endeavours to accomplish his purpose. In preparing a right Entail, it is not enough to forbid any thing, as already shown: it is also necessary to declare, not only that what is done in contravention of orders shall be null, but also that the contravener's right to the estate shall instantly cease; and those declarations, as just said, constitute what, in Entail Law, are called the irritant and resolutive clauses. Now, in this writing of Mr Stewart's, those clauses were extremely defective; but whether that defect arose in the writer's head, or his clerk's fingers, is uncertain, and avails not, but it went on thus," declaring, that if any of the heirs of tailzie above-mentioned wadset any of the lands, and others foresaid, except so much allenarly, or such a part and portion of the same as shall be found necessary for reliev ing, satisfying, and paying the debts and obligements of the entailer," then, not only "the deeds so to be done shall be void and null in VOL. XVIII. themselves, as if the same had not been made, and shall be noways valid for affecting and burdening the lands and others foresaid, or any part thereof, to the prejudice of the next succeeding heirs of tailzie, their peaceable possessing, bruiking, and enjoying of the same, free of the said debts, deeds, and burdens thereof; but also the said heir, contravening for him or herself alone, shall, ipso facto, lose and amit the benefit of this present tailzie; and the lands and others foresaid shall fall and accrue to the next heir in the lands and estate." - From this it will be perceived, that though these denunciations of vengeance are distinctly issued by the entailer against the heirs who might, contrary to the Entail, wadset, yet there is an omission of such expressions of wrath, and its direful consequences, against selling the lands, though the sale of them was the very thing which the proprietor was, of course, most anxious to prevent. That this, however, was a mere accident, is clear from all the circum stances. Scotch lawyers do not require to be told how much this was a "sticked taillie," or, Anglicé, a blundered deed of Entail; but our readers who are not lawyers at all will understand the defect of it, when we tell them, that, in making a clock, you may as well forget to put on the hands, or, in mixing a bowl of punch, to pour in the spirits, as, in preparing a Scotch Entail, you may neglect an accurate insertion of the irritant and resolutive clauses, containing those severe penalties against selling and putting away the lands. Yet such was the omission in this case; but the matter did not stop here, for the lands of Drumfin and others having been, according to directions in the same deed, bought with the money-part of Mr Murray, alias Stewart's succession, those lands were afterwards entailed, or rather were meant to be entailed, on 17th July 1783, by the heir in possession; and as he was obliged to conform strictly to the other deed, he imitated the school-boy in copying every blot, as well as every letter, of his copy-line, for the new writing was prepared with all the errors of omis 4 C sion and commission, defaults, defects, and deficiencies, and clauses, blotched, bungled, and blundered, of the said former tailzie. The last of these things happened more than forty years ago. It is said a blot is not a blot until it is hit. Whether these blots were hit or noticed until lately, I have no opportunity of knowing; but there having been a great stir of late years among heirs of tailzie; probably the Ascog heirs have been roused in it among the rest, and the question has lately come into full discussion. In this leading case of Ascog, the Lords of the First Division having had the aid of the whole other Judges' opinions, they pronounced an interlocutor, finding that the proprietor of Ascog, who sold certain parts of that imperfectly-entailed estate, must reinvest the price of the lands sold, and take the rights to the same series of heirs as in the Entail. Another trial, however, of the case is to take place before the Court on new papers, as I have already said, and the whole will be soon submitted by an appeal to the decision of the House of Peers. The point at issue is, whether is the person who has sold the lands bound to reinvest the price to the same series of heirs as those in the ather deed, or not? Now, I may remark in the outset, that the most important matter in all deeds is to ascertain the intention of the granter in making them. On this subject I have already shewn, from this writing, what seems from it to have been the general meaning of the maker of it, nor shall I here revert to those terms; but as the matter must be sifted to the bottom, I have a suggestion to make, which, though it may startle the timid, and alarm the superstitious, yet may throw much light on it. The forefathers of our Judges, as Dr Robertson acquaints us, once tried a dead man; and our readers will remember, that Logan of Restalrig was actually dug from his grave, placed at the bar, and tried for his supposed accession to the Gowry conspiracy*. Now, if that could be accomplished then, why may not the old Laird of Ascog, the entailer, be summoned from his tomb, placed at the foot of the clerk's table, and JUDICIALLY EXAMINED AS TO HIS INTENTION AND DESIGN in the deed which he made? We do not discover, from the proceedings in that case of Logan, who was clerk to it; but probably he was no such proper person, for a cause of the kind, as the clerk to the present +, who, as being a kind of Vates, with dominion over the spirits of the vasty deep, can either himself raise up Ascog, as the witch of Endor did Samuel, or he may call to his aid, for the purpose, some sybil of Derncleugh, or some Norna of the Fitful-head; so that the citation might be answered, and Ascog compear at the hour of cause, just as certainly as if, in an ordinary case, it had been given by Allan Grant, or George Williamson, the most eminent messengers-at-arms of their day. Ah, then! what a scene would the First Division of the Court exhibit! what a "rattling of dry bones," on the part of Ascog-far greater than if the skeleton man were to come and make his appearance there!-and what a pushing and squeezing of clerks and counsel, writers and writers to the signet, without any regard to parties' privileges or particular seats."Sit down, Mr Stewart," would then the presiding Judge say; "you have had a long journey, and must be weary. Bring the gentleman a chair. Sir, we have thought it proper to send for you to put a question to you, your answer to which will enter deeply into the decision of a very important case. Those eyes, which you glare withal, long unaccustomed to the light of day, must be weak; but pray look at that writing, signed by you, intituled on the back, "Tailzie of Ascog;" refresh your memory by examining it carefully, and tell the Court what was precisely your de sign and intention in making it." "Oh," then would the spectre say, my Lord, did you know of how little importance all such matters are to us who have shuffled off the mortal coil, and entered upon eternity, you would not wonder that I should have somewhat forgot such frivolous • Robertson's Scotland, Book 8th. + Sir Walter Scott. concerns as these; but being called on so solemnly as I now am, I answer, that, to the best of my recollection, the indorsation, or backing of the writing, denotes distinctly what was my meaning in it. It is styled A Tailzie of Ascog, and I meant it to be such. It was a tailzie that I desired my lawyer to prepare, and nothing else; but (turning over the leaves with his long and lank fingers,) observe," he would add, "how particular I have been in it, in setting forth that I made it for the standing of my family, in ordering my heirs to use my name and arms; above all, in disponing to them our family seat in the parish church, and our burial-place in the quire thereof. Ah! my Lords, how nearly and how importantly are these two places found to be united by us who have passed the great bourne, and how much a serious occupation of the first leads to an easy possession of the latter of them!" "These things have I noticed," would the Lord Examinant say; "but answer me this question, and do it correctly: Had you any intention whatever, in making that deed, of entailing money? and on the supposition that, through some accident, your purpose had failed of handing down, to your heirs named by you, the actual lands and estate of Ascog, was it your intention that the value or price of that estate should be tailzied, and that all the heirs nominated by you should be come a long line of liferenters of that price, extending to the end of the world?" The ghost would stare at the question ;-" Value! price! chain of liferenters !" he would say; "I hardly follow you: my writing said, that I meant to make a family of landed, and not of moneyed proprie tors; and AscOG I meant to be the land which all generations of them should possess. In the fond imagination of my vain heart, and in my sublunary state, I figured a long series of barons descending from me; of weight as free-holders, governing the poor and parish meetings, presiding at quarter-sessions, and "full of wise saws and modern instances:" but with all these things as my aim, how could it have been accomplished in your tailzie of money, the annual occupiers of which would have had Here might end the examination; and no cock having crowed at that time to cause the spectre vanish, he would make his bows, and withdraw. The Court would then probably, according to custom, order further papers; and the following, I think, might be the outline of the argument on both sides. It is only a sketch I give you, because many of your readers, not being limbs of the law of any description, are apt to think that many words darken counsel, and that there is no more ready way of perplexing a matter, and preventing the justest views of it from appearing, than loading the subject with moniplies and much printing. FOR THE PARTY CONTENDING THAT THE PRICE SHOULD BE RE INVESTED, the case might be pleaded thus:-We admit that we have no right to the estate itself, because it is only by the use of irritant and resolutive clauses, in terms of the Act 1685, directed against selling, that the estate could be prevent ed from being sold. Now, though there are irritant and resolutive clauses in this entail, yet, by a strange blunder of the writer of it, they have not been directed against SELLING; and the estate having been sold accordingly, will no longer descend in the order of succession pointed out by the entail. All this we concede; but let us refer to the writing executed by Ascog, (for we will not call it an Entail,) and we shall see, that although the deed is so far defective in the irritant and resolutive clauses, it is entire in another important part, we mean the prohibitory clause, which is in the following terms:"Nor shall they, the heirs, have any power or liberty to sell, analzie, or wadset the lands, or others foresaid, or any part thereof, except, allennarly, such part or portion of the same as shall be found to be requisite and necessary for paying the entailer's debts." Now, though the estate itself cannot be retained in the family, because it has got probably into the hands of a third party, owing to the defect in the irritant and resolutive clauses, yet, as the seller has committed a most severe wrong against the future heirs by his contravening the prohibitory clause, and depriving them of their succession to that valuable estate, he must, in justice, make up for it as far as possible; and the most direct way of his doing so, will be to vest the price which he has received for the lands, either on heritable bond or in the purchase of other lands; the bond to be made payable, or the new estate to be destined, to the very same series of heirs-in short, to give the several heirs, in their order, a valuable consideration in lieu of that estate of which they have been deprived, as nearly of the same kind and value as the old estate was, from which these heirs have been secluded solely by the act and deed of this contravening party. This is not a case with the new holder of the estate his right is perfectly good, nor is it challenged: it is a question with heirs-persons who, but for the act and deed of putting away the estate, would have been lawful proprietors of Ascog. These would be the views on the side of the party contending for reinvestment of the price, to the same series of heirs as specified in the former Entail, and under the same conditions and irritancies as those therein contained. The following would be THE PLEA FOR THE SELL ER OF THE ESTATE RESISTING THE CLAIM OF REINVESTMENT. The argument in the other side (it would be said,) is more specious than solid; but the proper mode of treating the question is, 1st, To consider what was the intention of Mr Stewart of Ascog in making his deed: 2d, What must he be held to have done in fair interpretation. Now, as to the first of these: it did not require any one to have arisen from the dead, to say what were the intentions of the maker of that deed. They are evident from the writing itself. It is clear that his object in it was to make a FaMILY of Scottish landed gentry, and that Ascog was the property from the possession of which it was his desire that they should derive their consequence. To use a technical expression, it was his intention to execute a strict Entail. The honest man went to his grave in the full assurance that he had done so, and that his heirs in all future times were to be lairds of Ascog, cum toftis et croftis, partibus pendiculis et pertinentiis. His imagination was soothed by the anticipation of a long succession of landed-proprietors of that estate following him, and pointing back to him through the postern of time as to the great founder of their family; and, in his gayer moods, his mind's eye, piercing the gloom of futurity, had looked forward to his grandsons, and his great-great-grandsons, riding in style over that domain, on their long-tailed horses, with all the gilly-weetfoots running at their nod, and all the old women and their daughters becking, as they passed, to do them reverence. Now, a dirty annual receipt of interest could be no good substitute for such baronial consequence, or for the glories of the rent-day; and the notion of his honourable race accepting the one for the other, is an endeavour at a gross commercial expedient, the very idea of which, could he have |