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Ne quid falsi dicere audeat, ne quia veri non audeat.
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ON SCOTCH ENTAILS, AND PARTICULARLY ON THE LATE NOTED CASE OF VANS AGNEW, WHERE THE HOUSE OF PEERS FOUND, THAT, IN CERTAIN CIRCUMSTANCES, THE ENTAIL OF A LANDED PROPRIETOR MAY OPERATE TO THE SECLUSION OF HIS OWN CREDITORS.
OUR friends are generally well acquainted with the wide circulation of our Journal, and it is truly curious, to notice with what interest it is received in all quarters, particularly in remote ones, where there is little at home to excite attention, and where, from the great variety of our topics, all find subject of entertainment, as well as improvement of both their taste and intellect. This we know to be remarkably the case, when the "twanging horn" of the mail-coach, about the 21st of each month, announces to every good, quiet, country family, our regular supply of instruction and amusement. As the chief attention is ever due to the Ladies, the Misses first receive our store, and running, together with some crony, into the poet's corner, enjoy the delicia which we always provide for them there. Tom, who is designed for the Church, peruses with avidity our classical articles. Will, who, like his namesake in Shakespeare, is breeding to be a scrivener at the desk of some neighbouring Sheriff Clerk, is desirous to see what is said about the changes in the courts of law. The worthy old Laird himself, when he can get hold of the Magazine, which is not always very soon, gravely peruses the Agricultural Reports, the state of the markets, the price of the stocks, and all those other serious matters which become VOL. XV.
a person of his advanced years and staid habits.
Now we plainly tell all the youngsters who may have read thus far, that they need proceed no further with it,-for this little treatise is designed, not for them, but for their father, who, having heard much of the case of Vans Agnew, stated in our title, is, no doubt, desirous to know more of it; especially as it appears to him to be evidently of the deepest importance to the country, and most interesting to all money-lenders, and to those who, as tradesmen and merchants, may be dealing with landed proprietors. In this paper we mean to gratify his curiosity; and as the old man may not have spent his younger days in pacing the boards of the Parliament House, like many of his early comrades, but may have been a boon-companion in a regimental mess, or plied in a counting-house, or, as Burns says, "strutted in a bank, and clerked his cash-account," we shall endeavour to divest the subject of its technicalities, or, where we cannot altogether avoid them, we trust that we shall so explain them as we go along, as to make ourselves intelligible to "country gentlemen," as well as to professional lawyers.
But while we thus promise so much, we must stipulate the closest attention on the part of the reader. The laird must not sit down to these our lucuA
brations, after coming home from a fair, or helping to drain the flowing bowl, or even after the Minister has been taking pot-luck with him; but we recommend, that he shall set aside, for the perusal of them, some quiet evening, after witnessing the suppering up of the beasts, (a duty of the master himself, in all wellregulated, moderate country establishments)-when the bairns are put to bed, and the gudewife alone sits by him, knitting her stocking; and when, having been all day with out company, his mind shall be strong and vigorous. His snuff-box may be applied to; a single tumbler of toddy, too, we allow him, to aid him on his way; and so provided, he may now proceed with his studies.
to be a little more minute, and to advert to the particular reason which induced Scotch proprietors, more than others, to have recourse to it. Now, that cause we find distinctly, in adverting to the gross oppression which our forefathers suffered in the covenanting times, when, in the days of the ruthless Lauderdale, the forfeiture of lands was frequently the consequence of religious contumacy; and when, by means of entails, the owners of grounds endeavoured to save to their progeny those estates which, if held in fee-simple, they conceived might fall to the crown, by the pretended delinquency of the holders of them *.
The actual term of human life is but short, and the threescore-andten, or fourscore years of the Psalmist, generally sum it up;" but men pant anxiously to prolong the recollection of themselves, and to hand down to futurity some marks of their having once been. Hence, in early times, arose the large solitary stone on the heath, to denote where the mighty lay; and hence the "storied urn and animated bust" of more refined periods. Frail, however, are most of such memorials, and it is no subject of wonder, that entails were thought of as better expedients, to perpetuate, if possible, the memory of the entailer, as well as to ensure to his heirs consideration and affluTo a vain man, it was indeed no unpleasant anticipation, that, after the lapse of centuries, he might be looked back to, like Fleance, as the founder of a long series of great, or at least opulent men; and the idea was delightful, that, in far distant times, he might be sitting as snugly at the foot of his own family-tree, as Fergus I. does at the bottom of Cumming's plate of the hundred kings of Scotland, with his Highland kilt, claymore, and good blue bonnet.
Thus we trace the desire of entailing to a natural and original feeling of the human mind; but it is requisite
It is interesting to trace the progress of this expedient. A simple destination was quite unavailing against all succeeding in their order under it. Prohibitory clauses against parting with the estate, therefore, came to be added, and these were protected by inhibitions. The validity of that safeguard, however, came to be doubted, and some stronger measures were considered to be requisite, to prevent the operation of the two Statutes, 1469 and 1540, whereby it had been made lawful to attach lands for payment of their owners' debts; for it was to little purpose to prohibit direct alienation, while the estate might be equally carried off for payment of debt. Those measures were irritant and resolutive clauses in deeds of entail, which were a remedy, in every respect, of a more extensive tendency, both in regard to object and effect; but these are kittle words for the honest laird. The subject of them is a kind of pons asinorum in entail law: we recommend, therefore, that he shall clear up his noddle with a snuff; as for the toddy, he may as well let it be cooling until he shall get fairly across the bridge, if he shall be able to accomplish the passage at all.
Let him, therefore, now learn, that the irritant clause of an entail is that whereby the granter of it, in handing down his estate to his successors, declares that, should any of them en
In passing, we may here notice, that this was effected by the Scots Act 1690, c. xxiii., following upon the Entail Act 1685. After the Union, however, the Treason Laws of England were extended to Scotland, by 7th of Queen Ann, c. xx., and that Statute was a repeal of the Act 1690.
deavour to part with it, or contract debt whereby it might be taken away from him by his creditors, then his act and deed in such attempt should be void and null. The resolutive clause, again, is the counterpart of that one; and while that other clause makes the deed done ineffectual, this one, namely, the resolutive clause, declares, that the power of the contravener shall instantly cease, and come to an end. As the awful writing on the wall declared that the kingdom of Belshazzar should pass from him, in punishment of his transgressions; so the resolutive clause of an entail declares that the heir, acting contrary to the restrictions of it, shall fall from his estate; and this is considered to be, not only a penalty of this disobedience, but strictly necessary, to give effect to the irritant clause. This latter idea that the deed actually done should become null by the supposed previous demolition of the contravener's power, arising from the contravention, and yet that that demolition should be the consequence only of that very deed-is not a little abstract. So it is, however, and casuists may find it as difficult to settle the consistency of this, as of many other matters of the law: but the validity of such clauses to effect the intended purpose came early to trial in the noted case of Stormont, in 1662, when it was supported by a majority of no more than one vote on the bench of the Court of Session. It was not, however, considered to be safe to leave a matter of such consequence to the determination of common law, where there had existed so much doubt; and then was enacted the well-known Statute 1685, c. 22. Were we certain that our friend the laird had the Scots Acts, or that, being possessed of them, he could readily lay his hands on them, we should satisfy ourselves with a mere reference to it; but having good reason to think, either that he has them not, or that the leddy, in her rage for redding up her house, and "having all things in order," has actually tumbled them up into the garret, we recite the words of the Statute, which declares, "That
it shall be lawful to his Majesty's subjects to tailzie their lands and estates; and to substitute heirs in their tailzies with such provisions and conditions as they shall think fit, and to effect the said tailzies with irritant and resolutive clauses :" and it is afterwards declared, "that such tailzies shall only be allowed, in which the foresaid irritant and resolutive clauses are inserted in the procuratories of resignation, charters, precepts, and instruments of seasine, and the original tailzie once produced before the Lords of Session judicially, who are hereby ordained to interpose their authority hereto; and that a record be made in a particular Register-book, to be kept for that effect, wherein shall be recorded the names of the maker of the tailzie, and of the heirs of tailzie, and the general designations of the lordships and baronies, and the provisions and conditions contained in the tailzie, with the foresaid irritant and resolutive clauses subjoined thereto, to remain in the said register ad perpetuam rei memoriam.”
This short view of the law on this subject will, we trust, render the case of which we are to treat easily intelligible; and the following are its facts and circumstances:
Miss Margaret Agnew, only child of R. Agnew of Sheuchan, was married to John Vans of Barnbarroch Esq., and a contract of marriage was entered into on the occasion, dated 29th December 1757. According to it, R. Agnew paid to T. Vans £.3000, and entailed on him and his future wife, his own (R. Agnew's) daughter, his lands of Sheuchan. J. Vans, as a counterpart, entailed his estate of Barnbarroch on HIMSELF and Margaret Agnew, his spouse, and the survivor of them; whom failing, to the heirs of the marriage; whom failing, to the heirs of the body of the said Margaret Agnew, in any subsequent marriage; whom failing, to the other persons therein named.
These mutual entails were regularly protected, by irritant and resolutive clauses, against selling and contracting debt, the nature of which 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.