Star.
London, England, 1828-04-17 00:00:00

SCOTTISH ENTAILS.

' The fdllowing particulars nit this subject' are given
by Pareick Irvine, Esq. in his examination before the
Committee of the House'of Commons—

I do not think I can answer that cinestion (what is the
nature of a Scots Entail) in a :satisfactory manner.;
without calling the attention of the Committee to the
terms of the statute under Which entails are executed in
Scotland. I shall, therefore, state the exact terms of
the statute in.so fat as is necessary to the understand-
ing of -tIVe subject.. It" statutes and declares that it
shall be lawful to his Majaity's subjects to tailzie their
lands and estates (tailzie titans to entail), to talzie their
lands and eStates with such ptevisions and conditions
as they shall think lit, and to act the said tailzies with
irritant iftfirtellattete-fhtnas,. Whereby it shall not be
lawful to therhars" of tailzie to sell, annailsie (annailzie
means to aliensite,);
,iat dispose of the said lands, or any
part thereof, or contract ilebt, or do any- other deed
whereby the same-pip 680 k: wised, adjudged, or evicted
from the others „sebitliiite tit the tailzie, or the succes-
sion frustrate or interrupted, declaring all such deeds to
be in themselves null and void; and that the next heir
of tailzie may immediately, upon contravention, pursue
declarators thereof, and serve himself heir to him who
died last infeft in the_fee, end did not contravene with-
out necessity any ways to represent the contravener."
• Perhaps I may mention, that by representing teems,
that the heir who represents his ancestor becomes liable
for his debts. The Act then provides, that such tailzies
only shall be allowed in which the aforesaid irritant and
'collative clauses iie.inserted in the-title deeds. And
that the original tailtie shall -be 'peoilticed before the
Lords of Session judicially, who ioterpBii their authority
for recording it. A record is thus established, in which
the names of the maker of the tailzie, and of the heirs of
sbs tailzie, and the general designation of the lordships
anskbaronies, and the provisions 'and conditions con-
tained in the tail*, with the aforesaid irritant And reso:
lutive clauses, are CO. inslin. The entail when tiati
regularly made, becotneilts all ,stiaceeding generationt
the absolute law of the estate. The clauses general!), in!.
wiled in. ntails, are, in the first place,.an appoint ment:o
an order of .succession, which, if the case be supposed
that it is the intention of the entailer that male hark
itta/I be preferred to female heirs, he doet•so in the fol.
lowing manner s • In stating it I shall endeavonr to avoid
'technical formalities., and merely state the general
nature of the clauses. He calls to the succesion A. and
the heirs n)ade of bji" body, whom tailing, B. and tbe
heirs nia4 of hislcidy, whodefailing; C. and the heirs
Male of his bOdy, and so on. the heirs male. may
be rahausted, he then •introdacei a female to keep up
the Succession, and.sentwAlly reverts to the heir whom
he had first called,
obeipg the heir female of A. The
eldest heir female always succeeding without division,
and the heirs male of her body, and so on in the cite of
B. and C. &c. Ailhe heirs male may still be exhausted,
and when he has gone over the male order of succession
in the manner luve mentioned, he then reverts again
to the heirs female of .4. and the heirs female of B. C. itc.
and in this.manner, as-far is the entailer can describe
tiii posterity;either froni'hiithotvledge of his imagine,-
thin, he curie; °rya stiles of succession restricted in
perpetuity, instead of each heir in their legal order of suc-
cession taking it as the heirs of uneutailed proprietors chi.
. The neat important clause, as it seems to be generally
,considered, from its being introduced into almost every
entail, is air obligation to assume the name and to bear,
the arms of the entailer. Sometimes it is provided that
no other additional name and arms 'shall be assumed ;
while other entails give a special permission to assume
othe't names, and to use other arms quarterly with the
arms of the entailer, when any other entailed succes-
,siOn opens.
The next clauses are general prohibitions against
altering the order of succession, contracting debt so as
to burthen or affect the entailed estate, alienating the
estate or any part df it, even for valuable considerations,
or against doing any act or deed contrary to the condi.
lions and provisions of the eatail. The entailer binds every
heir. to engross in his subsequent title deeds the order of
suckession,and the whole conditions a nd'restrictions, usu-
ally denonlinated fetters, contained in the deed nf
Under the terms of the Statute, which are very general
and comprehonsivet it is in the power of every entailer
to insert in his entail such conditions and provisions as
he sees fit. These are enforced by what are denominated
in the Statute, irritant and tesolutive clauses. The
meaning of these expressions is, where an heir of entail
contravenes (meaning disobeys) the provisions and corer
ditions contained in it ; it is declared by the irritant
clause that all such deeds or acts shall'be null and void.
4And the meaning of the resolutive titinse is, that the.
heir so disobeying the conditions...and provisions con-.
tained in the deed of the entailer, shalr forfeit and lose
his right to the estate itself. In this manner alFdeeds
done contrary to the entail become null and void; and
the right of the heir in possession to the entailed estate
may be declared by any subsequent heir to becoine null
and void, in consequence of his disobeying Ake.condi-
tions olthe entail.
To further questions Mr. I. states, that there.it firli•
mitation to the period of forfeiture under the resolutive
or irritant clauses, that is to say, supposing that any'
heir of entail violates the condition of the entail, there
is no limit so far as regards the heir who forfeits. I'h'e
most remote substitute of entail may pioceed against
the heir in possession in case of a forfeittne. Though he
has no interest in.the forfeiture, nor any immediate in-
terest in the entail, it has been decided by the Cum t
Session, that the 25th substitute in an entail (inde-
pendent. of all that may come into existence and inter-
vene) has a right to call upon the heir in possession to ful-
fil the conditions of the entail, so that it may be carried
down to posterity,and that he may have his chance of suc-
ceeding. This has been decided in one case ; and the prin.
ciple is considered as established. It was a disputed point,
whether at common law entails might be executed pre.

vious to 1685, arid in one -case it was the subject of dis-
cussion in Court, and that case led tothe statute. Since
that period all entails have been executed under the
statute in order to be effectual. The persons called by
the entail to the succession under the de.tription of htits
whomsoever of the entailer, that is to say, the last person
whim the entailer has described, • then iticceeds; the
property then becomes 'a plorerty in fee siml.le in him,
the last person whom the entiiler has described.
In answer to the question—Does any power exist in
the Courts of Law in Scrag/it to modify the wilt of an
entailer, as expressed in his deed, witrr reer*.ence eithet
to the condition of the country, or the hard.hips which
it may inflict on each succeskive generation ?.Mr. Irvine
says,. I should apprehend that the duty of a Court of
Law is to administer the law,;. and if the deed of entail
become: the law of the estate, I should think the Court
must decide according to-the prOvisions and conditions
of the deed, if those are distinctly exorcised and guarded
by the 'proper irritant and tesolutive clauses; so that
(he adds) an entailer may regulate the concerns of this
world, and the administration of property in it• Or ages
subsequent to his own death.
In order to !how the progress of entails in-Scoilaud,
Mr. I. divides- the time which has elapsed since.l6Bs,
into periods of 20 years; and the following tab..e.gives
the result :
A 1117106111 Or DEWS MOWS= IN Tilt storm. or limns, sant
.rasluAor, 1822.
From 1625 till 1705 ...
1705 1725 .:. ..‘
• 1725 1743 ... *;Lidirlsll

1745 1765 ...
1765... 1785
1785 1805 ...
1805 1825 . .

w. •Oa 14. 58
972
47

From Ist Jan. 1826 tin 31st Dec. 1626 .....
lit Jan. 1827 51st Dec. 182/
raft Dec. 1827 28th Feb. 1828 .....

IEO9
"
IN •

4 Makin in all lempoids.
"In making this statement," says lafriirvine,'"l than
beg thit-it'is pirtiettlarly understood Wu' *attendtdito,
that I do not, by sinfrneans, intend cony or coneeftb•
meaning that there:lle actually 16.59'subsiding entails.
That is the'number Of deeds on record cieeeral
are deeds of rediriction, partial. reioeition, alteration,
deeds expcuted in 'Onsequencx of expanses mid be-
tween entailed andubentailed eitalei; and in'stich eases
the Value of the one estate stilfb;supptised to be equi.
ealent to the valise of the other given in exchange; 64
many explanatory deedk • .
The evidence that • follows regards .tht-quai4ity of
land entniled-in.Scotland. • •

~~ •~

a •

Sit' John Sinclair pbblished, in 11114;12..Gonernlitp•

,Tportet the ARricelturakt Staterand...Polatioal Direassit.
stances of" Scotland as.in the year-18143 That Report
Contains a table 'stating the valued:renttofoesery scanty,
send the valued 'tentef estates held under entai+. -'The
-valued lent of Sodilend is stated to be 9,llo‘22fakirts.
—The valuedeent ego/states held under entail is. Mated
to be 1,213;1591..17i. 9d. Scots; the stnentliled veined
rent, therefore,. amounts to 2,591,0611. 21..3*!8c0t5.
According to this. statement,- nearly one•diird pars, of
the property in Scotland, estimated by its valued rent,
was at that period possessed under. entails. •••-•:
Since the year -1811 there have heels-410 deeda'put
-upon the record of entails. .IThe extent of -entailed pro•
perty has therefore greatly increased since the period
when Sir John Sinclair, according to the best informa-
tion which could be obtained, estimated it at -nearly bne-
third of the whole property of the kingdom. :
By computing at a moderate rate the value otpro.
perties entailed since 1811, and by taking into view the
extent of property conveyed to trustees to be entailed
as soon as debts are paid off, and the amount of4unds
conveyed to trustees for the purpose of purthasing
and- entailing lands, the conclusion may be. drawn
that about one half of the territorial property of. the
kingdom is now, or very soon will te, under the fetters
of entail, and the proprietors subjected to all the incon-
veniences arising from their restricted rights of pro-
perty, and the hazard and expenses attending judicial
discussion for the purpose of rendering effectual or of
defeating the settlements of their predecessors. .1 •
The general result, stated upon the authority-4 the
table prepared by Sir John Sinclair, is supported by the
opinion of others.
In 1761., Sir John Dalrymple, through whose in
fluence, and by whose exertions, tlle measures. nu:posed
by the• Faculty of Advocates, in 1761., ro limit entails,
were, defeated, stated, in his 0 Considerations ()Italie
Policy of Entail," that the valued tent of the eitatled
property in Scotland amounted to atlas't one.6liq of
the valuation of the kißgslom; ajnd :that the entailed
lands of Scotland were possessed :by about three Atilt.
drier proprieters,_
.
Dr. Adam Smith, in his di W.ealthef., Various :in
reprobating the system of entailing, adopted the same
estimate. . t •
In the iiitierw&betweets 176 k land 1811, it appears
that 754 deeds weterecorded ire the register of entails.
These estimatesjay Sir•J, Dalrymple, in 176*, Sind
Sir. J. Sinclair in al I,tiken •conneziou the
number, of. recorded :dee& in the intervening. perlod.
supportthe statement I have made. , • .- • -
. .
fn theVeneral•Report, published by Sir John Sinclair,
thejandere prokistOtit of Scotland ate divided into three
classei... In tbe fird.'clais ate iachided thosetiose
rallied, rent exceeds:24BU Scots, and their nunber is
- stated to be 396. Inthesecond class are includeskhose,
the valtied rent of 'Whose estates is between 500/:'SeoV,
0001. 'et)T and 2, Sram .tin cd Nee props-'`
numhcr of these pro s
is
stated tribe I,olt,,The remaining class, stbbsd td
tent does not exceed 500/. Scots each, IVY *YR4IO
amount to 6,147. .
- •

Yestetilay. a coi:iisted election for the '6o4i
..nr.-
geon. to the General. Dispensary, AlJersgate?vg. k
.place. The numbed were declared to b 2 Ir.
emsto
Cool a. 391; andikir Mr. *Caswell,' 1....1.31)....Afi5k.,
IfOr Mr.' Catilsqii,.2o.,-"i • _ '
.. . -..t,,i 4.4.1, i
' Linitalifu.. qoort4T.-r:Tirle;dt7 Aig.hOlielterrt-
ing
.nrstiii 44aktty. siosse_the .4°lo ai ktoolk: pl tic. au h e
Society's,hoesei,in Soho-square; A. Br I;assaserai.lsq.
F.L.S..teck in litio.4;hair. Bil -Greet •Joart"Difite of
ATI* *7.4i114060.1*.3, to thc 1f1t.(17*.-.4a. took his
seat :as a F.ellowfll4,4kidmilsok 90*.tiltgenilerfite..; A
communication wasteid ficiat-PriOteCifitUES. USIZN
BONAPARTZ, acknowledging tareltigh dente .he ,OP le?.
tamed of the hollounle had received in-bell* adsnitted
a Felloefof the &tiny:4-4261C, CHA atm, s cOmmpni-
, cation also centainied..same curitausinformation regard-
ing the migration of swallows, 4n, 4104;00g paper
on the organitation of the kangaroo aititscriedi which
drew forth:the thanks and approbatiop cf the Newlin.

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