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EDINBURGH MAGAZINE,

AND

LITERARY MISCELLANY;

A NEW SERIES

OF THE

SCOTS MÀGAZINE.

JULY-DECEMBER 1824.

Ne quid falsi dicere audeat, ne quid veri non audeat.

VOL. XV.

EDINBURGH:
PRINTED FOR ARCHIBALD CONSTABLE AND COMPANY.

1824.

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THE

EDINBURGH MAGAZINE,

AND

LITERARY MISCELLANY.

JULY 1824.

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 ac- a person of his advanced years and quainted with the wide circulation of staid habits. our Journal, and it is truly curious, Now we plainly tell all the younge to notice with what interest it is rea sters who may bave read thus far, ceived in all quarters, particularly in that they need proceed no further remote ones, where there is little at with it,-for this little treatise is dehome to excite attention, and where, signed, not for them, but for their from the great variety of our topics, all father, who, having heard much of find subject of entertainment, as well the case of Vans Agnew, stated in our as improvement of both their taste title, is, no doubt, desirous to know and intellect. This we know to more of it ; especially as it appears be remarkably the case, when the to him to be evidently of the deepest “ twanging horn" of the mail-coach, importance to the country, and most about the 21st of each month, an interesting to all money-lenders, and nounces to every good, quiet, country to those who, as tradesmen and mera family, our regular supply of instruc chants, may be dealing with landed tion and amusement. As the chief proprietors. In this paper we mean attention is ever due to the Ladies, to gratify his curiosity, and as the the Misses first receive our store, old man may not have spent his and running, together with some younger days in pacing the boards crony, into the poet's corner, enjoy of the Parliament House, like many the deliciæ which we always provide of his early comrades, but may have for them there. Tom, who is designed been a boon.companion in a regimental for the Church, peruses with avidity mess, or plied in a counting-house, or, our classical articles. Will, who, as Burns says, “ strutted in a bank, like his namesake in Shakespeare, and clerked his cash-account," we is breeding to be a scrivener at the shall endeavour to divest the subject desk of some neighbouring Sheriff of its technicalities, or, where we canClerk, is desirous to see what is said not altogether avoid them, we trust about the changes in the courts of that we shall so explain them as we law. The worthy old Laird himself, go along, as to make ourselves inwhen he can get hold of the Maga- telligible to " country gentlemen," zine, which is not always very soon, as well as to professional lawyers. gravely peruses the Agricultural Re- But while we thus promise so much, ports, the state of the markets, the we must stipulate the closest attention price of the stocks, and all those on the part of the reader. The laird other serious matters which become must not sit down to these our lucu

VOL. XV.

brations, after coming home from a to be a little more minute, and to adfair, or helping to drain the flow. vert to the particular reason which ining bowl, or even after the Minis. duced Scotch proprietors, more than ter has been taking pot.luck with him; others, to have recourse to it. Now, but we recommend, that he shall set that cause we find distinctly, in adaside, for the perusal of them, some verting to the gross oppression which quiet evening, after witnessing the our forefathers suffered in the covesuppering up of the beasts, (a duty nanting times, when, in the days of of the master himself, in all well the ruthless Lauderdale, the forfei. regulated, moderate country estab- ture of lands was frequently the conlishments when the bairns are put sequence of religious contumacy; and to bed, and the gudewife alone when, by means of entails, the owners sits by him, knitting her stocking; of grounds endeavoured to save to and when, having been all day with their progeny those estates which, if out company, his mind shall be held in fee-simple, they conceived strong and vigorous. His snuff-box might fall to the crown, by the premay be applied to ; a single tumbler tended delinquency of the holders of of toddy, too, we allow him, to aid them *. him on his way; and so provided, he It is interesting to trace the promay now proceed with his studies. gress of this expedient. A simple

destination was quite unavailing aa The actual term of human life is gainst all succeeding in their order but short, and the threescore-and- under it. Prohibitory clauses against ten, or fourscore years of the Psalmist, parting with the estate, therefore, generally " sum it up ;" but men came to be added, and these were pant anxiously to prolong the recol. protected by inhibitions. The valilection of themselves, and to hand dity of that safeguard, however, down to futurity some marks of their came to be doubted, and some strong. having once been. Hence, in early er measures were considered to be times, arose the large solitary stone requisite, to prevent the operation of on the heath, to denote where the the two Statutes, 1469 and 1840, mighty lay; and hence the “storied whereby it had been made lawful to urn and animated bust” of more re- attach lands for payment of their fined periods. Frail, however, are owners' debts; for it was to little most of such memorials, and it is no purpose to prohibit direct alienation, subject of wonder, that entails were while the estate might be equally thought of as better expedients, to carried off for payment of debt. perpetuate, if possible, the memory Those measures were irritant and of the entailer, as well as to ensure resolutive clauses in deeds of entail, to his heirs consideration and afflu. which were a remedy, in every reence. To a vain man, it was indeed spect, of a more extensive tendency, no unpleasant anticipation, that, after both in regard to object and effect; the lapse of centuries, he might be but these are kittle words for the looked back to, like Fleance, as the honest laird. The subject of them is founder of a long series of great, or at a kind of pons asinorum in entail least opulent men ; and the idea was law: we recommend, therefore, that delighiful, that, in far distant times, he shall clear up his noddle with a he might be sitting as snugly at the snuff ; as for the toddy, he may as foot of his own family-tree, as Fere well let it be cooling until he shall get gus I. does at the bottom of Cum- fairly across the bridge, if he shall be ming's plate of the hundred kings of able to accomplish the passage at all. Scotland, with his Highland kilt, Let him, therefore, now learn, that claymore, and good blue bonnet. the irritant clause of an entail is that

Thus we trace the desire of entail. whereby the granter of it, in handing ing to a natural and original feeling of down his estate to his successors, dethe human mind; but it is requisite clares that, should any of them endeavour 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 resoa travener 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 judigressions; so the resolutive clause of cially, who are hereby ordained to an entail declares that the heir, acta 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 conse- 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 Marlaird had the Scots Acts, or that, garet Agnew, his spouse, and the surbeing possessed of them, he could vivor of them ; whom failing, 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

* 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.

Tailzie is the Scotch law-term for Entail, derived from the French Tailer to cut ; whence also comes the word Tailor.

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