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, an nounces 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 lucu

A

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.

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 affluence. To 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

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 *.

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

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 benca 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 produ ced 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 Mar garet 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

must be specially remarked, first, that those clauses in Mr Vans's entail were expressly directed, not only against the heirs of entail, but against Mr John Vans himself, as institute, or person first named; and, secondly, that the tailzie by him was not executed, as generally takes place, gratuitously, but for the two onerous considerations of a sum actually paid down, and of a counter-entail of the lands of Sheuchan.

The entail of Barnbarroch was recorded in the record of tailzies very soon after its execution in 1758; but, as shown from the act, to render it effectual, an additional step was necessary, not only at common law, before 1685, but by the enactment of that year; and that was, that infeftment should follow, and be registered, on the entail, reciting all its conditions, and irritant and resolutive clauses. This step, which was absolutely requisite for the completion of the tailzie, did not, however, follow until 1775, viz. at the distance of seventeen years; and let us next observe what happened in the mean time, and before that sasine took place. John Vans had, at the date, and the recording of the entail in 1758, owed £.1500; and from the time of that recording, down to the full completion of the entail, by recorded infeftment, in 1775, he contracted £.8000 more debt; so that before his entail was completed, by the last of the two requisites having been complied with, he actually owed £.9500. In point of fact, we may just add, that, from the recording of the infeftment on the entail, down to his death, he contracted debt to the amount of £.1500 more, so that his debts, before he died, amounted in all to £.11,000 sterling.

Keeping the circumstances in view, that this onerous entail was executed by John Vans himself, and that the limitations were directed against himself as well as others, the question arose, whether any, and what part of those his debts were good against his own estate of Barnbarroch, or whether that estate ought to descend free from his debt, to his own heir, Robert Vans Agnew, (the son of his marriage with Miss Agnew,) who, after his father's death, made up titles to it. The case came into

discussion in the Court of Session, at the instance of John Vans's creditors, in 1784. We regret that our limits do not admit our quoting the speeches made on the occasion, upon the Bench, by Lord Braxfield, and the other great Judges of that day, but they "found that the tailzie was a subsisting deed; but that the estate of Barnbarroch was still affectable by the debts due by John Vans of Barnbarroch AT THE TIME OF HIS DEATH."

This decision was considered to be well founded at the time. It found in substance, that in no case could a man entail his lands to the prejudice of his own just and lawful creditors. An Act of Parliament was accordingly obtained on it, for selling this entailed estate, so far as necessary, to pay John Vans's debts; and had the matter been carried speedily through, the whole of his £11,000 of debt would have been paid off under it.

The business, however, was in no such forwardness. Robert Vans Agnew, the son of J. Vans, died, while yet little more had been done. We should have been apt to suppose that the Act of Parliament would have shut the chequer, but such acts being always periculo petentis, have no such effect. John Vans Agnew, now of Sheuchan, son of Robert Vans Agnew, succeeded him; and on coming of age, and returning from abroad, he appealed to the House of Lords against the decision of the Court below, when the Peers remitted the case for consideration to that Court; and the Lords of Session, on 2d June 1818, on perusing printed informations for the parties, adhered to the sentence of their predecessors in 1784, finding also expences to be due by Mr Vans Agnew.

Recourse was then had to a second appeal, on hearing which, the House of Peers, on 14th July 1822, materially altered the decision of the Court here, for they "found, that the estate was affectable only by the debts of the said John Vans AT THE

DATE OF THE DEED OF TAILZIE OF 29TH DECEMBER 1757, AND WHICH REMAINED DUE AT THE TIME OF

HIS DEATH, and by such other debts of the said John Vans, if any, as had become real charges upon the estate before the infeftment on 20th May 1775.

This is the judgment of the House