In a process of streighting marches against an herito, whose estate was entailed, the Court decerned with this quality, that the lands got in excambion should be under the fetters; and in case money were decerned, it should be tailzied and employed on lands in the same maner.
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Sir John Ramsay of Whitehill resolving to divide a common muir lying betwixt him and the barony of Carington, belonging to Sir James Primrose, and also to make inclosures, conform to the acts of Parliament 1669 and 1695, and craving some lands of Sir James's to make his dyke equal; he alleged, By my tailzie and infeftments I can alienate none of my lands, but brook them by irritant cluses, which, if I contravene, my right is null, and the next heir has access in the terms of the act of Parliament 1685 anent tailzies, which being the great fence and security of our properties, the other inferior, lesser interests of inclosures must yield there to. Answered, Irritancies prohibit voluntary alienations, but not necessary and judicial ones appointed for a public good; and here you can have no prejudices, for the Lords shall adjudge as much land to you in excambion as you gave away, and it shall be fettered with the same irritant clauses as the former was; and in case money were decerned, it behoved to be tailzied or exployed on land; but the clearest way in such entailed estates is by excambion of land for land, to be subjected to the same burden with the former. The Lords decerned and adjudged with that quality.
Fol. Dic. v. 2. p. 86. Fountainhall, v. 2. p. 138.
