Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Binning
v.
Earl of Lauderdale

Date: 18 November 1743

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[Elch., No. 18, Tailyie.]

John Earl of Lauderdale tailyied his estate with strict irritant and resolutive clauses de non alienando et non contrahendo, and under several limitations and conditions, particularly, that the heir should ratify all the deeds granted by the Earl in favours of his lady or her son, before he could enter; that he should be bound to pay all the Earl’s debts then due, and all that he should afterwards contract, even legacies left in articulo mortis; and there is a faculty granted to the heirs of entail, whereby they are empowered “to contract or take on the sum of ₤40,000 for performing their honourable affairs.” Richard, the first heir of entail, did not enter, but contracted debts upon which he was charged to enter, and the estate adjudged. Quær. Could the adjudication be sustained to the extent of the faculty? It was objected to it, 1mo, That, as the heir in this case was bound to certain conditions and prestations, he could not properly be charged to enter heir, unless he could be charged at the same time to perform the conditions of the entail, which is impossible. 2do, It cannot be presumed to have been the will of the maker of the entail that any of the heirs should have this faculty of contracting ₤40,000, who did not enter and represent him. Answered,—1mo, That the Act of Parliament 1621, allowing charges to enter at the instance of the creditors of the heir, speaks in general of heirs, and is not confined to heirs in fee-simple; that all heirs charged to enter, and not entering, are esteemed, præsumptione juris et de jure, to lie fraudfully out, and therefore are held, fictione juris, as if they were entered. 2do, It cannot be thought that it was the intention of the maker of the entail that his apparent heir should be taken and laid in jail, possibly when he had a mind to enter, but before it was convenient for him to do it; and this would be the case if it were law that he could not be charged to enter heir cum effectu.

The Lords found that the adjudication was valid.—Dissent. Preside. Actor, Harry Hume.