Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TAILYIE.

Lin Dillon
v.
John campbell of Blithswood

Date: 17 November 1779

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[Faculty Collection, VIII. 190; Dict. 15,432.]

Monboddo. The intention here is, to lay a burden on the entailed estate: There is a statute, and a wise one, which, under certain conditions, allows burdens to be laid on the entailed estate; but that is when the heir in possession does himself expend the money. The case here is different: the heir expends nothing. He draws a large rent, and leaves a burden on his successors. On this ground I would alter; but I would adhere, supposing that the tenement in question was an urban tenement, and not falling within the statute which authorises entails.

Covington. May not an heir of entail make a bargain to this purpose:— The tenant shall be at the expense of inclosing, and shall have an equivalent at the expiration of the lease. This would be a burden on the next heir: it is not a debt contracted, but a purchase made, accrescing to the entailed estate.

Kaimes. I thought that, on the footing of meliorations made, the interlocutor was right.

Braxfield. An heir of entail may meliorate the entailed estates, but not so as to risk the very existence of that estate: he cannot meliorate it, by burdening it with debt on which, to the ruin of the estate, adjudication may follow.

President. Gave up his former opinion.

On the 17th November 1779, “The Lords assoilyied;” adhering to the interlocutor of Lord Braxfield, Ordinary, and altering their own interlocutor.

On the 18th January 1780, they adhered to this interlocutor.

Act. R. Cullen. Alt. llay Campbell.

Diss. Kaimes, Gardenston, Covington.

N.B.—At the last advising of the cause, there was some controversy as to the question, Whether burgage tenements, and, in particular, houses and gardens within borough, fell within the words and the spirit of the Act anent tailyies? But this question could not be determined, the heirs of entail not being parties in the cause.