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.
Subject_3 The institute, or disponee, ought not, by implication from other parts of the deed of entail, te be construed within the prohibitory, irritant, and resolutive clauses, laid upon the heir of tailyie.

Sir William Gordon
v.
Mrs Lindsay Hay

Date: 8 July 1777

Click here to view a pdf copy of this documet : PDF Copy

[Faculty Collection, VII. 452; Dict., 15,462; App. 1, Tailyie, No. 2.]

Covington. I have not the least doubt that old Sir Robert Gordon intended to bind his son. That difference was not then known which has been since invented between institute and heir. The judgment of the House of Peers, in the case of Duntreath, must be our rule. Since we cannot root up entails, we must satisfy ourselves with lopping off their branches.

Kaimes. I cannot suppose that the maker of the entail meant to bind his son, for he has not said so. Even a separate writing under his hand would not be sufficient. Intention may go far in equity as to matters of gift, but not as to penalties such as burdening is.

Hailes. I voted for the interlocutor of this Court in the case of Duntreath, not so much on the merits of the cause as on account of a former decision of the Court; but since the House of Peers has overthrown this, I readily agree with their judgment as corresponding with my own.

On the 8th July 1777, “The Lords decerned and declared in terms of the second conclusion of the libel.”

Act. D. Rae. Alt. A. Murray. Reporter, Justice-Clerk.