Duke of Buccleuch v. Montgomery and others, &c. [1817] UKHL 5

UKHL

Duke of Buccleuch v. Montgomery and others, &c.

[1817] UKHL 5

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session During the Session , 1816—17.

57 Geo . III.

SCOTLAND.

APPEALS PROM THE FIRST AND SECOND DIVISIONS OF THE COURT OF SESSION.

No. 19

Montgomery and others Appellants v. Charteris (Earl of Wemyss) Respondent

Duke of Buccleuch Appellant v. Montgomery and others, &c. Respondents

and

Feb . 3 , 5 , 7 , 10 , 13 , 14 , 17 , 18 , 21 ; July 9 , 1817 .

QUEENSBERRY LEASES.

Whether a fifty-seven years' lease is struck at by the prohibition to alienate in an entail? Whether the taking of grassum is struck at by the prohibition to alienate, and the proviso against diminution of the rental? Whether there may be a fraud on an entail, distinct from what is prohibited? Whether a lease for thirty-one years; or, in case that should not be good, for the longest of certain alternate periods from twenty-nine to nineteen years, for which the granter should be found by the Court of Session, or House of Lords, to have power to make a lease, may be a good lease for the restricted periods of twenty-one or nineteen years, notwithstanding the indefinite ish? ish? &c. &c.

In the Neidpath, or March entail, there is, among other prohibitions, a prohibition to alienate: alienate: and, with respect to leases, there is a clause that it shall be lawful and competent to the heirs of tailzie, to set tacks during their own life-times, or the life-times of the receivers thereof, the same being set without evident diminution of the rental. In the Queensberry entail there is a proviso, that the

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Wakefield case. 2 vol. p. 90.

1st Division of the Court.

Neidpath or March entail.

Case of Harestanes.

The late Duke of Queensberry had, some years before his death, granted several leases of farms forming part of the Neidpath, or March, and the Queensberry, entailed estates, at low rents (not less, nominally, than the rents at which the lands had been previously let), and taking large grassums. The Earl of Wemyss was the next substitute heir, entitled to succeed to the Neidpath or March estate; and the Duke of Buccleuch the next heir, entitled to succeed to the Queensberry estate. Actions were brought by the Duke himself, by his trustees after his death, by the heirs of entail, and by several of the tenants; the object of all of which was to have the judgment of the Court upon the question, whether the leases, or any, and which of them, were or was valid. With this view, certain particular cases were selected for litigation and discussion, in each of which the principles of decision, it was expected, would govern and decide a class of cases. It had been before decided by the Court below, and the House of Lords, in the Wakefield case ( vid vid . ante ante vol. ii.), that a ninety-seven years' lease was bad as being an alienation.

With respect to the Neidpath or March estate, the first case, that of Easter Harestanes, was a case of a fifty-seven years' lease, at 74 l l . rent, and 310 l l . grassum. This was, by the Court below, held bad, on account of the long duration, which brought it within the prohibition to alienate.

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The second case, the case of Whiteside, was that of a life rent lease (permitted by the entail), taken without grassum, upon the surrender of a fifty-seven years' lease, with a considerable grassum, the rent remaining the same as before. With reference to this and the next class of cases it is to be observed that there were contracts between the Duke and the tenants, thus surrendering their leases, by which the Duke bound himself to give them longer leases for grassums, if it should be found that he had the power.

Case of Whiteside.

Case of Edstoun.

The next case (or class), the case of Edstoun Edstoun , was that of a thirty-one years' lease; or, in case that should be found beyond the power, then it was to be a lease alternately for twenty-nine, twenty-seven, twenty-five, twenty-one, or nineteen, years—“whichever of the said several terms of years short of thirty-one years, the Court of Session, or House of Lords, should find to be the longest period of those above specified, for which the Duke had power to grant a valid lease.” This lease also was granted without grassum upon the surrender of a fifty-seven years' with grassum, the rent remaining the same as that under the fifty-seven years' lease.

These Whiteside and Edstoun leases were held by the Court below to be bad, on account of the grassum taken on the fifty-seven years' leases, for which they were substitutes, grassum being a diminution of the rental and an alienation of the profits; and they were held bad also on the ground of fraud on the entail, in which the tenants, as appeared by the contracts, were implicated. The

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2d Division of the Court.

Queensberry entail.

Buccleuch cases.

The late Duke of Queensberry also granted several leases of farms on the Queensberry estate for nineteen years, taking large grassums. These leases were divided into four classes:—1st, Leases granted to the tenants in those tacks which were current, or to strangers, under the burthen of the current tacks; and with obligations in both cases to grant a new lease for nineteen years, annually, during the Duke's life:—2d, Leases granted under a similar obligation to renew, where the current leases had expired:—3d, Leases granted without an obligation to renew, but where the current leases were not near their natural expiration:—4th, Leases without obligation to renew, and not granted till the previous leases had expired. Upon a declarator by the trustees of the late Duke of Queensberry before the second division of the Court, all these leases were sustained, the second division of the Court considering grassum as no objection. From that decision the Duke of Buccleuch appealed.

The cases of some of the tenants were brought separately, both before the Court below, and the House of Lords; but the above general statement will, it is apprehended, be sufficient in this place. A more detailed statement of the cases, and proceedings, and of the material clauses in the entails, will be found in the Lord Chancellor's speech. It

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Mr. Leach Mr. Leach and Mr. Jeffray Mr. Jeffray for the Heirs of Entail; Sir S. Romilly Sir S. Romilly and Mr. Cranstoun Mr. Cranstoun for the Trustees; Mr. Moncrief Mr. Moncrief for the Tenants.

Judgment. July 9, 1817.

Lord Eldon (C.) Your Lordships' attention has been called, in the discussion of the various cases which are in controversy between the Heir of Entail, the present Lord Wemyss, and the executors and disponees in trust of the late Duke of Queensberry, and the several tenants, either by particular action or otherwise, who may be represented as having interests in the questions under your Lordships' consideration, to the decision of cases which may, I think, be represented as cases of considerable difficulty; but I am sure they may be represented as cases of importance, at least, altogether unexampled by any that have fallen within my observation in the course of my professional life.

My Lords,

When I so state the points to your Lordships which are now under consideration, I am impressed undoubtedly with the notion that this House never had a more important duty to discharge than it is called upon now to discharge. The consequences of your Lordships' decisions upon these causes, to the parties immediately interested, are very weighty and very important. The parties interested have now at stake a property of very great value; but it is not only with reference to the value of the interest your Lordships are to decide,

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My Lords,

We are bound, unless I misunderstand this case, whenever we come to the decision of it, to determine what opinions we ought judicially to adopt among those, various as they appear to me to be, which are stated by the lawyers, and delivered by the judges. The present case has this circumstance belonging to it, all the present cases, I should say, have this circumstance belonging to them, that your Lordships have to determine, whether the first division of the Court of Session,

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My Lords,

There are two deeds of entail, under which the Queensberry family claim. The one has been distinguished, I think, in the course of the discussions at the bar, by the name of the March or Neidpath entail; and, upon the construction of that entail, questions arise in several different cases. The first of those cases is that of the Duke of Queensberry's executors, together with a Mr. Alexander Welsh, who is a tenant under a lease of a farm called Easter Harestanes; and the questions in that case, are, first first , Whether the lease granted by the Duke of Queensberry for a term of fifty-seven years is bad, as an alienation prohibited by the entail of that estate? and, Secondly Secondly , Whether the lease is bad on account of a grassum or fine having been taken by the lessor?

My Lords,

In the consideration of this case, the Court below, that is, the First Division of the Court of Session, have thought that it was not necessary to give much of attention to the second of those questions, namely, whether the lease was bad on account of a grassum or fine having been taken by the lessor, that Court being of opinion, that a lease for fifty-seven years, if granted without a grassum, was to be considered as being an alienation, prohibited by the deed of entail, it being a lease of

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My Lords,

Since the case was decided, however, as I understand the matter of fact, in the Court of Session in Scotland, an Additional Case, by which I mean an additional printed case, an additional representation upon the subject, has, by your Lordships' leave, been laid upon your table; and that case contends, that, though a lease for ninety-seven years in the case of Wakefield was held by your Lordships some little time ago to be bad as an alienation, yet this lease, being for an inferior term, fifty-seven years, ought not to be considered as an alienation, and more especially as there has been an usage in Scotland of granting leases for fifty-seven years, not only by heirs of entail, but by proprietors of estates held in pure fee; and that therefore that usage, if the principles of administration are to be applied in these questions to the granters of leases of entailed estates, is very material

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I have taken the liberty to mention to your Lordships what I consider to have been insisted upon by this additional case, because it will be obvious, that, if the tenant could be protected in this case by the act of 1449, the same protection may be contended for in other cases, and it does not appear to me that that point was insisted upon in the Court below, to the extent of enabling us to determine absolutely and clearly what would have been the judgment of the Court below upon that point. My Lords, I do not hesitate to state to your Lordships, that I entertain an opinion upon it which I will not be considered

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My Lords,

The next case is the case of the Trustees of the Duke of Queensberry and the Earl of Wemyss, and a person of the name of William Murray, tenant in a farm called Whiteside. My Lords, with respect to this farm called Whiteside, which appears to have been let at a particular period, together with another farm called Fingland, and another called Flemington, I pass over at present, and perhaps not meaning to resume the consideration of some circumstances. I pass over them, because I understand it to be the wish of both parties that such circumstances should be passed over, namely, that Whiteside, Fingland, and Flemington were let together for a gross or cumulo rent of, I forget what sum, I think somewhere between 200 l l . and 300 l l .; and that afterwards these

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The objections then in this case are, that there had been a lease granted to the tenant for fifty-seven years, upon which a grassum was received; that that lease for fifty-seven years, upon which a grassum was received, an alarm being taken about the validity of such leases, was in effect renounced, and the present lease taken; but that the present lease, under the circumstances, under which it took effect, was in truth nothing but a substitute for the former lease, and, being a substitute for the former lease, and a grassum having been taken for the former lease, that the latter lease, a substitute for the former, is also to be considered as affected by the same objections, arising out of the fact of payment of a grassum, as would have applied to the first lease. There are likewise intimations given, that this tenant, and that in truth all the tenants, were in conspiracy with the late Duke of Queensberry,

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My Lords,

The next case, which you have had

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The question, therefore, my Lords, in that case, will be, whether, attending to all the circumstances that had taken place between the Duke and the tenant of Edstoun, prior to the grant of the twenty-one years' lease, and attending (if the allegations in the pleadings will permit you to attend) to the circumstances that have taken place between the Duke and the other tenants, so as to bring them all into concert on the head of collusion or fraud, and attending also to the circumstances of the uncertainty of the duration of the lease, until the Court, by its judgment, should give certainty to that which was uncertain, and attending also to the obligation

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My Lords,

the other two cases, which relate to the March or Neidpath estate, are, the cases of Flemington Mill and the leases of Crook. I do not think it necessary to take up your Lordships' time in stating the particular circumstances of those cases. They do not appear to me to be of considerable moment, certainly not of value, though they may be of moment as to value to the persons claiming the interest, considering their situation of life; but they involve likewise the point of grassum, and the question, whether there is or is not a diminution.

Now, my Lords, upon these cases, thus briefly stated to your Lords, I beg leave, with your permission, for the purpose of enabling me to represent to you the ideas of the First Division of the Court of Session, to call your Lordships attention to the interlocutors that were pronounced by that Court. The first interlocutor pronounced by the Lord Ordinary was to this effect:

in the event if the said tack should be set aside as ultra vires ultra vires of the grantor, and regular process brought for that effect”

“The Lord Ordinary having considered the memorials for the parties, and whole cause, repels the reasons of declarator, assoilzies from the conclusions of the libel, and decerns; reserving to the pursuer his recourse, upon the warrandice in his tack, against the Duke of Queensberry and his representatives,

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—the operation of this interlocutor being to deny to the tenant of Harestanes a right to a judgment in his favour in his action, and to assoilzie Lord Wemyss from that action of declarator; reserving to the tenant the benefit of the warrandice against the assets of the late Duke of Queensberry and his representatives, in case the tack should be set aside as ultra vires ultra vires of the grantor, in a regular process brought for that effect. They were of opinion that this tack could not be maintained against Lord Wemyss, and therefore they dismissed that action of declarator; but there must be, as I understand, an action of reduction to get rid of the tack itself, and if, in the action of reduction of the tack, the pursuer should succeed, then would arise the benefit of that part of the interlocutor to the tenant, by which his recourse upon the Duke of Queensberry and his representatives is reserved.

This came, my Lords, in different forms before the whole Court; and they likewise sustained the defences in the process of declarator at the instance of Alexander Welsh against the Earl of Wemyss and others, substitutes under the deed of entail, and assoilzied the said defenders from the conclusions of the libel, and then remitted to the Lord Ordinary in the usual manner.

My Lords,

Here it is necessary for me to mention, that the Earl of Wemyss had brought an action of declarator against the late Duke of Queensberry and the tenants of the estate, that action of

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My Lords,

Such being the judgment in the case of Easter Harestanes, I have only again to repeat, in one short word, that it appears to me, that the Court have decided that case purely upon the length and duration of the fifty-seven years' term. There can be no doubt however, when you look to the principles upon which the Court have proceeded in the other cases, that if it had been necessary for them to have decided upon the point of grassum, the First Division of the Court would have held that the taking of grassum operates a diminution in the rental, and that a diminution of the rental thereby thereby , is a diminution of the rental prohibited under this deed of entail.

My Lords,

With respect to the case of Whiteside, they enter more particularly in their interlocutor into the grounds, on which they have held that opinion which I have last stated; and as there is

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Your Lordships observe in this interlocutor some of these are findings in a question between the pursuer and this particular tenant, having nevertheless relation, not to the acts merely of this particular tenant, but to the acts of all the tenants who have renewed their leases in like manner; and it concludes with what may be stated as in the judgment of the Lord Ordinary a proposition of law, that the fact being—that the original lease was granted for the life-time of the receiver, and the fact being—that the new lease is to be considered as a substitution for the old one, the new lease is to be affected by the circumstance of a grassum being paid for the old one, and that the grassum so affects both the new and the old lease, as to operate, within the intent and meaning of this deed of entail, such an effect upon the rental, as shall amount to that diminution of the rental which is prohibited by the deed of entail.

Dated 3d, signed 21st, Feb. 1815.

My Lords,

This came under the review of the Court of Session, and they altered in some measure the finding. They say, “They find, That the entail in question contains a strict prohibition against alienation; but a permission to grant tacks of the said lands and estate during their own life-times, or the life-times of the receivers thereof, the same being always set without evident diminution of the

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“Find, That in the year 1775, the petitioner's father obtained from William Duke of Queensberry a tack of the farm of Fingland for twenty-five years, at the rent of 50 l l . 10 s s . for which he paid a grassum of 480 l l . Find, That in the year 1788, he renounced this lease, of which twelve years were to run, and obtained a new lease, for fifty-seven years, of the said farm of Fingland, and also of the farms of Whiteside and Flemington, at the rent of 266 l l . 16 s s . 4 d d .”

This 260 l l . 16 s s . 4 d d . it will be in your Lordships recollection, was the compounded amount of the three rents of Fingland, Flemington, and Whiteside, with the addition of the cess, and rogue and bridge money, amounting to 11 l l . odds, for which he paid a grassum of 400 l l . this grassum being declared to be (not declared upon the face of the lease, but declared in a collateral paper and memorandum) a grassum for Whiteside and Fingland only. And I mention this, because a question arises in another case, that of Flemington, whether it was competent to the Court of Session, or competent to the parties, who were disputing before the Court of Session, to allege that, the grassum, by force of that collateral paper, must be taken to be for two farms, if it did not so appear on the face of the tack. They “find, That in the year 1807 the petitioner's father renounced the said tacks, and took new tacks to himself and sons for their

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Dated 3d, signed 21st, Feb. 1815.

My Lords,

Such being the case with respect to Easter Harestanes and Whiteside, as it may be proper to call your Lordships attention to every circumstance in a case of this great importance, the finding in the interlocutor with respect to Edstoun is in these words: “The Lords having advised,” and so on, “Find, That a tack of the lands and farm of Edstoun was granted to the petitioner, to commence at Whitsunday, 1792, for the period of fifty-seven years, at the rent of 155 l l . 7 s s . for a fine or grassum of 300 l l .: Find it admitted in the petition, that doubts having been entertained of the validity of the above lease, the petitioner, along with most of the other tenants on the estate,” and your Lordships will permit me to repeat these words, “along with most of the other tenants on the estate,” that the Court find as a fact, but whether that fact is founded on sufficient pleadings and evidence, may be a very different consideration, “along with most of the other tenants on the estate, renounced the said tack from and after Whitsunday, 1807, and obtained a new tack at the same rent for thirty-one years, or for several alternative periods, down to nineteen years, according as the Duke should be found to have powers to grant tacks under the entail: Find, That this current tack must be held to be merely a substitute for the former tack,

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Then they proceed to state, that the whole circumstances under which the tack was granted, taken in connection with the relative contract entered into between the Duke of Queensberry, and the petitioner and other tenants, again to prolong the tack to fifty-seven years, or even to ninety-seven years, if found competent, together with the fact, that all the tenants renounced their tacks under similar circumstances and conditions nearly at the same time, do indicate a fixed plan on the part of the Duke to defeat and defraud the entail as far as possible. That introduces a consideration of much moment: We have heard of much difference of opinion as to what is to be the nature of the construction to be put upon the words of an entail,—Whether it is strictissimi juris strictissimi juris , or to be a sound and reasonable construction; but there appears to have been no difference upon this point, that there may be a fraud upon the entail—at least in the opinions of those eminent lawyers, whose opinions they have stated in the printed cases as authority, which undoubtedly they are not, strictly speaking, but which are of great value to us, as giving us information as to what is considered to be the law of Scotland. In stating their notions as to grassum, they make a saving, if the entail is defrauded defrauded , reducing it in each case to the question—what is a fraud upon the entail, a question extremely difficult to solve, if an heir of entail,

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This, my Lords, is a very material part of this interlocutor, as it appears to me with reference to some observations I shall have to make on the Duke of Buccleuch's case. I just refer to it now, because it may enable me to carry your Lordships along with me, when I come to state the proceeding on the part of the Duke of Buccleuch, and these Executors and Disponees in trust. That is a proceeding by the Executors and Disponees in trust, by way of action of declarator in the Court of Session in Scotland, praying to have it found, that all the leases there referred to, which if I count them right, amount to from 290 to 300, all impeached in one action of declarator, are good and valid leases. My Lords (the Court, I suppose, overlooking that circumstance, or perhaps the print before us being inaccurate), it appears that, when they held all those leases to be good, they have in some cases held leases, stated to be for ninety-nine years, to be good. If there can be a fraud upon the entail, as something that is to be contradistinguished from a breach of the prohibition, I should submit to your Lordships, that it may deserve consideration, whether the Executors and Disponees in trust of the Duke of Queensberry, who as such are neither more nor less than his representatives, if he was a party to that fraud, have a right to come into Court with an action of declarator, not making the numerous tenants parties to that suit, but praying to have it declared at their instance,

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My Lords,

They have found another fact, “that the tack in question, and others before the Court, were not entered into in the fair, rational, and husbandlike administration of the estate, but for the purpose of forestalling the rents and profits thereof;” finding in this in favour of a principle of law much contested between the parties; they say on the one side, that the heir of entail is the proprietor of the estate, that he is monarch of the estate, to use their expression (I think I shall show your Lordships that he is a limited monarch), and that he is not bound to attend to this thing called the fair, and the rational, and husbandlike administration of the estate, and that nobody can tell what that is; that that principle, if sustained, would furnish a question to be tried in every case; and, on the other hand, it is insisted, that the tenant in tail, though certainly he is not a mere factor, is nevertheless bound to a fair and rational treatment of the estate, giving a reasonable attention

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My Lords,

This finding also supposes that the period of nineteen years is fixed by the statute of 10th Geo. III.; when I come to call your Lordships' attention to that statute, perhaps your Lordships may not think that it is an accurate assumption with respect to the operation of that statute. Then they go on to state, “that in respect that the tack is otherwise objectionable on the grounds above stated, and that the tenants on that account have no claim in equity in support of their tacks, find that the said tack cannot be restricted to any shorter period than that for which it was originally granted.” Your Lordships will observe, that here they not only determine that a lease for nineteen years is good, and that, if granted for thirty-one years, it might stand for nineteen, because it was within the power of the grantor to grant for nineteen years, but they must have taken this as law, that the lease may be good, though having an indefinite undetermined duration till the Court of Session shall say whether it is for thirty-one years, for twenty-nine years, for twenty-seven years, for twenty-five years, for twenty-one years, or for nineteen years.—My Lords, This seems a

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My Lords,

With respect to the two other, the minor cases, I shall not trouble your Lordships with stating the different interlocutors in them. The case in them will be very much the same with respect to grassum; and with respect to the question, whether there is a diminution of rent, they find the facts upon which the cases must be decided, and to which the law must be applied, as you find them stated in the former cases, in a great measure. I would represent, therefore, to your Lordships, that I take the First Division of the Court of Session to have determined that these leases are bad,—that they were ultra vires ultra vires of the Duke,—that there was concert,—that there was collusion between the Duke and the tenants, all the tenants whose leases are not sustained,—and that there was fraud; and that upon all these grounds taken together, or upon some of them severally taken, the tenants were not entitled to have the benefit of their leases. And I presume the Court thought they had, in pleadings and otherwise, before them, sufficient to enable them to form judicially these determinations affecting all.

My Lords,

The question in the other case, I mean the case with the Duke of Buccleuch, arises

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My Lords,

The parties seem to have reproached each other in the Court below with respect to the delay. These charges appear to have commenced on the part of the Duke of Buccleuch; and they likewise intimate, that there has been some degree of management in bringing forward, on the other part, particular tenants with their actions, in the decision of whose cases the titles under the leases might be more favourably attended to, than perhaps in other cases, which might have been selected. But I pass all that by, as not at all assisting us in the decision of that, which we may have now or hereafter to decide upon.

My Lords,

The first proceeding which is stated with respect to the Buccleuch business, is the proceeding of the Trustees and Executors of the late Duke of Queensberry; and it may be important here to call your Lordships' attention to the summons. My Lords, that summons states, “That the late Duke of Queensberry was proprietor of

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“That the said William Duke of Queensberry, during the time that he possessed the said lands and estate, did, by himself, or his commissioners, factors, or others properly authorized by him, grant a great variety of tacks or leases of the said lands, and particularly the following;”

And then they proceed to state, as I before mentioned to your Lordships, what, unless I am inaccurate, amount to about 298 leases; and I observe in page 12, of the summons I am now reading, that here are leases mentioned for 99 years. Then it states, “That the said lands and estate now belong to his Grace Charles William Duke of Buccleuch and Queensberry, who has threatened to challenge the leases, and the possession of the tenants in the lands, in processes of reduction and declarator, and processes for removing the tenants therefrom; and also to bring actions of damages against the present pursuers, as the Executors and Trustees of the late William Duke of Queensberry, founded on allegations that the said leases are void and null, or at all events are granted by the deceased William Duke of Queensberry without sufficient powers to grant the same, as having been restricted by the terms of the entail or entails, and the investitures under which he held the same: That in consequence of those threats, the pursuers

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My Lords,

Then it prays, in the nature of an injunction bill. The proceeding therefore is a proceeding on the part of the Executors and Trustees of the Duke of Queensberry, to have each and every of 290 or nearly 300 leases declared to be all valid against the heir of tailzie, the tenants, as I understand, not being parties to these proceedings; and

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My Lords,

In answer to this, the Duke of Buccleuch states this: he admits that he has brought an action of reduction, and then he states the prohibitory and irritant clauses, and so on, and then he proceeds to do that which I apprehend he meant, whether he has sufficiently executed that purpose is another question, but which I apprehend he meant to amount to allegation, not only that this was ultra vires ultra vires of the Duke of Queensberry, but that it was fraudulent on his successor, “the said deceased William Duke of Queensberry succeeded to the estate of Queensberry in the year 1778, as an heir of entail, under the foresaid deed of tailzie, and made up titles accordingly, under the conditions therein contained; but after entering on the possession of the estate, he did not, as the leases gradually expired, let the lands at the just avail for the time, in terms of the entail;” and, if your Lordships will look at the leases, you will see that great numbers of them were under treaty at the same time, “but granted leases for nineteen years, below the true value, and in consideration of large grassums received, and after having continued this system for a period of eighteen or nineteen years, during which time he had consequently drawn a grassum for the letting of every farm on the estate, not satisfied with the slower mode of again exacting grassums as the leases might periodically fall, he, from the desire of speedily raising a large sum of money to add to his great wealth, and with the

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My Lords,

I wish to state it in the way I am now doing; for I know it does not become any man in a judicial situation to look at the conduct of the parties with reference to any other consideration than the legal effect of it. Therefore I dismiss all observation of any other kind. I consider myself as having this duty imposed upon me, and this

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Then it states, That these leases were granted in execution of the above-mentioned device of the said late Duke, and all of them are contrary to the provisions of the said entail, and liable to reduction, among other, for all or part of the following reasons. Primo Primo , Because they are not proper leases, but complex contracts, conveying away the lands for a term of years, partly for yearly rent, but in great part for a grassum or price payable to the Duke himself. Secundo Secundo , Because they were granted for a space longer than the setter's life-time, or nineteen years, the obligation of renewal being part of the contract, and elongating the terms of possession for which the lands were let. Tertio Tertio , Because the leases were not let for the just avail, but for a rent known and intended to be inadequate, and far less

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Then, my Lords, with respect to a tenant of the name of Hyslop, the summons, with respect to him, contains nearly, though not exactly in the same words, all this allegation about frauds; and this case so coming before the Court as between the Executors and Trust-disponees of the late Duke of Queensberry and the present Duke, and between the present Duke and one of the tenants, whose lease is mentioned among the 290 noticed in the proceeding of the Executors and Trust-disponees, the Court of Session proceeded to consider these cases and the judgment, which they gave at the instance of the Executors of the Duke of Queensberry, is to this effect. I do not know that it is necessary to trouble your Lordships with the very words of it; but I may state, that the effect of it is to sustain all these leases without exception. My Lords, in the case of Hyslop, he says, that he has nothing to do with the question between the Representatives of the Duke of Queensberry, and the present Duke of Buccleuch; that he is no party to any concert or collusion; that he knows nothing about it; that the only question he has to discuss with the Duke of Buccleuch, is, whether his lease ought to be sustained? and I believe I represent the effect of the

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Having stated to your Lordships generally the outline of the case, I will take leave, with your Lordships' permission, to draw your attention to the instruments, the construction of which has given rise to the respective judgments of the Court of Session, premising, in a short word, that your Lordships see the great consequence and the great importance of whatever may be your decision in this cause; it bears upon property included in between 290 and 300 leases in the Buccleuch estate; it bears upon property to a very large amount in the March estate; it bears upon the interests of all persons, who claim under the disposition made by the Duke of Queensberry, of his supposed

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My Lords,

With respect to the Buccleuch entail, your Lordships will find the disposition and tailzie bears date the 25th December, 1705, it was registered in the Register of Tailzies the 21st February, 1724, and the Books of Sessions, 17th June, 1724. The recital of this is in these terms:

that subject, or on the succession to our honours and estates, and also for preventing the snares that may be laid for the said James Earl of Drumlanrig, to the visible prejudice of our estate and family; therefore, and for the other weighty causes and good considerations us moving, we have thought fit (with and under the reservations, conditions, provisions, limitations, restrictions, clauses prohibitory, irritant, and resolutive, under written, allenarly and no oyrways), to be bound and obliged to sell, annailzie, and dispone.”

“Forasmuch as we having considered the state and condition of James Earl of Drumlanrig, our eldest lawful son, are fully convinced of his weakness of mind and unfitness to manage our estate, or represent us in our dignities and in our said estate, and being well resolved to leave no place for any question concerning the said James Earl of Drumlanrig his condition and capacity after our decease, for preventing all process or arbitrement on

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Your Lordships will recollect, it has always been contended, that these words have, and must have some technical narrow meaning, and yet you perceive the very first word which occurs is the word sell, which has certainly a definite meaning in the law of England, and in the law of Scotland, and yet it is here unquestionably applied to a gratuitous deed, “to sell, annailzie, and dispone, like as we by these presents, sell, annailzie, and dispone.”

Then the deed states the institute and substitutes, reserves life-rents, provides an annuity for James Earl of Drumlanrig, creates an obligation for the payment of the entailer's debts, and the powers reserved to him; and then there is this clause, “That notwithstanding the right of fee of the said whole earldome, lands, baronies, and others above specified, be devolved and secured by this present disposition and tailzie, in favours of the said Lord Charles Douglas and his foresaids, and the other heirs of tailzie above mentioned, yet it shall be lawful for us to contract debts which shall affect the said Lord Charles Douglas, and the heirs of

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and the heirs-male of his body, nor to the other heirs of tailzie above mentioned,”

“Provided and declared, and so to be provided and declared in the instrument of resignation, charter and infeftments to follow hereon, and in all the subsequent procuratories of resignation, retours, precepts of infeftments, and rights of the said estates, that it shall not be lawful to the said Lord Charles Douglas,

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the very expression in the Duntreath case, “nor any of them, to sell, wadset, or dispone,” not using in that prohibitory clause the word alienate, “to sell, &c. any of the aforesaid earldome, lands, baronies, offices, jurisdictions, patronages, and others foresaid, nor any part of the same, nor to grant infeftments of life rent or annual rent out of the same;” which words I apprehend contain a prohibition, which would be contained in the word alienate; “nor to contract debts, nor do any other fact or deed whereby the same, or any part thereof, may be adjudged, apprised, or any ways evicted from them, or any of them, except so far as they are empowered, in manner after mentioned; nor to violate or alter the order of succession foresaid, any manner of way whatsoever: and also with this provision, that the eldest heir-female and tailzie above specified, and the descendants of their bodies, shall exclude the younger and her descendants as heirs-portioners, and shall succeed always without division;” the author of this deed, therefore, intending as one of his purposes, to keep the whole of the estate in one individual; “and that the whole heirs and descendants of their bodies so succeeding, shall be obliged in all time coming upon their succession, to assume, and use, and bear, the sirname of Douglas,” thereby also expressing his anxiety that it should be a Douglas, “and the title, designation, and arms of the family of Queensberry, as their own proper sirname, title, and designation; and that the said Lord

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My Lords,

Here I take leave to say again, as I took the liberty to say in the Wakefield case, that I cannot bring my mind to be much affected by what we have heard so much of at the Bar in this case, in the Wakefield case, and, in others, that if you construe a clause of this kind, where you have these words, as meaning that you shall, on all occasions, get the rent, which is the just avail at the time, a

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Then the deed proceeds, “nor to do any other fact or deed, civil or criminal, directly or indirectly, by treason or otherwise, in any sort, whereby the said tailzied lands and estate, or any part thereof, may be affected, apprised, adjudged, forefaulted, or any manner of way evicted from the said heirs of tailzie, or this present tailzie in order of succession thereby prejudged, hurt, or changed; neither shall the said Lord Charles Douglas, nor any of the said heirs of tailzie, suffer the duties of ward, marriage and relief, either simple or taxed, nor the feu, blench, and teind duties, nor any other public burdens or duties whatsoever, payable furth of the said tailzied lands and estate, to run on unsatisfied, so as therefore the lands and others foresaid may be evicted, apprised, or adjudged.”

My Lords,

I point your attention to the last clause, because it shows an anxiety on the part of the author of this deed, not only with respect to other public burdens, but with respect to teinds; and I think I shall be able at least to satisfy your Lordships, that the question, whether throwing the public burdens on the old reserved rent is not a diminution of the rental within the meaning of authors of such deeds, is at least a question, that deserves a great deal of consideration before you determine it in the negative. I would illustrate that now, for the sake of leading your Lordships to what I shall say more particularly by and by. Here is one lease let at 3 s s .; the grassum taken is above 200 l l . Now, if we were, instead of considering those great cases which the gentlemen have adverted

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Then with respect to the irritant and resolutive clauses, it goes on thus; That if they do not do all these things, or they shall, “by altering and changing the order of succession, or disponing, selling, wadsetting, or burdening with infeftments of annual rent or other servitudes and burdens, the said lands and others aforesaid, or any part thereof, or by granting tacks or rentals otherwise than as above, or by contracting debts, except in so far as they are empowered in manner underwritten, or by doing any other fact or deed, civil or criminal, by treason or otherwise, whereby the said lands may be burdened, evicted, forefaulted, or adjudged;” then it refers to public burdens again, those are all to be paid: and there is a resolutive clause, evicting the estate from the person who does those acts. Then there is a provision, that the next heir shall, in such cases, succeed, the succession opening again to the person who would have taken. If the father contravenes, the son shall succeed, “reserving always to the person, who shall succeed by virtue of the contravention, the rents and profits of the said estate, until the existence of the said nearest heir, with the burden of the payment of current annual rents and public burdens;” so that the person, who was to take the

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Then there is the clause, “That it shall be lawful to, and in the power of, the said Lord Charles Douglas, and of the other heirs of tailzie above specified, whether male or female, to provide and infeft their lawful spouses in competent life-rent provisions of a part of the lands and estate, not exceeding the sum of 1000 l l . sterling of yearly rent.” Now, I beg leave to state to your Lordships, that this is a clause which I think deserves more attention, than has been given to it; for this is an estate, which it was in the consideration certainly of the author of this deed should always be such an estate, as would give to the spouse of a lady, or to the spouse of a gentleman, for both males and females are provided for, “in competent life-rent provisions of a part of the said lands and estate, not exceeding the sum of 1000 l l . sterling;” of course leaving to the heir of entail a property, that was useful and valuable to him, after that 1000 l l . sterling was paid to the spouse; but it is not only that, but “if there shall happen to be two life-rent provisions upon the said estate, then and in that case the second life-rent provision, during the existence of the first, shall not exceed 800 l l . sterling;” so that there is 1800 l l . if there are two. Then, thinking it not improbable there might be three, there is a third provided for, which is not to

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My Lords,

Besides this, the heir of entail is empowered to provide the younger children of the marriage with a sum of 3600 l l . for their portions;

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It may be now necessary to state to your Lordships shortly, the effect of the other entail,—the March and Neidpath entail. My Lords, that deed of entail is likewise important in some parts of it. That entail is dated the 12th October, 1693, and was recorded in the books of Session the 3d Sept. 1781. There are, first, the clauses which are usually found; and then there is a clause in these words:

“That it shall be always lawful to, and entirely in the power and liberty of, the said William Duke of Queensberry, by himself alone, at any time during his life, without consent of Lord William Douglas, or any other of the heirs of tailzie, and so on, to sell, alienate, and dispone the foresaid lands of Newlands,”

and so on; and then the way in which the power is given to set tacks is this, “reserving power and liberty to the said William Duke of Queensberry, during his life-time, to set tacks of the haill lands, baronies, and others immediately above rehearsed, for payment of such yearly duties, and for such space and endurance as he shall think just.” The author of this entail, therefore, reserves to himself himself the power of setting tacks as large as he pleases; but when he comes to give the power to others, he says, “It shall not be lawful to Lord William Douglas, and the heirs male of his body, nor to

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Having stated this deed to your Lordships, I will proceed. I promised your Lordships, I fear, more than I can possibly perform, because it appears necessary, in order to lay the groundwork, to call your

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Then follow these words:

“And whereas many tailzies of lands and estates in Scotland, made as well before as after passing the said act, do contain clauses limiting the heirs of entail from granting tacks or leases of a longer endurance than their own lives, for a small number of years only, whereby the cultivation of land in that part of this kingdom is greatly obstructed, and much mischief arises to the public.”

Your Lordships will see that expression is not common sense; but on looking

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Then there follows the clause “that the power of leasing hereby given shall not in any case extend to or be understood to comprehend a power of leasing or setting in tack the manor-place, office-houses, gardens, orchards, or enclosures adjacent to the manor-place.” That clause was introduced in consequence of what is the known law of Scotland; that although we say, in a sense, and in a strong sense, that the heir of tailzie is the absolute fiar and proprietor, and so on, unless so far as he is limited, yet it is extremely clear he is limited, though there are no conditions in the deed of tailzie; and he is limited, as your Lordships will recollect, by a judgment we have had here, from letting the manor-house, and the lands about the house, it being

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“That all leases made or to be granted under the authority of this act”

(for the Legislature seems determined to put this out of the question as to such leases as they authorized, but I cannot agree with what is said in another place, that because they meant to put this out of the question as to such leases as they authorized, therefore they put it equally out of the question as to all other leases), “shall be made or granted for a rent not under the rent payable by the last lease or sett, and without grassum, fine, or foregift, or any benefit whatsoever, directly or indirectly, reserved or accruing to the grantor, except the rent payable by the lease; and that no such lease shall be granted till after the end or other determination of any former lease of the same premises, or that such lease, if granted for a time certain, shall be within one year of being determined: and that all leases otherwise granted shall be void and null;” then it is “provided and declared, that if any tailzie shall, either expressly or by implication, contain powers of leasing more ample than are hereby given, the heirs of entail in possession shall be at liberty to exercise all such powers in the same manner as if this act had never been made;” the Legislature, therefore, authorizing us to say, that deeds of entail, if they cannot contain prohibitions about leasing by implication, may at least contain by implication powers and permissions to do so.

Now, my Lords, upon the construction of all these clauses taken together, this act of Parliament

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I will now proceed to state to your Lordships what are the actual facts of this case, always taking the liberty to repeat, I may very much mistake the case, but I have never been able to look at it without considering it as a matter of some importance, that the action, in which all these leases have been held to be good, is an action at the suit of the Executors and Trust-Disponees of the Duke, standing in no other right than that in which the Duke himself would have stood if he had been in Court. I proceed now to state what I conceive to be the facts of this case.

It has been represented to us, that the grantor of

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My Lords,

As I understand it, the taking of grassums was discontinued before the death of Duke Charles in 1772, and the rental, which in 1720 had been about 6500 l l . was increased to the sum of about 8000 l l . The late Duke succeeded to the estate in 1778; at that time, unless I have collected the facts of this case inaccurately, there were no leases for

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My Lords,

About the year 1796, there having been a good deal of dealing in grassums before, the

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There were leases granted to the tenants on renunciations of tacks which were current, or to strangers under the burden of the current tacks, and with obligations in both cases to grant new leases for nineteen years annually during the Duke's life. There were leases granted where the current leases had actually expired under similar obligations. There were leases granted without an obligation of renewal, but where the leases then current were not near their natural expiration; and there were leases granted without an obligation to renew, and which were not granted till the previous leases had expired.

In the first of these classes, if the person had a current lease for which he had paid a considerable grassum, we will say at the end of nine or ten years, the Duke enters into a new contract with him, and lets him a lease for nineteen years, taking another

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My Lords,

I will give you examples of each class of leases, if your Lordships will take the trouble to look at them.—There is a lease of Crawick Mill, No. 69 of those that are libelled, the rent of which was 27 l l . 10 s s .; the consideration for this was the renunciation of the former lease for nineteen years, in which the grassum appears to have been 335 l l . paid at Whitsunday, 1796; and at Whitsunday, 1798, a further grassum of 447 l l . 15 s s .; so that upon that you observe that there are two grassums paid in the course of about three years, amounting to about 700 l l . upon a rent of 27 l l . 10 s s . I will not trouble your Lordships with other instances of this class; but the second class was where the leases had actually expired, and No. 67, for instance, is a lease renewable with the annual rent of 7 l l . 15 s s . a grassum

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My Lords,

The amount of the several sums, which the Duke received in grassums, is stated very differently; but the result of the whole of this operation is, that the rent, which was a free rent in 1778, as I before mentioned to your Lordships, according to the representation of the case to us, of 11,300 l l . (there was no rise in any instance in the Duke's time, he taking grassums, and not only taking grassums in all his leases, but receiving fresh grassums, and receiving those fresh grassums, as they assert, in concert with all his tenants), was, at the death of the Duke, 3600 l l ., chargeable, as your Lordships observe is stated by the entail, with a jointure of 1000 l l . if there

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Now, my Lords, when this case was argued before the Judges of the Second Division, as I have already stated to your Lordships, they were of opinion that there was no diminution of the rental according to the true intent and meaning of the entail, they construing the words “without diminution of the rental, at the least at the just avail for the time;” as if the words stood “without diminution of the rental, or or at the least at the just avail for the time;” and it is material to mention this, because it may be the ground of some misapprehension as to this case hereafter. As to that, I understand the fact to be, and if I am mistaken in that I shall be glad now to be set right, that that word “ or or ” is not inserted in the deed of tailzie. The Judges of the Second Division of the Court of Session have certainly understood the case as I understand it; the word “or” is no part of that deed, and that therefore the clause stands thus: That the heir of entail is to let for his own life-time, or for nineteen years, without diminution of the rental, at the just avail for the time.

My Lords,

Upon that part of the case, I have before taken the liberty to intimate to your Lordships (and I speak here with great diffidence when

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They have futher held, that the taking grassums, and I must suppose they have held, that taking grassums, under all the circumstances, under which the Duke has taken them, is not to be considered as a diminution of the rental; that the words “diminution of the rental,” affected in their sense, or not affected in their sense by the subsequent words, are to be taken to mean without diminution of the rental presently paid; and, if so, that they may not only take grassums at the expiration of the

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My Lords,

I have before stated to your Lordships, that this opinion of the Judges of the Second Division of the Court of Session is an opinion, which, to me at least (I do not mean to say that it is not according to the law of Scotland, but that it is an opinion, which to me at least) is irreconcileable to the principles, upon which the First Division had given their judgment; though the circumstances are not exactly the same, nor the modes of considering them perhaps exactly the same, yet they do apply principles in the one case to the construction of deeds of entail, which are altogether different from those, which are applied by the other Division to the construction of deeds of entail; and we are therefore now involved in this situation, that the person, who has the honour to address you, most unfeignedly would represent that he is under the painful difficulty of coming to a determination, whether the Judges of the one court or the other are right in their decision; and to come to the determination,

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Now, My Lords, there is one view of this case, which appears to me also to have been (I mean to speak most respectfully) but slightly treated in the Second Division of the Court, and what I mean is, whether there is not a diminution of the rental in this case. My Lords, the Judges of that Division, I see, have said, that where an entailed estate is let at the rent presently payable, though the rent presently payable may be reduced, as to the free rent received, very considerably by the public burdens and charges, yet, nevertheless, that is not a letting with a diminution of the rental, and, my Lords, I agree there may be cases, in which that doctrine is right; but I do entertain a very considerable doubt, whether in a case, circumstanced as this case is, there be not occasion to consider somewhat more, whether the effects of these transactions is not, in the sense and the meaning of this entailer, or according to the expressions of this entailer, if you choose rather to have it so, a diminution of the rental.

My Lords,

I before stated to your Lordships that remarkable case of the 3 s s . rental, and 231 l l . grassum. I do not know how it may be in the law of Scotland, nor do I pretend to speak with any confidence, very much otherwise, but I have no conception, that if this was the construction of an English instrument, I should not be called upon to attend somewhat to this distinction. If I am called upon to let at the

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Now, my Lords, if you apply the difficulties, which arise in the case so put, upon the 3 s s . rent, to the case in all its circumstances, how does it vary? It varies only in this; you are struck with that way of putting it, when you put it on the 3 s s . and 231 l l .,—but you are not quite so much struck, when you put it oh the rent, which in 1778 was 11,300 l l . a-year, and which, by letting in this mode, is reduced, not as to that, which the Duke of Queensberry has reserved, but with reference to the

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My Lords,

The courts have also differed as to the principles on which they have construed this entail.—One court says, that the heir of entail is to be considered, as I before stated it, as absolute fiar of the estate,—that he is the absolute monarch of the estate, with this exception, that he is such, so far as he is not fettered; and, when we inquire whether he is fettered or not, we are told that he is not to be fettered by implication, that he is not fettered unless where he is expressly, in clear terms and expression, fettered; that there are no fetters

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My Lords,

That the heir of entail is a fiar,—that he is the proprietor,—that he is not to he considered as fettered, unless he is by express words fettered, and that he is not to be fettered by implication, is, generally speaking, doctrine not to be questioned. But that all decided cases sustain, without exception, these doctrines, I cannot agree, and I cannot admit that an heir of entail is not fettered in some way, in some cases, in some circumstances, otherwise than as he is expressly fettered. My Lords, I cannot find in all these papers, in any author I have had access to, in any book, nor have I heard from any mouth, that though a deed of entail contains not one single word, no provision whatever, against lowering the rent, the heir of entail can let below the last rent, unless in the case, in which it is impossible that he can get it. I should be glad to know how it happens that, if it be true, according to the printed opinions, that if a restriction is not expressed in the deed of tailzie, that is a restriction that no heir of entail is under, they all admit, every one of them, that the heir of entail, if he can let for ninety-nine years, if he can let for a grassum, because he is not prohibited so to do, yet cannot let below the old rent, though there is no such prohibition in the tailzie? upon what does that rest? There may be, for aught I know, a very satisfactory account of it,

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My Lords,

I do know certainly that decision has gone a very great way in limiting construction, and that construction has been limited in cases, in which one can hardly understand the principles, on which it was limited; but I should be the last man in the world to deviate from rules, which have been laid down, for I look upon it, that certainty with respect to titles is a great deal better than even sensible rules of law, or sensible rules of construction. Speaking with all deference, I never, could have consented to the decision in the Duntreath case. There is no more doubt that that case was decided against the meaning of the author of that deed,

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Next, my Lords, With respect to grassum, let us try what there is of reason and consistency in the law as we have heard of it, and as it is said to be extracted from the Westshiels, and other cases. If I say to a man, Sir, you shall have a lease for nineteen years, and you shall give me for that lease a couple of thousand pounds grassum, and I will make the rent so much less than it otherwise would be; it is contended, upon the authority of these cases, that this heir of entail may put the 2000 l l . in his pocket, and make a valid lease, as it respects the person to succeed him. But he cannot say to the proposed tenant, I will make you a lease at 100 l l . a-year, and you, instead of paying me the money now, shall give me a bill or a bond for the payment of so much annually, not as rent rent , we will not call it rent rent for the world, but, instead of paying me a grassum of 2000 l l . at this time in my hand, you shall give me a bill or a bond to pay it me at twenty different payments, to be made at the periods when the reserved rent is payable; this is not grassum, however much like it, but rent. Pay me now, the thing is safe against the next heir of entail;—pay me in future,—accept the benefit of credit which I give you (the thing in effect the same as if you had paid me now, and I had lent you the money so paid, upon the same credit), that is not safe against the next heir of entail;—but he, when he comes into

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My Lords,

It is said that there has been a practice in the case of the King and Church as to taking grassums, and I agree there has been, when the practice can hardly be said to have been according to law. There has been a constant struggle between the persons holding crown lands and church lands, and the Legislature both in England and Scotland, the Legislature interposing from time to time against the non-observance of law as to such property. It must be admitted, however, that grassums, in cases of such property, have received much countenance in the administration of law. How far that fact shall weigh in decision upon the powers of an heir of entail, or fix his obligations, is matter much to be considered.

About the year 1685, it will be found, I think, that the leasing in Scotland extended only to very short periods; with respect to grassums, when they were first taken by heirs of entail, we have not much information.—Under this entail, I apprehend, not for some years after it was made,—not before, I think, 1720;—and that the practice should grow into use in this and other entails, is not very marvellous, when you consider, that an heir of tailzie in possession lets the lands perhaps only for eight or nine years; when you again consider that, if any body thought proper, being lucky enough to know the terms, on which the lease was made,

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My Lords,

I will mention also the word “ dispone dispone ” to your Lordships here. It is very true, that in the entail of the Queensberry estate, the word “ alienate alienate ” does not occur; and the word “alienate” not occurring, it is urged, that the Wakefield case cannot be said in terms to be an authority, unless the word “dispone” has the same effect as the word “alienate.”

It must be recollected, that in the case of Macdowall Macdowall , the Second Division of the Court held, that the word “dispone” had not the same effect as the word “alienate,” which shows again what may be the consequence of our immediate decision in this case.

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My Lords,

If I were obliged to state to your Lordships, what, in my judgment, is the meaning of the word dispone, I could not express at present a doubt, that that word dispone does as effectually prevent leasing as the word alienate. I know dispone may refer to the particular thing called disposition, but when it is said you are not to dispone in any manner of way in any manner of way , does not that mean expressly to state, that the author of that deed conceives that there may be dispositions of different sorts?

When I look into the language of statutes passed before and at the time of the date of this entail; when I look into the language of writs and of writers, it appears to me to be clearly proved by the citations from statutes, and from writers, and from instruments, that an assignation or a tack is a disposition, in the language of the law of Scotland; this seems to me almost as clear as that I have the honour now to address your Lordships; at the same time knowing, as I do, and have had experience of the talents and abilities of the Judges of Scotland, I am not only bound, but disposed to believe, that I may be in some error upon this subject, which I should be glad to have corrected. If this is to depend upon the meaning of the word dispone, and the interpretation to be put upon that word, at present certainly I think the word “dispone” would as effectually bar long leases as the word “alienate.”

My Lords,

The result of the whole is, that I feel it due to myself, if I may take the liberty so to say, when called upon to discharge so important and so anxious a duty as my duty in this case is; I

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My Lords,

I feel, and I am sure I state my regret that it should be so with the utmost sincerity, that this tends in some measure to delay, in a case in which it is due to the feelings of all persons interested that there should be no delay; but I should hope and trust, that in a case of this nature, in which the Second Division of the Court of Session, I observe, have interposed, in order to avoid delay, to give their opinion in the manner they have, that the Court of Session, in both Divisions, would be pleased to take this matter into their consideration immediately in their next session. My Lords, if

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Lord Redesdale ,—My Lords, attending to the circumstances which the Noble and Learned Lord has referred to, and to what he has said upon the subject of these causes, I will not at this late hour detain your Lordships long; nor should I have troubled you at all, if I had not understood that it was his wish, that, having attended the hearing of the appeals, I should generally state my sentiments upon them. I agree with the Noble and Learned Lord in the manner in which he proposes to dispose of these cases. I conceive it to be in conformity to the manner in which your Lordships would dispose

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It would be improper for me to enter much at length into the cases at this moment; but it strikes my mind as most extraordinary, that those of the Judges of the Second Division of the Court of Session who have considered the terms in which the entail of the Queensberry estate is expressed, containing an express prohibition, “that the heirs of tailzie should not set tacks or rentals of the land for any longer space than the setter's life-time, or for nineteen years, and that without diminution of the rental, at least at the just avail for the time,” should have put the construction which they have put upon these words; and that upon that construction they should have proceeded in the interlocutor which they have pronounced. The interlocutor indeed has the effect of declaring, that the late Duke of Queensberry had the power of granting all

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My Lords,

With respect to the construction of the word “dispone,” I must confess, as far as I can judge from the authorities stated in the printed cases, and in the argument at your Lordships' Bar, I cannot have the least doubt, that the word “dispone” used in this entail, is not used in the limited sense which has been supposed to be attributable to it, but has been used in a general sense, superadded to the other words; and that, according to all that I have found of authority in the law of Scotland, disponing is a word of extended effect, including alienation in a variety of ways in which property may be disposed of, and particularly in different acts of Parliament

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My Lords,

There are also particular parts of the deed of entail in question, which seem to me to require a consideration which has not perhaps been given (as far as we can judge from the accounts we have had of what passed in the courts below), by those who have made the decisions which are the subject of appeal. If the words “ without diminution of the rental without diminution of the rental ” are to be so restricted, as to mean without diminution of the nominal rental at the time of the lease granted, which appears to have been the construction put upon those words in the Court below, the consequence as to the Queensberry estate will be this: That if the first person who succeeded to the entail, and those who followed, had let constantly at the rent which was the reserved rent at the time of the entail, and which is stated to have amounted to between 5 and 6000 l l . a-year at the time of the entail, granting leases continually from time to time at that rent, and taking grassums, the effect at this time would be, that this estate not only would produce nothing to the heir of entail now in possession, but would not produce any thing to answer either the charges in point of jointure which might have been made upon it, or the charges which, as provisions for younger children, might also have been made.

So, my Lords, with respect to the other estate, the Neidpath estate, the consequence would have been exactly the same; and the consequence is very

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To the deed of entail of the Neidpath estate, there is annexed a rental of the lands as they stood at the time; and to show what was the view which the persons who settled this estate had, the net rental is expressly noticed in the deed, and contrasted with the reserved rents; with an obligation, as your Lordships will recollect, that all the public burdens, of course including the teinds, shall be discharged by the person in possession from time to time; and he is bound to make that discharge, though, according to the construction put upon the words “without diminution of the rental,” there might be no income whatsoever to be received by the person in possession equal to the payment of those public burdens.

The rental, speaking of the different estates, says, —the sum of the whole —the sum of the whole , that is, of the rents reserved in the leases of the particular estates, is so much. Then there is deducted for teinds teinds , and so on and so on , so much; then the net rent is stated at so much. The consequence is, that in that rental reserved

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The effect of what has been done with respect to the Queensberry estate, is unquestionably, as it now now stands, to reduce the net rental to be received by the present possessor very considerably below the net rental received by the late Duke of Queensberry when he succeeded to the estate.

The construction put upon the words prohibiting leases in the Queensberry entail, appears to me very extraordinary. The qualifying words are, “without diminution of the rental, at the least at the just avail for the time;” and those words have

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I do not think it necessary to detain your Lordships with any further observations upon either of these cases, after the Noble and Learned Lord has made so full and accurate a statement of them. It appears to my mind, that it is highly important that the law upon the subject should be completely settled; not only with reference to the particular cases which are in question in these two entails, but that all persons who are in possession of entailed estates in Scotland, and those who may claim after them, should know what the law is upon the subject; and I believe it will be found, that, generally, the effect of a decision in a particular case is much

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Duke of Buccleuch v. Montgomery .

judgment, July 10, 1817.

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Duke of Buccleuch v. Hyslop .

It is ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the said cause be remitted back to the Court of Session in Scotland, to review generally the interlocutor complained of in the said appeal, with reference to all and each of the grounds upon which the appellant has alleged that the tack, to which this cause relates, ought to be reduced, in a question between the appellant and the lessee, as such, after the Court shall have first reviewed the interlocutor complained of in the cause between the Duke of Buccleuch and Sir James Montgomery and others, Executors and Trust-Disponees of the late Duke of Queensberry, deceased, in pursuance of a remit to the said Court, in the