which may be granted against the prohibitions of the entail, while the latter resolves or forfeits the right of the person who grants the prohibited deed. These clauses must apply to the acts prohibited; the entail will not be efficacious so far as respects acts to which they do not refer.2 Every entail to be effectual against third parties must be recorded by warrant of the Court of Session in a special register kept for the purpose, and must be followed by a recorded sasine (see above, p. 55), containing the prohibitory and the irritant and resolutive clauses.3 While the entail remains unrecorded, however, it binds a person who holds by virtue of it, and consequently applies to all persons who may derive a title through him. An entailed estate is liable to the claims of creditors, so long as the entail is not on the record of entails, and where creditors do not find it there, they may safely contract with the heir in possession, though they know it exists. They cannot be defeated by a subsequent registration. The clauses to be binding on third parties must not only be inserted in the first, but in all future investments, and this is generally made an obligation on the heirs in the body of the entail.6

The first person called to the succession under the entail is called the Institute, and the property is disponed or conveyed to him as one transfers property to a third party, so that he makes up his titles in the same manner as a purchaser. (See below, p. 168.) The others are called Substitutes, and they make up their titles as heirs of provision. (See above, p. 100.) Every person called to the succession, down to the most remote substitute, has an interest in seeing the conditions of the entail complied with, and may bring a Declarator of Irritancy against the heir contravening, if the immediate next heir do not do so.8 No person can gratuitously make an entail which shall preserve his estate from his own debts, but it has been decided that where a mutual entail was executed between a father and his daughter's husband, that the estates were protected from those debts of the husband contracted since the date of the entail, which were not made real by diligence. (See Index, Adjudication.) The fetters of an entail may be worked off by possession on a different title during the years of prescription (see p. 59).

E. iii. 8, 25. S. on Ent. 61.-2 Bruce v. Bruce, M. 15539. Mackinnon v. Caithness, 26th February 1846.-3 1685, c. 22. S. on Ent. 143, et seq. -4 E. iii. 8, 27. S. on Ent. 158, et seq.-5 S. on Ent. 160. Ross v. Drummond, 3d March 1841, affirmed 4th September 1844.-6 1685, c. 22. E. iii. 8, 27, 28. S. on Ent. 143.-7 S. on Ent. 231, et seq.-8 E. iii. 8, 32. S. on Ent. 245.-9 Agnew v. Stewart, App. 31st July 1832. 1 Sh. 320,

If an entailer in virtue of a power to alter, make a new entail, and the lands be held on an infeftment under that new entail unrecorded, for forty years, the old entail is prescribed, and the new one not being recorded, the title to the estate is that of free proprietorship.1

SECT. 2.-Legal Interpretation of Restrictions.

All the prohibitions in an entail must, to be effectual, be distinct, intelligible, and precise, as the law will not sanction restrictions on the commerce of land by inference, nor if their application to any particular party be omitted, will it be allowed to be inferred. When some prohibitions are fortified by the proper irritant and resolutive clauses, and others are not, advantage can be taken of the unfortified prohibitions, for evading, by fictitious proceedings, those which are fortified.3 The later decisions, however, show an inclination to give more effect to the distinctly expressed meaning of parties, though the terms used may be open to verbal criticism, than the older decisions exhibit.*

A prohibition to alienate strikes at any attempt which will virtually have that effect. Where the prohibitive clause forbade "to sell, alienate, and dispone," but the resolutive clause was only against "alienating or disponing," a sale was barred.5 Leases granted beyond the period requisite for the purposes of good husbandry are generally decided to be alienations, especially if the heir in possession profit by them to the prejudice of his successor.6 Thus, in the Queensberry cases, leases granted for ninety-seven years on a grassum were found to be alienations,7 and in the case of the March entail, leases for fifty-seven years were in the same position. Leases for forty years, and for thirty-one years, have been reduced in the case of prohibition to alienate." On a lease being granted for thirty-one, twenty-nine, twentyseven, twenty-five, or twenty-one years as the court should

1Stewart v. Stewart, 23d May 1844.- Campbell v. Breadalbane, 23d November 1838, affirmed 1st April 1841. Lang v. Lang, 23d November 1838, reversed 16th August 1839.-3 Cochrane v. Vernor, 21st February 1844. See Braimer v. Bethune, 18th January 1839. Craig v. M'Culloch, 21st February 1839. Lumsden v. Lumsden, 26th November 1840, affirmed 18th August 1843. Anstruther v. Anstruther, 26th November 1840, affirmed 18th August 1843. Lockhart v. Lockhart, 20th May 1841. - Murray v. Murray, 26th February 1842, affirmed 4th September 1844. 6 S. on Ent. 175.-7 Queensberry's Trustess v. Wemyss, 17th July 1813. App. 2 Dow, 90.- App. 2d July 1819, 1 Bligh, 339.9 Malcolm v. Bardner, 19th June 1823. Stirling v. Walker, 20th February 1821.

decide, it was sustained to the extent of twenty-one years.1 The terms which have hitherto been held to exclude leases

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prejudicial to successors are alienate," "dispone," "put away, or dilapidate," "let below diminution of the rental," or "below the just avail."2 A prohibition against the diminution of the rental is understood to enforce not merely the rents at which the lands may have been let, but those which they are worth, and it has been held an infraction to renew leases on the old rent when a grassum is taken,3 or to grant a lease at the old rent or even a higher rent (but which is still inadequate), with an understanding that the tenant shall act as trustee, sub-letting the land, and making over the difference of rent to the heir in possession, or some one favoured by him. The prohibition to alienate is effectual against provisions to widows and children, except to those protected by the statutory privileges, and the widow's terce, which however may be specially excluded.5

A prohibition to contract debt is another ordinary restriction. Unless the conditions of registration and others above noticed be complied with, such a prohibition has no effect against creditors, whatever it may have between heirs. When the requisites are completed, the estate is protected from diligence in the hands of successors, or of onerous entailers. Where the prohibitory clause was levelled against contracting debt, and the irritant clause declared that "if the heirs shall contravene the premises, by breaking the taillie, contracting of debts," &c., certain proceedings should be null, but the contraction of debt and diligence thereon were not enumerated among these proceedings, the estate was not protected from the diligence of creditors. (See Sect. 1.)

Alteration of the order of succession is another usual subject of prohibition. The ruling principle in interpreting this class of prohibitions is, that none are to be inferred where they are not clearly expressed, but that when so expressed, they are held to strike at any attempt to infringe their spirit; and so where a power was left to grant feus, and an heir granted sixteen feus embracing nearly the whole estate, to a person whom he wished to succeed him, taking an obligation from that person to entail them on a new series of heirs, the feus were reduced as an alteration of the order of succession. A

Wemyss v. Queensberry's Executors, 12th June 1822.- H. on L. and T. 73.-3 March Leases, 1819. App. 1 Bligh, 339.- M'Gill v. Law. S. on Ent. 203.-5 S. on Ent. 366, et seq.-6 Ibid. 73, et seq.-7 Duffus's Trustees. Dunbar, 28th January 1842.- Ker v. Roxburgh, 17th December 1813. App. 2 Dow, 149.

prohibitory clause that the heir should have no power to sell or to contract debt, "nor to do or commit any fact or deed" by which the lands might be evicted or adjudged, or any ways affected in prejudice of the heirs, but containing no substantive prohibition against altering the order of succession, was found not a prohibition against an alteration.1 Where an entail left liberty "to provide younger or other children besides the heir, to three years' free rent," it did not sanction the laying out of such a sum in the purchase of lands to be entailed to a younger son, and the deed by which this was attempted to be accomplished was found valid only to the extent of the younger son's liferent.2

SECT. 3.-Statutory Limitations of Entails.

4

Leases.-Heirs of entail, notwithstanding any prohibitions, may grant agricultural leases for fair rents, and without grassums, for twenty-one years, and leases of minerals for thirty-one years, provided they do not interfere with the pleasure-grounds, parks, &c. about the mansion-house.3 For the promotion of agricultural improvements, leases may be granted for fourteen years and one existing lifetime, for two existing lifetimes, or for thirty-one years. Such a lease, if for two lives, must contain a condition that the tenant is to enclose the whole land within thirty years, two-thirds within twenty years, and one third within ten years, should the lease last to any of these periods; and every lease for more than nineteen years must contain a clause, obliging the tenant to enclose the whole land during the currency, two-thirds before the expiration of that proportion of the period, and a third before the expiration of a third. A lease for two lives, or a term exceeding nineteen years, must oblige the tenant to repair the fences, and to make no enclosures of fields exceeding forty acres of area, except they be of hill or other unploughable land. Building leases may be granted for the period of ninety-nine years, if no more than five acres be granted to one person, and there be an obligation that a dwelling-house, worth at least £10, shall be built and kept up on each half acre; such buildings must not be erected within 300 yards of the mansion-house.7 Improving and building leases are not to be granted on reduced rents, or for

1 Trotter's Trustees v. Gordon, 10th March 1840.- Strathallan v. Northumberland, 20th May 1840.-36 & 7 Wm. IV. c. 42, § 1. 10 Geo. III. c. 51, § 1.5 Ibid. § 2.— Ibid. § 3.-7. Ibid. §§ 4, 5, 6.

grassums, or till within one year of the termination of any previous lease.1

Excambions.-Heirs of entail may excamb or exchange portions of their estates for other property adjacent to, or which may be more conveniently held with the entailed property, on giving notice to the next five heirs of entail, if there be so many, and obtaining the sanction of the court. The land so added to the entailed estate is held in terms of the entail, but the contract does not require to embody all the destinations and restrictions of the entail, provided a distinct reference be made to it.3

Entailer's Debts.-Formerly the debts of the entailer could not be paid from the estate, but had to be enforced by legal diligence; they may now be paid under the sanction of the court.*

Improvements. An heir of entail in possession may burden his successors for planting, draining, erecting buildings, &c. to the extent of four years' rent. When the amount of four years' rent has been laid out by preceding heirs, and remains a charge, the heir in possession cannot lay out any more. Creditors for such repairs are preferable, and may use any diligence against the successive heirs, except adjudication against the estate. At the same time, an heir in possession may free himself of all responsibility by assigning a third part of his free rents. The creditor, to secure his preference, must make his claim within two years after the death of the proprietor, who expended the money, and must within six months after the two years, if the money is not paid, raise an action and proceed to diligence.9

The

Provisions to Wives and Children.-No heir in possession can be burdened to the extent of more than two-thirds of the clear annual income from the estate by statutory provisions to the spouses and children of his predecessors.10 annual income must be with deduction of burdens, but the income-tax has been held not to be a burden to be deducted." With this restriction, heirs in possession may provide for their families thus,-an heir may infeft his wife in a liferent equal to one-third, and an heiress may infeft her husband in a liferent equal to one-half, of the clear annual

110 Geo. III. c. 51, § 7.- 6 & 7 Wm. IV. c. 42, §§ 3, 5.—3 4 & 5 Vict. c. 24.-46 & 7 Wm. IV. c. 42, § 7.5 10 Geo. III. c. 51, §§ 9, 10. — Ibid. § 13.- Ibid. § 17.-8 Ibid. §§ 16, 19.- Ibid. § 20.-10 5 Geo. IV. c. 87, 13.- Maclaine v. Maclaine, 29th November 1845.

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