Scottish Court of Session Decisions

Subject_1 DECISIONS OF THE LORDS OF COUNSEL AND SESSION, COLLECTED BY SIR JAMES BURNETT, LORD MONBODDO.

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Date: 13 February 1752

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[Elch. No. 18, Tack.]

The Lords found that a tack for 400 years, set by an heir of an entail, with irritant and resolutive clauses, but not recorded, was valid against the subsequent heir of entail. If the entail had been recorded, it is likely they would have found the tack not valid against the heir, for two reasons: 1mo, Because the setting of a tack for so long a term is a species of alienation not competent to an heir of entail under irritant and resolutive clauses, nay, even a tack for nineteen years, is, according to Craig, an alienation; and therefore Dirleton, being under the fetters of an entail, though he was laid under no particular restriction with respect to tacks, was obliged to apply to Parliament for a liberty to set tacks for nineteen years, without which it is thought he could not have set a tack that would have lasted longer than his life. 2do, An heir of a strict entail duly recorded, is considered, with respect to his predecessor, as a singular successor : now all the Lords were of opinion that such a tack had not the benefit of the statute, nor was a real right that would have been valid against singular successors. Lord Elchies* went so far as privately to declare his opinion that a tack above three nineteen years would hardly have this privilege; and I know it is generally held by lawyers that a tack above 100 years would not; and it is fit it should be so, otherwise those two species of rights, tacks and feus, would be confounded.

* Elchies said from the bench that seasine should be taken upon such tacks to make them real, which he said he had known examples of.