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The proposals were supported by Lord Swinton, then at the Bar (A free Disquisition concerning the law of Entails in Scotland, Edinburgh, 1765, 8vo.); and were opposed by Sir John Dalrymple of Cranstoun (Considerations upon the Policy of Entails in Great Britain, Edinburgh, 1764, 8vo.), and by Patrick, fifth Lord Elibank (Queries relating to the proposed Plan for altering Entails in Scotland in a Letter to Edinburgh, 1765, 8vo). The latter was, however, willing to have it enacted that no entail should be binding beyond the extent of £15,000 Scots per annum valued rent, and that the excess should be dealt with as not entailed; and that no estate under £500 valued rent should be capable of being entailed. In 1765 there was published Proposals for amending the law concerning Tailzies in Scotland, Edinburgh, 1765, 8vo. This is a draft Bill upon the lines suggested by Lord Elibank. These proposals were criticized in A letter from a Gentleman in Edinburgh to his friend in the country containing an answer to the Proposals for amending the law concerning Tailzies in Scotland, Edinburgh, 1765, 8vo. This letter approved generally of the Proposals, but the writer did not think that they went far enough.

The sweeping changes suggested by the Faculty of Advocates were far in advance of the time, and came to nothing, but in 1770 James Montgomery as Lord Advocate brought in a Bill which became law as 10 Geo. III. c. 51. This Act gave effect to many of the minor changes which had been advocated; it authorized agricultural and building leases and excambions, and provided for compensation for improvements; but did nothing towards putting an end to entails or to perpetuities of any kind.

So inflexible was the law established by the Act of 1685 that, as stated by Lord Advocate Rutherfurd in introducing the Bill, which afterwards became the Act of 1848, it was competent for the settlor "to render it impossible, on the part of any future holder, to alter so much as the arms upon his carriage, or the button upon his servant's livery, even though it should be for a period of five hundred years."

property in

41. And whereas an Act was passed in the thirty-ninth and fortieth 39 & 40 Geo. III. applied years of the reign of His Majesty, King George the Third, intituled to heritable "An Act to restrain all Trusts and Directions in Deeds or Wills, Scotland. whereby the Profits or Produce of Real or Personal Estate shall be accumulated, and the beneficial enjoyment thereof postponed beyond the Time therein limited," by which Act it is provided and enacted, "that nothing in this Act contained shall extend to any disposition respecting heritable property within that part of Great Britain called Scotland;" and it is expedient that the provisions of the said Act should be extended to heritable property in Scotland; be it enacted, that the said provision and enactment of the said recited Act shall be, and the same is hereby repealed, and the said Act shall in future apply to heritable property in Scotland.2

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2 Supra, § 153. Directions in deeds, which became operative prior to 14th August, 1848, for accumulating the rents, profits, and issues of heritable property in Scotland, are not affected by anything contained in the Thellusson Act or in the Rutherfurd Act, but remain in the same full force which they possessed when such deeds first came into operation. See Interlocutor in Keith's Trustees v. Keith, 17 July, 1857, 19 D. at p. 1071; Per

Act not to be defeated by

trusts.

Or by life. rents.

Lord Westbury, L.C., in Pursell v. Elder, 1865, 4 M'Q. 992, s. c. 2 Paterson,
App. Ca. 1303; M'Larty's Trustees v. M'Laverty, 23 Jan. 1864, 2 M. 489;
Cathcart's Trustees v. Heneage's Trustees, 13 July, 1883, 10 R. 1205.

47. And be it enacted that where any land or estate in Scotland shall, by virtue of any trust disposition or settlement or other deed of trust whatsoever, dated on or after the first day of August, one thousand eight hundred and forty-eight, be in the lawful possession, either directly or through any trustees for his behoof, of a party of full age, born after the date of such trust disposition settlement or other deed of trust, such party shall not be in any way affected by any prohibitions, conditions, restrictions, or limitations, which may be contained in such trust disposition or settlement or other deed of trust, or by which the same or the interest of such party therein may bear to be qualified, such prohibitions, conditions, restrictions, or limitations, being of the nature of prohibitions, conditions, restrictions, or limitations of entail, or intended to regulate the succession of such party, or to limit, restrict, or abridge his possession or enjoyment of such land or estate in favour of any future heir, and such party shall be deemed and taken to be the fee-simple proprietor of such land or estate, and it shall be lawful to such party to make application by way of summary petition to the Court of Session, setting forth the facts, and referring to this Act, and craving the Court to pronounce an act and decree declaring him fee-simple proprietor of such land or estate, and unaffected by any such conditions, provisions, restrictions, or limitations; and the Court shall proceed in such petition as may be just, and shall have power to pronounce an act and decree declaring such party to be fee-simple proprietor of such land or estate, and unaffected as aforesaid; and such act and decree may be recorded in the register of sasines, and being so recorded, shall have all the operation and effect of the most formal and valid disposition to such party, and his heirs and assignees whomsoever, of such lands or estate, with infeftment thereon in favour of such party duly recorded Provided always that the rights of the superior of such lands or estate, and of all parties holding securities thereon, and all rights which are held independently of such trust disposition or settlement, or other deed of trust, shall be as they are hereby reserved entire.

1 These words cover mortis causa as well as inter vivos deeds.

2 I.e., bearing date, supra, § 148.

3 Cf. sec. 1 of the Act, as to a consenter born "after the date of the tailzie."

48. And be it enacted, that from and after the passing of this Act it shall be competent to grant an estate in Scotland limited to a liferent interest in favour only of a party in life at the date of such grant;

and where any land or estate in Scotland shall, by virtue of any deed dated on or after the said first day of August one thousand eight hundred and forty-eight, be held in liferent by a party of full age, born after the date of such deed, such party shall not be in any way affected by any prohibitions, conditions, restrictions, or limitations which may be contained in such deed, or by which the same or the interest of such party therein may bear to be qualified, and such party shall be deemed and taken to be the fee-simple proprietor of such estate, and it shall be lawful to such party to obtain and record an act and decree of the Court of Session in the like form and manner and in the like terms and with the like operation and effect as is hereinbefore provided with reference to an act and decree of the said Court in the case of deeds of trust: Provided always that the rights of the superior of such lands or estate and of all parties holding securities thereon, and all rights which shall be held independently of the deed by which such liferent is constituted, shall be as they are hereby reserved entire.

49. And be it enacted, that where any land or estate in Scotland Or by leases. shall, by virtue of any tack, assignation of tack, or other deed or writing, dated on or after the said first day of August, one thousand eight hundred and forty-eight, be held in lease, either directly or through trustees for his behoof, by a party of full age born after the date of such tack, assignation of tack, or other deed or writing, such party shall not be in any way affected by any prohibitions, conditions, restrictions, or limitations, which may be contained in such tack, assignation of tack, or other deed or writing, or by which the same or the interest of such party therein may be qualified, such prohibitions, conditions, restrictions, or limitations, being of the nature of prohibitions, conditions, restrictions, or limitations of entail, or intended to regulate the succession of such party, or to limit, restrict, or abridge his possession or enjoyment of such land or estate in favour of any future heir Provided always that it shall be lawful to the proprietor of whom such lease is held to enforce any prohibitions, conditions, restrictions, or limitations contained in such tack, assignation of tack, or other deed or writing which shall have been inserted therein for the bona fide purpose of protecting the just rights and interests of such proprietor, in so far as such enforcement may be necessary in order to such protection.

52. And be it enacted, that in construing this Act, except where the Interpretation nature of the provision shall be repugnant to such construction,

. . the words "land" and "lands" shall extend to and comprehend

all heritages.

of Act.

No. XIV.

31 AND 32 VICTORIA, C. 84.

An Act to amend in several particulars the Law of Entail in Scotland.'

[31st July, 1868.]

Liferents of personal

prohibited.

17. From and after the passing of this Act, it shall be competent to estate beyond constitute or reserve, by means of a trust or otherwise, a liferent certain limits interest in moveable and personal estate in Scotland in favour only of a party in life at the date of the deed constituting or reserving such liferent, and where any moveable or personal estate in Scotland shall, by virtue of any deed dated after the passing of this Act (and the date of any testamentary or mortis causa deed shall be taken to be date of the death of the grantor, and the date of any contract of marriage shall be taken to be the date of the dissolution of the marriage), be held in liferent by or for behoof of a party of full age, born after the date of such deed, such moveable or personal estate shall belong absolutely to such party, and where such estate stands invested in the name of any trustees such trustees shall be bound to deliver, make over, or convey such estate to such party: Provided always, that where more persons than one are interested in the moveable or personal estate held by trustees as herein before mentioned, all the expenses connected with the transference of a portion of such estate to any of the beneficiaries in terms of this Act shall be borne by the beneficiary in whose favour the transference is made.

'Supra, § 146.

2 Supra, p. 99.

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restrained by Thellusson Act, 116, 201

the four periods of the Act alternative not cumulative, 202
accumulation by a beneficiary not struck at, 202

ACQUIRENDA,

jus mariti can, at common law, be excluded as regards wife's acquirenda,
21

protection of, under Conjugal Rights Acts, 49, 186

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M. W. P. A., 1881, as to marriages before the Act,
70, 199

settlement of, under marriage contract, 92

how such an obligation to settle is affected by decree of separation, 185

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