that person, builder of the doucate, have lands and teinds pertaining to him, extending in yearly rent to ten chalders victual, next adjacent to the said doucate, at the least lying within two miles to the same; and als declares, that it shall nowise be lawful to the person foresaid, worth in yearly rent the foresaids ten chalders victual, to build moe doucates upon, and within the bounds foresaids, except one doucat onely.

DECISIONS.

Brodie, 3. July 1752, Mor. 3602.-Kinloch, 19. Jan. 1731, ibid. 3601.-Murray, 19. Jan. 1797, ibid. 7628.

DUEL.

By the act 1600, cap. 12, it was made capital to fight a duel, though no person was killed. And by the act 1696, cap. 35, it was made punishable with transportation and escheat of moveables to be concerned in giving, sending, or accepting a challenge, though no fighting ensued. But both these statutes have been repealed by 59. of Geo. III. cap. 70.-This crime is now prosecuted as murder at common law.-See Syme's Reports,-Cases of Mr Stuart of Dunearn, High Court of Justiciary, and David Landale, Perth Circuit, 1826.

EJECTIONS.

When a process of ejection is brought by the true proprietor of an heritable subject against a party who

may have usurped the possession of it without a title, the statute 1594, cap. 217, declares,

That in all time cumming, the partie persewed be ane uther for ejection, shall finde caution for the violent profites, as in causes of remooving, the first diet of the litiscontestation, or utherwaies decreete to be given, ordainand the partie to be repossessed.

Erskine, IV. 1. 15.-Stair, IV. 28. See title "Removing of Tenants."

66

DECISIONS.

Bruce, 21. Nov. 1628, Mor. 3609.-Steill v. Hay, 18. July 1666, ibid. 3611.

ELECTION OF MAGISTRATES. See BURGH ROYAL.

ELECTION OF MEMBERS OF PARLIAMENT. Sec PARLIAMENT.

ENTAILS.

According to Mr Erskine, B. III. 8. 21, a " tailzied "fee, from the French tailler to cut, is a general term, "comprehending all destinations in which the legal "course of succession is altered or cut off, and one or "other of the heirs-at-law excluded or postponed."

Assuming this to be a correct definition of the term, every disposition or settlement of heritage mortis causa, to the prejudice of the heir-at-law, may be called an entail whether the settlement be in favour of one stranger, to joint disponees,-bestowing a liferent right on one person, and the fee on another,-to husband and wife,-to parent and child,-all deeds, in short, which cut off or qualify the lineal heir's right of succession.

But the term entail is more frequently used to denote merely a provision of succession, a deed intended to arrange and settle the destination of an estate to families or individuals in succession, whose rights are contingent or defeasable. Of such deeds there are three different kinds :-1st, A simple destination, whereby an order of heirs is pointed out subject to alteration by any disponee in possession. 2d, A special destination, having prohibitory clauses inserted in the procuratory of resignation, whereby an injunction or personal obligation is laid upon the successive disponees not to interrupt or defeat the order and destination settled by the deed. This form of conveyance does not prevent a transference of the estate to strangers; but an infringement of the injunction exposes the contravener to an action for damages at the instance of the next disponee whose right is cut off. 3d, A special destination, with prohibitory clauses, and these prohibitions guarded by irritant and resolutive clauses, whereby all acts and deeds intended to defeat the order of descent, or to frustrate any of the other conditions, are declared null and void; and any disponee who so infringes the deed

of entail, is declared to forfeit his or her right to the

estate.

In the case of Viscount Stormonth, 25. February 1662, the effect, at common law, of a strict deed of entail, prepared according to the third form of conveyance above alluded to, was brought under the consideration of the Court of Session; and it was sustained against the creditors of the proprietor in possession. But, to prevent the recurrence of any similar discussion, the act 1685, cap. 22, declares,

That it shall be lawful to his Majesty's subjects to tailzie their lands and estates, and to substitute heirs in their tailzies, with such provisions and conditions as they shall think fit, and to affect the said tailzies with irritant and resolutive clauses, whereby it shall not be lawful to the heirs of tailzie to sell, annailzie, or dispone the said lands, or any part thereof, or contract debt, or do any other deed whereby the samen may be apprised, adjudged, or evicted from the other substitute in the tailzie, or the succession frustrate or interrupted, declaring all such deeds to be in themselves null and void; and that the next heir of tailzie may, immediately upon contravention, pursue declarators thereof, and serve himself heir to him who died last infeft in the fee, and did not contraveen, without necessity any ways to represent the contraveener; it is always declared, that such tailzies shall only be allowed in which the foresaid irritant and resolutive clauses are insert in the procuratories of resignation, charters, precepts, and instruments of seisin; and the original tailzie once produced before the Lords of Session judicially, who are hereby ordained to interpose their authority thereto, and that a record be made in a particular register-book, to be kept for that effect, wherein shall be recorded the names of the maker of the tailzie, and of the heirs of tailzie,

and the general designations of the lordships and baronies, and the provisions and conditions contained in the tailzie, with the foresaid irritant and resolutive clauses subjoyned thereto, to remain in the said register ad perpetuam rei memoriam; and for which record, there shall be payed to the clerk of register and his deputes, the same dues as is payed for the registration of seisins; and which provisions and irritant clauses shall be repeated in all the subsequent conveyances of the said tailzied estate to any of the heirs of tailzie; and being so insert, his Majesty, with advice and consent foresaid, declares the same to be real and effectual, not only against the contraveeners and their heirs, but also against their creditors, comprysers, adjudgers, and other singular successors whatsoever, whether by legal or conventional titles. It is always hereby declared, that if the said provisions and irritant clauses shall not be repeated in the rights and conveyances, whereby any of the heirs of tailzie shall brook or enjoy the tailzied estate, the said omission shall import a contravention of the irritant and resolutive clauses against the person and his heirs who shall omit to insert the same, whereby the said estate shall ipso facto fall, accresce, and be devolved to the next heir of tailzie, but shall not militate against creditors, and other singular successors, who shall happen to have contracted bona fide with the person who stood infeft in the said estate, without the said irritant and resolutive clauses in the body of his right: And it is further declared, that nothing in this act shall prejudge his Majesty, as to confiscations or other fines, as the punishment of crimes, or his Majesty or any other lawful superiour of the casualties of superiority which may arise to them out of the tailzied estate, but these fines and casualties shall import no contravention of the irritant clause.

The operation of this act is expressly limited to those deeds of entail which have been prepared according to