INDEX.

N. B.-The initials L. R. subjoined to an article, denote an opinion expressed by Lord Redesdale. In all other cases the opinions are those of the Lord Chancellor.

ABANDONMENT. Vide INSURANCE.

ACQUIESCENCE. Vide ATTORNEY AND CLIENT. ACCOUNT DELIVERED. Vide ATTORNEY AND CLIENT. ADMINISTRATION. Vide CHARGE. ENTAIL. JURISDICTION. LEASE. POWER. PROHIBITION. TAILzie. Where there is no authority under a Scotch entail, the heir cannot lower the rents, except in case of necessity. Semb. Whether implied prohibition, or want of power, this incapacity must be founded in some principle connected with the administration of the estate, if an heir of entail has not this power, except in cases where it is necessary. If an heir of entail can show, that where he lowered the rent he did it of necessity, that would not be a case in which it would be said to be wrongly done; but supposing he cannot lower the rent in a case in which it is not necessary, it must result from this principle, that those who are to enjoy the estate which he is bound to take care of, shall not enjoy it in a state less beneficial than they would if the rent was not lowered; and that proves the principle, that the heir of entail is bound to pay some attention to what is called the rational and due administration of the estate.-Queensberry Leases

AGENT. Vide PRINCIPAL.
AGREEMENT. Vide CONTRACT.

·

page 426

Although an agreement is confined in its terms to the stipulation to set and let in tack the lands, and there is not in the agreement a word about privileges or appurtenances or others, the words which are usually engrossed in the formal conveyance; yet when the agreement is to be specifically performed, and a tack set

of those lands accordingly, the scroll of tacks, if regu-
larly drawn out in implement of the articles, must convey
with those lands for the term all the privileges, &c.
which belonged to the lands.-Paton v. Brebner P.71
In articles of agreement for a lease, by one of which it is
agreed that the lands demised shall be paid for at a
certain rate (37. per acre); and in other separate articles,
the proposed lessor agrees to grant to the proposed
lessees the privilege of drawing water, for which no
consideration is expressed to be payable; and between
the same parties there is another contract for contiguous
lands, in which contract a sum is expressly given for the
liberty of taking the water; it cannot be supposed that
because a certain sum per acre is to be given (according
to the literal expression) for the land only, the parties
did not mean that as a compensation for all that the one
was to grant and the other to enjoy under the agreement
and the lease which was to follow.-Ibid.
- 73
Although there is no sèparation between the different parts
of this 31. sterling for the land and the liberties to be
granted, it would be extravagant to say that the lessee
did not contemplate the advantage he was to receive
from the whole he had stipulated to enjoy under that
lease.-Ibid.
- ib.
Vide CROWN LANDS. ENTAIL. LEASE.
PRACTICE. RENT.

ALIENATION.

The word "alienation," in all time, has prohibited a long
lease in Scotland. There never was a period when it
was not an alienation. - Queensberry Leases
400
Alienation, whether long or short, in essence, nature and
quality, is exactly the same. A lease of nineteen years,
and a lease of thirty-one years, do not differ as to their
essential qualities and attributes; the one is no more
an alienation, nor less, prima facie, than the other; the
one is no more and no less, primâ facie, an allocation.—
Ibid.
Upon the strict rules of the interpretation of tailzies,
alienation means transference of property; and a lease
is neither in the law of England, nor the law of Scotland,
a transference of property.-Ibid.
- 458

401

By the law of Scotland, until the statute of 1449, leasing,
which in other words is called location, was a sort of
right (and so in the law of England) which the tenant
had to enjoy the premises demised or tacked, not by
virtue of any transference of the property itself, but
having a mere possessory right, or a mere personal right,
under the contract. In the year 1449, in Scotland, an
act made it a species of real right; but though a species
of real right, it is not a species of real right deduced from
alienation, in the technical and strict sense of the word;
because alienation, in the technical and strict sense of the
word, is transference of property.-Queensberry Leases,

ANNAILZIE.

Vide WORDS.
APPEAL. Vide PLEADING.
APPOINTMENT, ILLUSORY:

P. 458

A person having a power of appointing a certain sum of
money among his younger children, under a settlement,
made an appointment to one of those children, who was
at that time dying in a consumption. The object of
this appointment was, that if the child died, the father
should take out administration to that child, and claim
the estate himself. That was according to the letter of
the power; but the Court said, that should not be,
because it was substantially an appointment to himself
and not to the child.-Queensberry Leases
APPROBATE AND REPROBATE. Vide ELECTION.
APPURTENANCES. Vide PRIVILEGES.
ASSETS. Vide ENTAIL.

ATTESTATION. Vide WILL.

ATTORNEY AND CLIENT:

- 398

In England it may be objectionable for an attorney to
lend the money of his client upon a bond, but not in
Scotland, where the loan is upon heritable land followed
by infeftment.-Macdonald v. Lillie

334
The policy of the law requires that it should be held, that
a law agent knows that intimation of an assignation to the
debtor is necessary, and that the security is imperfect
without it.-Ibid.
An account delivered by an attorney to a client, showing

-

ib.

P. 335

a transaction of loan of the client's money, and the
nature of the security taken, does not operate as notice
to put the client upon inquiry as to the regularity of the
transaction; because the attorney is bound to advise
and act for the client.-Macdonald v. Lillie
If there be taciturnity, courts do not inquire.
Professional men ought to be held to accuracy, but not to
account twenty-five years after a transaction, if the cir
cumstances of the particular case make it unreasonable;
but circumstances are to be considered. Whether the client
knows the law, is doubtful; but the law agent must know
it, and ought to act upon it. This is the taciturnity, not
of the client, but of the law agent. Such a case by its
circumstances is taken out of the principles of pre-
sumption and prescription, which ought to protect pro-
fessional men.-Ibid.
· 336
Professional men must be strictly held to such accuracy as
to give security to their employers. Lapse of time,
under circumstances, may be an excuse, but the former
principle preponderates.

The safety of clients ought not to be discussed at the
expense of their representatives, they ought to have
costs. Ibid.

--

AUTHORITY.

Vide INSURANCE. GRASSUM.

ib.

Decision in the Westshiells case disapproved.-Queens-
- berry Leases

- 467

In the Westshiells case if it was meant to be a fraud upon
the entail by taking bonds and bills not eo nomine as
rent, but really and truly as rent, the trustees using this
device to prevent the heir of tailzie or Court of Session
from saying what was the real transaction, the fraud
might be overreached by the Court.-Ibid.

- 468
If the heir of tailzie can take grassum from tenant A. B.
and
agrees with C. D. that grassum should be thereafter
paid by certain instalments; if the parties make a lease,
which (upon the hypothesis of what the law was at the
time of the decision of the Westshiells case) was a good
lease independently of that collateral transaction, by
reserving rent without diminution of the rental, because
they have thought proper to constitute the relation of

debtor and creditor, that therefore the fruits of that
relation were to be considered as rent, and to be ascribed
to the relation of landlord and tenant, is a consequence
that does not follow.--Queensberry Leases

p. 468

The Westshiells case goes no farther than this, that the
judges of that day took it for granted, that grassum was
allowable where there was no diminution of the rent of
the day; a proposition admitted by the pursuer, and
not contended against by the defender; and they de-
cided, that what was secured by bonds and bills was
ib.
rent, and was not grassum.-Id.
Decision in the Westshiells case disapproved of by Eldon, C.
because no distinction can be made between a grassum
paid directly, and a grassum secured by way of future
payment; they are both of the same nature; and unless
both could be objected to, he who admitted the right to
take grassums upon that deed, ought, in that case, to
have been held to have no right to call for the payment
to him of the sums secured by the bonds and bills.---
Id.
M'Gill's case not a grave authority, because it was not
effectually contested between adverse parties.-Ibid. 471
In the case of Westshiells, where bonds and bills were
taken, it not being thought necessary that the rent
should be increased, these bonds and bills were held
to be rent, because they were connected with the trans-
action.-Ibid.
- 473
It must be held that grassum is anticipation of rent, con-
sistently with the opinion given in the Westshiells case.
-Ibid.

-

ib.

- 474

There is not so much decision upon the question of grassum
as precludes the examination of what is the. principle
upon which the Courts have acted in other cases, and
ib.
particularly with respect to long leases.-Ibid. -
All law ought to stand upon principle; and unless decision
has removed out of the way all argument and all principle,
so as to make it impossible to apply them, courts of
law-must find out what is the principle upon which the
case before them is to be decided.-Ibid.
BARON AND FEME. Vide RESULTING TRUST.

-

486
DEED.