THE MAGISTRATES OF DYSART v THE EARL OF ROSSLYN (Court of Session)

In 1753, General St Clair, by procuratory of resignation and deed of tailzie, took a renewal of the investitures of the estate in favour of himself and the heirs whatsoever of his body, and failing them, of a certain order of heirs therein specially mentioned. The deed contained all the usual clauses of a strict entail, and contained an express prohibition against selling or disponing the lands, or any part of them. The prohibitions were guarded by irritant and resotive clauses.

General St Clair died in 1762, and was succeeded by his nephew, Colonel James St Clair, who, seeing how much the estate had been benefited by the transaction entered into with the burgh as to the restriction of the servitude over the moor, wished to get the servitude removed altogether.

Both parties immediately proceeded to possess under this decree. But no feu-charter having been granted of the forty-six acres by Colonel St Clair during his life, application for such charter was made to Lord Rosslyn, who succeeded to the estate; but his Lord-ship doubting whether the transaction was not in contravention of, the entail, the present action was brought by the Magistrates to compel implement.

While the defender admitted, that the transaction was one highly beneficial to the estate, and that he was very willing to implement it, if it could be done consistently with the restrictions and the prohibitions of the entail, he pleaded —

I. That it was ultra vires of Colonel James St Clair, even with a view to the advantage of the entailed estate, to enter into the contract of submission, by the decree following on which he was ordained to grant to the Magistrates, Town-Council and Community of the burgh of Dysart a feu-charter of a portion of the entailed estate, very greatly exceeding that which the entail permitted, in certain circumstances, to be feued, in consideration of their relinquishment of certain rights of servitude competent to them over another part of the property.