Memorials of four old families

54
It was contended for the Defenders that the Act expressly declared
inter alia that the original tailzie must be once produced before the Lords
of Session judicially ; that the Charter was not the original entail, nor was
the Deed of Nomination, and that the record of tailzies could only be made
up frcm original deeds presented to the Court and ordered by the Court to
be recorded ; and that in a similar case, " Kinnaird against Hunter," this
plea had been sustained on appeal by the House of Lords in 1765.
The Court of Session found, 3rd July, 1772, "that the entail executed
by Alexander Irvine of Drum in the year 1683, not being duly recorded, is
not valid against creditors or other singular successors."
This appears tantamount to finding that the Court of Session had
made a mistake in 1688, and ordered a wrong document to be recorded as
the entail on the application of Irvine of Murthill.
Drum reclaimed, and prayed the Court to postpone determining the
validity of the entail until the proof (relative to alleged fraud, &c.) was
advised, but the Lords pronounced the following interlocutor, 24th July
1772 : — " In respect the interlocutor only finds that the entail executed by
Alexander Irvine of Drum in the year 1687, not being duly recorded, is not
valid against creditors, or other singular successors, but determines nothing
as to the plea and defences, which may be competent to either party : the
Lords in so far refuse the desire of the petition, and adhere to their former
interlocutor."
The cause then proceeded : the facts relative to the alleged fraud were
discussed, and the question was finally determined 26th June, 1776, by the
following interlocutor: — "The Lords having advised the state of the process,
testimonies of the witnesses produced, memorials hinc inde, and whole
papers and proceedings in the cause, and having heard parties' procurators
thereon, sustain the defences, assoilzie the Defenders' and decern.
The pursuer appealed. The House of Lords, on 16th April, 1777
ordered and adjudged that the interlocutors of 24th and 31st July, 1772,
be affirmed ; and it is further ordered and adjudged that the interlocutors
of 21st January, 28th February, and 24th July, 177 1 , and the interlocutor of
26th June, 1776, be also affirmed ; but without prejudice to any satisfaction
in money that the appellant might be entitled to in respect of any claim he
may have in virtue of the agreement 1733 ; and it is further ordered that
the appeal be dismissed.
The expense must have been enormous. I suppose that Crimond must
have been sold in consequence, and I believe no further attempt was made
to claim anything under the agreement above referred to. The decision
seems a strange one both in respect to what document should have been
recorded as the entail, the different dates ascribed to the entail in the