James Charles Macrae, Appellant. - Sir W. Follett-Sandford; Maria Le Maistre Macrae or Hyndman, and Husband, Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1839 |
| Date | 27 June 1839 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 237
APPEAL FROM THE COURT OF SESSION, SCOTLAND.
Mews' Dig. iv. 1135; x. 267. S.C. sub nom. Macrae v. Hyndman, 6 Cl. and F. 212, q.v.; 3 Jur. 571.
Outlawry - Entail - Trust.
[645] APPEAL FROM THE COURT OF SESSION, SCOTLAND. (Ex parte.) JAMES CHARLES MACRAE, Appellant.*-Sir W. Follett-Sandford; MARIA LE MAISTRE MACRAE or HYNDMAN, and Husband, Respondent [27th June 1839]. [Mews' Dig. iv. 1135; x. 267. S.C. sub nom. Macrae v. Hyndman, 6 Cl. and F. 212, q.v.; 3 Jur. 571.] Outlawry-Entail-Trust.--A party executed a disposition of his heritable property ex facie absolute, but which the disponees afterwards declared by a separate deed was held in trust for the grantor, his heirs and disponees. He was afterwards cited to appear before the Court of Justiciary for murder alleged to have been committed previous to the date of said disposition; and, on his not appearing, sentence of fugitation passed, and denunciation followed thereon, which was recorded. Some years afterwards, when still un-relaxed, he executed a deed, directing his said trustees to execute a strict entail of his property in favour of certain parties, which was accordingly done, and after his death recorded by the trustees. In a challenge of the entail by the heir at law,-Held (affirming the judgment of the Court of Session) that the entail, and subsequent registration thereof, were valid and effectual, in respect that a sentence of outlawry does not deprive a party of the right of absolute disposal of the fee of his property. The late James Macrae, esq., of Holrnains, was, on 26th May 1790, cited edictally, on criminal letters raised against him at the instance of his Majesty's [646] advocate, for his Majesty's interest, to appear before the High Court of Justiciary of Scotland on the 26th July then next, to answer for the murder of Sir George Ramsay of Bamff, bart., whom he had shot in a duel upon the 13th of April 1790, and who died in consequence on the 16th of the same month. The will of the criminal letters commanded the messenger to charge the party complained of to come and find caution, " under pain of rebellion and putting him to the horn; " and on his failing to do so, " to denounce him our rebel, and put him to the horn, escheat and inbring all his moveable goods and gear to our use for his contempt and disobedience." Having failed to appear, the usual sentence of fugitation was pronounced against him on the 26th of July 1790. The sentence was in these terms:-"The Lords Commissioners of Justiciary decern and adjudge the said James Macrae to be an outlaw and fugitive from his Majesty's laws, and ordain him to be put to his Majesty's horn, and all his moveable goods and gear to be escheat and inbrought to his Majesty's use, for his contempt and disobedience in not appearing the day and place, in the hour of cause, to have underlied the law for the crime of murder," etc. On the day following that on which the aforesaid sentence was pronounced, letters of denunciation were raised against Mr. Macrae. These letters, which bore the signet of the High Court of Justiciary, commanded the messenger to denounce him, * Fac. Coll. 22d Nov. 1836; 15 D., B., and M., 54; and App. 1312. 237 MACLEAN & ROBINSON, 647 MACRAE V. MACRAE [1839] rebel, etc., " for his being an outlaw and fugitive from our laws for the crime aforesaid." These letters were put in execution on the 28th and registered on the 29th of July 1790. Previously to the citation on the criminal letters, that [647] is to say, on the 8th May 1790, Mr. Macrae had executed an absolute conveyance of his estate of Holmains in favour of Lord Glencairn and Mr. Alexander Young and the survivor of them, and their heirs and assignees, heritably and irredeemably, with an assignation to the rents falling due from and after Whitsunday 1789. Upon the precept, contained in the above conveyance base infeftment was taken on 15th May 1790, in favour of the disponees, and duly recorded. After the death of Lord Glencairn, Mr. Young, the survivor, executed on 10th April 1793 an absolute conveyance of the same estate in favour of Messrs. Buncombe, Pettiwood, and Le Maistre, and the; survivors or survivor of them and their assignees. The last-named gentlemen executed in the same year, 1793, a deed of declaration of trust whereby they declared that the said estate was vested in them " in trust only for the use and behoof of the said James Macrae, his heirs and disponees, and for the proper support and maintenance of his family, but in no shape for our own use and benefit or the use and behoof of any of us," etc. " And further, we hereby bind and oblige ourselves to denude of this trust whenever so required by the said James Macrae, esq., and his heirs or disponees, and to dispone and reconvey the said lands, and to the said James Macrae himself, or any other person or persons having right from him to the same." After this trust Mr. Macrae executed several settlements in favour of his son and daughter, which, however, he afterwards revoked (6th May 1807) by a deed or mandate to his trustees, whereby he authorized them to make and execute a strict entail of the estate of Holmains in favour of his son James Charles Macrae (the; appellant) and the heirs [648] whomsoever of his body, whom failing, to his only daughter Mrs. Hyndman (the respondent), with other substitutions, and binding himself and his heirs to warrant such deed of entail in the most ample manner. The same deed also contained a nomination of the trustees and one Mr. Jack as tutors and curators to his children failing their mother. These trustees accordingly, on 7th and 10th March 1809, executed a deed of strict entail of the said estate, in favour of the appellant and the other heirs therein named. An annuity was reserved for Mr. Macrae during his life, and a provision of 5000 which he left to the respondent, and declared to be a real burden affecting the entailed lands. The entail contained a revocation of the previous dispositions ~, it being declared however, that the same became effectual if the entail should be found ineffectual. On 13th May 1809 infeftment on this entail was taken in favour of the appellant. Mr. Macrae died unrelaxed on 16th January 1820, leaving his sou, the appellant, then at the age of twenty-nine years, and the respondent, Mrs...
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James Charles Macrae, - Appellant; Maria Hyndman or Macrae, - Respondent
...OF SESSION. James Charles Macrae -Appellant Maria Hyndman or Macrae -Respondent Mews' Dig. iv. 1135; S.C. sub nom. Macrae v. Macrae, Macl. and R. 645; 7 Scots R.R. 259. [212] APPEAL from the court of session. JAMES CHARLES MACRAE,-Appellant; MARIA HYNDMAN or MACRAE - Respondent [March 19, 2......