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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Archibald Hill Rennie, Esq. - Sir William Follet - A. M'Neill v. Donald Horne, Esq. - Burg - Maconochie [1838] UKHL 3_SM_142 (13 March 1838) URL: http://www.bailii.org/uk/cases/UKHL/1838/3_SM_142.html Cite as: [1838] UKHL 3_SM_142 |
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Page: 142↓
(1838) 3 S&M 142
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1837—1838.
2 d Division.
No. 5
[
Subject_Entail — Sale. —
Held (reversing the judgment of the Court of Session), that where there was a prohibition in an entail against sales, and in the irritant and resolutive clauses there was a general declaration followed by a particular enumeration of the acts struck at, without specifying sales, the entail was not effectual to prevent a sale of the estate.
Question, Whether it be a fatal objection to an entail, that the prohibitory, irritant, and resolutive clauses in an entail are not recited in the procuratory of resignation and precept of sasine, as well as in the body of the deed itself?
In the year 1780, the Reverend Archibald Rennie, minister of the gospel at Muckhart, executed a deed of entail of the lands of Balliliesk, in favour of himself in liferent, and, after his decease, to “Archibald Hill, only lawful son procreat betwixt Charles Hill, surgeon, at Manse of Muckhart, my nephew, and Katharine Kelty, his spouse, in fee, and the heirs whatsoever of his body;“whom failing, a series of substitutes. “With this condition always, that the said Archibald Hill, and the other heirs aforesaid, succeeding to the lands and others foresaid in virtue hereof, shall be holden and obliged to assume, use,
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There then followed provisions as to a nearer heir coming into existence,—as to jointures to widows, &c., a power to revoke,—and a reservation of the granter's life-rent, after which there was a procuratory of resignation in these terms:
“I hereby make, constitute, and appoint each of you, conjointly and severally, my lawful procurators, with full power to them and each of them for me, and in my name, to resign, surrender, overgive, and deliver, like as I hereby resign, surrender, overgive, and deliver all and whole the lands and others particularly before described, and here holden as repeated brevitatis causâ, in the hands of my immediate lawful superiors thereof, in favours and for new infeftments of the same, to be made and given to myself in life-rent, and to the said Archibald Hill in fee, and the heirs whatsoever of his said body;”
whom failing, the other heirs enumerated in the dispositive clause, (whose names were repeated); “but always with and under the conditions, provisions, restrictions, declarations, and reservations before-mentioned, acts, instruments, and documents, one or more, needful in the premises, to ask and take, and generally every other thing to do which I might
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The precept of sasine was in these terms:
“Attour, I hereby desire and require you and each of you, conjunctly and severally, my bailies in that part, specially constituted, that upon sight hereof ye pass to the ground of the foresaid lands, and there give and deliver heritable state and sasine, with actual, real, and corporal possession, of all and whole the lands and others particularly before described, and here holden as repeated brevitatis causa, to myself in life-rent, and to the said Archibald Hill and the other heirs of tailzie before mentioned in fee, to be holden in manner aforesaid, but always with and under the conditions, provisions, restrictions, declarations, and reservations particularly before described, by delivering to myself and the said Archibald Hill, or our attorneys, bearers hereof, of earth and stone of the ground of the said lands, and a handful of grass and corn for the said teinds, and all other symbols necessary; and this in no ways ye leave undone; the which to do I commit to you and each of you, conjunctly and severally, my full power, by this my precept of sasine, direct to you for that effect.”
Mr. Rennie, the entailer, died in 1786, without having taken infeftment on this deed, but his eldest son, the institute, on succeeding took infeftment, and the investiture was confirmed by the superiors, and the entail was recorded in the register of taillies on the 28th of July 1786. The institute having died, the appellant, his eldest son, entered with the superiors by precept of
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Thereafter, the appellant raised an action of declarator against the heirs of entail, setting forth the terms of the entail, “and that the said irritant and resolutive clauses contain a specific enumeration of the acts and deeds of the heirs of entail, to which they are declared to apply; that they are not declared to apply to sales or alienations of the said lands, teinds, and others, or to any part thereof, by the heirs of entail succeeding to the said lands, teinds, and others; and it is therefore lawful to and in the power of the pursuer to sell the said lands, teinds, and others, and to alienate the same, for onerous considerations, and to do otherwise as after mentioned.” He therefore concluded that “it ought and should be found and declared by decree of the Lords of our Council and Session, that the pursuer is not restrained by the said disposition and deed of tailzie from selling or alienating the said lands, teinds, and others contained therein, and above described, and granting and executing all deeds necessary for effectuating the same, and that he has therefore right and power to sell the said lands, teinds, and others, or any part thereof, or to alienate the same, in whole or in part, for onerous considerations, and to grant all deeds, dispositions, and other writings whatsoever necessary for effectually conveying the whole or any part or parts
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The heirs of entail gave in defences, maintaining that the entail was so constructed as effectually to exclude the power of sale, and that the appellant having completed titles upon this entail, in which the whole conditions and provisions of the deed are incorporated, could not validly dispone the estate to the prejudice of the substitute heirs of entail.
Lord Jeffrey, on the 23d Feb. 1836, pronounced this interlocutor:
“The Lord Ordinary having resumed consideration of the debate, with the closed record and whole process, in respect that the prohibition against selling, contained in the entail under which the lands of Balliliesk are held by the charger, is not properly fenced or secured by the irritant and resolutive clauses thereof, Finds that the minute of sale of the said lands, entered into between the said charger and the suspender, was a lawful transaction, and such as may and ought to be enforced at the instance of either of the parties; and, therefore, repels the reasons of suspension, finds the letters and charge orderly proceeded, and decerns; but finds no expenses due.
Note.—There is a shade of distinction between this case and that of Tillicoultry, 15th Jan. 1799
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(Mor. 15,539), inasmuch as the defective enumeration in the resolutive clause begins in that case with the words, ‘either by not assuming the name and arms,’ &c.; and in this case with the words, ‘particularly by neglecting to assume the name,’ &c. But they coincide in that cardinal defect on which the Lord Ordinary has always understood the case of Tillicoultry to have proceeded, and the law to have been settled ever since the affirmance of the judgment in the House of Lords, viz., the total omission of any express reference to the prohibition against selling, in an irritant and resolutive clause, framed on the principle of distinctly reciting and enumerating the several prohibitions, and not on that of a general reference to them, as detailed in a preceding part of the deed. The case of Porterfield (14th January 1812, Fac. Coll.) is less precisely in point, though in two respects it is even stronger than the present; 1st, because the defective enumeration occurs there in a second or supplementary joint irritant and resolutive clause, following immediately upon certain special provisions, (including that as to leases, as to which was there no question,) and evidently intended mainly to secure their efficacy; and, 2d, because the enumeration itself is not, so far as it goes, in the full or precise terms of the original prohibitions (as is the case here), but is to a certain extent in the nature of a general reference, though containing the names of several of the acts that had been prohibited; leases, however, not being of the number. The authority of the case of Tillicoultry was held, however, very clearly to extend to such a case.”
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Against this interlocutor the respondent Horne presented a reclaiming note to the Second Division, and the action of declarator having come into Court, the Lord Ordinary made great avizandum with it; and thereupon the Court conjoined the actions, and appointed the question to be argued on Cases. On advising them, their Lordships, on 17th January 1837, pronounced this interlocutor:
“The Lords, having heard counsel, and advised the cause, alter the interlocutor of the Lord Ordinary submitted to review; sustain the reasons of suspension, and decern; but find no expenses due to either party.” 1
Rennie appealed.
Appellant.—Entails are subject to the most rigorous construction. Restrictions are not to be extended by analogy, whether as regards the person or the matter prohibited. Nothing is to be conceded to presumption, however strong, or implication, however clear. General words are to receive effect in their narrowest, not in their largest meaning. The law will not, as in the interpretation of other and more favoured instruments, lend itself, by straining construction, to aid the views of a granter of a deed. On the contrary, to make the intention of an entailer effectual, he must express himself in words so clear and explicit, so unequivocal in their meaning and import, as to leave no choice, and force the reception of that which is odious to the law, as being contrary to the natural rights and reasonable enjoyment of property, and adverse to the best interests
_________________ Footnote _________________
1 15 D., B., & M., p. 376.
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All these cases establish the general principle, that unless the technical and legal form of expression be applied, no attention can be paid to the intention of the entailer, however apparent it may be. An entailer may, no doubt, make the irritant and resolutive clauses applicable to all the acts prohibited in the restrictive clause, by a general declaration, that if the heir of entail in possession shall contravene any of the prohibitions; he shall forfeit the estate; and that the act so done shall be ipso facto void and null; or he may enumerate the various acts prohibited, and apply the irritant and resolutive clauses to each of the acts so prohibited; or he may adopt a third form of applying one of the irritant and resolutive clauses generally to the acts prohibited, and applying the other to each of them individually. But in either of these last cases, if the entailer should omit one of the prohibitions in the enumeration of the specific acts, the effect of the doctrine of strict interpretation is undoubted, that the prohibition
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The first case decided upon this point was that of Tillicoultry. 1 By the deed of entail in that case the heirs were prohibited from selling, disponing, or dilapidating the estate, and from contracting debt, or doing any act or deed, civil or criminal, by which the estate might be adjudged, evicted, or forfeited. Then there was a general irritant clause, in the following terms: All which deeds are not only declared void and null, ipso facto, by way of exception or reply, without declarator, or in so far as the same may burden and affect the foresaid estate.” The resolutive clause was in these terms:
“But also it is hereby provided and declared, that the said James Bruce, and the other heirs of tailzie, who shall contravene and incur the said clauses irritant, or any of them, either by not assuming the name and arms of Bruce of Kinross, or by the said heirs female, they being unmarried, and not marrying a gentleman of
_________________ Footnote _________________
1 Bruce v. Bruce, 15 Jan. 1799, 15539.
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If the resolutive clause had stopped with the general reference to all the acts prohibited, and to which the
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This was confirmed by the decision in the cases of Bonnington
1; of Monzie, where the resolutive clause
_________________ Footnote _________________
1
Scott Moncrieff v. Cunningham. This case is not reported, but the following statement of it was given by the appellant. By the entail of Bonnington, the heir was obliged to assume the name and arms of Cunningham ; and this was fortified by a separate irritant and resolutive clause, applicable solely to that condition or prohibition. Then follows the general prohibitory clause, in these terms: “That it shall be noways leisome nor lawful to the said Alexander Cunninghame my son, nor the heirs of his body, and failzeing thereof, to my said daughters, nor the heirs of their bodies, nor to any other of the subsequent heirs of tailzie and provision succeeding in the aforesaid lands and estate, by virtue of the aforesaid taillie and substitution, or any of them, to sell, analzie, dispone, dilapidate, or put away, the foresaid lands or estate, or any part or portion thereof, nor to innovate or infringe this present tailzie and order of succession hereby made by, me, nor to contract debts, nor to do any other fact or deed, civil or criminal, of omission or commission, whereby the said lands and estate may be anyways apprised, adjudged, evicted, or forfaulted frae them or any otherwise affected, in prejudice or defraud of the subsequent heirs of tailzie and provision foresaid successive, according to the order and substitution above mentioned.” The irritant clause was quite general, and applied to every act of contravention whatever. It was as follows: “Whilks haill debts or deeds sua to be contracted or done, or omitted be them, in prejudice or defraud, as said is, are not only thereby declared void and null, ipso facto, be way of exception or reply, without any necessity of declarator
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2. But, independently of the above objection, the entail is ineffectual, in respect the irritant and resolutive clauses are not included nor referred to in the procuratory of resignation or precept of sasine contained in the deed of entail.
The statute declares, that “such tailzies shall only
_________________ Footnote _________________ to follow thereupon, in sua far as the samen may burden and affect the said estate.” The resolutive clause, however, was formed in a different manner, omitting altogether the prohibition against selling. It was as follows:— “But it is also hereby provided and declared, that the said heirs of tailzie, who shall contravene and incur the said clauses irritant, or any of them, either by not bearing, assuming, using, and carrying the said name and arms of Cunningham, or by the said heirs female, their not marrying a gentleman of the name, or who shall assume the name and bear and carry the said sirname and arms in manner respective foresaid, or who shall break or innovate said tailzie, or contract debt, or commit any other fact or deed of omission or commission, whereby the said lands and estate may be evicted, or anyways affected, in manner foresaid, that then and in any of the said cases the said person or persons sua contravening shall forfeit, amit, and tyne their right and succession of the foresaid lands and estate; and all infeftments and pretended rights thereof in their persons shall from thenceforth become extinct, void, and null, ipso facto, by way of exception or reply, without declarator, as said is; and it shall be lawful to the next and immediate heir of tailzie in being for the time, who is appointed to succeed to the foresaid lands and estate by virtue of the tailzie and substitution foresaid, either to be served heir in special therein to those who died last infeft before the contravener, and thereupon to be retoured and infeft, or otherwise to pursue for declarators, adjudications, or other legal sentences,” &c. The proprietor of the estate of Bonnington, conceiving that he was entitled to sell the estate, entered into a minute of sale for that purpose, and the Court decided that the entail was not effectual, and sustained the sale. The House of Lords affirmed the judgment.
1
Dick v. Drysdale,
14th Jan. 1812, Fac. Coll.
2
Morehead v. Morehead,
31st March 1835, Shaw and M'Lean's Rep. vol. i. p. 29.
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It is absolutely necessary, therefore, for the efficiency of the entail, that the irritant and resolutive clauses be inserted in the procuratory of resignation and the precept of sasine. This is requisite in point of feudal principle, because if these clauses are not contained in the procuratory of resignation, there is no authority for the superior, upon granting his charter of resignation, to insert these clauses in it; and, on the other hand, if they are not contained in the precept of sasine, and infeftment is taken upon the disposition, there is no authority for their insertion in the instrument of sasine. The words of the statute, however, are express upon the subject, and therefore they must be inserted in the procuratory and precept, whether they would be required according to principle or not.
Accordingly, in practice, the irritant and resolutive clauses are either inserted verbatim, or they are specifically referred to in the procuratory and precept. Where the deed of entail is in the form of a procuratory of resignation, the irritant and resolutive clauses are of course recited at length; but where the procuratory of resignation is contained in a disposition
_________________ Footnote _________________
1 Erskine, b. ii. tit. 8. sec. 26.
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It is said that the general words used in the procuratory of resignation are to be considered as including irritant and resolutive clauses. The words are, “that the lands are to be resigned with and under the conditions, provisions, restrictions, declarations, and reservations before mentioned.” But the words “conditions and provisions” cannot be held as synonymous with, or as including, irritant and resolutive clauses. The words of the statute are decisive upon this point. It 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.” Having thus given the power to entail, with “conditions and provisions,” it proceeds, “and to affect the said tailzies with irritant and resolutive clauses, whereby,” &c.; thus drawing a marked distinction between these clauses and “conditions and provisions.”
Then the words, “restrictions, declarations, and reservations,” follow, and complete the enumeration of what is contained in the procuratory of resignation.
The word “restrictions” is another term for prohibitions, and cannot include either an irritancy or a forfeiture. The word “declarations” is equally powerless, and its meaning is shown by the deed of entail to
_________________ Footnote _________________
1 Juridical Styles, i. p. 227; ibid. 238.
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The precept of sasine does not even refer to the conditions of the entail, and no words are employed which can be held applicable to them.
Respondents.—It is fixed, by a multitude of decisions, that there is no requirement of the act 1685, or of the common law, by which it is necessary, in order to the completion of an effectual entail, that the irritant and resolutive clauses should contain a specific enumeration of the acts which are declared null, and by the doing of which the heir's right is to be forfeited. A general reference to the previous prohibitory clause is all that is essential; and if the entail contain a declaration that acts done in contravention of the prohibitions in the former clause, or acts done in contravention of the premises, shall be null, and that the doing of them shall cause a forfeiture of the right of the heir in possession, or any similar or equivalent expression, then the entail will be perfectly valid.
But the ground of objection is, that the clauses contain an enumeration of acts which are declared null, and which are to be followed by the forfeiture of the heir. It is thence inferred that the entailer meant to enumerate all the acts which are to be attended by those results; and that as sale is not specified, it is to be held as not meant to be specified.
The clauses, however, do not profess to enumerate every individual case in which the irritancy and forfeiture shall apply; and the decisions referred
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The general reference to the antecedent clause, though accompanied by an anxious enumeration of most of the prohibitions, is so framed as to be altogether independent of the subsequent specification. The expressions used, not only do not abridge or limit the operation of the general reference, but necessarily imply the existence of prohibitions not specified. It is provided that a party shall incur forfeiture by contravening prohibitions generally, and particularly by certain specific acts of contravention. From the very nature and conception of the sentence, therefore, the non-enumerated, as well as the enumerated prohibitions are treated of as being effectual. The entailer says, that the heir of entail who shall contravene or fail in performing any part of the premises, particularly by neglecting to assume the name of Rennie, or by possessing in virtue of another title, &c., shall forfeit. It is quite conceivable that he may have felt more anxiety about one or two acts of contravention, than about others. He may have apprehended more danger to the endurance of the entail from one quarter than from another; though, therefore, sufficiently providing against all, he may very well have selected for especial and particular mention, some of those acts which he least liked, or thought most probable. Any construction which would lead to the result that the mere expression of a special anxiety as to some, should be held as a total abandonment of the other, would not be justified by any received canon of construction.
It is a general maxim of construction, applicable as
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It is argued, that the effect of the expression “particularly” is to be limited to the first particular act specified, and is not to be considered as affecting any of the acts subsequently enumerated, and that the word “or” is disjunctive. But the idea of restricting the use of the word “particularly” to the first of the prohibitions, seems to be irreconcilable with the plain reading of the clause, and the word “or,” instead of disjoining the. subsequently enumerated cases, plainly conjoins those various cases coming under the particular views of the entailer.
Then it is said, that unless a distinction was meant to be applied by the entailer to the specified and non-specified acts, the enumeration of particulars must be held to be futile, and so, in order to make the enumeration of the least use or value, it is necessary to hold that the enumerated cases come within stricter fetters
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Neither is the appellant's argument supported by the decisions. The leading case on which he rests is that of Tillicoultry. In that case the irritant clause was sufficient, but the resolutive clause was held not to apply, and did not apply to sales. It professed to contain a full enumeration of the special contraventions which should lead to a forfeiture of the contravener. It described the modes by which the forfeiture was to operate, which was in either of a certain number of ways. By its conception, it was only to those particular specified contraventions that the forfeiture of the contravener's right attached. It was to the heirs who should contravene the clauses irritant, or any of them, in certain special ways, that the penalty attached ; and not a word was said of contraventions by any other mode. It was heirs who should contravene, either by not assuming the name and arms, or who should break or innovate the tailzie, or should contract debts, &c., who should forfeit the right to the estate. It was “then, and in any of the said cases,” that is, in any of
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The case of Bonnington is not distinguishable from the case of Tillicoultry. In that case, as in the other, the general reference is detracted from and limited by a description of those various modes by which the forfeiture of the heir in possession was to be operated. It is just as in the case of Tillicoultry, either by one or other of several enumerated modes; and it is only “then, and in any of the said cases,” that the person contravening is to forfeit his right.
The case of Prestonfield is equally inapplicable. The heir in possession had granted a lease exceeding the endurance specified in the deed of entail, and the question was raised as to his power under the deed to grant such lease; and this resolved into another, as to whether the irritant clause struck against the letting of tacks.
This clause was applicable only to dispositions, alienations, securities, debts, deeds, and facts, civil or criminal, contrary to the provisions of the deed. There was no irritancy applicable to leases by name; and it was admitted, that unless the word “deed” should be held to include leases, there was no irritancy which could affect them. The question, therefore,
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2. The second objection is founded upon the clause of the statute 1685, by which it is declared, “that such tailzies only shall be allowed in which the foresaid irritant and resolutive clauses are insert in the procuratories of resignation, charters, precepts, and instruments of sasine.” The appellant does not maintain that a verbatim insertion of these clauses in both procuratory and precept, or in either, is necessary. His argument rests upon the allegation that the “irritant and resolutive clauses are neither included nor referred to in the procuratory of resignation or precept of sasine.” The style to which he himself refers only contains, in the procuratory of resignation and precept of sasine, a general reference to the clauses. It is as follows:
“But with and under the conditions; provisions, restrictions, limitations, clauses irritant and resolutive, declaratory,”
&c. It may be, therefore, assumed to be a sufficient compliance with the statute, that there shall be a general reference in the procuratory or precept to these clauses, where they have been inserted at length in the prior part of the same deed. The object of the provision of the act is to certiorate the public of the existence of fetters as to the disposal or use of property. They must be set forth in the deed of entail, otherwise the register of tailzies would furnish no information as to the nature of the restrictions; they must appear in all renewals of
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The precept of sasine is precisely the same, and is, therefore, qualified by the same reference, 1
Now, in the Tillicoultry case the party did profess to enumerate: the clause was in these words, “It is hereby provided and declared that the said James Bruce, and the other heirs of tailzie, who shall contravene and incur the said clauses irritant, or any
_________________ Footnote _________________
1 The House declined to hear the appellant's counsel in reply.
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Now, my Lords, that case having been so decided and affirmed in this House, the sole question is, Whether that case does not bear upon the principle of the present case? And it comes to this question: whether there has been an attempt to enumerate the particular acts prohibited? Now the prohibition is, that it shall not be lawful, and “in case the said Archibald Hill or any of the heirs of tailzie before mentioned shall contravene, or fail in performing any part of the premises, particularly by neglecting;—” (then it goes over four of the acts prohibited, and there that sentence stops;) “or if they or any of them shall contract debt or do any deed,—” and so it goes on to the end, but omits the act of selling. How is it possible, according to the common use of language, to say that there has not been in this clause an attempt to enumerate ? If there be an attempt to enumerate, and this particular act is omitted, then it is clear, under the authority of the Tillicoultry case, that this act so omitted is not prohibited. Therefore it appears to me that, taking the principle as established in the Tillicoultry case, and applying it to the particular language of this clause, there is no doubt that it falls within the principle of that authority.
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My Lords, the Court below have been divided upon this subject, which certainly comforts one in coming to an opinion in favour of the small minority. It was by the narrowest possible majority of the five Judges, who applied their minds to the case that this erroneous decision was pronounced. My Lord Jeffrey and the Lord Justice Clerk took the same view of it that I do; my Lord Meadowbank and my Lord
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Now, there is this difference in the present case, that there is no general irritancy in this case, but there is a conjunct resolution and irritancy all in one clause to be denounced; and then, instead of saying “either by” so and so, “or by” so and so, it first states generally, and then says particularly “by neglecting to assume,” and so forth; or, “if he shall do so,” and then a forfeiture.
Now, as I stated during the argument, I am quite unable to see any substantial difference in the distinction which is here taken between the particular and the general. The word “particularly” must have one of two senses in this case; it must either mean, somewhat like our videlicet, that is to say, or to wit—scilicet, or videlicet, I enable you to see; or, I enable you to know what the generality immediately foregoing means,—it either means that, or it means
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But it does not depend upon forfeiture; for here, differing from the Tillicoultry case, the framer of the instrument makes one conjunct clause, irritating the act of contravention at the same time that he denounces a forfeiture against the contravener. It is still more absurd than if you take the irritant clause only. Can a thing be half void ?—and yet you must take that construction. And then the construction is this: not only you forfeit half if you go to York, and wholly if you go to Rome; but I declare the act,—whatever it is, of altering the order of succession or of selling,—I declare the act of selling to be half void—(to be only to a certain degree null and void,) but the act of altering the order of succession is absolutely, and to all intents and purposes, null and void. That is absolute nonsense. It is neither more nor less than mere nonsense. I am, therefore, clearly of opinion that the judgment cannot stand, that it fails wholly upon the grounds upon which it is rested, and I think
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My Lords, I am exceedingly glad that we are relieved from the necessity of going upon the second branch of the case; not that I see any answer to it, because the words of the entail act are most positive, and this merely is a direction to which it signifies not whether it is complied with or no. The words are most imperative, and for a most salutary and necessary purpose. It is, that all the liege subjects of the King may see upon the face of the record whether they are in safety to lend their money upon the security of the estate, and pay the price out and out. It is for that purpose that the register of taillies is expressly provided by the act, and subsidiary to that registration so provided, it is declared as the necessary act of an entailer that he shall record the irritant and resolutive clauses. If anybody were to see this instrument, without those clauses being specified, if there is no word said about there being such clauses in existence, he would have a right to say, “I am safe in lending money upon the security of the estate,” or to lay out his money in the purchase of the estate, because there is not a word of irritancy in the instrument. But I am satisfied that we are not called upon to say a word, in giving our judgment, or to rest any thing upon that second ground; for this reason, that it does not appear to have attracted the notice of the Court below, since none of the Learned Judges dealt with it
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I am therefore of opinion that this decision cannot stand; and that, as in the two former cases of Morehead v. Morehead, Steele v. Steele, your Lordships are restoring, and not altering or innovating, or breaking, the Scotch tailzie law, but restoring it to what it was; and that as you then restored the law established in the Findrassie case, the Randlestone case, and, above all, the Duntreath case, to its former purity, which had been broken in upon by those decisions of Steele v. Steele and Morehead v. Morehead in the Court below, I say here, you are restoring the Tillicoultry case; which, as far as I know, never had been altered by any thing done in the Court below till this decision, which I think was given without very great deliberation. I think it bears marks of that, either in the Outer or in the Inner. My reason for saying so is, that there was a total difference in the construction of the first part and the latter part of the clause; it never seems to have struck the Court below that the whole argument about “particularly” fails entirely here. They appear to have considered, both the bar and the bench, that the frame of the clause was such that the word “particularly” rode over the whole of it. But it is not so at all; the word “particularly” is followed by the adverbs “by neglecting, by possessing, by omitting, by altering,”and applies to the first four communications only; but then there is a
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My Lords, the consequence of this decision will be, that the former judgment, which has not been paid much attention to, will have more attention paid to it hereafter, and the construction of such deeds will be bound by this judgment hereafter; and that the law, will not be set afloat, as it would have been by setting up that which has never been supposed to be the law from the time of the Tillicoultry case, in 1799, till the present time. That case was most fully discussed. I find that Lord Meadowbank, one of the greatest authorities of our day, at first stood alone; but he said, “I have no doubt whatever about this.” He took usually a firm and manly view of the subject; but always a very dispassionate view. He spoke very firmly upon the other side; but the Court sustained the defences. None agreed with him but Lord——.
But when it came before the Court again, in the year 1799, upon the answer, the question was, whether the paper should be answered or not? They then agreed to have an answer. When it came, instead of standing alone, he was in the majority—a narrow majority. In the minority stood Lord Glenlee, just as he stands in the majority, however, here, and as he stood in the majority in the case of Macgregor v. Macgregor
Page: 176↓
The House of Lords ordered and adjudged, That the said interlocutor complained of in the said appeal be and the same is hereby reversed.
Solicitors: A. Dobie— Spottiswoode and Robertson, Solicitors.