« PreviousContinue »
imposed upon them by the new ones, were, in fact, no more than transferences of the burdens to which they were already subject; and further, in point of expediency, it was necessary that the restrictions should be imposed on them, for, had not that been done, the lands might have been sold by the persons in possession, being thus free from the limitations of any entail at all. These views seem to lead to the inference, that a proprietor of lands may bind himself as institute of his own entail, even gratuitously; and this, when duly completed, according to the Statute, would be no greater stretch of power than interdicting himself by his own deed, and proclaiming and recording the interdiction; but, in considering the present question, it is not necessary to concede so much, because the deed executed by Mr Vans was not gratuitous, but onerous.
It being, therefore, as it is humbly apprehended, established that Mr Vans's writing was a deed not of sale, but of entail, and competently made applicable to himself, let us apply the laws of entail to it, which must be done by reference to the direct terms of the Act 1685. Now, what are these terms?
By that Statute, it is enacted, that "such tailzies shall only be allowed, in which the irritant and resolutive clauses are inserted in the procuratories of resignation, charters, precepts, and instruments of sasine," and further, when the entail is presented to the Court of Session, and recorded by its authority. Now, the meaning of this is precisely, that a deed does not become an efficient entail merely by having resolutive and irritant clauses in it, but that two other requisites must also concur; 1st, that the tailzie shall be registered in the register of entails; and, 2d, that infeftment shall follow on it, containing a recital of all the conditions and restraining clauses in it ; and, as a necessary consequence of this last, it must further go into the register of sasines, in terms of the Act 1617, which declared that all sasines must be registered within sixty days. Suppose, therefore, an entail is ever so full and regular in point of clauses, it can have no effect against the world, and with purchasers or money
lenders, or merchants giving credit, unless it is not only recorded in the register of entails, but also followed by infeftment duly recorded in the register of sasines : BOTH Of these are required by the Act, the absence of any one of them is as fatal to the entail, as if it were deficient in both, or as if it wanted any of the most formal clauses. Let us now notice what effect these considerations ought to have in this case.
We have already seen, that John Vans, when he executed and recorded his entail in 1758, owed £.1500; of course his tailzie could not affect that part of his debt; but then he went on contracting further debt, so that at the final completion of the tailzie, by recorded sasine in 1775, he had contracted £.8000 more; now, it follows directly from the above principles, that the entail must be equally unavailing against this last, as against the former part of the debt, because, until the infeftment, the tailzie could not operate, and was equal to no entail at all: it was of no consequence that the entail had been put into the register of tailzies in 1758, because the Statute required also something else, viz. the recorded sasine, and that had been omitted until 1775, when this additional debt had already been contracted. It is no good argument to a money-lender, who was a creditor, that he might have known of the entail from the register of tailzies his sound answer would be,
True, I knew that such a writing existed, but I also was aware that one of the means of publication ordered by the Act had not been adopted; I knew that, when the Statute directed solemnities, each of them was made requisite ; and while no infeftment was taken on this tailzie, I considered that qua creditors, it was no better than so much waste paper; just on the same principles, that though an inhibition were known to be written, signeted, and executed, it could have no effect, without the completion of it by both and each of the means of promulgation ordered by the law regarding it."
This doctrine is distinctly supported by the case of Telford Smollet, 14th May 1807, which, though it varied a little in circumstances, agreed with this case in principle.
The estate of Symington was strictly entailed, and the tailzie was followed by recorded infeftment; so that one of the requisites of the Statute was complied with, but the other was omitted for a considerable time, the entail itself not having been record ed for several years, during which Alexander Telford Smollet, the person in possession, contracted considerable debt. Part of the estate was tried to be brought to sale by those creditors whose debts had been contracted after the recorded sasine, containing all the provisions of the tailzie, but before the registering of the entail; and the question arose, Was it competent to sell it for such debts the creditors in which were presumed to know of the tailzie, through the register of sasines? But the answer of the creditors was sustained, that such sale must be competent; for that it was a rule of statutory solemnity, that both the modes of promulgation should be adopted, and that a deficiency in any one of them was fatal to the entail. To apply that decision to the case in hand it was of no consequence in which of the solemnities the defect existed; the objection of deficiency is equally available to the creditors, when the omission is in the infeftment, as if it were in the recording of the entail.
And here one thing deserves particular notice,-that the estate, qua creditors, being, in truth, a fee-simple down to the existence of the last step of the promulgation, it was a matter of little consequence to them at what time and how late that step might be taken, or that they should adjudge it; because the completion of any tailzie whatever, by the last step of promulgation, could not alter the nature which that estate had held at the time of the contraction of the debt, which was the proper period to be looked to. The infeftment on the entail, which was the last step in this case, was of quite a different nature from a sasine on an heritable bond, or onerous disposition, which might cut out personal debts, because the sasine here was one on an entail, of the very essence of which it was, that all just contractions whatever, prior to the full com
pletion of the tailzie by means of it, should be good against the estate.
We have hitherto applied the various parts of our reasonings to the situation of John Vans's debts, and have said, that all the contractions prior to the infeftment, (the last step of promulgation,) should be good against the estate: but according to our principles, the debts contracted after the recorded infeftment, amounting to £.1500 Sterling, ought not to affect the estate, because they were incurred in the face of an entail then duly completed by compliance with both the injunctions of the Act.
Let us now advert more particularly to the decisions of both the Court of Session and House of Lords, which we are the better enabled to do, having taken these views of the subject; and though we differ from both, yet, as we have already said, we do so with hesitation, from our great respect for those who pronounced them.
And, first, with regard to the decision of the Court of Session, it appears to us, that, according to the genius of our law, there was nothing incompetent in entailing on an institute, or in the circumstance of the entailer being himself the institute, which rendered this entail erroneous; and when the rules of entail law are applied, it seemed that all the contractions should be held good which were made prior to the full completion of the entail, but that they should not be good so far as made after that took place. The Court found, that all the contractions of the entailer, at whatever time made, were unavailing against the estate.
Next, as to the judgment of the House of Peers, it proceeded by applying to the case, not the law of entails, but the law of sale; and the last of these being founded on the maxim, prior tempore potior jure, that high court found, that the first infeftment being preferable, the sasine on the tailzie, which was anterior to the attachment of the estate by the creditors who did not sooner adjudge, or failed to adjudge at all, should cut out and exclude those creditors. But we humbly apprehend that this was not a case of sale, but of entail, properly so called; and that when the
law applicable to tailzie is resorted to, no such consequences ought to follow. In the transaction between Mr Vans and Mr Agnew, at the time of Miss Agnew's marriage, it was in the power of the father, and his future son-inlaw, to have entered into mutual sales of their estates, and had they done so, then the sasine upon the writing granted by Mr Vans would (because that writ was a deed of sale) have excluded all Mr Vans's creditors who had not previously made their debts effectual against the estate. But the transaction not having been made for selling, but entailing, Mr Agnew's heirs ought to have been satisfied with the consequences of that description of right which had been portioned for and granted. As we are not aware that almost any of Mr Vans's creditors had rendered their personal debts real against the estate by adjudication, before the sasine on the entail was taken and recorded, the consequence of that decision has been, to cut out and exclude debts to the amount of nearly £. 9500 Sterling, which, on the principles which we have ventured to urge, would have been good against the estate. They were all contracted while the estate was, in law, a fee-simple; and the entail, owing to its being then im perfect, because not fully promulgated according to the directions of the act, did not, as to those creditors, make it any thing else.
Here end our views of that great and important case; and the worthy laird having got through them, (we have no doubt, much to his edification,) may now drink out his tumbler, and slip away to bed. But he is a careful and anxious man. He may therefore ponder on his pillow all he has been reading, and think not a little of his lying money, the painful savings of many long years, for the provision of his younger children, and his excellent wife Betty; for much of it has probably been lent out by him to sundry country gentlemen. This he thought very good security, for they have large free estates; but, as the law now stands, by that recent decision in the Court of last resort, it would appear quite possible, that his fair and snug
fortune, or no small share of it, may be shipwrecked on some concealed rock, unknown to all chart-makers,—some latent entail, mouldering for many years in a drawer, but which may be brought into day for the first time, by its being completed and promulgated, as directed by the Statute, but far too late to save his family from that great loss which will inevitably arise from its existence. The good man would find it no solace to be told that he ought to have adjudged; that his attachment of the estate, followed by charter of adjudication and sasine, had he used such means, would have given him the first feudal right; and that then he, and not the heirs of entail, would have been preferred: he would feel, that the matter had assumed quite a different shape from what he expected. He had had no conception that any such steps of procedure on his part would have been either wise or well bred: he had had no notion that any race was to have been run between him and heirs of entail, otherwise he would have started too, and gone on with all the diligence of the law in short, he had supposed that he had the security of a man of good fortune, and unentailed property, against whom there was no necessity to raise adjudication, and who would have been hurt beyond measure by such step: and, finally, he must feel that it was a matter of the severest hardship, that his widow and younger children should run the hazard of want through such means, and by no fault of his. It is true, it might be said that the evil was not likely to happen to him, because the judgment of the House of Peers applied only to such cases as the one in question, where the circumstance of the entails being mutual, afforded the similarity of a sale as a ratio decidendi; and that such mutual tailzies were of rare occurrence. But this would prove little satisfactory to him, because how could he know what and how many instances of similar cross entails there may be among those of whose bonds he was the holder? while the possibility of the existence of such things was enough to destroy his comfort.
But the question which must na
turally occur is, What should be the remedy? And it may appear to the honest man, that when laws are found to be attended with manifest injury or inconvenience, the proper mode of rectifying the evil is to obtain a proper law to an opposite effect, whether the former one may have been some enactment of the Legislature, or some consuetude, or founded on decisions of courts; and he might perhaps remember various instances of this kind of amendment, as in the Statute regulating the effects of apparency at common law, and in that clause of all the late Acts on the subject of bankruptcy, rendering reducible the acts and deeds done by a bankrupt within sixty days of his statutory failure, though at common law they were perfectly valid. But really these are rather difficult matters for any one but some advocate, or quill-driver, and a good expedient occurs to the laird. This is now the jaunting season: he has serious thoughts of going for a week or two to drink the waters of St. Ronan's, (which a late writer tells us have a salubrious mixture of brimstone in them, because the saint had "dooked the diel in them;") and by taking his daughter along with him, she would partake of the gaieties of the place, so far as a residence at the Altoun, instead of the Hotel, would admit of it. We make this reservation, because we recommend the Cleekum Inn, at the Altoun, knowing well the attention of the good landlady, Mrs Dodds; and being of opinion, that such douce, quiet people, would be snugger there than at the more fashionable house, particularly if that wretched chatter-box of a body, Touchwood, has taken his departure. Now, when the laird is there, it is
his intention (and Mrs Dodds will send him the whisky for the purpose) to go into Marchthorn, and consult on this subject his old friends the writers Mr Bindloose and Mr Meiklewham, who are very competent to judge of the matter.
But we give him even further advice; and if there is no particular hurry-scurry, no electioneering or other bustle at the time, probably one or other, or perhaps both of these counsellors, may join him in extending his travels twenty miles farther across the country, to go and consult still a more knowing person,we mean Mr Matthew M'Wheeble, the son and successor of the excellent old Bailie M'Wheeble, so well known to our readers through the pages of Waverley,-for he is father's better, as he adds great practical information in all country business and affairs, to a theoretical knowledge of the law; and has attended, in a particular manner, to all matters directly or remotely connected with landed estates. Now, if this meeting of luminaries should take place, perhaps bringing this important matter before the counties, at their next Michaelmas head courts, may occur to, and be recommended by them, and they may even draw up some paper to be laid before the gentlemen there. Should they do so, we shall probably get hold of it; and if we get it, we shall not be slow in communicating it to our readers. In short, whenever the light of this constellation shall shine on us, we shall speedily shed it abroad by reflection; and we trust that these our observations may pave the way for the country understanding this most important subject, and ultimately lead to some good end.
SHELLEY'S POSTHUMOUS POEMS.
THIS is the last memorial of a mind singularly gifted with poetical talent, however it may have been obscured, and to many, we doubt not, absolutely eclipsed by its unhappy union with much that is revolting in principle and morality. Mr Shelley was one of those unfortunate beings in whom the imagination had been exalted and developed at the expense of the reasoning faculty; and with
the confidence, or presumption, of talent, he was perpetually obtruding upon that public, whose applause he still courted, the startling principles of his religious and political creed. He naturally encountered the fate which even the highest talent cannot avert, when it sets itself systematically in array against opinions which men have been taught to believe and to venerate, and principles with which
the majority of mankind are persuaded that the safety of society is connected. He was denounced as a poetical enfant perdu by the Quarterly, and passed over in silence by other periodical works, which, while they were loth to censure, felt that they could not dare to praise. Whether abuse of this nature may not engender, or, at all events, increase the evil it professes to cure; and whether in the case of Shelley, as in that of another great spirit of the age, his contemporary and his friend, this contempt for received opinions, at first affected, may not have been rooted and made real by the virulence with which it was assailed, is a question which it is difficult to answer. But now, when death, the great calmer of men's minds, has removed from this scene of critical warfare its unfortunate subject,-when we can turn to the many passages of pure and exquisite beauty, which brighten even the darkest and wildest of his poetical wanderings, with that impartiality which it was vain to expect while the author lived, and wrote, and raved, and reviled, what mind of genius or poetical feeling would not wish that his errors should be buried with him in the bosom of the Mediterranean, and lament that a mind so fruitful of good as well as of evil, should have been taken from us, before its fire had been tempered by experience, and its troubled but majestic elements had subsided into calmness?
We doubt not that Mr Shelley, like many other speculative reformers and sceptics, ventured in theory to hazard opinions which in his life he contradicted. His domestic habits seem to have been as different as possible from those which, in the dreams of a distempered fancy, he has sometimes dwelt upon with an alarming frequency and freedom; as if the force of nature and of early associations had asserted their paramount sway, in the midst of his acquired feelings, and compelled him, while surrounded by those scenes, and in the presence of those beings among whom their pure impulses are most strongly felt, to pay homage to their power. The following passage, from the preface to this publication, though written with the natural and
amiable partiality of a wife, exhibits him in the light of an affectionate husband, a warm friend, an enthusiastic admirer of nature and of moral goodness; and though some other more questionable qualities, and more dangerous opinions, are passed over in silence, either in the confidence that no defence is necessary, or the conviction that none can be offered, it is not easy to read this testimony to the moral worth of Shelley, without being disposed to regard with feelings more of sorrow than of anger, the occasional extravagances of this erring spirit,
The comparative solitude in which Mr Shelley lived was the occasion that he was personally known to few; and his fearless enthusiasm in the cause, which he considered the most sacred upon earth, sical state of mankind, was the chief reathe improvement of the moral and physon why he, like other illustrious reformers, was pursued by hatred and calumny. No man was ever more devoted than he to the endeavour of making those around him happy; no man friends more unfeignedly attached to him. ever possessed The ungrateful world did not feel his loss, and the gap it made seemed to close as quickly over his memory as the murderous sea above his living frame. Hereafter men will lament that his transcendant powers of intellect were extinguished before they had bestowed on them their choicest treasures. To his friends his loss is irremediable: the wise, the brave, the gentle, is gone for ever! He is to them as a bright vision, whose radiant track, left behind in the memory, is worth all the realities that society can afford. Before the critics contradict me, let them appeal to any one who had ever known him: to see him was to love him; and his presence, like Ithuriel's spear, was alone sufficient to disclose the falsehood of the tale which his enemies whispered in the ear of the ignorant world.
His life was spent in the contemplation of nature, in arduous study, or in acts of kindness and affection. He was an elegant scholar, and a profound metaphysician: without possessing much scithe justness and extent of his observations entific knowledge, he was unrivalled in
by its name, and was familiar with the on natural objects; he knew every plant history and habits of every production of the earth; he could interpret without a varied phenomena of heaven and earth fault each appearance in the sky, and the filled him with deep emotion. He made