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