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Act 1085, directed against selling, These would be the views on the that the estate could be prevent- side of the party contending for reed from being sold. Now, though investment of the price, to the same there are irritant and resolutive series of heirs as specified in the clauses in this entail, yet, by a strange former Entail, and under the same blunder of the writer of it, they have conditions and irritancies as those not been directed against selling; therein contained. The following and the estate having been sold ac- would be THE PLEA FOR THE SELLcordingly, will no longer descend in ER OF THE ESTATE RESISTING THE the order of succession pointed out by CLAIM

The the entail. All this we concede; argument in the other side (it would but let us refer to the writing exe- be said,) is more specious than solid; cuted by Ascog, (for we will not call but the proper mode of treating the it an Entail,) and we"shall see, that question is, 1st, To consider what although the deed is so far defective was the intention of Mr Stewart of in the irritant and resolutive clauses, Ascog in making his deed : 2d, it is entire in another important part, What must he be held to have done we mean the prohibitory clause, in fair interpretation. which is in the following terms :- Now, as to the first of these: it “ Nor shall they, the heirs, have any did not require any one to have power or liberty to sell, analzie, or arisen from the dead, to say what wadset the lands, or others foresaid, were the intentions of the maker of or any part thereof, except, allennarly, that deed. They are evident from such part or portion of the same as the writing itself. It is clear that shall be found to be requisite and his object in it was to make a fanecessary for paying the entailer's MILY of Scottish landed gentry, and debts." Now, though the estate that Ascog was the property from itself cannot be retained in the fami- the possession of which it was his ly, because it has got probably into desire that they should derive their the hands of a third party, owing to consequence. To use a technical the defect in tlie irritant and resolu-' expression, it was his intention to tive clauses, yet, as the seller has execute a strict Entail. The honest committed a most severe wrong man went to his grave in the full against the future heirs by his con- assurance that he had done so,, and travening the prohibitory clause, that his heirs in all future times and depriving them of their succes- were to be lairds of Ascog, cum toftis sion to that valuable estate, he must, et croftis, partibus pendiculis et per. in justice, make up for it as far as tinentiis. His imagination was soothpossible ; and the most direct way of ed by the anticipation of a long suce his doing so, will be to vest the cession of landed-proprietors of that price which he has received for the estate following him, and pointing lands, either on heritable bond or in back to him through the postern of the purchase of other lands; the bond time as to the great founder of their to be made payable, or the new estate family; and, in his gayer moods, to be destined, to the very same his mind's eye, piercing the gloom of series of beirs-in short, to give the futurity, had looked forward to his several heirs, in their order, a value grandsons, and his great-great-grandable consideration in lieu of that sons, riding in style over that doestate of which they have been de- main, on their long-tailed horses, prived, as nearly of the same kind with all the gilly-weetfoots running and value as the old estate was, from at their nod, and all the old women which these heirs have been secluded and their daughters becking, as they solely by the act and deed of this passed, to do them reverence. Now, contravening party.

This is not a dirty annual receipt of interest a case with the new holder of the could be no good substitute for such estate : his right is perfectly good, baronial consequence, or for the nor is it challenged : it is a question glories of the rent-day; and the powith heirs-persons who, but for the tion of his honourable race accepting act and deed of putting away the es- the one for the other, is an endeavour tate, would have been lawful pro- at a gross commercial expedient, the prietors of Ascog.

very idea of which, could he have formed it, must have been intoler. Entail, after being fairly filled up able to the old gentleman. The and recorded, if wrong, is altogether other party may object to the de- irreparable, and resembles more a claration of the ghost, but we will broken rummer glass, which, when not insist on it, for we have evidence it tumbles to the

ground, is smashed enough scripto without it, and more to pieces, and is at an end for ever. solid testimony than any spectre If wrong, by wanting those clauses, ever gave. We have already shown, which could alone make it of any from the whole tenor of the writing, value, it is of no more avail than so that it was an Entail of the most much waste paper, which may be jurigid kind known in our law that diciously employed in singeing fowls, was intended ; and that the owner of or in lighting candles ; and with rethe lands himself set forth in it, that ference to the present case, we conhe designed it for the preservation of tend, that all that was done in making his family, all idea of a lengthened that deed was no more than a bunsuccession to money being entirely dle of blunders, and of no importout of the question.

ance whatever. Let us now advert to the deed But, say the other party,what executed by Mr Stewart, and ob- we canna get in meal, we may get in serve what was ACTUALLY DONE by maut: though there are no such him for the purpose intended by irritant and resolutive clauses, in him; and this will constitute the se. Mr Stewart's deed, as to have made COND PART OF OUR PROPOSED EN- an Entail of Ascog, there is a proQUIRY. The ordinary means of irri. hibiting one: we shall endeavour tant and resolutive clauses were, no to ride safely through on it; and doubt, resorted to. These clauses though the estate has not been detainwere, however, directed against wad- ed, yet we shall hold that the price setting only. But wadsetting is not has been so; and by means of an a mode, at least not the ordinary, action, we shall get a kind of Entail nor a right mode of putting away an of that price, to have it to go to us estate. The common method of do- as the estate itself would have done, ing so is by selling and disponing; had it not been sold.” But this won't but these efficient clauses (without do: it is a drowning man grasping which an Entail cannot exist at all,) at a twig; and it is evident that were not directed against those acts; these heirs of tailzie, as they call and that single fact, joined to all the themselves, must either “ mak’ a evident anxieties of the granter of spoon or spoil a born;" for while, the deed, is the clearest demonstra- on the one hand, it is clear that the tion, that the whole was a mistake, will of the granter of a deed is that an error, and a blunder. To lawyers alone which can give it effect, we it is unnecessary to dilate on the im- have demonstrated, in the distinctest portance and indispensable necessity manner, on the other, that Mr Stewof those irritant and resolutive clauses, art had not the smallest intention of applying to all prohibited acts in an any Entail of money. The whole Entail, and we shall not load our tenor of the deed shows that he had paper with stating law which is now no design of the kind ; and there is trite. For the sake of illustration, no vestige of direction for any suchowever, to persons who are not cession to the price or value of the lawyers, we may add, that an Entail estate, should the land, by any swirl without these clauses applicable to of the law, slip through the fingers what is forbidden, is like an ordi- of the heir of the investiture, which nary deed, written by another than there would have been, had Mr the granter, but without witnesses; Stewart intended it, and contemor, to draw our similes from more plated the event which has actually . familiar objects, it is like a trump happened, of the estate being sold. without a tongue, or a watch with As to the prohibitory clause, it perout a main-spring; with this material haps might have some effect, did it difference, favourable to our side of stand alone, for it might then the question, that while iron and in itself have a unique meaning, steel can effectually supply the de- but it can have none in this case. fects in these respective articles, the When you sce a small open boat, you look at what is complete; but to give effect to the prohibition? The not so when you observe the hull of stool, in short, must be knocked from a ship, on which po decks have ever under him, and if it is not so, what been placed, and where no masts he does stands good. But this Enhave been erected ; and where, if tail of Ascog was deficient in such neither decks nor masts can be added, clauses as could knock away the the hull is useless. The illustration stool; the heir, notwithstanding them, seems apt. Had there been nothing still remained proprietor, and the further intended than a prohibitory question presents itself, What was clause, if it marked what the granter the consequence of this? In answer, of the deed intended, it might have we say, that the right of property been, like the boat, of some use. But in an estate includes not only the it is clear that something more than power of parting with it, but also a prohibition was intended in the that of the free disposal of the price writing of Mr Stewart; that that pro- of it, and if a right does not inhibition was meant merely to lead clude both, it is not a right of prothe way to more important clauses; perty ; but Ascog, it is admitted, reand these not having been added, the mained proprietor, and his heir, thereprohibition is of no avail. As the fore, having put away the estate, has hull of the ship, which was never a title to dispose of the price of it in to be finished, was no better than so what manner he chuses. There is, much waste wood, so, the prohibi- in truth, something anomalous in the tion, without the Entail having been other party's plea : it seems, at once, completed, by irritant and resolutive to blow hot and cold, and in one clauses applied to selling, was, in breath to say, both that the heir is sound interpretation, of no more proprietor, and that he is not provalue than so much waste paper. prietor, which is quite inadmissible; The prohibition was, in reality, al- and as he is acknowleged to be protogether subordinate to the irritant prietor in the one respect of selling and resolutive clauses: it was a mere ihe lands of Ascog, he must be held stage on the road, step to some. to retain also the counterpart of the thing farther ; unless, for the necessi- right in having the power of using ty, in point of language, of forbidding their price. It seems to be improper or prohibiting to be done, that of to make any distinction between the which the doing was to render null effect of his sale, so far as regards the the act done, and forfeit the doer's publie, and its consequences to the right, the prohibition would never heirs of Entail. If the right of proso much as have had an existence at perty authorizes a valid sale to the all; and the greater clauses being, purchaser, the same strong right puts as to the selling of the estate, totally the price of the estate in the seller's useless, the prohibition must be held, pocket, for his own purposes. pro non scripto, on the maxims of If there is a shadow of an arguaccessorium sequitur principale ; ma- ment on the other side at all, it seems jor includit minimum; and that the to be in an attempt at an equitable servant must follow his master. It plea, in saying, that though the irriseems, therefore, evident, that the tant and resolutive clauses are defeeprohibitory clause in this bungled tive, there is in the writing a prohibideed can be of no use whatever, and tion to sell, which is not defective, that no such effect, as the other and wbich ought to be given subparty contends for, can follow from it. stantial effect to, by having the price

But one view still remains to be of the lands vested to the same heirs given, and it seems a very important as in the former destination. There one. What was the origin of irritant seems, however, to be no equity whatand resolutive clauses, as already ex. ever here. Equity consists in stepplained ?-Did they not take their ing over strict law, and giving effect rise from the strong and supereminent to certain intention, though a deternature of the right of property--from mination, on rigid legal principles, this principle, that the right of own- would not do so. But the other ership must be actually withdrawn party cannot say that there was any from an owner or proprietor at the intention in the part of Mr Stewart instant of liis doing a prohibited act, to make a destipation and tailzie of money such as they now contend close an application of that antifor. But further, we urge, that in quated regulation. Now, to apply matters of such writings the rules this: suppose that the rule of stricti of equity are inapplicable. If a juris was much more applicable than landed proprietor has signed his set- it is here, the law would not allow tlement of his estate written by the use of it to convert an imperfect another person, but with an im Entail of land into as imperfect an perfect testing clause to it, would Entail of money, contrary to any it support the writing, to found on design on the part of the Entailer. the granter's intention to favour the We have said that the Entail of the persons named, or to say that money would be as imperfect as that esto the estate should go away, of the land ; for, as the proprietor had the heir at law selling it must hand power to dispone away the land, so, over the price to the persons intend- were the money vested, the holder of ed to bave been favoured by the the document of its security would blundered settlement? No support evidently be entitled to uplift it, would arise in that way; and as and it must ever and anon be investlittle will accrue in the present in- ed and reinvested through all genestance from the similar argument. rations; a species of property being Proper irritant and resolutive clauses thus created of the most anomalous were as necessary in the one case as nature, and which, until of late, a testing clause was in the other ; never entered even into the imagiand if the supposed will of the nation of anybody. granter of the intended settlement But, Sir, here the debate must could not produce in the grantee a end; and taking in imagination my good claim to the price of the estate, seat on the bench, I shall now prothe prohibitory clause in the other ceed to deliver may writing can have as little effect. But on the part of the heirs, it

OPINION ON THE CASE. . has been sometimes imagined, that This, my Lords, is a question of an argument might be drawn in their the greatest importance. The whole favour from the old doctrine, that Judges, before the division of the entails are stricti juris; or, in other Court, tried the same point of law in words, that without much attention the case of Westshiel, and decided for to the design of the entailer, the the reinvesting by the narrowest words of the writing must be obeyed, majority. The case was appealed, and a strong effect be here given to and our acute and enlightened Lord the prohibitory clause. But it is clear Chancellor expressed the greatest that this kind of doctrine ought doubts of the soundness of the judge to be unavailing here, where the ment, mentioning, that " in Engterms of the Entail do not say land, where there is a legal power to & word about investing money. sell, the most convenient doctrine is The truth is, that Entail Law as, to hold that the voluntary settlenow explained by the present most ment should neither bind the pura able Lord Chancellor, has direct chaser nor the price. His Lordship reference to the intention of the remitted that cause to the Court of entailer, and the doctrine of stricti Session for further consideration, but, juris has been moulded accordingly, from particular circumstances, it was so as to exclude the application of it not proceeded in, and the solemn disa wherever it evidently runs counter cussion of the subject lay over till to the will of the granter of the deed. it has been taken up in this case of Thus the great Roxburgh estates Ascog. Now, my Lords, on the would have been long ago put away, maturest deliberation, I am of opion the ground of stricti juris, by nion, that the irritant and resolutive means of feu rights, because that clauses of this entail of Ascog baring species of grants were permitted in been found ineffectual to secure the the entail of these estates ; and very estate itself to the heir of tailzie, long teases would have broken many that tailzie must be considered as a good tailzie, but for the justice of totally at an end for any purpose of that great Judge, who would not al. restriction whatever, and the follows low the entailer's intention to be de- ing are my reasons : feated in such manner, and by too Imo., It was an Entail of lands, and not of money, that Mr Stewart 3tio., Whatever effect might in any intended ; and his writing, if defect- case be given to a prohibitory clause, tive in attaining his object of entail- used alone, none can be given to it, ing the land, must fall to the ground. where it has, as in this instance, Your Lordships have no right to been evidently inserted for the sole make a settlement of money for him. purpose of introducing irritant and That would have been incompetent, resolutive clauses, and where these, even though he had intended it, but as in this particular case, have been had not succeeded, in point of form, found altogether inadequate to their in accomplishing it; but it is much object. more incompetent, since it is evident 4to., The right of property of the that he had no intention of entailing heir in possession was preserved to money at all.

him by the defects in the irritant and 2do., Such an Entail of money resolutive clauses, and if his right of would have no support from the act property was so preserved, he, in con1685, which is the only authority for sequence of it, retained the power of any kind of entailing, but is express- disposal of the price of the subject. ly restricted to land.



No 1.Continued.

The Siege of Antwerp.

The certainty of their danger now doned the fortress to the enemy, who awakened the activity of the con- were soon in possession of the whole federates, and it was no fault of Island of Doel, with the forts and theirs, if the first part of the Prince's batteries it contained. The loss of vow was not fulfilled. He had long these places (which, however, were beheld with anxiety the preparations soon retaken,) affected the Prince of which had been made in Zealand for Pa so deeply, that he tried the the relief of the town. He saw clear- officers by a Court Martial, and the ly that it was from that quarter that more guilty among them were behe had most to apprehend, and that, headed. In the meantime, this bold with all his works, he would scarcely acquisition opened to the Zealanders be able to make head against the, a free passage to the bridge ; and united power of the fleets of Zealand after concerting with the inhabitants and Antwerp, if theyshould attack him of Antwerp, the period for attemptat the same time, and at the proper ing a decisive attack upon the bridge moment. For a time, the delays of was fixed. It was determined, that the Admiral of Zealand, which he had while the Antwerpers should endealaboured by every means in his power vour to blow up the bridge, by mato prolong, had been his security ; but chines which they had already prenow the pressing necessity of relief pared, the Zealand Aleet, with a sufexpedited their preparations; and, cient stock of provisions, should be without waiting for the Adiniral, the at hand, and ready to sail towards States dispatched Count Justin Von the town, through the opening made Nassau, with as many vessels as they by the explosion ; for, while the could collect, to the assistance of the Prince of Parma was engaged in besieged. This fleet anchored before the erection of his bridge, an enFort Liefkenshoek, which was in gineer, within the walls of Antpossession of the enemy; and, sup- werp, was already preparing mateported by some ships from the oppo- rials for its destruction. Frederick site Fort of Lillo, battered it so suc- Gianbelli was the name of the man cessfully, that the walls were shortly whom Fate had destined to be the overthrown, and the fort taken by Archimedes of the city, and to exstorm. The Walloons, who formed ert in its defence the same ingenuithe garrison, displayed little of that ty, with the same want of success. firmness which might have been ex. He was born in Mantua, and bad pected from the soldiers of the Prince visited Madrid, for the purpose, as of Parma : they shamefully aban- was reported, of offering his services

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