called, it is dismissed. Then he raises a third action, and in it a decision is at last pronounced. If such proceedings are allowed, there is no saying how many actions a party might not bring on the same debt, unless, indeed, he get so far as to found the allegation of malice; but if he keep within that, there seems no limit. I think all this is a complete perversion of the statute. No doubt the statute directs that the justices are to judge "as shall appear to them agreeable to equity and good conscience"--which means, that they are not to lose their senses in legal punctilios, but to decide like rational men. But, at the same time, the statute gives a form of procedure, and they are bound to go by it. But the form which they adopted is one for which there is no authority in the act. When the pursuer was absent, they were bound to decide for the defender, who was present. There is a remedy provided for that case. It is said that that remedy is provided only for the case where absolvitor is pronounced-and that here the complaint was dismissed; but, on the fair reading of the statute, I think the judgment dismissing is just a judgment of absolvitor, and the defender does not take the remedy provided for that case. He takes his interlocutor of dismissal, and then brings this new action. But, as I said before, I look on this as a decree of absolvitor, which could only be opened up on consignation. That has not been made, and I consider the proceeding quite incompetent. It is unnecessary to go into the second point. The Court pronounced the following interlocutor :-"Alter the interlocutor complained of, so far as regards the first finding: Find that the procedure and judgment of the 22d of October on a new complaint, was not a course of procedure in conformity with the provisions of the statute 6 Geo. IV. c. 48, after a previous complaint for the same demand had been competently raised and disposed of: Therefore, reduce the game, and decern: Find it unnecessary to pronounce any judg ment on the other defence sustained by the Lord Ordinary: Find the pursuer entitled to expenses; allow an account thereof," &c.

Lord Ordinary, Robertson.-Act. Deas; Wotherspoon and Mack, S.S.C. Agents.-Alt. Dean of Faculty (M'Neill), Patton; L. M. Macara, W.S. Agent.-T. Clerk.-(W.G.T.)

5th July 1850.

HOUSE OF LORDS.

No. 226.-The Right Hon. J. S. WORTLEY MACKENZIE, LORD WHARNCLIFFE, Suspender and Appellant, v. DAVID NAIRNE, Respondent.

Entail-Fetters-Sale-The prohibitory clause of an entail was directed against sales, and alterations of the succession. It also declared, that it should not be lawful to the heirs of tailzie "to contract debts, or to do any other fact and deed whereby the said lands may be apprised or adjudged, or anyways burdened." The irritant clause declared, that if any of the heirs “shall contraveen and do in the contrary, or any point of the premises, then not only all such debts, facts and deeds, are, per verba de præsenti, declared to be ipso facto void and null without declarators, in so far as the samen might infer any actions, personal or real, against the next heir of tailzie, or the lands and others foresaid, but also," &c.-Held, (affirming the judgment of the Court of Session), that the "debts, facts and deeds," mentioned in the irritant clause, did not strike against sales.

See supra, vol. xxi. p. 585-20th July 1849.

The respondent agreed to sell the lands of Drumkilbo to the suspender for £38,000, and to execute all the deeds necessary to complete the transfer.

The lands were held under an entail. The question therefore arose, whether the respondent was entitled to sell. A suspension as of a threatened charge by the respondent, and an action of declarator at the respondent's instance, were raised to try the question.

The prohibitory, irritant, and resolutive clauses, were as follows:

"And sicklike providing, likeas it is hereby specially pro

vided and declared, that it shall not be lawful to the said Alexander Nairn, or the other heirs of taillie above mentioned, who shall succeed to the said lands and others above mentioned, by virtue of this present right, to sell, anallie, dispone, dilapidate, nor put away, the lands, teinds, and others above exprest, or any part thereof, either heritably and irredeemably, or under reversion, nor to grant infeftments of annualrent, or yearly duties furth thereof, nor to contract debts or sums of monie, wherewith the samen may be burdened, exceeding a yearly free rent of the said lands and estate, or to do any other fact and deed whereby the saids lands and others foresaid may be apprised or adjudged from them, or anyways burdened in prejudice of the subsequent heirs of taillie, or their foresaids, or shall suffer any apprising or adjudication to be led of the said lands to run for the space of five years, without redemption thereof; nor shall it be leisom nor lawfull to them to break, alter or infringe, this present right or taillie, in the course of succession above mentioned; and if he, or any of the forenamed persons, heirs of taillie, shall contraveen and do in the contrary, or any point of the premises, then not only all such debts, facts and deeds, are, per verba de præsenti, declared to be ipso facto void and null, without declarators, in so far as the samen might infer any actions, personal or real, against the next heir of taillie, or the lands and others foresaid, but also the persons substitutes, or heirs of taillie foresaid, contraveening, or who shall contraveen, any of the conditions and provisions above mentioned, and the heirs-male of their bodys, shall forefault, amit, and tyne, their right of succession to the lands and others above mentioned, and all rights or infeftments in their persons shall immediately thereafter expire, and become extinct, void and null."

The question raised in these proceedings was as to the sufficiency of the irritant clause. It was contended, on the part of the respondent and pursuer, that the "debts, facts and deeds," therein mentioned, were none other than the debts, facts and deeds, mentioned in the prohibitory clause, "whereby the saids lands and others foresaid may be apprised or adjudged from them, or anyways burdened in prejudice of the subsequent heirs of taillie;" and, therefore, that sales were not struck at by the clause. It was also contended, that, in any view, the irritancy was not absolute, but qualified by words which made it powerless against a transfer like the present, not inferring "any actions, personal or real, against the next heir of taillie, or the lands and others foresaid."

The Lord Ordinary reported the case to the Court on written pleadings.

4

Their Lordships of the First Division, after taking the opinions of the whole judges-(see supra)-pronounced the following interlocutor:

"In conformity with the opinions of the majority of the whole judges, find that the entail of Drumkilbo is defective in the irritant clause, and is, consequently, not sufficient to prevent a sale of the estate: Therefore, in the suspension, repel the reasons of suspension, and find the letters and charge orderly proceeded: And, in the declarator, repel the defences, and decern against the defenders in terms of the conclusions of the libel; and decern."

ad The suspender appealed, maintaining that the judg10ment of the Court of Session ought to be reversed, for the following reasons:—

1. Because the entail of Drumkilbo contained suffias cient prohibitions against selling, duly fenced with valid and effectual irritant and resolutive clauses.

2. Because the irritant clause was not defective in the enumeration of the acts prohibited, but was sufficient to strike against a sale and disposition of the estate, and all deeds which might infer actions, personal or real, against the next heir or the lands.

3. Because the respondent held the estate under titles

whereby he had no power to sell the same, or to grant a title to the appellant as purchaser.

The appellant referred, in his case, to the irritant clauses in the following cases :

JORDANSTONE. "And if he, the said George Cockburn Knight, or one or other of the said heirs of tailzie, shall contraveen, or do in the contrary, in any part of the premises, then not only shall all such deeds and debts be void and null of themselves, and noways binding or obligatory to inferr any action or execution, personall or reall, against the next heirs of tailzie, or the lands and others foresaid, but also the persons contraveeners, and the heirs of tailzie of their bodys, shall forefault, amitt, and lose, all right, title and interest, they have, or can pretend to the said lands," &c.

DRUMKILBO.

"And if he, or any of the forenamed persons, heirs of taillie, shall contraveen and do in the contrary, or any point of the premises, then not only all such debts, facts and deeds, are, PER VERBA DE PRÆSENTI, declared to be IPSO FACTO void and null, without declarators, in so far as the samen might infer any actions, personal or real, against the next heir of taillie, or the lands and others foresaid: but also the persons substitutes, or heirs of taillie foresaid, contraveening, orwho shall contraveen, any of the conditions and provisions above mentioned, and the heirs-male of their bodys, shall forefault, amit, and tyne, their right of succession to the lands and others above mentioned," &c.

The respondent maintained that the judgment of the Court of Session ought to be affirmed, upon the following grounds :

1. Because the irritant clause is qualified, and restrictive in its terms.

The respondent argued

That the irritant clause was inconsistent with the act concerning tailzies,' 1685, c. 22, which provides that the tailzies allowed by it shall contain irritant and resolutive clauses, declaring all such deeds to be in themselves null and void,' Now, how can this provision contained in the act be held to be fulfilled, when the irritant clause does not declare the deeds to be null and void simply, but does it under a qualification, which, unless it could be held pro non scripto-a principle of construction altogether inadmissible in entails-must operate as a restriction on the preceding words? The irritant clause in deeds of entail is referred to, and derives its efficacy from those words in the statute-'declaring all such deeds to be in themselves null and void.' It is by annulling-that is, irritatingthe act or deed prohibited, coupled with the resolutive clause divesting the contravener, that the prohibitions of the entail become effective, binding both the heir and third parties. But it has been seen, that the irritant clause in the Drumkilbo entail does not annul and make void the deeds of contravention in themselves.' It voids and annuls them under a qualification and limitation. Can, then, the provision of the statute be held to be fulfilled, and the entail to be strictly in terms of it, when the irritant clause does not declare the deeds to be simply void and null, but only in so far as certain effects or consequences may result from them? The irritant clause is in disconformity with the words of the statute, which points at a declaration, that the deeds shall be in themselves void and null. No lawyer can read this irritant clause without being forced to the conclusion, that it contains a limitation, and that, the last member qualifies and restricts the preceding part of the clause. It will be remarked, that the whole clause forms one sentence, and that the last part of it is not appended by means of any connective particle, as the conjunction and,' so as to make it a separate member of the clause, forming a mere addition to what precedes it, and that thus the members of the clause might be read independently. It is presumed to be indisputable, that the words 'in so far as' are limiting words, and a usual and proper expression to signify and denote some qualification or limitation of what precedes them. It then becomes inadmissible to construe the provision which precedes, otherwise than by allowing their full influence and effect to the limitation introduced by the qualifying words. These infer an explanation of the sense in which the provision is to be taken, and imply something short of what its meaning would be standing alone. Let it be conceded here, that the clause preceding the words ' in so far as,' would have formed of itself a sufficient irritant clause to protect the entail-and if they had stopped there, the present ground of objection would not have presented itself—it

is submitted to be a necessary inference, that the adjection of the qualifying member imposes a restriction of the effect which would otherwise be given to the meaning of the words which go before, operating as a proviso against their being taken in their full latitude. It is impossible to discard from consideration the last member of the sentence. It must be assumed to have been intended to have a meaning, and to be susceptible of an applica tion, and to be allowed its effect. Its terms are such, and so connected with what goes before, that it cannot be viewed as surplusage, but, on the contrary, as explanatory, significant in its language, and pregnant of application. There being, then, a qualification and limitation of the general words in the first part of the irritant clause, by the restriction adjected in the concluding member of the clause, the point for determination is whether, under the irritant clause so qualified, the heir of entail in possession is disabled from selling the estate, and granting a valid disposition with the usual clauses to the purchaser? The respondent made a sale of the estate to the appellant, in the usual way in which such sales are effected. The appellant disputes the ability of the respondent to give him a valid title. The title which the respondent tenders is an ordinary disposition of the estate, containing all the usual clauses incumbent on a disponer to insert, as in the case of a sale of fee-simple property. It is acknowledged on all hands, that, under the disposition, the appel lant can vest himself in the lands at any time, by passing inteft ment. The appellant having raised doubts as to the validity of the title tendered, the proceedings in the Court below were the result, which sustained the sufficiency of the title, and found that the respondent could sell the estate, and, by means of a disposition in the usual form, give an unimpeachable title to the pursuer. The plea successfully maintained by the respondent was, that the irritant clause, qualified as it is, was ineffectual to strike against a conveyance of the estate to a purchaser by an ordinary disposition. The precise expressions, and the inport and legal force of the words used in the concluding part of the irritant clause, must therefore be considered and determined To repeat them again, the last member of the sentence is, 'in so far as the samen might infer any actions, personal or real, against the next heir of taillie, or the lands and others foresaid.' The antecedent to 'samen,' as will be perceived from the preceding member of the clause, is, such debts, facts and deeds. Let be assumed, as the respondent does under this head, that the words, such debts, facts and deeds,' are, in relation to the prohibitory clause, sufficiently comprehensive as to include the prohibition against selling the estate, and thus a sale would be held to be irritated, had the irritant clause been expressed without any qualification. The question is thus raised apa the qualifying words, as restraining the previous part of the clause, and the point is their capacity to irritate a sale of the estate effected by the respondent, by way of an ordinary dis position, as just explained. Now, what is alone irritated a debts, facts and deeds, in so far as the same might infer any actions. Then these actions are specifically described as actions against the next heir of taillie, or the lands. Thus there is an explicit limitation of the irritancies as regards acts of the heir in possession, to those which may infer actions against the Dell heir of taillie, or the lands. It is maintained, accordingly, that, under this clause, the heir in possession is unfettered, unless in so far as his acts would infer actions against the next heir taillie, or the lands. On the recognized principles of the con struction of the fettering clauses of entails, as ruled by numerous judgments of this Most Honourable House, it is humbly conceived, that the heir in possession is unrestrained, whatever be the consequences of his act, if it fall not within the special modes of action to defeat the entail, which are specifically irritated by the taillie itself. The simple matter for consideration comes thus to be, whether the granting of a disposition to a purchaser is a fact or deed which infers action against the next heir of taillie, or the lands? If it does not, the granting of the disposi tion, and, of course, the sale of the lands thereby carried into execution, are not struck at by the irritant clause. By granting a disposition of lands with the usual clauses, the seller or dis poner is wholly divested. Every right he previously had in them is gone. The disponee or purchaser takes his place. By virtue of the clauses in the deed, he can, at his own hand, and irrespective of his author the disponer, immediately take in feftment in the lands, and vest himself with a full feudal right therein. He has no need of any actions against the land; the disposition itself, and the sasine which is passed on it, course make him full proprietor, Now, having obtained a dis

position with the proper clauses, and his author having had a proper title in his person, is there any necessity or room for an action against the disponer or his heirs? The disponer has surrendered everything; and the disponee is, by means of the conveyance, in the position of fall owner. The disposition which the respondent is ready to deliver to the appellant will contain all the usual clauses, and, in particular, a procuratory of resignation, and precept of sasine. The appellant will thus be entitled immediately feudally to vest himself in the lands. The transference of the estate to the appellant becomes instantly perfected. There is no room for any actions, whether personal or real, against the disponer, or his heirs, of any description, or against the lands, in order to perfect the appellant's right. His title to the estate under the conveyance is complete, by the deed itself; and the raising of it into a feudal right depends upon himself, without the intervention of any actions whatever, or the decree of any Court.

Such, then, being the character of a disposition to land, and the nature of the conveyance which the respondent can execute, he humbly contends, that it is not comprehended, but excluded, from the terms of the irritant clause. The execution of it cannot possibly infer action, either against the lands or the next heir. An adjudication in implement against the lands would be preposterous, because that action arises only where there is an omission in the conveyance, so as to disable the purchaser from perfecting a feudal right to the lands; and the disposition to the appellant will, as has been said, contain all the usual clauses; and as to personal action against the next heir, it would be impossible. After executing the disposition, there would be no room for any personal action against the respondent, he having wholly divested himself. And the appellant being invested in the estate, the heir called to the succession after the respondent, could take nothing. An action against him, founded on the disposition, would be nugatory, and is excluded by the terms of the question. Upon this general view, that the disposition to be granted contains within itself a complete transference of the right in the lands, and does not require or admit of any actions against the lands, or the next heir, to effectuate a full right in the disponee, it is submitted that the irritant clause does not invalidate such disposition; and that, consequently, the respondent is not disabled from making a sale of the estate; and that such disposition to the purchaser will give him a valid title to the lands.

The argument in support of the entail, relied upon in the Court below, was rested upon two grounds. It was contended, first, that the concluding member of the irritant clause was not intended to qualify or restrict the general declaration of nullity which preceded it, but was meant to make the irritancy apply to all acts and deeds done in contravention. In questions upon the efficacy of fettering clauses in entails, the answer to this argument which immediately occurs, is, that the meaning and intention of the entailer, or his conveyancer, is not the question, but the inquiry must be, the legal import of the words used, and their sufficiency to effectuate the presumed intention. Every entailer intends that his entail should effect its object, and that the prohibitions, which are in general sufficiently plain and comprehensive, shall be fenced with corresponding irritant and resolutive clauses. It is needless to say how frequently the object has been frustrated by blundering these clauses, and the heir in possession adjudged to have thereby acquired the means of defeating the entail. Whatever, then, might have been the intention, the introduction of the words in so far as, whether their familiar use and signification be considered, or their practical application in legal phraseology, leads naturally and inevitably to the conclusion, that a qualifying or explanatory sentence is to follow, restrictng what has gone before. The appellant, in the Court below, though asserting that the last member of the clause did not qualify and restrict the preceding, did not attempt to shew how, by any canon of construction, the words in so far as could be read otherwise as introductory to a limitation. It was, however, of vital ce to him to avoid the admission of a limitation, and to attempt to rest upon the preceding part of the clause, as unaffected by the concluding member; for the words of limitation in the concluding part would become, in fact, in reality expressive of the only irritancies; and, by overriding the preceding part, constitute the irritant clause. By bringing, then, the appellant into this predicament, in which it is submitted he must stand, of being obliged to accept a construction of the irritant clause, as qualified and restricted by its last member, the respondent, it is submitted, is entitled to SCOTTISH JURIST.

throw upon the appellant the burden of explaining the meaning which he allows to the words following in so far as, and to shew their application to irritate the disposition he is to receive from the respondent. Now, the appellant being hedged up to the concession, that the irritant clause does imply a limitation of some sort, was found utterly unable to give any intelligible explanation of what the limitation is. But the words must be allowed some meaning, unless absolutely unintelligible, which is not pretended. They are technical words, perfectly familiar to lawyers, and descriptive of certain consequences. But the appellant is unable to give any construction to them, which, while operating as a limitation, shall, at the sametime, exclude from the benefit of the limitation the disposition to be executed by the respondent.

All the attempts of the appellant to meet the call upon him to put a construction on the limitation, resolved into attempts to treat it as an extension of the preceding part of the clause, but this would be a contradiction; or as surplusage, which is plainly is not; or as an unnecessary member, the preceding part of the clause being perfect in itself; but this is inadmis sible, because the words which follow are a continuation and integral part of the clause, The respondent labours under no such difficulty. He can construe the limitation so that there still shall be an effectual clause of irritancy against certain acts. To borrow the language of one of the consulted judges-"The words adjected have a clear, definite, but limited meaning, They do strike directly against certain results which might, in a variety of cases, arise from the acts prohibited, and might, indeed, be necessary in the attempt to carry out to completion the acts done; e. g. actions, whether of adjudication or otherwise, on minutes or contracts of sale actions for implement, if the heir in possession, after agreeing to sell, wished to resile, and refused to dispone in form-actions of reduction, if he died before the purchaser was infeft, and the next heir made up titles-and a variety of other actions, which plainly might arise out of the acts prohibited if committed-a charge to give entry, and many other legal proceedings." To these may be added, actions of adjudication for debt, directed against the lands upon bonds or other obligations granted by the heir in possession→→→ the contraction of debt being among the prohibitions of the en tail; also feudal delinquencies, and other prohibited acts, which may afford action against the lands, or the next heir. Thus, the limitation, it appears, would not be inoperative, but possesses a meaning and effect. But though it includes, and would irritate certain acts, it is so expressed as to exclude the disposition to be executed by the respondent. The appellant was thus reduced, in his argument before the Court below, to contend, secondly, that though the latter part of the clause were held to be restrictive, yet its terms were sufficient to protect the estate from alienation by disposition. Having laid it down as a proposition, that adjudications; or other real or personal actions, may be led on acts or deeds done under any of the heads of prohibition referred to in the act 1685, and supported this by stating, that where debt is contracted, adjudications may be led for it; and, in like manner, if the succession is altered, or the estate is sold, adjudications in implement may be led on the deeds by which these acts are attempted to be carried into effecthe forthwith draws this conclusion-hence all the acts and deeds done in contravention of the entail, may justly be said to produce an action, either against the next heir, or against the estate. It is admitted by the respondent, that an adjudication for debt would be an action against the estate, and so the contraction of debt under the limitation of the clause is irritated, as it would infer an action to attach the estate. And there are other acts, as has been just shewn, also effectually irritated, as being productive of the actions described in the limiting clause. A mere obligation or contract to sell or dispone, if the party refused to follow it up by a formal disposition in the usual terms, would give rise to an adjudication in implement, at the instance of the purchaser. But it is only in such a case that there is room for the adjudication in implement. The appellant admits that a sale by the proprietor may be completed by a formal disposition or conveyance, containing procuratory and precept, upon which the purchaser may be infeft; and that, in this way, the purchaser may acquire a full vested right in the lands, without requiring to lead an adjudication in implement. This admission, with all respect be it said, excludes the appellant from maintaining, that the act of the respondent now in question can infer an action against the next heir, or the lands. How, it may be asked, can action be necessary or admissible, when the VOL. XXII.-No. XXXIV,

sale may be completed by disposition and infeftment, and in that way the purchaser acquire a full vested right to the lands? In illustration of this, the respondent begs leave to quote the observations of one of the judges at advising the cause. Lord Mackenzie remarked-"It occurs to me, that deeds of aliena. tion, completed or completable, without action against the next heir or the land, do not infer action against the next heir or the land at all; and that, therefore, no irritancy here touches them at all. A disposition without infeftment, and without procuratory or precept, may be said to infer an action of adjudication in implement; but if either of these be added, there is no room for action. The disponee is, or can, and always does, make himself, by his own act, full proprietor, and has no action on his conveyance. He may have a defence on it against an action if attempted; but he has no need of any action on his part. Still more plain, if possible, is it, that a completed conveyance of the land by infeftment, actually given propriis manibus, is not a fact or deed inferring action against the next heir or the land. The party infeft is full proprietor, and has no need of, or room for, action against the next heir or the land. He has already all the right that action could give him. He has only to enjoy his property, not to sue for it in any way. It was argued, that he may not be in possession, and have to claim that by action. But (1.) A completed conveyance is always accompanied by delivery of possession, especially where the disponer is anxious to complete the right of the disponee, so as to ex• clude action. (2.) If the disponer had to sue for possession, it would not be by action against the next heir or the land, but by personal action against the disponer himself."

But the appellant urged in the Court below, that "the purchaser can hardly move a step in the management of the property under his conveyance, without resorting to actions, personal or real, affecting the lands, by sequestrations for reut, poindings of the ground, removings, and other actions of a declaratory or possessory nature." His remarks are thus disposed of by the same judge:-"It has also been argued, that even a full proprietor may need action against tenants, or of poinding the ground. But action against tenants is not action against the next heir; and poinding the ground is not action against the land, but against the moveables on the land; nor is it an action of which a proper proprietor has any need, or which can be said to be inferred from his right of property. The fullest exercise of property is had by the possession of the proprietor, by his bringing, when necessary, personal action against tenants, and by sequestration of the moveables on the farm brought against them. It has further been argued, that a disponee, though infeft and in possession, may bring action of declarator of his property against the next heir. No doubt he may bring a useless form of action of declarator of his property against any person whatever. But surely that was not what the entailer had in view when he spoke of debts, facts and deeds, which might infer action against the next heir. By action he meant a true and effective action, evicting the thing or the right from the next heir; not a mere form, neither giving nor taking away anything. Surely a man to whom a purse of money is paid, and who has it in his pocket, has not acquired it by a fact or deed;-that would be called by any body a fact or deed inferring action against any body, or against the money."

The appellant, in his case submitted to the Court below, referred to three decisions where the entails have been supported, and endeavoured to run a parallel between the clauses in these entails, and the clause in the respondent's entail. The cases referred to were those regarding the Dryburgh entail, the Rannes entail, and the Jordanstone entail, all of which were decided in the year 1842. The respondent begs to refer to his case in the Court below (prefixed to the present case), for a full examination of the clauses in these several entails, and in which he has pointed out the circumstances in which each of them is to be distinguished from the respondent's entail. The respondent will only make a single remark upon each of the two latter cases, as they were specially relied on by one of the judges at the final advising of the cause. The case of Jordanstone (Knight v. Knight) is distinguished from the present by its wanting the words in so far as;' and the last member of the irritant clause, in place of these words, begins with the conjunction 'and.' So, instead of the two members forming one sentence, in which the last qualifies the first, the latter member of the sentence is truly an addition to it, and afforded room for the argument, that it did not effect a limitation of the first member of the clause, which was in itself sufficiently broad. Again, in the case of Rannes

(Leith Hay), though the words 'in so far as occur, and thus shew a resemblance in the concluding members of the irritant clauses of the Rammes and Drumkilbo entails, yet the likeness goes no farther. The Rannes entail does not proceed to describe the acts as inferring action, but the words used are, so far as concerns, or as the same may burden or affect my said taillied estate.' The distinction is manifest and striking. The word affect is most comprehensive in its application. As observed by Lord Fullerton as to the case of Rannes, there is no limita. tion in substance. The deeds are annulled, in so far as they may affect the estate; the only effect which a total nullity can produce, so that the nullity is complete.' Further, it will be remarked, that the expression is, affect my said taillied estate, thus plainly conveying, that while deeds are to be irritated in so far as affecting the taillie estate, there was no attempt meant to be made to carry the nullity further.

2. Because the irritant clause, when applied to the prohibitions in the prohibitory clause, does not cover all of them, but must be confined to the contraction of debt, or other facts and deeds, whereby the lands may be apprised or adjudged.

The respondent maintains, that the limiting words in the last member of the irritant clause do not only set forth and define the extent to which the acts are irritated, viz. as infer ring or being productive of actions, but do also describe, by necessary implication, and define, the particular acts prohibited, to which the irritant clause must be applied and confined. The construction which the respondent contends for is, that the limitation does so qualify the irritant clause, as to convey a meaning which excluded its application to any acts set forth as prohibited by the prohibitory clause, except as regards those which are directly productive of action against the lands, or the succeeding heir. And this will be found to be supported and confirmed, by remarking the order in which the prohibitions follow each other, and, with reference to the prohibitory clause, of the repetition in the irritant of the words 'debts, facts and deeds.' On referring to the irritant clause, it will be observed, that it relates to such debts, facts and deeds,' thus leading back to the prohibitory clause to obtain an explanation of what are the debts, facts and deeds, to which the irritant clause relates.

On going back to it, the word debts will be found to be first in order, and is of course used in the clause prohibiting the ontraction of debt. The prohibition is, nor to contract debt or sums of money, wherewith the samen (the lands, &c.) may be burdened.' Immediately following there is, or to do any other fact or deed whereby the said lands and others foresaid may be apprised or adjudged from them, or anyways burdened in pre judice of the subsequent heirs of taillie.' Keeping in view the order in which these three words occur, attention must be given to the prohibitions connected with them. These are, 'where with the lands may be burdened,' and whereby they may be apprised, or adjudged, or burdened, in prejudice of the subse quent heirs of taillie.' Now, these acts so prohibited would afford actions, personal or real, against the next heirs of taillie or the lands, unless the prohibitions were fenced by a corres ponding irritant clause. Proceeding, then, to the irritant clause, there will be found the words, debts, facts and deeds, occurring in the same order, and the adjective pronoun such, referring to an antecedent, prefixed to them. This would lead to the inference, that the debts, facts and deeds, are those found in the same order and succession in the prohibitory clause. But to confirm, and, as it were, necessitate this inference, the irritant clause proceeds to annul such debts, facts and deeds, in so far as the same might infer any actions against the next heir of the lands. Thus, by the concatenation of debts, facts and deeds, found in both the prohibitory and irritant clauses, and by prohibiting them as things whereby the lands may be ap prised, adjudged or burdened, but to effectuate which would require or give rise to actions, and, finally, by limiting the irritancy to such debts, facts and deeds, as would infer actions against the next heir or the lands, it is humbly thought that the conclusion is legitimate, that the irritant clause, as a whole, applies only to debts, facts and deeds, described in the prohibi tory, as wherewith the land may be apprised, or adjudged, of burdened, in prejudice of the subsequent heirs of taillie,

The prohibitory clause, in so far as its prohibitions are di rected against sale or alienation, directs them against acts of facts, or deeds, which it is impossible for the appellant to deny

do not naturally, or necessarily, produce action against the next heir or the lands. It has been conceded by him, that a disposition with the usual clauses would fully vest the disponee, and, therefore, alienation effected in that manner would not produce or infer an action against the next heir or the lands. But, on the other hand, there is another class of acts, set forth in the prohibitory clause, which would both naturally and necessarily infer actions against the lands, or the next heir. When, therefore, the irritant clause is so expressed as to irritate only debts, facts and deeds, in so far as they may produce actions, it seems to the respondent, with the greatest deference, that a meaning is thereby given to the words of the irritant clause, by reference back again to the prohibitory, which makes the conclusion unavoidable, that the irritant clause is restricted in its effects to contraventions leading to apprising and adjudication, and cannot be extended to a contravention of any other provision of the prohibitory clause, which does not lead to an action either against the land or next heir..

Authorities for Appellant.-Adam v. Farquharson, 18th July 1840. Lumsdane, 3 D. 136. Buchan v. Erskine, 3d June 1842; B. 1435. Knight v. Knight, 1st Dec. 1842. Leith Hay, 20th Dec. 1842.

Lord Brougham.-My Lords, this case, which is of very considerable importance, in respect of the value of the purchase, and the amount of the purchase-money, namely £38,000—and also of some importance, though considering everything not perhaps of very great importance, in respect to the points of aw made-was very fully heard before your Lordships, and ery able arguments were offered by the learned counsel for with the appellant and respondent.

It appears that two points were made in the Court below, pon which there was some difference of opinion among the med judges. One point was, whether there was an irritancy with respect to the prohibition to sell it being clearly admitad on all hands that the prohibitory clause, "to sell, anallie, dispone, dilapidate, nor put away, the lands," &c., is perfectly

icient: that is quite clear:-"or to do any other fact and deed whereby the said lands and others foresaid may be ap prised or adjudged from them, or anyways burdened in prejudice of the subsequent heirs of taillie or their foresaids, or shall uffer any apprising or adjudication to be led of the said lands rm for the space of five years without redemption thereof, for shall it be lawful for them to break, alter, or infringe, this resent right or taillie in the course of succession." Then omes the irritant clause, upon which the two points were aised-"And if he or any of the forenamed persons, heirs of aillie, shall contraveen and do in the contrary, or any point the premises," then all that he did shall be irritated and void, ad there is a resolution of forfeiture and of devolution in conequence.

Now, these words, "shall contraveen and do in the contrary, -(which is clearly a clerical error-it should be "in")-or in any point of the premises,"-would be quite sufficient, if here was no restraint or limitation of the generality following. or it was not necessary, as I need not remind any Scotch awyer, that there should be any particular form of irritancy resolution; but if you have prohibited sale and alienation, ntracting debts, encumbering, or altering the order of sucssion, you may, without naming any of those particulars, rovided you do not restrain the generality in the irritant and esolutive clauses, irritate and resolve by the general words, ad a reference to the preceding generality of that would be effectual to prevent the sale, contracting of debts, and alterthe order of succession, as if those very words had been reated in the irritant and resolutive clauses.

Now, here, it is contraveen and do in the contrary, or any lnt of the premises," which includes sale undeniably; and hen come the words which raise the two points-"not only Il such debts, facts and deeds, are, per verba de præsenti, declared be ipso facto void and null without declarators." If it had topped there, that would have raised the first point; but the estion is, whether sale is there irritated, which it would have en if the word "premises" had been the last word-"shall ontraveen and do in the contrary, or any point of the prenises," whether that is not limited and restrained by what ollows-"then not only all such debts, facts and deeds," &c. hat is to say, such things as are contracted and done by the ontravener shall be irritated. The question is, first, whether he following words limit that so as to exclude sale all such

debts, facts and deeds," are declared to be void. Now, I am inclined to think, and I believe the Court below was of that opinion (at all events, the learned judges give me reason to believe that they were-my Lord Moncreiff does not give a positive opinion, but a very general opinion, without going into any particulars, and not stating the words in point)taking the whole together, it certainly is my opinion--although it is unnecessary for your Lordships so to decide, because what remains behind is sufficient to dispose of the case--that "all such debts, facts and deeds," are sufficiently applied by the words, "shall contraveen and do in the contrary, or any point of the premises." And this refers back to the prohibitory clause, in which sale is specified. I am of opinion that the clause, "all such debts, facts and deeds," being declared to be void, as against the contravener who shall act in the contrary, in any point of the premises," including, among other points, the premises of sale, prohibited in express words, would of itself be sufficient to prohibit sale, unless it were restrained. That is the next point, and the material point. If the words which follow, "are declared to be null," had stopped there, I think that would be sufficient to nullify, or declare a nullity. But it goes on, "are declared," not to be null absolutely, but are declared to be "null in so far as the same might infer any actions, personal or real, against the next heir of taillie, or the lands and others aforesaid." Then comes the resolution which de, pends upon the irritancy,

Now, I am of opinion that that sufficiently qualifies the preceding generality-the words declaring nullity of sale. I take the words which would have been nullity of sale, to stop there. But those words, in so far as they import into the clause a restriction, or limitation, or qualification, which qualifies and restricts its generality, are sufficient to prevent its being a valid and an effectual fettering clause to prevent sale.

Now, the learned judges in the Court below differed in opinion upon the second of these points-the material point. Possibly there was some difference of opinion upon the first point. At any rate, there was a difference of opinion upon the second point. A highly respectable and a highly respected authority, the Lord President, followed by another for whom we have the greatest respect, my Lord Jeffrey, considered that there was sufficient in the fettering clauses (or the fencing clauses, as they are sometimes called) to tie up the heir of tailzie, and to prevent sale the others thinking differently.

Now, upon what chiefly do the opinions, and especially the opinion of the Lord President, (which is much clearer than that of Lord Jeffrey), rest? [Lord Jeffrey had thought differ, ently at first, but he afterwards yielded to the Lord President's opinion, and joined with him in thinking that there was sufficient in the fettering clauses to have this effect.] The main grounds of that opinion were the case of Jordanstone, and the case of Rannes, which is ancillary. Now, there is a very judicious course taken on page 17 of this case, which I greatly wish were taken more frequently when there is a reference made from a case at the bar to former cases, on either side, either for the purpose of differing the case at the bar from former cases, or for the purpose of making former cases apply to the case at the bar-I mean the printing them in opposite columns, and in close juxtaposition with each other, so that the eye may at once fix itself upon the minute particulars of the clauses, carrying the eye at once from the case at the bar, to the case with which it is sought, on the one hand, to be compared and likened, or, on the other hand, to be contrasted. The Jordan. stone case and the Rannes case are here printed; and it is pretty clear to me, as I threw out during the argument, that this is fatal to the argument which goes to raise a similarity between the case at the bar and those cases, and to import the authority of those cases into the decision of the case at the bar. For the Jordanstone case is-" And if he the said George Cock. burn Knight, or one or other of the said heirs of tailzie, shall contraveen or do in the contrary, in any part of the premises, then not only shall all such deeds and debts be void and null of themselves, and noways binding or obligatory to inferr any action or execution, personall or reall, against the next heirs of tailzie, or the lands and others foresaid, but also the persons contraveeners, and the heirs of tailzie of their bodys, shall forefault, amitt, and lose, all right, title and interest, they have, or can pretend to the said lands." It does not say, that in case he shall contravene, "then all such debts and deeds shall be null and void in so far as they infer any action or execution." That would have been like the present case. But it is