supposed, and necessarily implied, that the granter of it, as well as the subsequent heirs, still continue feudal proprietors. In fact the present heirs have a greater rent after this alleged alienation, than the prior heirs had before its date. There is not an authority in law which, when fairly considered, characterises a lease as an alienation. Craig, b. 3. d. 4. 5. and b. 2. d. 10. § 5. whose knowledge of the law of Scotland was circumscribed and warped by feudal notions, does not explicitly term a long lease an alienation, but merely states the opinion of foreign feudists.

In the last edition of Stair, long location is stated to be an alienation; but this has been inserted by an error of the editors, without the authority of any MSS.; and the passage is obviously copied from Craig. In the edition 1693, published in his lifetime, a contrary opinion is stated, b. 2. tit. 11. § 13.; b. 1. tit. 15. § 1.; b. 2. tit. 9. §2.; and the edition of 1681 contains the same opinion.

M'Kenzie, on the act 1621, p. 8. and p. 33, states explicitly, that tacks could not be comprehended as alienations under the letter of the law, but that the statute reached them from the favourable interpretation given to laws for the prevention of fraud. But the principle of construction applied to entails is of an opposite nature; and as leases are not comprehended under the letter of this entail, this authority is favourable to the pursuer: From the observations of the same author, on the 11th James II. c. 41. it is clear that alienation, in its fair and legal acceptation, did not include leases.

Balfour, c. 15, 17, 18, voce Assedation, refers merely to the powers of churchmen to grant leases of their benefices beyond their own lifetime, and affords no authority on the point.

Neither does the style of an inhibition, as given by Stair p. 762, sanction the idea that tacks would be struck at by this diligence as alienations. Leases are there specially enumerated, and would not otherwise be held included.

That a person on death-bed cannot grant a lease beyond the ordinary term of administration, affords no authority on this question. A person in that situation cannot exercise any act of property beyond the compass of ordinary administration. Stair, b. i. tit. 20. § 38.-Kilk. voce Death-bed, No. 7. It is altogether a mistake, too, to allege that this part of the law originated in a statute of William against alienations. Stair, b. iii. tit. 4. § 27. But at any rate, by settled principles of construction, an heir of entail is in a totally different situation, with respect to power, from that of a person on death-bed; and is entitled to do every thing from which he is not specially prohibited.

Dallas, p. 648 and 650, was of opinion that a lease for a thousand years was not in law an alienation.

From a minute examination of every authority in law, it appears that a lease is not in its own nature an alienation; and indeed the defenders, while they acknowledge that a lease of a short endurance is not such, merely contend that the one at present in dispute does, from the extent of its endurance, amount to an alienation. But it is clear, that in a lease for 97 years, the granter is as much proprietor as in a lease for 5, and he possesses in both cases the same privileges of enjoyment. There

is not to be found in books of law any criterion of endurance to determine when a lease changes its nature and becomes an alienation, and a legal act of a totally different character. It is plain that law neither can nor ought to afford any such criterion. The length of leases must necessarily fluctuate with the fluctuating opinions of mankind on agricultural affairs. Where the subject does not admit of definition, there can be no limit. Where the entailer himself has dictated no limit, the Court cannot exercise a discretionary controul, without overturning those principles of interpretation in the law of entails which require the fetters to be clear, explicit, and definite, and without introducing into the law the most dangerous uncertainty. Cuningham, Law Dict. voce Wills, Vol. II. No.

137.

4. The general point involved in this case has already been decided, 2d March 1779, Leslie against Orme, Supp. to Dict. p. 184, and Fac. Coll. wherein a lease for 76 years, granted by an heir of entail, was supported, and this decision has, in the understanding of the country, been regarded as fixing the point, that in the absence of special prohibition any lease under 100 years may validly be granted.

It appears likewise from 10th Geo. III. c. 51, that the ideas of the legislature coincided with the principles of the Courts of law. For by that statute, heirs prohibited by entails to let leases beyond a certain endurance, are enabled, in certain circumstances, to grant leases of 38 or 100 years. The narrative of this act therefore proves, that it required an express prohibition to prevent heirs from letting leases of such an endurance.

5. By permitting liferent leases the entailer sanctions leases of every other kind. Liferent leases are the highest species of lease known in law, and the permission of these must include all of an inferior description. Accordingly, liferent leases, being a higher kind of property, are subject to liferent escheat, while those of a definite endurance fall under the single escheat, 1617, c. 15. In the opinion of Lawyers, the only leases which, in point of duration, can be assimilated to liferent leases, are those for 100 years, which is the legal term of life. M'Kenzie's Observations, p. 379. A liferent lease also may be assigned like those of a long endurance, and on the same principles. Bank. b. ii. tit. 9. §. 46. Stair, b. ii. tit. 9. § 26.

Such likewise is the principle of the English law, where a lease of a definite endurance is of less value than that of a lifetime. Bac, abridg. voce Lease.

In maintaining that the permission to grant a liferent lease amounts to a prohibition to grant those of any other description, the defenders attempt to create a limitation by inference which is contrary to the established principles of law. But if implication is to be at all permitted, the correct conclusion is, that it is a prohibition to grant a longer lease than what is equivalent to a lifetime, which, in law, is a hundred years. It is sufficient, however, for the pursuer to say, that this clause can have no legal effect from its defective expression. Every instance of a disappointed

C

entail

entail is an example of clauses defective in precision meeting with the same fate.

Argument of the defender.

1. As to the principle of interpretation.

That an heir of entail may do every thing which he is not expressly prohibited to do, and that the prohibition of one thing does not infer the prohibition of another, merely because their consequences to the substitutes of entail may be the same, is admitted. Thus a prohibition to sell does not include a prohibition to contract debt. Nor is either included in a prohibition to alter the course of succession. Neither are prohibitions against the substitutes effectual against the institute without express provision. But then these acts are substantially different, although one of the ultimate effects of either may be to disappoint the succession ; and it is a probable or possible supposition, that the entailer might prohibit any one without meaning to prohibit the rest, or might desire to direct the prohibitions against the remoter heirs without wishing to include the person whom he first called. It must also be observed, that although the Court, by the adoption of a strict interpretation, have established these points, it may now be asserted that the principle of strict interpretation has been carried as far as can safely be permitted, and would not be applied to new cases, which, though analogous, do not precisely correspond with those already determined. Even if the present, therefore, had a slight analogy with any of those modes of defeating entails which the law will not interfere to prevent, it would merit consideration whether the principle of strict interpretation would be applied to it, while entails are recognised in law. But this is a point which the defenders have no interest to dispute, for they do not plead that the leases complained of are like or equivalent to alienations, but that they are really in contemplation of law alienations.

2. As to the import of the prohibitory clause.

The stat. 1685 did not introduce entails, nor prescribe any particular and technical form in which they should be conceived. It was passed to remove certain legal scruples, which the case of Stormont had excited. It had an obvious and general reference to those modes of guarding against the defeat of an entail which were at that time in use. Indeed the various devices by which entails may be defeated are almost infinite; and a specific enumeration is beyond the power of the most acute conveyancer, or the most prospective legislature. In the statute, therefore, those generic terms were used which in law bore a distinct reference to certain classes and descriptions of deeds; and in expounding these terms the defenders do not plead that they should be extended beyond their proper meaning, but that they should have that generic effect which was attributed to them by those by whom they were used. That the clauses in the entail do not fall short of those in the statute, is admitted. It is declared, that the heirs shall not sell, alienate, wadset, nor dispone. In maintaining that these terms in law and practice characterise nothing but a sale, the pursuer overlooks that they are connected by the disjunctive particle nor, and not by the conjunctive and. If they had stood connected by the conjunctive

conjunctive particle, there might have been some force in the argument; and it might have been said, that the meaning of the generic term alienate was restricted by those sell and dispone; but from their being grammatically connected by the disjunctive particle, each of the three terms denote a distinct meaning. The term alienate, therefore, may be separated, and conveys a distinct meaning. It has a generic meaning, and applies to every transaction of which the effect is to give to another the substantial interest in the thing alienated. That it is not restricted, to total and absolute divestiture of property is clear; because, on the one hand, there may be an effectual alienation, without any direct transference of the property,—and on the other, there may be a nominal transference of the property where there is no alienation. Of the one, a lease for an illusory rent, and for a thousand years, or the grant of a servitude of pasturage over a whole estate, are instances; of the other, the creation of a freehold, and the conveyance of the superiority. Neither is it necessary that the alienation be perpetual, for the conveyance of an entailed estate for a given period to a stranger would not be effectual against the succeeding heirs. The criterion of alienation therefore is to be discovered from the substance, and not from the style of the transaction. In deciding this question, the circumstances of the particular case must be examined, and the same species of transaction may in one circumstance be termed an alienation, and in another an act of ordinary administration. That a lease is not an alienation in its own nature, and when granted as an act of ordinary administration, yet that it may be granted in circumstances (for an immoderate endurance, and for an illusory rent) which convert it into an alienation, cannot be denied.

The middle point then, when a lease ceases to be an act of ordinary administration, must be ascertained; and no doubt this is difficult, from the fluctuations in the opinion and practice of mankind at different times. To solve this difficulty usage must be resorted to; and it must be enquired whether. at the date of the entail, leases like those in question would have been regarded as alienations, and would have been obnoxious to thé prohibitions therein contained. In the law and practice of Scotland' there has always been a marked distinction between long leases and those of ordinary duration; and although the period of long and ordinary leases bear a distinct reference to the prevailing system of management of the day, and must therefore fluctuate, yet the distinction has never been overlooked. While the latter have been sustained, the former have been invariably characterised as alienations.

Thus long tacks of the property annexed to the Crown are prohibited as alienations,-M'Kenzie's Observations on Stat. 1455, c. 41. ;-and after the act of annexation in 1745, wherein alienations of the annexed property were prohibited, it was thought necessary to invest the Commissioners with special power to grant leases of a definite endurance.

Analogous to these limitations on the Crown, are those on churchmen in the management of their benefices. It appears that they were not permitted to let leases for more than a few years; and a liferent lease was accounted beyond the term required for ordinary management, and therefore prohibited as an alienation.-Balf. Pract. p. 203. c. 17.

In

In a chapter of the treatise de Feudis, b. ii. d. 10. § 5. devoted to the subject of leases, and professedly on Scotch law, the author explicitly. distinguishes between long and ordinary leases, and characterises the former as alienations. In another passage the same distinction is pointed out.——B. iii, d. 4. § 5. In the passage quoted by the pursuer, L. iii. d. 3. § 23 & 24. the author is no doubt chiefly occupied in reconciling an inconsistency in the foreign feudal law, but he at the same time obviously refers to the principles of the Scotch law.

In the opinion of Stair likewise long location is alienation,-B. ii. tit. 11. § 13. edit. 1759, which is the most correct of the three editions,--and there is no ground for presuming that this is an interpolation. In B. ii. tit. 11. § 13. edition 1693, quoted by the pursuer, the author is occupied with reconciling an inconsistency in the feudal customs of Italian states, and discusses the point noticed by Craig, and he merely says, that in the feudal law of the Italian states long location was not alienation. In B. i. tit. 15. § 1. edit. 1693, he says that tacks in the ordinary intent thereof are not alienations. But the lease now debated is an enormous violation of the ordinary intent of that species of transaction, and, ex converso of the author's principle, must be considered to be an alienation.

In other branches of the law long leases are considered to be alienations. By the law of deathbed, into the origin of which it is unnecessary to enquire, a long lease is struck at as an alienation.-Dict. vol. i. P. 215. Fac. Col. 19th June 1759. Bogle.

By the authority of M'Kenzie, Observ. on Stat. 1621, c. 18. against fraudful alienations to the prejudice of creditors, tacks are comprehended under alienations. And although this may have arisen from a liberal interpretation of the act, it is nevertheless evidence that, in the acceptation of law, a species of transaction, which in form is a location, may reality be classed with alienations.

in

In like manner, in giving effect to the diligence of inhibition, it is beyond doubt that leases like those debated would be reduced on the ground of an alienation, without a special enumeration. In the style given by Stair, the alienation of tacks, and not the granting of them, is specially prohibited, and therefore the granting of them could only be reached under the general head of alienations.

Law makes another marked distinction between long and ordinary leases. Of long and liferent leases, assignations may be granted without special power. In tacks of ordinary endurance, special power to assign is required, the former being a higher species of property than the latter, Bank. b. 2. tit. 9. § 46.

By the law of England a lease is classed with the modes of alienation. Black. b. 2. ch. 28.

Tailzies effectual against third parties are merely the creatures of the statute; and if the statute does not from its terms enable an entailer to prohibit long leases, it follows, that any prohibition in the entail against them, however explicit and fortified with irritant and resolutive clauses, would be ineffectual against the tenant. The terms of the entail are coextensive with those of the statute; if, therefore, long leases are not struck at by the prohibitions against alienations, it must follow that the tatute is in a most important particular deficient. Nay, unless long leases

are