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have ever been accustomed to do, is to write down their sentence, with such a minute of, or reference to the procedure, as renders it intelligible. This accordingly has been done here, so that neither is there any irregularity in the record.

The Court (Nov. 14. 1807) thought the record sufficiently full and formal for a Justice of Peace Court; and on the assumption that the proceedings had been regular, which was not denied, "Refused the "petition.'

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PROOF.---Semiplena probatio, that a man is father of bastard child-What?

JAN

ANET WIGHTMAN brought an action before the Commissary of Glasgow, against John Tomlinson, for aliment of her bastard child. In defence, he denied being the father of it. She craved that he might be judicially examined, which was done, and his declaration was in these words:"That the pursuer, in November 1803, was servant with Dr "Rankin in the town of Douglas: That before this time the declarant

may have seen or spoke to her in the said town of Douglas: That in the "month of October 1803 he thinks he was first in company with the pur

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suer, and no other person was then present: That this happened about one o'clock in the morning, when the declarant called on the pursuer at "the house of her said master Dr Rankin: That the declarant and the pur❝suer remained together for about an hour and a half: That the last "time he was in company with the pursuer was on the 2d of November "1803, in the house of the said Mr Rankin in Douglas: That he is sure "of this date, as he recollects it was nine days before Martinmas term «1803, and he was never afterwards in company with the pursuer by herself alone. But in the month of August last the pursuer and "her mother came to the declarant's house in Douglas, and the pursuer "then accused the declarant of being the father of the child with which "she was then pregnant; and the declarant said to her, that if the child came to his time he would acknowledge himself as father; and he

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meant by his time, that the birth should correspond with the foresaid "2d November, or the dates of his visits to the pursuer on the previous month of October. And being shewn a letter, dated 14th Novem"ber last, signed John Tomlinson, and addressed to the Reverend Mr "M'Cubbin, Douglas,--declares, That the subscription to the said letter "is the declarant's hand-writing."

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The letter referred to, and which had been written by the defender previous to his being cited in the action, was as follows:"14th Nov. 1804. Sir, Your letter to my father of this date I have seen, and agreeably thereto do confess being guilty with Janet Wightman, but I am by no means the father of her child."

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On this declaration and letter the pursuer craved that she might give her oath in supplement. The Commissary allowed the pursuer the benefit of her oath in supplement.

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The cause having come before the Court of Session by advocation, the interlocutor of the Lord Ordinary was, (Nov. 12. 1806)" In respect it appears that the judicial declaration of the defender, and his letter to the "Rev. Mr M'Cubbin, of date 14th Nov. 1804, which the pursuer has stat"ed to be all the proof she has to adduce, afford no evidence that the de"fender is the father of the pursuer's child; finds that the pursuer is not "entitled to be admitted to the benefit of her own oath, which, although "it might be received to supply an imperfect proof, cannot be admitted "to the effect of contradicting the only evidence which has been brought in this cause; therefore remits to the Commissary of Glasgow "with instructions to recal the interlocutors complained of, and to as"soilzie the defender."

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The pursuer reclaimed. On advising the petition and answers, the Court (March 7. 1807) refused the petition, and adhered to the interlocutor of the Lord Ordinary.

*The

pursuer presented a second petition, on advising which with answers, the Court, (July 1807) by a majority, " altered the interlocu"tors reclaimed against, and remitted to the Lord Ordinary, with an "instruction to allow the pursuer to give her oath in supplement, and "thereafter to proceed farther in the cause as to his Lordship shall seem proper."

The defender reclaimed.

But the Court, (Nov 17. 1807) chiefly moved by his letter, which, it was observed, contained no limitation of time, refused his petition, without answers.

Lord Ordinary, Robertson. Act. John Cunningham. James Hamilton, W. S. Agent. P. Clerk.

M. W.

WILLIAM

No. III.

November 17. 1807.

WILLIAM DUKE OF QUEENSBERRY

AGAINST

FRANCIS EARL OF WEMYSS, and Others.

TAILZIE.---It was provided, that it should not be lawful to the heirs of entail to "sell, alienate, wadset, or dispone the lands, &c." and afterwards that, "notwithstanding the irritant and resolutive clauses," it shall be lawful" to the heirs of tailzie to set tacks of the said lands "and estate during their own lifetime, or of the lifetime of the re"ceivers thereof, the same being always set without evident diminu"tion of the rental." Under these clauses, a lease for ninety-seven years, and for which a grassum was paid, although without diminution of the rental, was found to be unlawful.

B

Y a contract of marriage between Lord William Douglas, second son of the Duke of Queensberry, and Lady Jane Hay, second daughter of the Earl of Tweeddale, the said Lord William Douglas and Duke of Queensberry, on the 12th October 1693, resigned the lands and barony of Neidpath for new infeftment, under all the fetters of a strict entail.

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Inter alia it was provided, "That it shall be nowise leisome or law"ful to the said Lord William Douglas, and the heirs-male of his body, nor to the other heirs of tailzie respective above mentioned, nor any "of them, to sell, alienate, wadset, or dispone any of the said haill lands, or any part thereof, nor to grant infeftment of liferent, nor annualrents "forth of the same, nor to contract debts, or do any other fact or deed "whatever, whereby the said lands and estate, or any part thereof, may "be adjudged, apprised, or otherwise evicted from them or any of them, nor by any other manner of way whatsoever, to alter or infringe the "order and course of succession abovementioned." The deed likewise

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contained the following clause. "It is likewise hereby expressly pro"vided and declared, That, notwithstanding of the irritant and resolu❝tive clauses above mentioned, it shall be lawful and competent to the " heirs of tailzie above specified and their foresaids, after the death of the " said William Duke of Queensberry, to set tacks of the said lands and « estate during their own lifetime, or of the lifetime of the receivers thereof, the same being always set without evident diminution of the "rental.'

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This entail was admitted to be valid and effectual, and to possess all the requisites of the act 1685. And at its date a rental of the estate was made up and signed by the parties.

B

William,

William, the present Duke of Queensberry, the pursuer, succeeded to his father, in the year 1731, under this entail. On the 17th January and 11th April 1801, his Grace granted a lease of certain parts of this barony to Alexander Welch for 57 years from the preceding Whitsunday, at the rent of L.86. 15s. 2d. Sterling, and at the same time received a grassum, of L.301 Sterling. On the 23d November 1802, Alexander Welch renounced this tack, and received from his Grace a new one for the space of 97 years at the same rent, for which he paid a grassum of L.318, 1s. 2d. Sterling. This lease was not let to the diminution of the rental.

Certain doubts having occurred with respect to the validity of this lease, the Duke of Queensberry raised a declaratory action, concluding that he had a right to grant these leases.

The Earl of Wemyss, and others next heirs, appeared, and contended, that these leases were granted in contravention of the entail, and therefore not effectual.

The cause was debated before Lord Glenlee, Ordinary, by whom it was reported to the Court. Counsel were heard in presence.

Argument for the Pursuer.

1. As to the principle of interpretation applicable to entails. From the earliest writers on the law of Scotland it appears, that entails were introduced with difficulty, and interpreted with rigour, and that the anxiety of a powerful aristocracy to perpetuate their names and families, was opposed by the opinions of lawyers who discerned the legal difficulties, and the public inexpedience of putting the property of land under such restrictions as could alone accomplish this object. Craig, p. 329 and 340. Edit. Baillie.

The first entails seem to have been conceived in the form of a mutual contract, but the mode afterwards adopted was that of interdicting the heir from doing those deeds which the entailer wished to prevent. Hence they received the same strict interpretation as a public interdiction. Spottiswoode Pract. p. 331 and 332. 331 and 332. In the case of Stormont, in which the effect of these prohibitions, improved and strengthened by the addition of irritant and resolutive clauses, was first discussed, the Court had great difficulty in supporting them. Stair, edit. 1681, p. 271.

To remove these legal difficulties the act 1685, c. 22, was passed; but although it legalized the constitution of entails against third parties, yet the same principles which opposed the introduction, continued to dictate a strict interpretation of them. Stair, edit. 1681, p. 272. edit. 1693,

p.

228.

At an earlier period (13th Ed. I.) the English aristocracy made the same attempt, and entails were introduced in England with the benefit of a more liberal interpretation. But to reconcile them to the principles of law, a fiction was adopted, that the fee of the estate was not completely vested in the heir. Blackst. vol. ii. p. 112.

In the law of Scotland, however, such a fiction was not resorted to; the fee is held to be in the heir, and the prohibitory clauses are not considered

sidered in the favourable view of deeds of intention, but as perpetual interdictions with respect to the estate. Every act, therefore, which is not specially forbidden, the heir is at liberty to do. In the opinion of all institutional writers, entails are so considered. M'Kenzie, b. 3. tit. 8. § 17. Spottiswoode's and Bayne's edit. p. 232, note A. Bank. b. 2. tit. 3. § 149 and 150. Ersk. b. 3. tit. 8. § 12. By a numerous train of decisions the same principles of interpretation have been established, 24th November 1769, Edmonstone of Duntreathe ;-8th July 1789, Stewart against Home ;-15th January 1799, Bruce of Tillicoultry. It is therefore now settled law, 1st, That the heir of entail is considered unlimited proprietor of the estate, unless in so far as he is fettered by the prohibitions of the entail. 2dly, That these prohibitions are construed in the most rigorous manner. And, 3dly, That their meaning cannot be extended by implication from other clauses of the entail.

2. As to the meaning of the clause founded on.

Even if leases could be considered in law to be alienations, the prohibition that the heir shall not sell, alienate, wadset, nor dispone, does not contain a prohibition to grant leases. In legal language these terms characterise a sale or conveyance of the estate. They are terms appropriated to express a total divestiture of the property, an act altogether different from that of granting a lease. In granting a lease, the proprietor sets, and in tack and assedation lets; but the terms here used are those adopted exclusively in granting a feu or wadset, in accomplishing an excambion or a sale. As they are classed in the present case, they denominate a sale; and by a noted decision (Stewart against Hoome, supra) they have been found incapable of a more extensive interpretation. By that decision it was determined that the word dispone could not be separated and applied to a gratuitous conveyance. On the same principle, the word alienate cannot be separated from the rest of the clause, and applied to the transactions in question. If, in the view of the Legislature, the term alienate could apply in general to any mode by which the property could be taken from the heirs, there would not have been any necessity for specially prohibiting gratuitous and onerous conveyances, and contraction of debts, which the statute and the decisions of the Court have required to be specially prohibited. If the term alienate cannot reach a lease, it is equally certain that the clauses against creditors, adjudgers, and singular successors, are also ineffectual for this purpose. Ersk. b. 2. tit. 7. § 1.

If leases had been considered as alienations, they would have been the subject of a special prohibition in the statute; and that tenants were known in law, is clear from the next act in the statute book 1685, ch. 24. That leases are of a nature distinct from any of the deeds enumerated in the statute is further proved from the cotemporary styles in which leases are the subject of a separate prohibition. Dallas, p. 552, 553. and 587.

3. Supposing the words of the clause could be taken alternatively, yet a long lease is not in law an alienation. Neither in technical nor in common language, is a lease an alienation. It is a personal contract; and whether it be of a long or a short endurance, from its nature it is presupposed,

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