Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Claim, Stewart of Ardshiel
v.
The Officers of State

Date: 30 June 1750

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[Kilk. No. 8, Tailyie.]

This claim was founded upon the claimant's father's contract of marriage, by which the lands of Ardshiel were provided to the husband and the heirs-male of the marriage, and thereafter follows this clause :—“ And it is hereby expressly provided, condescended, and agreed upon betwixt the said parties, that albeit it should happen the said Charles Stewart at any time to be convicted or attainted of high treason or any other crime, whereby he might come to forfeit or lose the lands foresaid, hereby provided in fee to his heirs-male, in manner above written, yet they shall not be thereby prejudged, but succeed to the fee of the said lands immediately after such conviction or attainder, in the same manner as if the said Charles Stewart had been naturally dead; upon which express condition and qualification these presents are entered into, and the said Charles Stewart bound and obliged, as he hereby obliges him and his foresaids, to grant a full and ample disposition in favours of the said heirs-male nominatim, at any time he shall be required to do the same, under the penalty of 20,000 merks, by and attour performance.”

Upon these last words, by which the father obliged himself to grant a disposition to the heir-male nomination, the son founded his claim ; but the Lords found, that these words did not make a clause by themselves, but were only a part and a sequel of the first provision saving the estate from an attainder for high treason, and were absurdly added by way of execution of that first provision, which was admitted on all sides to be absurd, illegal, and utterly void.

My Lord President was of opinion that if this clause had stood by itself it could only be considered as an implement of the provision of the lands to the heirs of the marriage, and that the disposition which the father was bound to grant was only a disposition to himself in fee, and to the heir of the marriage nominatim, failing of him, by which the claimant was only heir, but not fiar, and consequently could have no claim. The President was likewise of opinion, that this claim was excluded by that clause of the vesting act by which all persons are allowed to claim except the heirs, executors, administrators, and assigns of the forfeiting person. But to this it was answered,—That this exception only debarred the heir to claim as heir, but did not hinder him to claim tanquam quilibet, if he had any other right in his person : That it is true, by this way of interpreting the clause, it will operate nothing, since without any special exception, by common law, and by the nature of the thing, the heir of a forfeiting person, qua heir, can claim nothing : but that the clause is not necessary, but only added through that exuberancy of style which abounds so much in the British acts, is evident from this, that the forfeiting persons themselves are excepted, who it is certain cannot claim in any shape; and this example, among many others, shows that our British statutes are so loosely worded that the strict rules of interpretation will not apply to them, and that it is not a good argument to say, a clause must have such or such a meaning, otherwise it is useless, and that the common rule of interpretation, quod omnis exceptio debet esse a regula, will not hold in such inaccurate compositions as our British acts.

It was admitted in this case, that a personal faculty to burden to a limited extent, reserved in a disposition by the forfeiting person, did not fall to the Crown by the forfeiture; and so it was decided in the last resort in the case of the Earl of Nithsdale, who was attainted for the rebellion in 1715, and in another case quoted by the lawyers for the claimant; and from thence it was inferred that an unlimited faculty to burden in infinitum was likewise not forfeitable, and for this was quoted a decision in the year —, where it was found that a woman disponing her estate to an hospital, with the burden of all her debts and legacies, but without reserving to herself a power to alter, could not make an after disposition in favour of another. But be this as it will, (for this doctrine was far from being admitted by the other side,) it follows, from what was admitted, that a faculty to burden with a limited sum is not forfeitable ; that there is one law for the King and another for the subject, or, in other words, that by the genius of our law the favour is not pro fisco, for it has been often adjudged, and is looked on as certain law, that such a faculty is adjudgable by creditors.

N.B. In this case a decision was quoted, Douglas against Douglas, observed by Home, 22d July 1724; where it was found, that an obligation in a contract of marriage to resign against a certain time, for new infeftment, to the heirs of the marriage in fee, reserving the husband's liferent, made the heir a creditor, and preferred him, having used inhibition, to a posterior purchaser : and this seemed to be held good law.