Scottish Court of Session Decisions

In this action the Duke of Hamilton, heir in possession of the Hamilton estates and others, sought declarator that the various deeds of entail under which he held these lands were invalid and ineffectual, in so far as regarded all the prohibitions and irritant and resolutive clauses therein contained or referred to, and that he was entitled to dispose of the lands at pleasure.

The Lord Ordinary (Barcaple) gave judgment in favour of the pursuer, adding this note:—“The Lord Ordinary thinks there is no room for question that the irritant and resolutive clauses do not apply to the prohibition against altering the order of succession. They are clearly framed on the principle of enumeration; and, on the strict principle of construction applicable to the fettering clauses of an entail, it must be held that alteration of the order of succession is not included among the acts of contravention enumerated.

“The defender contends that, assuming the prohibition against altering the order of succession not to be fenced by the irritant and resolutive clauses, the pursuer is not entitled to the declarator of freedom from the whole fetters of the entail which he asks, on the ground of the provision contained in the 43d section of the Rutherfurd Act. The Lord Ordinary must hold that this is not an open question, but that it is settled by a series of judgments both in this Court and in the House of Lords. The defender chiefly relies upon the well established principle that, before the passing of the Rutherfurd Act, the prohibition as to altering the order of succession was effectual at common law

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inter hæredes, though not fenced in terms of the Act 1685. On this ground he contends that it cannot he held that the entails of the Hamilton estates are to all effects invalid as regards the prohibition against altering the order of succession, and that therefore the condition necessary to the application of the 43d section of the Act does not exist, but the cases of Dick Cunyngham, 14 D. 636; Dewar, 4 D. 1062; and Ferguson, 15 D. 19, are express authorities against that construction of the Statute. It has been authoritatively determined in these and other cases that the terms of the clause are too clear and imperative to admit of any doubt as to the effect which it must receive wherever any one of the three cardinal provisions is not valid in terms of the Act 1685, by compliance with the provisions of that Statute. This is nowhere more distinctly pressed than in the case of Dempster in the House of Lords, 3 Macq. 62.”

The defenders reclaimed.

Watson for reclaimers.

Lancaster, for respondents, was not called on.

The Court adhered.