Imatges de pÓgina

The estate of Symington was strictly pletion of the tailzie by means of it, entailed, and the tailzie was followed should be good against the estute. by recorded infeftment; so that one We have hitherto applied the va. of the requisites of the Statute was rious parts of our reasonings to the complied with, but the other was situation of John Vans's debts, and omitted for a considerable time, the have said, that all the contractions entail itself not having been record- prior to the infeftment, (the last step ed for several years, during which of promulgation,) should be good Alexander Telford Smollet, the per- against the estate : but according to son in possession, contracted con- our principles, the debts contracted siderable debt. Part of the estate after the recorded infeftment, awas tried to be brought to sale by mounting to £.1500 Sterling, ought those creditors whose debts had been not to affect the estate, because they contracted after the recorded sasine, were incurred in the face of an entail containing all the provisions of the then duly completed by compliance tailzie, but before the registering of with both the injunctions of the Act. the entail ; and the question arose, Let us now advert more particuWas it competent to sell it for such larly to the decisions of both the debts the creditors in which were Court of Session and House of Lords, presumed to know of the tailzie, which we are the better enabled to through the register of sasines ? But do, having taken these views of the the answer of the creditors was suse subject ; and though we differ froin tained,--that such sale must be both, yet, as we have already said, competent ; for that it was a rule of we do so with hesitation, from our statutory solemnity, that both the great respect for those who pronounmodes of promulgation should be ced them. adopted, and that a deficiency in any And, first, with regard to the deone of them was fatal to the entail. cision of the Court of Session, it apTo apply that decision to the case in pears to us, that, according to the hand : it was of no consequence in genius of our law, there was nothing which of the solemnities the defect incompetent in entailing on an instiexisted ; the objection of deficiency tute, or in the circumstance of the is equally available to the creditors, entailer being himself the institute, when the omission is in the infeftment, which rendered this entail erroneous; as if it were in the recording of the and when the rules of entail law are entail.

applied, it seemed that all the conAnd here one thing deserves par- tractions should be held good which ticular notice,- that the estate, qua were made prior to the full complecreditors, being, in truth, a fee-simple tion of the entail, but that they down to the existence of the last step should not be good so far as made of the promulgation, it was a matter after that took place. The Court of little consequence to them at what found, that all the contractions of the time and how late that step might be entailer, at whatever time made, were taken, or that they should adjudge unavailing against the estate. it; because the completion of any Next, as to the judgment of the tailzie whatever, by the last step of House of Peers, it proceeded by appromulgation, could not alter the plying to the case, not the law of ennature which that estate had held tails, but the law of sale ; and the at the time of the contraction of last of these being founded on the the debt, which was the proper pe- maxim, prior tempore potior jure, that riod to be looked to. The infeftment high court found, that the first inon the entail, which was the last feflment being preferable, the sasine step in this case, was of quite a dif- on the tailzie, which was anterior to ferent nature from a sasine on an the attachment of the estate by the heritable bond, or onerous disposi- creditors who did not sooner adjudge, tion, which might cut out personal or failed to adjudge at all, should cut debts, because the sasine here was out and exclude those creditors. But one on an entail, of the very essence we humbly apprehend that this was of which it was, that all just contrac- not a case of sale, but of entail, protions whatever, prior to the full com- perly so called ; and that when the



law applicable to tailzie is resorted to, fortune, or no small share of it, may be no such consequences ought to follow. shipwrecked on some concealed rock, In the transaction between Mr Vans unknown to all chart-makers,—some and Mr Agnew, at the time of Miss latent entail, mouldering for many Agnew's marriage, it was in the power years in a drawer, but which may be of the father, and his future son-in- brought into day for the first time, by law, to have entered into mutual its being completed and promulgated, sales of their estates, and had they as directed by the Statute, but far done so, then the sasine upon the too late to save his family from that writing granted by Mr Vans would great loss which will inevitably arise (because that writ was a deed of from its existence. The good man sale) have excluded all Mr Vans's would find it no solace to be told that creditors who had not previously he ought to have adjudged ; that his made their debts effectual against the attachment of the estate, followed by estate. But the transaction not have charter of adjudication and sasine, ing been made for selling', but en- had he used such means, would have tailing, Mr Agnew's heirs ought to given him the first feudal right; and have been satisfied with the conse- that then he, and not the heirs of enquences of that description of-right tail, would have been preferred: he which had been portioned for and would feel, that the matter had asgranted. As we are not aware that sumed quite a different shape from . almost any of Mr Vans's creditors what he expected. He had had no had rendered their personal debts conception that any such steps of real against the estate by adjudica- procedure on his part would have tion, before the sasine on the entail been either wise or well bred: he was taken and recorded, the conse- had had no notion that any race was quence of that decision has been, to to have been run between him and cut out and exclude debts to the heirs of entail, otherwise he would amount of nearly £. 9500 Sterling, have started too, and gone on with which, on the principles which we all the diligence of the law: in short, have ventured to urge, would have he had supposed that he had the sebeen good against the estate. They curity of a man of good fortune, and were all contracted while the estate unentailed property, against whom was, in law, a fee-simple ; and the there was no necessity to raise adjuentail, owing to its being then im- dication, and who would have been perfect, because not fully promul- hurt beyond measure by such step: gated according to the directions of and, finally, he must feel that it was the act, did not, as to those creditors, a matter of the severest hardship, make it any thing else.

that his widow and younger children Here end our views of that great should run the hazard of want and important case; and the worthy through such means, and by no fault laird having got through them, (we of his. It is true, it might be said have no doubt, much to his edifica- that the evil was not likely to haption,) may now drink out his tum- pen to him, because the judgment of bler, and slip away to bed. But he the House of Peers applied only to is a careful and anxious man. He such cases as the one in question, may therefore ponder on his pillow where the circumstance of the entails all he has been reading, and think being mutual, afforded the similarity not a little of his lying money, the of a sale as a ratio decidendi ; and painful savings of many long years, that such mutual tailzies were of rare for the provision of his younger chil- occurrence. But this would prove dren, and his excellent' wife Betty; little satisfactory to him, because for much of it has probably been how could he know what and how lent out by him to sundry country many instances of similar cross engentlemen. This he thought very tails' there may be among those of good security, for they have large whose bonds he was the holder? while free estates ; but, as the law now the possibility of the existence of stands, by that recent decision in the such things was enough to destroy Court of last resort, it would appear his comfort. quite possible, that his fair and snug But the question which must na

turally occur is, What should be the his intention (and Mrs Dodds will remedy? And it may appear to the send him the whisky for the purpose) honest man, that when laws are to go into Marchthorn, and consult found to be attended with manifest on this subject his old friends the injury or inconvenience, the proper writers Mr Bindloose and Mr Meiklemode of rectifying the evil is to wham, who are very competent to obtain a proper law to an opposite judge of the matter. effect, whether the former one may But we give him even further adhave been some enactment of the vice; and if there is no particular Legislature, or some consuetude, or hurry-scurry,-no electioneering or founded on decisions of courts ; and other bustle at the time, probably he might perhaps remember various one or other, or perhaps both of these instances of this kind of amendment, counsellors, may join him in extendas in the Statute regulating the effects ing his travels twenty miles farther of apparency at common law, and in across the country, to go and conthat clause of all the late Acts on the sult still a inore knowing person,subject of bankruptcy, rendering re we mean Mr Matthew M'Wheeble, ducible the acts and deeds done by the son and successor of the excellent a bankrupt within sixty days of his old Bailie M'Wheeble, so well known statutory failure, though at common to our readers through the pages of law they were perfectly valid. But Waverley,-for he is father's better, really these are rather difficult mate as he adds great practical information ters for any one but some advocate, in all country business and affairs, to or quill-driver, and a good expe a theoretical knowledge of the law; dient occurs to the laird. This is and has attended, in a particular now the jaunting season : he has se- manner, to all matters directly or rerious thoughts of going for a week motely connected with landed estates. or two to drink the waters of St. Now, if this meeting of luminaries Ronan's, (which a late writer tells us should take place, perhaps bringing have a salubrious mixture of brim this important matter before the stone in them, because the saint had counties, at their next Michaelmas “ dooked the diel in them;") and by head courts, may occur to, and be taking his daughter along with him, recommended by them, and they she would partake of the gaieties of may even draw up some paper to be the place, so far as a residence at the laid before the gentlemen there. Altoun, instead of the Hotel, would ad. Should they do so, we shall probamit of it. We make this reservation, bly get hold of it ; and if we get it, . because we recommend the Cleekum we shall not be slow in communica

Inn, at the Altoun, knowing well the ting it to our readers. In short, attention of the good landlady, Mrs whenever the light of this constellaDodds; and being of opinion, that tion shall shine on us, we shall such douce, quiet people, would be speedily shed it abroad by reflection ; snugger there than at the more fa and we trust that these our observashionable house, particularly if that tions may pave the way for the wretched chatter-box of a body, country understanding this most imTouchwood, has taken his departure. portant subject, and ultimately lead Now, when the laird is there, it is to some good end.

SHELLEY'S POSTHUMOUS POEMS. This is the last memorial of a the confidence, or presumption, of mind singularly gifted with poetical talent, he was perpetually obtruding talent, however it may have been ob- upon that public, whose applause he scured, and to many, we doubt not, still courted, the startling principles absolutely eclipsed by its unhappy of his religious and political creed. union with much that is revolting in He naturally encountered the fate principle and morality. Mr Shelley which even the highest talent cannot was one of those unfortunate beings avert, when it sets itself systematiin whom the imagination had been cally in array against opinions which exalted and developed at the expense men have been taught to believe and of the reasoning faculty; and with to venerate, and principles with which


the majority of mankind are per. amiable partiality of a wife, exhibits suaded that the safety of society is him in the light of an affectionate connected. He was denounced as a husband, a warm friend, an enthusipoetical enfant perdu by the Quar- astic admirer of nature and of moral terly, and passed over in silence by goodness ; and though some other other periodical works, which, while more questionable qualities, and more they were loth to censure, felt that dangerous opinions, are passed over in they could not dare to praise. Whether silence, either in the confidence that abuse of this nature may not engen- no defence is necessary, or the conder, or, at all events, increase the evil viction that none can be offered, it it professes to cure; and whether in is not easy to read this testimony to the case of Shelley, as in that of an- the moral worth of Shelley, without other great spirit of the age, bis being disposed to regard with feelcontemporary and his friend, this ings more of sorrow than of anger, contempt for received opinions, at the occasional extravagances of this first affected, may not have been erring spirit. rooted and made real by the virulence with which it was assailed, is

The comparative solitude in which Mr a question which it is difficult to Shelley lived was the occasion that he

But now, when death, the was personally known to few; and his great calmer of men's minds, has re

fearless enthusiasm in the cause, which moved from this scene of critical war

he considered the most sacred upon earth, fare its unfortunate subject,--when sical state of mankind, was the chief rea

the improvement of the moral and phywe can turn to the many passages of

son why he, like other illustrious reform. pure and exquisite beauty, which

ers, was pursued by hatred and calumny. brighten even the darkest and wild. No man was ever more devoted than he est of his poetical wanderings, with to the endeavour of making those around that impartiality which it was vain him happy; no man ever possessed to expect while the author lived, friends more unfeignedly attached to him. and wrote, and raved, and reviled, The ungrateful world did not feel his loss, what mind of genius or poetical féeland the gap it made scemed to close as ing would not wish that his errors quickly over his memory as the murder. should be buried with him in the ous sea above his living frame. Herebosom of the Mediterranean, and la

after men will lament that his transcen. ment that a mind so fruitful of good dant powers of intellect were extinguished as well as of evil, should have been

before they had bestowed on them their

To his friends his taken from us, before its fire had choicest treasures. been tempered by experience, and its loss is irremediable: the wise, the brave, troubled but majestic elements had

the gentle, is gone for ever! He is to subsided into calmness ?

them as a bright vision, whose radiant We doubt not that Mr Shelley, like track; left behind in the memory, is

worth all the realities that society can af. many other speculative reformers ford. Before the critics contradict me, and sceptics, ventured in theory to let them appeal to any one who had ever hazard opinions which in his life he known him: to see him was to love him ; contradicted. His domestic habits and his presence, like Ithuriel's spear, seem to have been as different as pos- was alone sufficient to disclose the false. sible from those which, in the dreams hood of the tale which his enemies whisof a distempered fancy, he has some- pered in the ear of the ignorant world. times dwelt upon with an alarming

His life was spent in the contemplafrequency and freedom ; as if the tion of nature, in arduous study, or in force of nature and of early associa- acts of kindness and affection. He was tions had asserted their paramount

an elegant scholar, and a profound metasway, in the midst of his acquired physician : without possessing much sci. feelings, and compelled him, while

entific knowledge, he was unrivalled in surrounded by those scenes, and in

the justness and extent of his observations the presence of those beings among by its name, and was familiar with the

on natural objects; he knew every plant whom their pure impulses are most history and habits of every production of strongly felt, to pay homage to their the earth; he could interpret without a power. The following passage, from fault each appearance in the sky, and the the preface to this publication, varied phenomena of heaven and earth though written with the natural and filled him with deep emotion. He made

return to us.

his study and reading-room of the sha.

We waited for them in dowed copse, the stream, the lake, and vain ; the sea, by its restless moaning, the waterfall. III health and continual seemed to desire to inform us of what we pain preyed upon his powers, and the so would not learn :--but a veil may well be litude in which we lived, particularly on drawn over such misery. The real anour first arrival in Italy, although con guish of these moments transcended all genial to his feelings, must frequently the fictions that the most glowing ima. haye weighed upon his spirits; those gination ever pourtrayed : our seclusion, beautiful and affecting “ Lines, written the savage nature of the inhabitants of in dejection at Naples,” were composed the surrounding villages, and our immeat such an interval ; but when in health, diate vicinity to the troubled sea, combis spirits were buoyant and youthful to bined to imbue with strange horror our an extraordinary degree.

days of uncertainty. The truth was at Such was his love for nature, that every last known,-a truth that made our loved page of his poetry is associated in the and lovely Italy appear a tomb, its sky a minds of his friends with the loveliest pall. Every heart echoed the deep lament; scenes of the countries which he inha. and my only consolation was in the praise bited. In early life he visited the most and earnest love that each voice bestowed, beautiful parts of this country and Ire. and each countenance demonstrated, for land. Afterwards the Alps of Switzer. him we had lost,-not, I fondly hope, for land became his inspirers. “ Prometheus ever : his unearthly and elevated nature is Unbound” was written among the de a pledge of the continuation of his being, serted and flower-grown ruins of Rome; although in an altered form. Rome re. and when he made his home under the ceived his ashes : they are deposited bePisan hills, their roofless recesses har. neath its weed-grown wall, and “the boured him as he composed “ The Witch world's sole monument” is enriched by of Atlas,” “ Adonais," and “ Hellas." his remains. In the wild but beautiful Bay of Spezia, the winds and waves which he loved be. This volume, which contains a came his playmates. His days were chief- republication of his “ Alastor," a ly spent on the water ; the management

collection of all his smaller poems of his boat, its alterations and improve. which have been scattered through ments, were his principal occupation. At different periodical works, with the night, when the unclouded moon shone addition of several unpublished poems on the calm sea, he often went alone in

and fragments, and some translahis little shallop to the rocky caves that tions from the Greek and modern bordered it, and sitting beneath their shellanguages, possesses exactly the same ter, wrote “ The Triumph of Life,” the

beauties and defects which characJast of his productions. The beauty but

terize his published works—the same strangeness of this lonely place, the refin. ed pleasure which he felt in the compa- the same, or rather greater carelesse

solemnity—the same obscuritynionship of a few selected friends, our en. tire sequestration from the rest of the ness, and the same perfection of world, all contributed to render this pe- poetical expression. It is this last riod of his life one of continued enjoy- quality which will always give to ment. I am convinced that the two Shelley an original and distinct chamonths we passed there were the happi. racter among the poets of the age ; est he had ever known : his health even and in this, we have little hesitation rapidly improved, and he was never bet- in saying, that we consider him deter than when I last saw him, full of cidedly superior to them all. Every spirits and joy, embark for Leghorn, that word he uses, even though the idea he might there welcome Leigh Hunt to he labours to express be vague, or Italy. I was to have accompanied him, exaggerated, or unnatural, is intensebut illness confined me to my room, and ly poetical.' In no writer of the age thus put the seal on my misfortune. His

is the distinction between poetry and vessel bore out of sight with a favourable wind, and I remained awaiting his return

prose so strongly marked: deprive by the breakers of that sea which was

his verses of the rhymes, and still about to engulph him.

the exquisite beauty of the language, He spent a week at Pisa, employed in

the harmony of the pauses, the arkind offices towards his friend, and en

rangement of the sentences, is perjoying with keen delight the renewal of ceptible. This is in itself a talent of their intercourse. He then embarked with no ordinary kind, perfectly separate Mr Williams, the chosen and beloved in its nature, though generally found sharer of his pleasures and of his fate, to united with that vigour of imagina.

« AnteriorContinua »