“Declaring, that in case there should be more sons than one of the foresaid marriage, and that the succession of the estate of Bargany shall fall and devolve upon the heirs-male thereof, then and in that case, the said heir accepting of the said estate of Bargany, and the descendants of his body, shall ipso facto amit and lose all right and interest he had or could pretend to the lands, &c. of North Berwick and others hereby disponed, and the succession thereof shall immediately devolve to the next son of the said marriage.”
“Considering that I have full power and faculty reserved to me to discharge that quality and condition contained in the contract of marriage last mentioned, disabling the heir-male of the marriage, called to the succession of the tailzied estate of North Berwick, under an irritancy, to accept the estate of Bargany, and to discharge the said irritancy, and so to enable Hew Dalrymple, the eldest son of the marriage, to become heir of tailzie to James Lord Bargany, last deceased, and at the same time to enable and capacitate him to bruik and enjoy the tailzied estate of North Berwick; and also considering that there is nothing in the tailzie contained in the contract of marriage of the Master of Bargany to hinder the same person to be heir to the estate of Bargany, and of any other estate, providing that the heir of Bargany do assume, and always bear and retain the name and arms of Hamilton of Bargany as their proper name and arms; neither is there any thing in the tailzie of the estate of North Berwick to hinder the heir of North Berwick to enjoy and possess the estate of Bargany, and to use and always retain the name of Dalrymple of North Berwick jointly with that of Hamilton of Bargany, except the clause above specified, which I have power to discharge; and upon all these considerations, at
“And now I, the said Sir Hew Dalrymple, having duly considered the foresaid tailzie of the estate of North Berwick, contained in the foresaid contract of marriage, and also the tailzie of the estate of Bargany above mentioned, dated the 19th day of June 1688 years, and that it appears to have been intended by the parties to the contract of marriage betwixt the said Sir Robert Dalrymple and Mrs. Joanna Hamilton, my father and mother, that the said two estates of North Berwick and Bargany should be separately taken and possessed by the heirs of the marriage betwixt the said Sir Robert Dalrymple and Mrs. Joanna Hamilton, except in the cases therein excepted; and that in case I should now take the succession of the estate of Bargany, I would thereby forfeit the right to the estate of North Berwick, for myself and my descendants, in favour of John Dalrymple, counsellor at law, my brother-german; and I being fully resolved to take and hold the estate of North Berwick, and to allow the estate of Bargany to descend to and be taken by the said John Dalrymple in the terms of the entail of the estate of Bargany; therefore, and for the love and respect which I have and bear to the said John Dalrymple, and in consideration of the settlements of the estates of North Berwick and Bargany above recited, wit ye me, with and under the provisions after mentioned, to have repudiated, likeas I by these presents do repudiate and refuse to accept the succession of the said estate of Bargany, and that to and in favour of the said John
“Dilecto nostro Joanni Hamilton de Barganie, juris, consulto, filio secundo demortui Domini Roberti Dalrymple de Castleton, procreat. inter ilium et demortuam Dominam Joannam Hamilton, unicam filiam demortui Joannis Magistri de Barganie, et sic hæredem fæmellam demortui Joannis Domini Barganie ejus avi, et hæredibus quibuscunque ex corpore dict. Joannis Hamilton, quibus deficien. aliis hæredibus quibuscunque ex corpore dict. DominæJoannæHamilton procreat. inter illam et dict. Dominum Robertum Dalrymple, absque divisione; quibus deficien.,aliis hæredibus fæmellis ex corpore dict. demortui Joannis Domini Barganie absque divisione, hæres fæmella natu maxima, et descendentes ex ejus corpore omnes alias hæredes portionarias, semperexcluden., et absque divisione succeden.; quibus deficien.,hæredibus masculis ex corpore nunc demortui Domini Joannis Houston,”
“Be it known to all men by these presents, me, John Hamilton of Bargany, Esq. for certain causes and considerations me moving, and in order to give effect to the entail executed by John Lord Bargany in his son's contract of marriage, of date the 19th day of June 1688 years, and to the conditions upon which my own right and title to the lands under mentioned was founded, to have given, granted, and disponed, likeas I hereby give, grant, and dispone to and in favour of myself, and the heirs of my body, without division; whom failing, to Sir Hew Dalrymple, Bart. my brother, and the heirs of his body, without division; whom failing, to the next heirs of the body of John Lord Bargany aforesaid, and the other heirs of tailzie contained in the foresaid deed of entail, in the order therein expressed, and which heirs of entail are herein after insert, word for word, as in the said deed of entail.”
“and that the said pursuer ought to be served heir of tailzie and provision to the said James Lord Bargany in the said lands and estate of Bargany.”
“The Judges were unanimously of opinion in favour of the interlocutor of the Lord Ordinary, and held it to be clearly established in law, that the character of a substitute, under which the appellant claimed, did not entitle her to have her minority deducted from the years of prescription. But when judgment was about to be given, it was for the first time suggested, on the part of the appellant, that a distinction might be traced between her situation and legal character under the entail of Bargany. and that of a substitute, as to which character it had been found by many adjudged cases that minority could not be pleaded. She asserted that in this preliminary stage of the cause, this preliminary stage of the cause, in arguing her objection to the exclusive title, she was at liberty to assume as true, not only all the facts alleged in her summons, but all the conclusions in law which were there deduced from them; in other words, that she was entitled hoc statu to hold that Mr. Hamilton and his brother, the late Sir Hew Dalrymple, had incurred fatal irritancies and contraventions, and had forfeited for themselves and their descendants, by which, in terms of the tailzie, and without the necessity of any declarator, she had become ipso facto the next heir of entail, and the estate had fallen and accresced to her as next heir, in the same manner as if the persons contravening, and their descendants, were naturally dead. From the moment of these contraventions, she maintained that she acquired a right of eviction, not contingent, but immediate; and therefore, although certain legal forms of declarator and service were requisite to establish her title and put her in possession, she had all along been the owner (vera domina) of the property, and as such entitled to plead her minority in bar of the prescription running against her. Instead of proving her allegations of contravention and irritancy, she maintained that she was entitled to assume them because she had set them forth in her summons.”
“In the singular way in which this cause has been taken up in the Court below, what can this House do ? What has Mrs. Fullarton to complain of? Whether Sir Hew Dalrymple and his family, or Mr. Hamilton, took first or last, seems jus tertii to her. Sir Hew, she says, forfeited. It is necessary that this should be judicially declared. Can it be declared now that he is dead ? Professes to have great doubt if it could. Entertains much doubt if the repudiation can infer a forfeiture. Mrs. Fullarton calls it a disposition to John Hamilton, an extraneous person; arid next, when she wants to be rid of him, she says he forfeited, because he was an heir who accepted of the repudiation. Her plea must be referred to her summons. The decree finds her entitled to deduct her minority, because she became next substitute. How did the Judges who were for this decree find out that she was next substitute ? They assume it, it is said. If she had stated facts from whence that necessarily followed, he would have understood them; but as it is not a necessary inference from the facts alleged —as that is a point yet to be discussed—a point of law not decided by the Court below—his Lordship said he was not prepared to pronounce, nor did he think this House could pronounce, or hold her to be the nearest substitute. Before doing so, their Lordships must be satisfied that she has stated enough to prove it; and as this has not been decided upon yet by the Court below, the appellate jurisdiction cannot interfere. Every thing in law has been waived or assumed by the Judges who were for Mrs. Fullarton, where they ought to have assumed nothing but facts. He therefore concluded by proposing that the cause should be remitted, in order that the Judges might boldly and plainly state the legal principles applicable to the facts stated, on which the decision of it should be ultimately rested.”
“If the title set out by the pursuer were in fact no title, it did not occur to me then, nor does it now, that there would be any inconvenience in going into a discussion of that title. If it appears that the pursuer has a title, then you may go into the defender's exclusive title; but why is the defender to be obliged to argue a plea in bar for ten long years, as in this case, if the pursuer has not stated a title to enable her to maintain the action ? It often happens in this country that the plaintiff states facts, (which may, however, be untrue,) and the law founded necessarily on these may be such, that the defendant can only perhaps with propriety rest his defence on a plea in bar. In the Court of Chancery here, what is termed a fishing bill is often filed, where the plaintiff, stating himself to be an heir at law, claims to see the title-deeds by which the defendant holds the property which belonged to the plaintiff's ancestor. The Court must take this title to be good in the first instance; and if an exclusive title or deed, for instance, with sixty years possession, be set up, the Court will then go into that exclusive title; but if the defendant say to the plaintiff, Your facts form no title against me the defendant, nor anybody else, the defendant has a right to demur to the action; and if there be nothing in the plaintiff's case, of course the Court never comes to the defendant's. It becomes me to say, that such a practice is founded in reason, and was in your Lordships' view when you sent back the former appeal to the Court of Session.
“And I consent that the said John Dalrymple shall, in respect of my repudiation as aforesaid, serve himself heir of tailzie and provision to the said James Lord Bargany, and otherwise make up titles in his person to the said estate of Bargany in such manner as is competent of the law, and as he shall be advised; and that the said John Dalrymple do instantly take possession of the said estate of Bargany, and uplift the rents thereof in the tenants' hands fallen due since the death of the said James Lord Bargany, and in time coming; providing always”
“Or in case any event shall exist in which I or my descendants can take the said succession, consistent with the foresaid tailzie of the estate of North Berwick, with which express provision thir presents are granted by me, and accepted by the said John Dalrymple.”
“Dilecto nostro Joanni Hamilton de Barganie, jurisconsulto, filio secundo demortui Domini Roberti Dalrymple de Castleton, procreat. inter illum et demortuam Dominant Joannam Hamilton, unicam filiam demortui Joannis Magistri de Barganie, et sic;”—
“whom failing, to Sir Hew Dalrymple, Bart. my brother, and the heirs of his body, without division; whom failing, to the next heirs of the body of John Lord Bargany aforesaid, and the other heirs of tailzie contained in the foresaid deed of entail, in the order therein expressed.”
“The Lord Ordinary having heard parties upon the conclusions of this action, finds, that the defenders have in this and the previous action, to which the present has reference, produced and referred to preferable and exclusive titles to the lands claimed by the pursuer; and therefore assoilzies the defenders from the conclusions of this action, and decerns, superseding extract till the 3d sederunt day in May next.”