United Kingdom House of Lords Decisions

Now let us see what the point is here. It lies in the narrowest compass. The entail created has in gremio the three ordinary prohibitions—a prohibition against alienation, a prohibition against diverting the ordinary course of descent chalked out in the deed, and a prohibition against incurring debts whereby the lands might in future get into the hands of creditors; and then follows this irritant clause: “And further providing, that if it shall happen any of the heirs of tailzie above mentioned to contravene the provisions and limitations above written, or any of them,” that is, if the heirs of entail shall either do the positive act of alienating, or the positive act of diverting the course of succession, or the negative act (as I read it) of incurring debts whereby the lands might (as we should say in this country) be taken in execution, “then, and in that case, all such acts and deeds of contravention”—words that clearly include acts of omission as well as commission (if it be said that omission is not an act, I would appeal to the very language I have used, “acts of omission,” which is a very common expression)—then, and in that case, all such acts and deeds of contravention are not only hereby declared to be void and null to all intents and purposes, (then just leave out the few following words and proceed,) “but also the heir so contravening shall ipso jacto amitt, lose, and tine all right to the said lands and estate,” etc. Now what are the words that are said to create the doubt? They are these, “sick-like as if the same had never been made.”

Now it is said, that an act of omission cannot be “made,” and that, therefore, you must so construe these words as to confine them to acts of commission, which, although not very accurately, we may say are acts “made.”

To this there are two answers which are perfectly satisfactory to my mind, namely, first, that inasmuch as the words are “sicklike as if the same had never been made,” and inasmuch as the word “same” applies to all the deeds and acts of contravention specified, and those deeds and acts include acts of omission as well as of commission, if the word “made” is not aptly used, it is only that the party who prepared the deed has used a word incautiously that does not include everything that was intended. But I do not think that signifies at all; for if it applies only to acts and deeds properly so called, then I say, upon ordinary principles, it must be read reddendo singula singulis, that is, if there is any contravention, then the estate is to go over, the party is to lose the estate, such acts being void to all intents and purposes “sicklike as if the same had never been made”—that is, as if the deed from which the contravention has arisen had never been done. And this latter construction applies exactly, as well to the subsequent Latin instrument, the deed of investiture, as it does to the original deed of entail. Whether the Lord Ordinary arrived at the conclusion to which he came upon right grounds, it is not material to inquire; but I think there is not the least doubt, that the Lord Ordinary and the Court of Session both arrived at the proper conclusion, and, therefore I have no hesitation in moving your Lordships to affirm the interlocutors appealed from.

Lord Chelmsford.—My Lords, the words “sicklike as if the same had never been made,” are, in my opinion, not explanatory or interpretative, but merely emphatic; and if you give a qualifying and restrictive sense to these words, then, although it is perfectly clear, that acts as well as deeds of contravention were intended to be rendered null and void, you would have to strike the word “acts” entirely out of the irritant clause. The question is so very clearly put by the Lord Justice Clerk, that I can only adopt his language in expressing the same opinion. His Lordship says, “it rather appears to me that the sentence ‘sicklike as if the same had never been made’ is not only surplusage quite unnecessary to the completion of the irritant clause, or to working out or explaining its meaning, but that it is neither intended, nor, according to the grammatical structure of the sentence, is it calculated to restrict what goes before it. I am well aware that it may not have been intended to restrict what goes before, and still it may have that effect according to the construction which is given to deeds of entail. But I think it is neither intended, nor, according to the proper grammatical structure of the sentence, is it calculated to have that effect. A declaration of irritancy, which is followed by such words as ‘in so far as’ would be very different, because a sentence introduced by the words ‘in so far as,' clearly imports a limitation of what goes before; and in like manner if you were to say, that all acts and deeds are to be irritated ‘to this effect that’ you would then limit what goes before by that which follows. But I think the true meaning of the words ‘sicklike as if’ is not to limit what goes before, but that it is an attempt to expound by an illustration the meaning of that which goes before.” That is very clearly expressed. I entirely agree with it; and I think your Lordships ought to affirm the decision of the Court below.

Lord Westbury.— My Lords, I have nothing to add to the judgments of the Court of Session. I think those judgments are extremely satisfactory, and that both the Lord Ordinary and the Judges of the Second Division have arrived at the right interpretation of the language of this entail.