XXIV. That in any petition for special service as heir of line or heir male it shall be competent to the petitioner to pray for general service in the same character, and decree may be pronounced in terms of such prayer as well as for special service; and no farther notice or publication of the petition of service shall in such case be necessary than is hereby required for such petition of special service.

xxv. That from and after the 15th of November 1847 it shall be lawful for any person presenting a petition for general service to a deceased person to state in such petition, in the form, as nearly as the case will admit, pointed out in Schedule (D.) hereunto annexed, that he desires the effect thereof to be limited to certain lands or other heritages which belonged to the deceased, and which shall be embraced in a particular specification thereof, to be annexed to such petition for general service, which specification shall be in the form, or as nearly as may be in the form, given in the said Schedule (D.), and shall be subscribed by the petitioner or his mandatory; and in preparing an abstract of such petition for insertion in the minute-book of the court in which it shall be presented, and for publication, it shall be described as a petition for general service, with specification annexed; and the sheriff to whom such petition for general service, with a specification annexed, shall be presented, in pronouncing decree of service on such petition shall make reference to the specification annexed thereto, and shall limit such decree of service to the lands and other heritages described in the said specification, and the effect of such decree shall accordingly be taken and held in law as so limited; and a copy of such specification shall be embodied in the extracts of the said decree, and shall be signed by the sheriff clerk, and recorded as part thereof; and every such decree of general service, with specification annexed, shall infer only a limited passive representation of the deceased, and the person thereby served as heir shall be liable for the deceased's debts and deeds only to the extent or value of the lands or other heritages contained in the relative specification.

XXVI. That nothing herein contained shall in any way affect the law or practice presently existing in regard to the entry of heirs by precept of clare constat, or the service and entry of heirs more burgi, in burghs, in tenements holden in burgage, or by any similar mode of tenure known and effectual in law.

XXVII. That the sheriff of Chancery shall have and possess such and the like authority and jurisdiction to entertain, try, and adjudicate, but in the manner prescribed and directed by this Act, all questions of and relating to the service of heirs, as any sheriff or Judge Ordinary now has and possesses in any case competent before such sheriff or Judge Ordinary, or in any case competent before the sheriff of Edinburgh acting on special commission; and such sheriff of Chancery and his substitute shall hold their courts in any court room within the Parliament or new Session House of Edinburgh which may be assigned by the Lords of Session for that purpose, or in which the sheriff of Edinburgh is in use to sit for the trial of any brieve.

XXVIII. That it shall be competent to the said Court of Session, and they are hereby authorized and required, from time to time to pass such acts of sederunt as shall be necessary or proper for regulating in all respects the proceedings under this Act before the sheriff of Chancery or sheriffs of counties, and following out the purposes of this Act; and the fees to be paid in respect of any of the proceedings to be taken in virtue hereof, and also the charges to be made by agents and solicitors, whether in the inferior court or Court of Session, for any proceedings under this Act, shall be audited and taxed in the same manner as charges for other judicial proceedings in the said courts respectively are audited and taxed.

XXIX. That it shall be lawful for Her Majesty from time to time to appoint a fit person, being a person qualified for the office of sheriff of a county in Scotland, to be the sheriff of Chancery for the purposes of this Act, and also to appoint a fit person to act both as sheriff clerk of Chancery and as clerk to the presenter of signatures in Exchequer.

xxx. Provided and enacted, That the sheriff of Chancery shall, when authorized and required by the Lord Justice General and President of the Court of Session, discharge the duties at present or which may hereafter be attached to the office of presenter of signatures, or any part of these duties, and that during such part of the year as may be required of him.

XXXI. That it shall be lawful and competent for agents qualified to practise before the Court of Session or before any sheriff court to practise before the sheriff of Chancery as well as in the ordinary sheriff courts in petitions of service.

XXXII. That the sheriff of Chancery and sheriff clerk of Chancery shall respectively receive such salaries in respect of their offices as shall be from time to time fixed by the Lord High Treasurer of the United Kingdom of Great Britain and Ireland, or by the Commissioners of Her Majesty's Treasury of the said United Kingdom, or any three or more of them, and such salaries shall be payable out of the fees receivable in the office of Chancery, and form a part of the incidental expenses of the said office, and shall be stated and audited in the public accounts of the director and clerks of Chancery.

XXXIII. That whenever any vacancy shall occur in the office of sheriff of Chancery it shall be lawful for the Commissioners of Her Majesty's Treasury, or any three or more of them, to regulate the salary of the sheriff of Chancery as the then circumstances of the office may require.

XXXIV. That it shall be lawful for any person who conceives that he is entitled to compensation for loss to be suffered through the operation of this Act to make application to the Lord High Treasurer, or to the Commissioners of Her Majesty's Treasury of the United Kingdom of Great Britain and Ireland for the time being, claiming such compensation; and it shall be lawful for the said Lord High Treasurer or Commissioners of Her Majesty's Treasury to investigate such claim, and call for such evidence in relation thereto as he or they may think necessary; and upon such claim being established to his or their satisfaction the said Lord High Treasurer or Commissioners of Her Majesty's Treasury, or any three of them, is and are hereby authorized and empowered to award to such person such compensation as he or they shall think him entitled to, either by the payment of a gross sum or by way of annuity, as he or they shall think proper: Provided always, that a copy of every such award for compensation shall be laid before both Houses of Parliament within ten days from the date thereof, if Parliament shall be then sitting, and if not, then within ten days after the commencement of the session next ensuing, and no such award shall be final and conclusive until two months after the same shall have been so laid before Parliament; provided also, that if any person to whom

compensation shall be so awarded by way of annuity shall be afterwards appointed to any other public office, such compensation shall be accounted pro tanto of the salary payable to such person in respect of such other office while he shall continue to hold the same.

XXXV. That the several compensations which may be awarded under the authority of this Act shall be payable and paid out of the monies which by the Acts of 7 Anne and 10 Anne, were made chargeable with the fees, salaries, and other charges allowed or to be allowed for keeping up the Courts of Session, Justiciary, or Exchequer in Scotland.

XXXVI. That the following words and expressions in this Act shall have the several meanings hereby assigned to them, unless there be something in the subject or context repugnant to such construction; (this is to say,)

Words importing the singular number shall include the plural number, and words importing the plural shall include the singular number:

Words importing the masculine gender shall include females:

The word "month" shall mean calendar month:

The word “ lands" shall extend to and include teinds, fishings, patronages, houses, lands, tenements, and heritages of every description, and generally all rights and subjects which may competently be taken up by general or special service:

The word "sheriff" shall include sheriff substitutes and the sheriff of Chancery appointed in virtue of this Act, and the presenter of signatures acting as his substitute.

XXXVII. That this Act may be amended or repealed by any Act to be passed during the present session of Parliament.

SCHEDULES to which the foregoing Act refers.

SCHEDULE (A.)

Form of Petition of General Service.

Unto the Honourable the Sheriff of [specify the County, or say "of Chancery,"] the petition of A.B., [here name and design the Petitioner,]

Humbly sheweth,

That the late C.D. [here name and design the Ancestor to whom Service is sought] died on or about the

Day of

and had, at the Time of his Death, his ordinary or principal Domicile in the County of [or furth of Scotland, as the Case may be]. That the Petitioner is the eldest Son and nearest lawful Heir [or state what other Relationship or Character of Heir the Party bears, and if the Service is as Heir of Provision, say, "nearest lawful Heir of Provision under and by virtue of a Deed executed by E.F., dated the Day of "] in General of the said C.D. May it therefore please your Lordship to serve the Petitioner nearest and lawful Heir in General to the said C.D., [or whatever other Character of Heir is sought to be established here set it forth.]

According to Justice, &c.

SCHEDULE (B.)

(Signed by the Petitioner or his Mandatory.)

Form of Petition of Special Service.

Unto the Honourable the Sheriff of [specify the County, or say "of Chancery,"] the Petition of A.B.,] here name and design the Petitioner,]

Humbly sheweth,

That the late C.D. [here name and design the Ancestor,] died on or about the

Day of

last, vest and seised in [here describe the Lands or Subjects with reference to which the Service is sought] conform to Charter, [or Disposition, or Precept of Clare constat, or whatever else was the Deed on which the Ancestor's Infeftment proceeded here specify it,] dated the Day of , and to Instrument of Sasine following thereon, recorded in the Register of Sasines, at the Day of

That the Petitioner is the eldest Son and nearest lawful Heir [or state what other Relationship or Character the Party bears, and if the Service is as Heir of Provision, say, "nearest lawful Heir of Provision," or "of Tailzie and Provision"] in Special of the said C.D. in the Lands and others foresaid.

(If it is wished to embrace a Service in General where the Service in Special is as Heir of Line or Heir Male, say "That the petitioner is likewise Heir in General [or Heir Male in General] of the said C.D.," and at the End of the Prayer add, " and likewise as Heir in General [or Heir Male in General of the said C.D.")

May it therefore please your Lordship to serve the Petitioner nearest and lawful Heir in Special of the said deceased C.D. in the Lands and others above described [or whatever else is the Character of Heir sought to be established here set it forth as above].

According to Justice, &c.

(Signed by the Petitioner or his Mandatory.)

Note. When the Lands are held under a Deed of Entail, here add, "But always with and under the Conditions and Provisions, and prohibitory, irritant, and resolutive Clauses, contained in a Deed of Entail granted by G.H. [here name and design

the Granter] on the

Day of

in favour of I.K. and the Heirs [here insert the whole Destination of the Entail,] and which Conditions and Provisions, and Clauses prohibitory, irritant, and resolutive, are herein referred to, as at length set forth in the said Deed of Entail, which is recorded in the Register of Entails on the Day of [or as at Length set forth in the above-mentioned registered Sasine in favour of the Deceased, or as at Length set forth in any other Instrument of Sasine duly registered," or, if the Petitioner prefer it, he may here fully insert them.] And where there are any Real Burdens, Restrictions, or Qualifications of any Kind, either proper to be inserted or referred to, insert them here, or refer to them as at Length set forth in the registered Sasine of the Deceased, or in some previous Instrument of Sasine duly registered.

When there is an Entail, say, at the End of the Prayer of the Petition, "But always under the Conditions, Provisions, Restrictions, Clauses prohibitory, irritant, and resolutive, and others above referred to or above written;" and where there are Real Burdens, &c., say, " But always with and under the Real Burdens, &c. above referred to or above written."

At

SCHEDULE (C.)

Form of an Instrument of Sasine on an Extract Decree of Special Service.

there was [by or] on behalf of A.B. [here state the Heir's Name and Designation] presented to me, Notary Public, subscribing an Extract Decree of Special Service obtained before the Sheriff of [or the Sheriff of Chancery], on the [here insert the Date of the Decree], whereby the said Sheriff found that the late C.D. [here name and design the Ancestor] died last vest and seised as of Fee in [here describe the Lands or other Subjects], and that the said A.B. is the nearest and lawful Heir in Special of the said deceased C.D. in the lands and others aforesaid [or whatever else is the Character of Heir mentioned in the Decree here set it forth; and if there is an Entail, &c. add the qualifying Words as in the Decree,] and which Extract Decree of Special Service contains a Precept of Sasine in the following Terms, videlicet [here insert the Precept verbatim]. In virtue of which Precept I hereby give Sasine to the said A.B. of the Lands and others above dercribed. In witness whereof I have subscribed these Presents, written on this and the preceding Pages by E.F., my Clerk, before these Witnesses, the said E.F. and G.H. my Apprentice.

E.F., Witness.

G.H., Witness.

(Signed)

L.K., Notary Public.

Note. When the Lands are held under a Deed of Entail, or when there are Real Burdens, Restrictions, Reservations, or other Qualifications, insert or refer to them as in the Decree.

SCHEDULE (D.)
(1.)

Forms for a General Service where it is to be limited in its Effects by a Specification annexed.

The Petition will be in the Form of Schedule (A.), adding at the Close of the Statement of the Petitioner, "But the Petitioner desires that his General Service shall be limited to the Contents of the Specification annexed;" and adding at the Close of the Prayer of the Petition, "but under Limitation as aforesaid to the Contents of the Specification annexed."

(2.)

Specification of the Lands and other Heritages which belonged to the deceased C.D. referred to in the Petition for General Service presented to the Sheriff of by A.B. as Heir of in General to the said deceased C.D. [Here insert a Description of the Lands and other Heritages intended to be included in the Service, distinguishing each separate Property or Heritage, if there are more than One, by a separate Number.]

CAP. XLVIII.

(Signed by the Petitioner or his Mandatory.)

AN ACT to facilitate the Transference of Lands and other Heritages in Scotland not held in Burgage Tenure.

ABSTRACT OF THE ENACTMENTS.

1. In conveyances of land, &c. certain clauses may be inserted in the short forms given in Schedule (A.)

2. Explanation of the import of the clause of obligation to infeft.

3. Explanation of the import of other clauses in Schedule (A.)

4. Conditions of entail may be referred to as already in the register of entails or register of sasines.

(25th June 1847.)

5. Real burdens may be referred to as already in the register of sasines.

6. Superior may be compelled to grant entries by confirmation.

7. Charters of confirmation in the form of Schedule (D.) to imply a general confirmation of all the title deeds of the lands. 8. Where superior's title incomplete, owner may in certain cases apply to Lord Ordinary on the Bills to ordain him to complete his title and grant an entry, under pain of forfeiture.

9. Or owner may, in such case, apply to Lord Ordinary on the Bills to authorise application for an entry to the Crown or prince or mediate superior as in vice of the recusant superior.

10. Lands to be held temporarily of the Crown or prince or mediate superior.

11. The party in right of the superiority may lodge a minute tendering relinquishment of his right, and if accepted by the petitioner, the Lord Ordinary may interpone his authority.

12. Over-superior's rights not to be extended or affected.

13. Vassal obtaining or accepting forfeiture or relinquishment of superiority to be liable for its value, but forfeiture or relinquishment not to infer representation.

14. Forfeiture to take effect and relinquishment lawful although superiority form part of an estate held under prohibitions against alienation, &c.

15. Precepts of clare constat not to fall by death of the granter.

16. General and special and general special charges to be no longer competent.

17. Bill for summonses of adjudication and of sale abolished,

18. Unnecessary to libel and conclude for decree of special adjudication.

19. Decrees of adjudication and of sale to contain warrant for infeftment a me vel de me, and infeftment may follow accordingly. 20. Judgment of Lord Ordinary on the Bills subject to review of Inner House, and judgment in certain cases to be final.

21. Court of Sessions may make acts of sederunt.

22. Interpretation clause.

23. Act when to take effect.

24. Act may be amended, &c.

By this ACT,

After reciting that it is expedient to facilitate the transference of lands and other heritages in Scotland, and to render the same less expensive, and for that purpose to amend the law of Scotland relative thereto :—

It is Enacted,

1. That in all dispositions and conveyances and other deeds and instruments necessary for the transmission of lands and other heritages in Scotland not held burgage, in which all or any of the following clauses are necessarily or usually inserted (videlicet,) a clause declaring the term of entry, a clause of obligation to infeft, a procuratory of resignation, a clause of assignation of writs and evidents, a clause of assignation of rents, a clause of obligation to free and relieve of feu duties and casualties due to the superior, and of public burdens, a clause of warrandice, a clause of resignation for preservation, or for preservation and execution, and a precept of sasine, it shall be lawful and competent to insert all or any of such clauses in the form, or as nearly as may be in the form, set forth in Schedule (A.) hereunto annexed; and all or any of such clauses, if so inserted in any such disposition or conveyance or other deed or instrument, shall be as valid, effectual, and operative to all intents, effects, and purposes as if they had been expressed in the fuller mode or form now generally in use.

II. That the clause of obligation to infeft, if the clause shall be limited to an obligation to infeft a me only, shall be held to imply an obligation on the disponer to infeft the disponee and his heirs and assignees in the subjects conveyed upon their own expenses, to be holden from the disponer and his heirs and successors of and under their immediate lawful superiors in the same manner as the disponer himself, or his predecessors or authors, held, hold, or might have holden the same, and that either by resignation or confirmation, or both, the one without prejudice of the other; and the obligation to infeft, if granted to be holden a me vel de me, shall be held to imply an obligation on the disponer to infeft the disponee and his heirs and successors upon their own expenses by two several infeftments and manners of holding, one thereof to be holden of the disponer and his heirs and successors in free blench for payment of a penny Scots in name of blench farm at Whitsunday yearly upon the ground of the lands, if asked only, and freeing and relieving him and them of all feu duties, and other duties and services exigible out of the said lands and others, by their immediate lawful superiors thereof, and the other of the said infeftments to be holden from the granter and his foresaids of and under their said immediate lawful superiors in the same manner as the granter, or his predecessors or authors, held, hold, or might have holden the same, and that either by resignation or confirmation, or both, the one without prejudice of the other.

III. That the clause for resigning the lands shall be held and taken to be equivalent to a procuratory of resignation in the terms now in use, and in the case of conveyances by a vassal to his superior as equivalent to a procuratory of resignation ad remanentiam; and the clause of assignation of writs and evidents, unless specially qualified, shall be held to import an absolute and unconditional assignation to such writs and evidents, and to all open procuratories and precepts therein contained to which the disponer has right; and the clause of assignation of rents, unless specially qualified, shall be held to import assignation to the rents to become due for the possession following the term of entry, according to the legal and not the conventional terms, unless in the case of forehand rents, in which case it shall be held to import an assignation to the rents payable at the conventional terms subsequent to the date of entry; and the clause of warrandice, unless specially qualified, shall be held to imply absolute warrandice as regards the lands, and writs and evidents and warrandice from fact and deed as regards the rents, and the obligation to free and relieve from feu duties, casualties, and public burdens, unless specially qualified, shall be held to import an obligation to relieve of all feu duties or other duties and services or casualties payable to the superior, and of all public, parochial, and local burdens due from or on account of the said lands, prior to the date of entry; and the clause of consent to

VOL. XXV.-STAT.

Y

registration, unless specially qualified, shall import a consent to registration and a procuratory of registration in the books of council and session, or rather Judges books competent, therein to remain for preservation, and also, if for execution, that letters of horning and all necessary execution shall pass thereon upon six days' charge, on a decree to be interponed thereto in common form. IV. That in all cases where lands or other heritages are or shall hereafter be held under a deed of entail, it shall be lawful and competent, in dispositions and conveyances of such lands, and in the procuratories, charters, precepts of clare constat, decrees of adjudication, instruments of sasine, and all other deeds and instruments of what nature soever necessary to transmit, renew, or complete a title under such entail in such lands, to omit the full insertion of the conditions and provisions, and prohibitory, irritant and resolutive clauses, of such deed of entail, provided such conditions and provisions, and prohibitory, irritant, and resolutive clauses, shall be in such dispositions and conveyances, procuratories, charters, precepts of clare constat, decrees of adjudication, instruments of sasine, and other deeds and instruments aforesaid, specially referred to as set forth at full length in the recorded deed of entail, if the same shall have been recorded in the register of tailzies, or as set forth at full length in any recorded instrument of sasine forming part of the progress of title deeds of the said lands under the said entail, such reference being made in the terms, or as nearly as may be in the terms, set forth in Schedule (B.) hereunto annexed; and the reference thus made to such conditions and provisions, and prohibitory, irritant, and resolutive clauses, shall be held to be equivalent to the full insertion thereof, and shall to all intents and in all questions whatever, whether inter hæredes, or with third parties, have the same legal effect as if the same had been inserted exactly as they may be expressed in the recorded deed or instrument referred to, notwithstanding any law or practice to the contrary, or any injunction to the contrary contained in such deed of entail, and notwithstanding the enactments or provisions to the contrary contained in an Act of the Parliament of Scotland, 1685, intituled Act concerning Tailzies,' or any other Act or Acts of Parliament now in force, all which are hereby repealed to the extent of making this Act operative, but no further.

v. That in all cases where lands or other heritages are or shall hereafter be held under any real burdens or conditions or limitations whatsoever appointed to be fully inserted in the investitures of such lands, it shall, notwithstanding such appointment, and notwithstanding any law or practice to the contrary now existing, be lawful and competent, in dispositions and conveyances of such lands, procuratories, charters, precepts of clare constat, decrees of adjudication, instruments of sasine, and other deeds and instruments of what nature soever necessary to transmit, renew, or complete the feudal title thereto, to omit the full insertion of such real burdens or conditions or limitations, provided such real burdens or conditions or limitations shall, in such dispositions and conveyances, procuratories, charters, precepts of clare constat, decrees of adjudication, instruments of sasine, and other deeds and instruments aforesaid, be specially referred to as set forth at full length in the recorded instrument whether of sasine or of resignation ad remanentiam wherein the same were first inserted, or in any recorded instrument of sasine of subsequent date forming part of the progress of titles of the said lands, such reference being made in the terms, or as nearly as may be in the terms, set forth in Schedule (C.) hereunto annexed; and the reference thus made to such real burdens or conditions or limitations shall be held to be equivalent to the full insertion thereof, and shall to all intents and in all questions whatever, whether with the disponer or superior or third parties, have the same legal effect as if the same had been inserted exactly as they may be expressed in the recorded instrument referred to, notwithstanding any law or practice to the contrary, and notwithstanding any Act or Acts of Parliament to the contrary which are hereby repealed to the effect of making this enactment operative, but no

further.

And after reciting that the entry of heirs and disponees by charter of confirmation from the superior is in daily use and practice, and such form and mode of entry is in many cases more convenient than entry by resignation, without being of prejudice to the interests of the superior :—

It is Enacted,

VI. That where any person shall be infeft in lands or heritages in Scotland holden of a subject superior upon a disposition or other deed of conveyance granted by the person last entered and infeft, or granted by a person whose own title to such lands and heritages is capable of being made public by confirmation according to the existing law and practice, which disposition shall contain an obligation to infeft a me or a me vel de me, or upon a decree of special service, or upon a decree of adjudication or of sale, containing a warrant of infeftment in terms of this Act, it shall be lawful and competent for such person, upon production to the Lord Ordinary on the Bills in the Court of Session of his sasine in the said lands and warrants of the same, and upon shewing the terms and conditions under which the said lands are holden of the superior thereof, to obtain warrant for letters of horning to charge the superior to grant in favour of such party a charter of confirmation in the same way and form as is provided and in use for compelling entry by resignation: Provided always, that the charger shall at the same time pay or tender to such superior such duties or casualties as he is by law entitled to receive upon the entry of the charger; and that it shall be lawful for every such superior to shew cause why he ought not to be compelled to give obedience to such charge by offering a note of suspension to the Court of Session in the usual manner: Provided also, that such superior shall be entitled to insert in the charter to be granted by him the clauses of tenendas and reddendo contained in the former charters of such lands and heritages, and all other clauses and conditions contained therein, in so far as the same are usual and necessary, and are not set forth in such instrument of sasine, or duly referred to in terms of this Act, or of an Act, 10 & 11 Vict. c. 47, intituled 'An Act to amend the Law and Practice of Scotland as to the Service of Heirs': Provided also, that where such clauses and conditions are set forth in such instrument of sasine, or duly referred to in terms of this Act, or any other Act, the same shall not, without the vassal's consent, be repeated at length in such charter of confirmation.

VII. That where any charter of confirmation, whether granted by Her Majesty or her royal successors, or by the Prince of Scotland, or by a subject superior, shall confirm the lands therein contained themselves, and the instrument of sasine therein in favour of the person receiving such charter, such charter may be expressed in the form set forth in Schedule (D.) hereunto annexed, and in whatever habile form expressed shall be held to confirm in favour of such person, so far as regards such lands, the whole dispositions and instruments of sasine, and other deeds, instruments, and writings of and concerning the same necessary to be confirmed in order to complete such person's investiture in the lands as immediate vassal of such superior, and that although such deeds, instruments, and writings may not be enumerated or set forth in such charter.