CAP. LI.

AN ACT to amend the Practice in Scotland with regard to Crown Charters and Precepts from Chancery.

ABSTRACT OF THE ENACTMENTS.

(25th June 1847.)

1. Signatures and precepts to Chancery abolished.

2. Charters to be obtained by lodging a draft thereof and note along with the title deeds,

3. Draft charter to be revised.

4. Rectification of mistakes in former titles.

5. Presenter of signature, &c. may refer to copy of charter, &c. when withheld.

20. Record of precepts to be kept.

21. Charters of confirmation may be granted, combined with precepts for infesting heir.

22. Charters of novodamus, how to be obtained.

23. Lodging draft charter with note and recording note to be equivalent, in competition, to presenting a signature and recording abstract.

24. Crown charters, and charters by and on behalf of the prince and steward of Scotland, may be in the forms given in Schedule (C). 25. Charters to be in the English language.

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

27. Real hurdens may be referred to as already in the register of sasines.

28. Exchequer Judges to frame regulations.

29. Presenter of signatures, if required, to discharge duties of sheriff.

30. Additional allowance to presenter of signatures.

31. Salary to be regulated by Commissioners of the Treasury when vacancy occurs.

32. Compensation, how to be applied for.

33. Compensation, how to be paid.

34. Power to prince and steward of Scotland to appoint his own presenter of signatures, &c.

35. Interpretation of Act.

36. Act may be amended, &c.

By this ACT,

After reciting that it is expedient to amend the mode presently in use in Scotland of obtaining charters from Her Majesty and from the prince and steward of Scotland, and precepts from Chancery for infefting heirs :

It is Enacted,

1. That from and after the 1st of October 1847 the practice of presenting and passing signatures in Exchequer, and of thereon framing and issuing precepts, as preliminary to the granting of charters from Her Majesty or the prince and steward of Scotland, shall cease and determine; and it shall no longer be necessary, in order to the obtaining of any charter, that such signature shall be presented and passed, or such precept be framed and issued; and all such charters shall be obtained in the manner directed by this Act, and not otherwise; and all laws, statutes, and usages heretofore existing, inconsistent with or at variance with the provisions of this Act, shall be and are hereby repealed.

II. That any person seeking to obtain a charter from Her Majesty or from the prince and steward in Scotland shall lodge or cause to be lodged, in the office of the presenter of signatures, a draft of the proposed charter, prepared by his agent, being a writer to the signet, whose signature shall be indorsed thereon, together with a short note, in the terms or to the effect of the Schedule (A.) hereunto annexed, praying for a charter in terms of the said draft; and the date of lodging such note shall be marked thereon by the presenter of signatures or his clerk; and along with such note and draft there shall be lodged the last crown charter

or prince's charter, or retour or decree of service, and precept from Chancery, of the lands, and all the title deeds of the lands subsequent thereto, together with evidence of the valued rent when necessary, and an inventory and brief of the titles according to the present practice.

III. That the draft charter so lodged shall be forthwith revised by the presenter of signatures, who shall require the attendance of the agent of the person applying for the charter, for the purpose of receiving his explanations; and the presenter of signatures shall thereafter proceed with the revision of the said draft, making such alterations and corrections as are necessary, and he shall, after his final revisal of such draft, authenticate each page thereof, and the several alterations and corrections thereon, if any, with his initials, and shall mark on such draft that the same has been revised by him, and also the date when such revisal was completed; and the fees on signatures presently payable to the presenter of signatures shall be chargeable on the draft charter to be lodged and revised as aforesaid, and all other fees presently payable to the officers of Exchequer on signature shall cease and determine. IV. That if it shall appear that any mistake has occurred in the terms of the last charter or retour or decree of service to the prejudice of the crown or prince, the person applying for the charter shall farther, on requisition made to him or his agent to that effect, by order of the presenter of signatures, lodge the prior title deeds of the said lands, and any other title deeds of and concerning the same, in so far as such title deeds may be in his possession or at his command, and in so far as the same may be necessary for the due revisal of the said draft on behalf of Her Majesty or the prince, and the rectification of such mistake, which may be rectified accordingly; and on the other hand, if the vassal shall allege any mistake to have occurred in the terms of the last charter or retour or decree of service to his prejudice, the person applying for the charter shall be entitled, without such requisition, to produce the prior titles of the said lands, and any other title deeds or other deeds of and concerning the same, in so far as these may be necessary for the due revisal of the said draft and the rectification of such mistake, which may be rectified accordingly; but no such rectification shall in either case be allowed, nor the draft be held as finally revised or authenticated as such, until the same shall have been reported by the presenter of signatures to and approved of by the Judges performing the duties of the Court of Exchequer, in terms of an Act, 2 & 3 Vict. for regulating the duties to be performed in the supreme courts of Scotland, or one of the said Judges.

v. Provided and enacted, That when the last charter or retour or decree of service shall be withheld by the person applying as aforesaid, or cannot be so lodged from being in the possession of the proprietor of other lands therein contained, or from any other good cause, it shall be competent for the presenter of signatures, or for the person applying as aforesaid, to refer to the copy thereof ingrossed in the register of the great seal, or in the register of retours or decrees of service, and to procure exhibition thereof as evidence of the terms of such last charter or retour or decree of service; and the lord clerk register is hereby authorized and required to make such regulation as will enable the exhibition thereof to be obtained for the purpose aforesaid, upon the joint application of the person so applying and of the presenter of signatures.

VI. That the presenter of signatures shall also, with the aid of the auditor of Exchequer, ascertain and fix the amount of composition or other duties due and payable to Her Majesty or the prince on granting such charter, and the amount of the same shall be marked on the said draft, and certified by the signatures of the said auditor of Exchequer and of the presenter of signatures; and in ascertaining and fixing the amount of such composition and other duties payable to the Crown there shall be no charge added for the expense of collecting the same, any law or practice to the contrary notwithstanding.

VII. That the person applying for such charter shall be bound to pay to the clerk of the presenter of signatures the fees to be fixed in manner hereinafter provided; and which fees shall be paid over by such clerk to the director of Chancery, who shall be accountable therefor.

VIII. That such revised draft shall be retained in the office of the presenter of signatures, and shall be there open to the inspection of the party applying for the charter or his agent, and a copy thereof shall be furnished on demand, on payment of the fees to be fixed as hereinafter directed.

IX. That where no objections shall be stated to the draft as so revised a docquet shall be put thereon, certifying that the same is approved, which docquet shall be signed by the agent applying for the charter and by the presenter of signatures, and the date of signing the same thereon set forth; and such draft so docqueted shall, without being given up to the party applying for the charter or his agent, be officially transmitted by the presenter of signatures to the office of the director of Chancery, and shall form a valid and sufficient warrant for the immediate preparation of the charter in Chancery, in terms of such draft.

x. That it shall be competent to apply for the charter in manner before directed, and to revise the draft of the same, and in the event of the same being docqueted as revised and approved in manner aforesaid, to prepare and deliver the charter as hereinafter directed, at any period of the year, and notwithstanding that it shall not then be term time of the Court of Exchequer.

XI. That it shall be lawful for the person applying for the charter, if dissatisfied with the draft revised as aforesaid, to state objections thereto or against the amount of duties and composition thereon marked as payable; and such objections shall be set forth in a short written note of objections, without argument, to be lodged in the office of the presenter of signatures, subscribed by the agent of such person; and the date of lodging such note of objections shall be marked thereon by the presenter of signatures or his clerk.

XII. That where any note of objection shall be so lodged, such note shall, together with the whole other proceedings, be laid before the said Judges, or any one of the said Judges; and the said Judges or Judge shall hear the person so objecting by himself, his counsel or his agent, being a writer to the signet, and shall also hear any report or statement by the presenter of signatures; and wherever it shall appear to the said Judges or Judge that the said objections should to any extent receive effect, they or he shall cause such alterations and corrections as shall appear to them or him proper, either with reference to the terms of the said draft, or to the amount of duties or other payments marked thereon as payable, to be made on such draft, or to be expressed in a separate paper marked as relative thereto, and shall authenticate such draft and relative paper with their or his signature;

and the said Judges or Judge shall at the same time pronounce a judgment or deliverance, to be written on the note of objections appointing the charter, as so altered and corrected, to be prepared and executed; and the judgment or deliverance so pronounced shall form a valid and sufficient warrant for the preparation in Chancery of the charter as altered and corrected.

XIII. That wherever the said Judges or Judge shall be of opinion that the said objections should not to any extent receive effect, they or he shall pronounce a judgment, to be written on the said note of objections, repelling the said objections; and the judgment or deliverance so pronounced shall form a valid and sufficient warrant for the preparation in Chancery of the charter as revised by the presenter of signatures in manner before directed.

XIV. That wherever the presenter of signatures aforesaid shall be of opinion that the person applying for the charter has not produced a title sufficient to shew thas he has right to obtain the same, the presenter of signatures shall mark on the said draft that the same is refused for want of sufficient production of titles, adding thereto his signature and the date of affixing the same; and his clerk shall intimate such refusal to the agent of the said person, and shall, on demand, return the draft to such agent; and in every such case it shall be competent for the person who shall have applied for the charter to bring such refusal under review of the said Judges or Judge by a note of objection lodged in manner aforesaid; and the said Judges or Judge shall, after considering such note, and hearing parties thereon in manner aforesaid, sustain or repel the objection, or pronounce such judgment thereon as shall be just; and if the said Judges or Judge shall be of opinion that a sufficient title has been shewn to authorize the charter being granted, they or he shall in that case remit to the presenter of signatures to proceed with the revisal of the draft in manner before mentioned.

xv. That as soon as the draft shall have been docqueted as revised and approved in manner before provided, or, in case of objections being stated, as soon as the same shall have been disposed of by the Judges or Judge in Exchequer in manner before directed, it shall be lawful immediately thereafter to have the charter ingrossed in the office of Chancery aforesaid, in terms of the draft as finally adjusted and officially transmitted to the director of Chancery; and the said charter shall have the seal appointed by the treaty of union to be kept and used in Scotland in place of the great seal thereof formerly in use affixed thereto, or the seal of the prince if the charter be of lands holden of the prince, and a separate seal be then in use for such charters, and shall be recorded in Chancery, and thereafter delivered to the person applying for the same, or his agent, in like manner in all respects, and on payment of the same fees and charges as at present used and observed and payable, and the date of sealing shall in all cases be held and expressed to be the date of the charter: Provided always, that before the charter shall be so delivered payment shall be made to the officers who are or may be entitled to receive the same of the amount of duties and compositions payable to Her Majesty or the prince, ascertained and fixed as aforesaid; and a record of the amount of duties payable to Her Majesty or the prince shall be kept in Chancery, so as to form a charge against the officer or other person appointed to receive the same.

XVI. That the charter, engrossed, sealed, recorded and delivered as aforesaid, shall be in all respects as valid and effectual, and form an equally sufficient warrant for infeftment passing thereon, as any charter of the same description hitherto in use to be granted by Her Majesty or the prince and steward of Scotland, notwithstanding that the same has not followed on any signature presented and passed in Exchequer or precept directed thereon, any law or usage heretofore existing to the contrary notwithstanding.

XVII. That in every case in which a charter of resignation by Her Majesty or the prince and steward of Scotland is applied for, it shall not, from and after the date aforesaid, be necessary to go through any form or ceremony of resignation, but in all cases resignation shall be held to be duly made and completed in terms of the procuratory of resignation by the ingiving of the note applying for the charter as aforesaid, and as of the date of such ingiving; and the charter of resignation shall set forth that resignation was made of the date of applying for the same, without the necessity of specially setting forth such date, and shall otherwise deduce the titles according to law; and every such charter of resignation shall be as valid and effectual, and form an equally sufficient warrant for infeftment passing thereon, as any charter of resignation heretofore granted by Her Majesty or the prince, any law or usage to the contrary notwithstanding.

XVIII. That from and after the date aforesaid, when any person who has obtained himself specially served as heir to a deceased ancestor, or decree of special service, shall seek to obtain a precept from Chancery for infefting himself as such heir, he shall in like manner as before directed lodge or cause to be lodged in the office of the presenter of signatures the retour or decree of his special service, and a draft of the proposed precept, prepared by his agent, being a writer to the signet, in the form, or as nearly as the case will admit, of the Schedule (B.) hereunto annexed, together with a note in the terms or to the effect before directed, and the last charter or charters or retour or decree of service and other titles of the lands as aforesaid, and the said draft shall be revised by the presenter of signatures on behalf of Her Majesty or the prince and steward of Scotland in manner aforesaid; and all the provisions herein before contained with regard to drafts of charters from Her Majesty or the prince and steward of Scotland shall be and the same are hereby made applicable to such drafts of precepts; and the draft of such precept when docqueted as revised and approved in manner before provided, or, in the case of objections, the judgment or deliverance of the Judges or Judge in Exchequer aforesaid, shall, when officially transmitted to the office of the director of Chancery in manner aforesaid, form a valid and sufficient warrant for the preparation in Chancery of the precept in terms of the draft as finally corrected and approved, and the same shall forthwith be ingrossed in the office of Chancery aforesaid, and after being recorded in manner hereinafter directed shall be delivered to the person applying for the same, in like manner, and on payment of the same fees and charges, as at present used and observed and payable; and the precept so ingrossed and delivered shall be in all respects as valid and effectual, and form an equally sufficient warrant for infeftment passing thereon, as any the like precept issued from Chancery according to the mode presently in use: Provided always, that before the precept is so delivered payment shall be made of the amount of duties and composition payable to the Crown or prince, as the same shall have been fixed in manner above mentioned.

XIX. That from and after the date foresaid it shall not be necessary that any precept from Chancery for infefting heirs shall proceed, as heretofore, exclusively on special service in the particular lands for infeftment in which such precept is sought, but it shall be competent for any person to apply for and obtain such precept on lodging, along with the charter or charters of

other title as aforesaid, an extract retour or decree of general service, duly expede and recorded, instructing the propinquity of such person to the party who died last vest and seised in the subjects, or the character of heir otherwise vested in him, and establishing his right to succeed to the said lands; and the precept granted on production of such extract retour or decree of general service shall be expressed in the form, or as nearly so as the case will admit, of the said Schedule (B.), and shall be applied for, revised, and obtained in like manner as herein before directed in regard to charters, and the infeftment passing on such precept shall be as valid and effectual as the infeftment passing on any precept for infefting heirs hitherto in use to be issued from Chancery.

xx. That from and after the date foresaid the director of Chancery, or his depute or substitute, shall record or cause to be recorded at full length every precept, whether of crown or principality lands, issued from Chancery for infefting heirs, in a book or books to be kept exclusively for that purpose, intituled "The Record of Precepts;" and extracts from the said record, certified by the director of Chancery, or his depute or substitute, shall make entire faith in all cases, except in case of impro

bation.

XXI. That it shall be competent to apply for and obtain, in manner before mentioned, a charter of confirmation from Her Majesty or the prince and steward of Scotland, combined in the same deed with a precept for infefting heirs as aforesaid; and in every case in which such charter and precept are contained in the same deed it shall be sufficient for the validity of the said deed that it pass under the seal appointed by the treaty of union to be used in place of the great seal or the seal of the prince, as the case may be, and if his separate seal be then in use for such charters as aforesaid, in like manner with the charter of confirmation when contained in a separate deed.

XXII. Provided and enacted, That in every case in which a charter of novodamus, or a charter containing any new or original grant, shall be sought, the person applying for the same shall, previously to lodging the note before mentioned in the office of the presenter of signatures, obtain the consent and approbation of the Commissioners of Her Majesty's Woods and Forests, or any two of them, and written evidence of such consent shall be produced along with the note to be lodged as aforesaid in the office of the presenter of signatures; and the charter shall be revised and ingrossed as in the ordinary case, but the same, before being sealed, shall be lodged with the Queen's and Lord Treasurer's Remembrancer, and be by him transmitted for the sign manual of Her Majesty, and the signatures of the Lord High Treasurer or of the Commissioners of Her Majesty's Treasury, or any three of them, and in case such charter be of lands holden of the prince and steward of Scotland, and His Royal Highness be then of full age, for the consent and approbation of the prince, signified under his sign manual, after which the proper seal shall be attached to such charters, and the other procedure be as is provided in regard to charters from the Crown and prince generally.

XXIII. That the lodging of a draft of a proposed charter, together with a short note in terms or to the effect of Schedule (A.) hereunto annexed, praying for a charter in terms of such draft, shall, in competition of diligence and all other cases, be deemed and held to be equivalent to the presenting of a signature in Exchequer; and recording a copy of such note, and an abstract of such draft charter, in the register of abbreviates of adjudications, shall be deemed and held to be equivalent to recording in the said register an abstract of such signature.

XXIV. That from and after the 1st of October 1847 all crown charters, and charters by or on behalf of the prince and steward of Scotland, if the same be charters of resignation, may be in the form, as nearly as the case will admit, given in Schedule (C.), No. 1, hereunto annnexed, and if the same be charters of confirmation may be in one or other of the forms, or as nearly as the case will admit, given in the said Schedule (C.) No. 2. and 3., and if the same be charters of any other denomination or nature, they may be in forms as nearly approaching as may be to the examples given in the said Schedule (C.); and such charters, when granted in these forms or as nearly as may be in these forms, shall have the same force and legal effect in all respects as if the same had been granted in the forms now in use, and shall be read and construed as largely and beneficially in all respects for the holders thereof as if the same had been expressed in and had contained the whole terms and words which are now used according to the present practice in granting such charters.

xxv. That from and after the date aforesaid all charters granted by Her Majesty or the prince and steward of Scotland, and the instruments of sasine following thereon, and all precepts from Chancery for infefting heirs, and instruments of sasine thereon, shall be expressed in the English language.

XXVI. That in all cases where lands are or shall be held under a deed of entail, it shall be lawful and competent, in the charters and precepts containing such lands, and the instruments of sasine following on such charters and precepts respectively, 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 charters, precepts, and instruments of sasine 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 under the said entail, such reference being made in the terms or as nearly as may be in the terms directed in Schedule (C.) 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 made in the year 1685, intituled 'Act concerning Tailzies,' or any other Act of Parliament now in force, all which are hereby repealed to the extent of making this enactment operative, but no further.

XXVII. That in all cases where lands or other heritages are or shall 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 charters and precepts containing such lands, and the instruments of sasine following upon such charters and precepts respectively, to omit the full insertion of such

real burdens or conditions or limitations, provided that such real burdens, or conditions, or limitations shall in such charters or precepts or instruments of sasine 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 such lands, such reference being made in the terms or as nearly as may be in the terms directed 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 Act operative, but no further.

XXVIII. That the Judges performing the duty of the Court of Exchequer as aforesaid shall be and they are hereby authorized from time to time to frame and enact, by rule of court, all such regulations as shall seem to them proper for giving effect to the purposes of the present Act; and the said Judges shall forthwith frame and enact a rule of court fixing and determining the fees to be paid on the various writs, steps of procedure, and other matters herein and hereby authorized; but such rule of court shall be subject to their own revision at any time or times thereafter.

XXIX. That the presenter of signatures 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 sheriff of Chancery, or any part of these duties, and that during such part of the year as may be required of him, and shall for that purpose possess all powers and jurisdiction vested in such sheriff of Chancery.

And in respect that considerable additional duties are by this Act required to be performed by the presenter of signatures, it is enacted,

xxx. That the presenter of signatures shall receive in consideration thereof such additional salary as may be allowed by the Lord High Treasurer, or the Commissioners of Her Majesty's Treasury, or any three or more of them, which additional salary shall be payable out of the same fund from which the salary of the presenter of signatures is at present paid.

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

XXXII. That it shall be lawful for any person who conceives that he is entitled to compensation for loss to be suffered through the operation or effect 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 the 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 calendar 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.

XXXIII. 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 and 10 Ann., 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.

XXXIV. That, notwithstanding anything in this Act contained, it shall be lawful for the prince and steward of Scotland, being of full age, at any time or times hereafter to appoint his own presenter of signatures, and other officer or officers of Exchequer and Chancery, to discharge, in regard to all charters and precepts to heirs of lands holden of him, the duties hereby assigned to the presenter of signatures and other officers of Her Majesty's Exchequer and Chancery respectively; and in case of the office of presenter of signatures or any such other office in Exchequer or Chancery as aforesaid for the prince being conferred on the person holding the corresponding office for the Crown, such officer shall be bound to act for the prince without additional salary; and the fees hereby authorized to be levied in respect of all charters and precepts to heirs from the prince shall in that case be paid into the Consolidated Fund, but if any such appointment by the prince shall be conferred upon a different person, the person so appointed shall draw for his own use such of the said fees as shall arise from the duties performed by him in respect of such charters and precepts.

XXXV. 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; (that is to say,)

Words importing the singular shall include the plural number, and words in the plural shall include the singular number: Words importing the masculine gender shall include females:

The word "lands" shall extend to and include houses, mills, fishings, teinds, patronages, lands, tenements, and heritages of every description held of the Crown or of the prince of Scotland.

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