755. What is the procedure when application is made for a charter containing a clause of novodamus ? The party applying for the charter must, previously to lodging the note in the office of the Presenter of Signatures [now SheriffClerk of Chancery], obtain the consent of two of the Commissioners of Woods and Forests, and written evidence of such consent must be produced along with the note. The charter is then revised and engrossed as in the ordinary case, but, before being sealed, it is lodged with the Queen's Remembrancer, and transmitted by him for the royal sign-manual and the signatures of three of the Lords of the Treasury.'(r) [Consolidation Act, § 88.] 756. In what respects was the quæquidem of a Crown charter of resignation different from that clause in a charter of resignation by a subject-superior? The quæquidem of a Crown charter of resignation must set forth the titles of the last vassal, and state that the lands were resigned upon the date of applying for the charter,(s) such clauses being unnecessary in charters by subjects-superior. [Consolidation Act, Schedule T, No. 2.] [757. What Crown writs are excepted from the abolition of charters and writs by progress, § 4 of the Conveyancing Act, 1874 ? Charters of novodamus, or precepts or writs from Chancery. The interpretation clause of the Act provides that the word "superior" is to include the Crown, and Prince and Steward of Scotland.] 1 10 & 11 Vict. c. 51, § 22. 210 & 11 Vict. c. 51, § 17, and Schedule (C), No. 1. nounced by him are subject to review of the Inner House, and such interlocutors, and also interlocutors of the Inner House, are subject to appeal to the House of Lords (§ 20), probably judgments in regard to Crown charters may be submitted to review, or appealed. (r) The provision of the Act is that the charter shall be 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." (8) But "without the necessity of specially setting forth such date." XI. CONVEYANCES OF SUBJECTS HELD IN BURGAGE TENURE. 758. What is the nature of the tenure of subjects held burgage? Subjects held in burgage tenure are held by the individual proprietors as vassals immediately of the Crown, for the service of watching and warding, the bailies of the burgh being Her Majesty's bailies or commissioners under the Act 1567, c. 27, for giving infeftment.'(t) 759. Point out and explain the peculiarities of a disposition of burgage subjects, as contrasted with an ordinary disposition, according to the form in use before the passing of the Titles Act, of subjects held in feu. Resignation in the hands of the magistrates, as the Crown's bailies, being the only competent method of transmitting burgage subjects, the obligation to infeft contained in the disposition was not a me vel de me, but "to be holden of Her Majesty in free burgage," and the deed had no precept of sasine, because in the ceremony of infeftment (now superseded by the equivalent form of investiture by the town-clerk) the magistrate gave sasine by his own hand. In other respects the clauses of the two dispositions were similar.(u) 760. How was the disponee's title completed before the Infeftment Act of 1845 ? The disponee's title was completed by a double ceremony, of resignation and infeftment, upon the ground of the subjects; the resignation being made in the hands of one of the magistrates, as for the sovereign, by the symbols of staff and baton; and sasine being given by the magistrate, by delivery of the symbols of earth and stone, and hasp and staple. The res gesta were embodied in 1 Ersk. 2, 4, 9; Menzies Lect. 787 (834). (t) If a royal burgh is suppressed, the holders of tenements by burgage tenure still continue to hold of the Crown, under a change to blench tenure; Urquhart, 17th Jan. 1758, F.C. (u) The obligation as to public burdens is "to free and relieve of all cess, annuity, ground-annual, and other public and parochial burdens." one instrument of resignation and sasine, authenticated by the town-clerk, who had the exclusive privilege of acting as notary in burgage infeftments, (x) and the instrument was recorded in the Burgh Register of Sasines, within sixty days of its date.1 761. What changes were introduced by the Infeftment Act, 1845, and by the Act for the Transference of Burgage Subjects, 1847, in the forms of transmission? (1.) The Infeftment Act dispensed with the notary's docquet in the instrument of resignation and sasine, and declared that the delivery of symbols might be given either on the ground of the subjects or within the council-chamber of the burgh by delivery of a pen.2 (2.) The Act for the Transference of Burgage Subjects dispensed with the ceremony of resignation and infeftment, and declared that it should be lawful and competent to resign and obtain infeftment in the subjects by presenting the disposition or other warrant to the town-clerk, being a notary, and by his giving sasine by subscribing and recording an instrument in the form annexed to the Act, the instrument being registrable at any time during the life of the party in whose favour it is expede.3(y) [These 1 Ersk. 2, 3, 38; Duff's Feud. Conv. 510; Menzies Lect. 788 (835). 28 & 9 Vict. c. 35, § 7. (x) By the Titles to Land Act, 1860, § 21, it is provided that no town-clerk of any royal or other burgh, appointed subsequent to 8th March, 1860, “shall have any exclusive right or privilege of preparing or expeding any conveyance, instrument, or other writ applicable to land;" but town-clerks who held appointments at that date are entitled, during the period to which such appointments extend, to receive certain fees from parties presenting conveyances for registration. (y) The 10 & 11 Vict. c. 49 contains provisions as to short forms of clauses in dispositions, &c., and their import, and reference to, instead of insertion of, conditions of entail and real burdens, similar to those in c. 48 of same year, in regard to lands not held burgage. It also provided that witnesses should subscribe only the last page of sasines, and it will be observed (§ 5, and Schedule D) that the notary's motto is required as part of the authentication of the instrument. By the Titles to Land (Scotland) Act, 1860 (23 & 24 Vict. c. 143), the provisions of the Titles to Land Act, 1858, are generally extended "to titles to land held by burgage tenure,” and instruments of resignation and sasine are declared unnecessary, and the title is completed by registration of the convey enactments, and those mentioned in the note, were re-enacted by the Consolidation Act, 1868, $$ 7 and 8.] 762. A completed a title to burgage subjects by charter from the Crown and infeftment, and B subsequently completed a title to the same subjects by resignation and infeftment in the ordinary burgage form; Which is the preferable title? B's title is preferable; because the magistrates of the burgh, through whose intervention B's title was completed, act as commissioners of the sovereign under an express statute, and thus exclude the ordinary officers of the Crown.' 763. May burgage subjects be feued ? (1) The individual proprietors of subjects held in burgage tenure cannot convey the subjects to be held in feu-farm ; at least a real right cannot be completed under a disposition in that form, 1 Duff's Feud. Conv. 509; C. of Kincardine, M. 6894. Bell's Prin. 844; Duff's Feud. Conv. 51. ance with warrant. It is not necessary here to repeat those provisions, but the following points may be noticed : 1. Where an assignation or assignations of an unrecorded conveyance are written thereon, they do not require to be docqueted with reference to warrant of registration; §§ 9 and 25, and schedules A and K. 2. The same question arises as under the Act of 1858 as to the competency of recording of new where there is an error in the warrant of registration; § 18. 3. The reference to real burdens, &c., may be to a recorded conveyance; § 31. 4. The description of lands may be by reference to recorded deed; § 34. 5. The provisions of 6 & 7 Will. IV. c. 33, as to erasures in sasines, &c., are extended to instruments under this Act; § 19. 6. Warrants of registration may be signed by the person on whose behalf the deed is to be recorded, or his agent (§ 3), except in any burgh in which lands are held burgage and no register of sasines is kept, in which case it must, during the subsistence of the rights of the existing town-clerk, be signed by him; and where no warrant is required, the deed or instrument itself must be subscribed or indorsed by him; § 22. 7. The provisions of the Act are made applicable to lands in the burgh of Paisley held by the tenure of booking; § 23. it being declared by the Act 1567, c. 27, that sasines of burgage subjects, given otherwise than by one of the bailies and by the common clerk, shall be null. (a) [This point is now set at rest by § 25 of the Conveyancing Act 1874, which provides that proprietors of subjects held burgage are to be entitled to feu them, and provides that such feus granted before the Act are to be valid.] (2) But the magistrates may grant feu-rights of land belonging to the burgh to be holden of themselves for an adequate feu-duty.'(b) 1 Dean, M. 2522; Mags. of Selkirk, 11th June, 1828, 6 S. 955. (a) It is commonly laid down, as here stated, that a proprietor of subjects held burgage cannot sub-feu them (Bankton, 2, 3, 68), but it is not easy to see on what ground. It is said that it changes the tenure, but though A grants a precept to be held of himself, his own tenure remains burgage as before. The Act 1567 does not seem to create any difficulty, because, though under its provisions only a magistrate could act, it applies entirely to sasines by burgage tenure, while in the case supposed, the holding being feu, a magistrate would not be required. Indeed, if this objection be well founded, it would be equally fatal in the case of feus by the magistrates themselves. The only real difficulty is one, not of principle, but of practice. If the superior's heir did not take up the superiority, the vassal's heir could not take the usual course of going to the Crown for an entry, but he could make up a perfectly valid title by special service recorded under 10 & 11 Vict. c. 47, and Titles to Land Act 1858. (b) The doctrine here stated is laid down by Erskine (2, 4, 9) and other institutional writers, has been confirmed as opinion by judges, and seems to be unquestionable in principle; but the question does not appear to have been decided in a pure shape. In Dean, cited, the point was as to the magistrates' right to alienate the burgh property, not as to the mode of doing So. In Davie, 2nd June, 1814, F.C., the question was as to the register in which a sasine on a grant by magistrates, bearing to be held feu, should be recorded. In Dawson, 14th Nov. 1827, 6 S. 19, and 4 W. & S. 81, the question was as to the nature of the holding, which was found to be burgage. In this case Lord Balgray said-"I think they " (the magistrates) "have the right to feu and to grant a subaltern right, to be held of themselves, by which they are constituted mid-superiors between the grantee and the Crown." In Mags. of Selkirk, cited, the question was whether there had been a grant of any kind made, and it was found there had not. In Donald's Trs., 11th July, 1839, 1 D. 1249, the point at issue was as to an agent's liability to complete a valid title, and it was held that the one made up was bad, whether the holding was burgage or feu; and in Fife's Trs., 25th May, 1842, 4 D. 1245, where a grant by magistrates of burgh property in feu was sustained, the judgment was rested on the ground "of a special power contained in the title of the magistrates empowering them to grant such feus." |