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■ 

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PUBLISHED BY 


BELL 


& BRADFUTE, 


12 BANK STREET, EDINBURGH. 



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V. 



CW. ScOtl. 
610 



STYLES 



OF 



DEEDS AND INSTKUMENTS. 



« 

/ 



EDINBURGH '. 

JOHN BAXTER AND SON, PRINTERS, 

ELDER STREET. 



/ 



STYLES 



OF 



DEEDS AND INSTRUMENTS 

IN AOOOBDANGE WITH 

THE TITLES TO LAND CONSOLIDATION (SCOTLAND) ACT 1868 ; 

THE CONVEYANCING (SCOTLAND) ACT 1874 ; 

THE REGISTRATION OF LEASES (SCOTLAND) ACT 1867; 

AND THE 

REGISTRATION OF LEASES (SCOTLAND) AMENDMENT ACT 1877 ; 

WITH 

NOTES ON THE COMPLETION OF TITLES 

AND 

AN APPENDIX OF STATUTES. 



Adaftbd fbom THE SEOOin) Edition of the Sttlbs of the late 

JOHN HENDRY, W.S. 



BY 

JOHN T. MOWBRAY, LL.D., W.S. 

. MAY 1^79 

EDINBURGH: ^*<tiiJ5-^ 
BELL & BRADFUTE, 12 BANK STREET, 

1878. 



PEEFACE. 



The object of the late Mr Hendry's compilation of Styles 
of Deeds and Instruments, on which the present is based, 
was "to afford assistance in applying to practice the 
provisions of " the various Acts that had been passed 
dealing with Titles to Land, Heritable Securities, Ser- 
vice of Heirs, and Registration of Leases. 

Since Mr Hendry published the last edition of his 
Styles, two Acts have been passed, " The Titles to Land 
Consolidation (Scotland) Act 1868," and "The Con- 
veyancing (Scotland) Act 1874/' The former of these 
Acts, though it effected some very important changes 
in the law, such as making Heritable Securities move- 
able as regards Succession, and dispensing with certain 
requisites previously essential to the validity of mortis 
cattsa Settlements of Heritage, was mainly, as its title 
indicates, a collection or consolidation in one Act of 
the provisions in reference to Land Rights contained in 
the various Statutes which had been passed during the 
period commencing with the year 1845, with some 
modifications or alterations of the forms contained in 
the various schedules annexed to them, and the addi- 
tion of schedules to meet the changes in the law made 
by the Act. The latter Act, embracing as it does the 
abolition of the renewal of investiture, and the sub- 



VI PREFACE. 

stitution therefor of the constructive entry with the 
superior by infeftment, with the consequent superseding 
of the alternative manners of holding ; the abolition 
of legal casualties in future feus; a new mode of 
transmitting and extinguishing securities by way of 
real burden on land; and the vesting in every heir 
by survivance of a personal right to his ancestor's 
estate, and so enabling him to deal with it without 
having made up a tide; as well as alterations in the 
solemnities required in the execution of deeds, affected 
more materially the system of Scottish Land Rights, 
and occasioned greater changes in the relative deeds 
and instruments, besides introducing various new 
writs. To endeavour to assist the Members of the Pro- 
fession in preparing such deeds and writs in accordance 
with the present state of the law is the object of the 
following pages. 

Where the Styles relate to Irredeemable or Redeem- 
able Rights, under the Consolidation and Conveyancing 
Acts, the system adopted by Mr Hendry has been 
followed, but the Styles have been re-written so far as 
necessary to adapt them to the provisions of those 
Acts; Charters and Writs of Resignation and Confir- 
mation now abolished have been omitted, and Styles 
of the new Writs and Instruments with reference to 
the provisions of the above Acts in regard to Land 
Rights, whether irredeemable or redeemable, have been 
added. 

As no change in the law in regard to the Registra- 
tion of Leases has been made since Mr Hendry pub- 
lished the last edition of his Styles, I have thought it 



PREFACE. Vll 

best to reprint the text as in that edition, adding in 
footnotes such observations or suggestions as seemed 
to be required, but in a few cases I have inserted new 
or alternative Styles of the Writs ; these, and any 
relative observations, will be found enclosed within 
square brackets. Where any footnote by Mr Hendry 
occurs it is marked with the letter (H). 

Where the Schedule from which a Style is taken 
is not given in the Title it will generally be found in 
the Table of Contents. 

Attention is requested to the Notes on page 400. 

I am indebted to Mr J. P. Wood, W.S., for the 
preparation of the Index. 

J. T. M. 



Edinbuboh, April 1878. 



PREFACE TO MR HENDRY'S SECOND EDITION. 



In this Edition there have been introduced a compila- 
tion of Styles under the Heritable Securities Acts, modified 
in accordance with the provisions of the Titles to Land 
Acts, and also Styles under the Registration of Leases 
Act, with notes on the completion of titles under these 
statutes. Various additions have likewise been made to 
the styles and notes under the Titles Acts; and on the 
whole it is hoped that the work in its present shape will 
be found a useful hand-book in Chambers. 



66 Geoboe Squabs, 
Edinbuboh, NcfteivJber 1862. 



PREFACE TO MR HENDRY'S FIRST EDITION. 



Ths changes introduced by the Titles to Land Acts of 
1858 and 1860 pervade the whole system of heritable 
conveyancing. While feudal principles have been left un- 
touched, and the former rights and relations of superior 
and vassal^ have been substantially retained, every deed has 
been more or less affected, several writs have been entirely 
dispensed with, and many new forms called into use. 

Spottiswoode, in the Introduction to his Forms of Writs, 
deprecates ^* a bare and naked style ;" but since his time, as 
Lord Kames predicted, our notions have become more 
refined, and substance is regarded more than form. It was 
not, however, until the passing of the Conveyancing Acts 
of 1845-47 that any essential innovation was made on the 
system of land rights. By these statutes, cumbrous forms 
and useless ceremonies, which had been in observance for 
centuries, were abolished ; and abbreviated Styles, as well 
as summary modes of completing titles, were sanctioned. 
These changes were all great improvements in our system 
of conveyancing, and have unquestionably been productive 
of much benefit to the country. But the amendments 
effected by the Titles Acts of 1858 and 1860 go far beyond 



X . PREFACE. 

those introduced by the previous statutes, although not 
beyond what has been received by the profession as safe 
and practicable. The leading feature of the new Acts is 
the substitution of direct registration for sasine ; and the 
subordinate amendments appear to have been carried out 
on the principle of abridging rather than of deviating from 
established and well marked lines, or, where deviation was 
unavoidable, of adopting some clear and obvious analogy ; 
while special care has been taken that the changes intro- 
duced should not be inconsistent in themselves, nor incom- 
patible with the retention of feudal principles. It may 
now be said that our venerable feudal system, established 
at a time when society was in a very different state from 
what it is at present, has at last been completely adapted 
to the requirements of modern times, and that no further 
innovation of importance could be made without its total 
subversion. 

The new Acts, by introducing new forms, .have neces- 
sarily rendered useless much that judicial wisdom had 
ruled for example; and these new forms, until they are 
tested by practice, vdll doubtless by some be regarded with 
jealousy. The provisions of the statutes, however, are 
generally so clear and precise that there ought to be little 
dijficulty in applying the details of the Acts; but if it 
should be found expedient in any case to have recourse to 
the old rules and forms, that is still competent, as the 
adoption of the provisions of the new Acts is merely 
optional, not compulsory. The object of this compilation 
is to afford assistance in applying the provisions of the 
Acts to practice. Although the work has no pretension 
to completeness, it will be found to contain examples of the 



PBEFAOE. ^l 

m 

deeds and instraments in common use for the constitution 
and transmission of heritable rights, and for renewal of the 
investiture by the superior. Throughout the Styles notes 
have been inserted on the various clauses, and on such ot 
the statutory enactments as appeared to require comment, 
as well as with reference to the completion of titles under 
the Acts. It is thought that the arrangement adopted will 
be found more convenient than if the notes had been em- 
bodied in a separate commentary. 



Edinbuboh, Janua/ry 1861. 



CONTENTS. 



nrTBODTTOTION. 



SOLEMNITIES REQUIRED IN THE EXECUTION OF DEEDS, 



I. FoBMEB Law, ...... 

TT BSOBaiT Al/TKBATIONS OF liAW, .... 

1. Paginatioii dispensed with, .... 

2. Deeds allowed to be partly written and partly printed, &o., 

3. Female Persons may be instmmentary Witnesses, 

4. No longer necessary to name Writer or Printer, or to specify 

number of pages. Designations of Witnesses may be 

appended to their subscriptions. 
Old Style of Testing Clause, .... 

Style of Testing Glause where there are several subscrip- 
tions, ...... 

New Style of Testing Glause, and Form of Attestation, 
Subscription by the Parties, .... 

Form of Attestation, .... 

5. The execution of Deeds by parties who cannot write, 

1. Justices of the Peace or Notaries may act, and one 

sufficient, ..... 
2t Touching the pen dispensed with, 
3. Two witnesses sufficient 
Deed must be read over. 
Statutory Form of Docquet competent where Parish 

Minister acts as notary, . 
Docquet must be holograph. 
Form of Docquet, 

6. The execution of Deeds by Companies registered under 

** The Companies Acts 1862 and 1867,'* . 

7. Deeds not invalid because improbative, but subscription by 

the granter and witnesses may be proved, 



PAGE 

1 

2 

2 
2 
3 



3-4 
4 

5 
6 
6 

7 
8 

8 
8 
8 
8 

9 
9 
9 

10 
10 



XIV 



CONTENTS. 



PART I. 

" THE TITLES TO LAUD OONSOLIDATIOII (SOOTLAHD) AOT, 
1868," and " THE OONVETAHOING (SOOTLAM)) AOT 1874." 



IBBEDEEMABLE BIGHTS. 

(1) DEEDS OF CONSTITUTION— 

Fen-Charter aooording to the Style in nse prior to the passing 

of the Act 1874, 
Feu-Charter (new style), 

(a) Words of Conveyance, 

(b) Destination, 

(c) General name or names, 

(d) Beservations, burdens, &o., 

I. Bbsebyatiom fbom Subjxot oomrxTED. 

Beservation of Mines and Minerals, .... 

Observations on Clauses of Beservation of Minerals, and refer- 
ence to authorities, ..... 

Clause declaring that only the tenants shall be liable for 
damage through working, ..... 

II. Bbskbyations, Conditions, Ac., Qualifying or Bestricting the 
Vassal's Bight of Property, or the Superior's Bight of Pro- 
perty, in his adjoining Lands. 

1. Qttaliflcations or Restrictions of Bight of Property by Clauses 

inserted in Charter — 
Bight of Pre-emption, .... 
Observations on Clause of Pre-emption, 
Prohibition of Subinfeudation now incompetent. 
Clauses applicable to Feus for detached Dwelling-houses or 

Villas, ..... 
Clauses applicable to Feus for Building in Streets, 
Observations on the preceding Clauses as to Feus for Building 

Ground, . 

1. Obligation to maintain, . 

2. Prohibition of Steam Engines, 
8. Ground Plans, Elevations, and Conditions as to buildings, 

2. QuaUfieaUoTis or Bestrietions of Right of Property imported by 

reference to Recorded Deed, .... 

{e) Term of Entry, ...... 

(/) Feu-duty and Casualties, ..... 

(g) Assignation to Bents, ..... 



PAOB 



13 
15 
18 
18 
19 
19 



20 
21 
23 



24 
24 
25 

26 
80 

84 
84 
84 
35 

30 
87 
37 
80 



CONTENTS. 



XV 



PAOB 

(h) Belief of Stipend and Burdens, and reference to Authorities, 89 

(0 Clause of Begistration, ..... 41 

(j) Transference to the Becord of the Conditions of the Grant, 41 

danse of Direction, ....... 42 

Fen-Disposition, ....... 42 

Feu-Contract, ........ 43 

(k) Obligation to pay Fen-Duty and reference to Authorities, 46 

COICPLETION OF YaSSAL*S TiTZiE, ..... 47 

1. Completion of Feudal Title by recording of the Fen Charter, &c. 

Clause of Direction, . . . .47 

Warrant of Begistration where the Deed does not contain a 

danse of Direction, ..... 48 

Warrant of Begistration where the Deed contains a Clause of 

Direction, ....... 49 

2. Completion of Feudal Title by expeding and recording a Notarial 

Instrument, . . .50 

Notarial Instrument on Feu-Charter, Ac., .50 

(2) DEEDS OF TBANSMISSION, 51 

Clauses now unnecessary, .51 

1. Tenendas, ...... 51 

2. Clause of Besignation, ..... 52 
Disposition according to Style used prior to "The Convey- 

andng (Scotland) Act 1874, .52 

Disposition (new style), ..... 53 

(a) Description of Lands by reference to Becorded Deed, &c., 53 

Styles of Clause of Beference, .... 54-5 

(&) Beservations, Burdens, &c., . . .57 

I. BexeroaUon from Sulject Conveyed, . .57 

n. BurdenSy BeservcUionSy CondiUon8, dtc,y qiui^fying the Grantee's 

Right of Property, ...... 57 

1. Burdens, &c., to be imposed by the Disposition, . 58 

2. Burdens imposed by Prior Dispositions, Ac., . 58 
8. Burdens, &c., to be imported by reference to recorded 

Deed of Declaration in terms of ''The Conveyancing 
(Scotland) Act 1874," § 32, .... 59 

■ 

III. Obligation by Purchaser to relieve Seller of Fett-DuUeSy cfcc., sub- 
sequent to the Term of Entry, .59 

(c) Assignation to Writs, Yoriations on . .59 

(g) Assignation to Bents, . . .60 

(h) Belief of Casualties, ..... 61 

(0 Clause of Direction, ..... 62 



XVI 



CONTENTS. 



PAOB 

Disposition where an existing Real Barden is to be allowed to 
remain as part of the price, and a further part of the price 
is to be declared a Beal Barden, . .62 

Disposition by Builder of one of the Flats of a tenement of 

Houses, and containing stipulation for additional Fen-duty, 64 

Disposition proceeding upon Articles of Boup, . . .67 

(a) Where lands purchased by Agent, .67 

Disposition by a Wife, with consent of her Husband, . 68 

Batification by Wife, ...... 68 

Disposition by a Husband, of Lands in which his wife has a 

right of liferent, &c., ..... 69 

Disposition by a Minor, with consent of his Curators, . 70 

COMFUETION OF DlSPONZE*S TiTLE, . . .71 

(1) CompUUon of Feudal Tide by recording the DispoHtioUy 71 

GoxPLBTioN OF TmiE OF Cbxditob in Sum of Money, consti- 
tuted a Beal Burden in the Disposition or other Con- 
veyance of the Lands, . .72 

Liyestiture proprus manibue, ..... 72 

Styles of Warrant of Begistration, . .73 

Where the Disponee desires the whole Deed to be recorded, 

whether it contains a clause of direction or not, . . 73 

Where the conveyance contains a Clause of Direction, and the 

Disponee does not desire the whole Deed to be recorded, . 74 

Where the destination is in liferent and fee, or in conjunct fee 

and liferent, Ac., ...... 74 

Where the Destination is to persons named in liferent for life- 
rent use allenarly, and to persons named and others un- 
named in fee, ...... 75 

Where the destination is to persons named in liferent, for life- 
rent nse allenarly, and to persons imnamed in fee ; or, to 
certain persons named and others unnamed in fee, 75 

(2) Completuyn of Feudal TiUe by expeding and recording Notarial 

Inetrumenif ....... 76 

Notarial Listrument on a Conveyance in favour of persons 
named in liferent for liferent use allenarly, and persons 
unnamed in fee, or on a conveyance to certain persons 
named and others unnamed in fee, . .76 

Notarial Instrument on a Deed containing a conveyance of 

Lands, and granted for further purposes, . . .78 

Notarial Instrument on a Conveyance containing a Clause of 

Direction, ....... 79 

Assignation of an unrecorded Conveyance, the granter of which 

was infeft — (As a separate deed), . . . .81 



CONTENTS. XVU 

PAGE 

Methods of Completion of Assignee's Tttle. 

1. By recording the Assignation along with the Disposition, . 82 

2. By ezpeding Notarial Instrument, Consolidation Act, Sche- 

dule (N), and recording it along with the Disposition, . 82 
8. By expeding and recording Notarial Instrument. — Consoli- 
dation Act, Schedule (J), . .82 

Farms under the First Method of Completing Assignee's Title. 

1. Warrant of Registration to be written on a Conveyance 

when presented with Assignation apart, . .83 

2. Docquet to be written on Assignation, . .83 

3. Warrant of Registration where the Unrecorded Conveyance 

contains Clause of Direction, .... 84 

Forms under the Second Method of Completing the Assignees Title, 

1. Notarial Instrument in favour of an Assignee to an Unre- 

corded Conveyance to be recorded along with Convey- 
ance. — Consolidation Act, Schedule (N), . 85 

2. Warrant of Registration to be written on Disposition, 85 

3. Docquet to be written on Notarial Instrument, . 86 

Farms under the Third Method of Completing Assignee's Title, 

Notarial Instrument on an Unrecorded Conveyance in favour 
of an Assignee to be recorded alone with a Warrant of 
Registration. — Consolidation Act, Schedule (J), . 8G 

Notarial Instrument on an Unrecorded Conveyance containing 
a Clause of Direction to be recorded alone with a Warrant 
of Registration. — Consolidation Act, Schedule (J), . 87 
Assignation of an Unrecorded Conveyance (the granter of 
which was infeft) by a person having right to it by Dis- 
position and Assignation, Service or otherwise (as a 
separate Deed). — Consolidation Act, Schedule (M), No. 1, 89 

Methods of CoMPiiETiNG Assignee's Title. 
Notarial Instrument on Assignation (Consolidation Act 1868, 

Schedule N), to be recorded along with the Disposition, 89 
Notarial Instrument (Consolidation Act 1868, Schedule J) to 

be recorded alone, . . . .90 

Assignation by the Grantee of an Unrecorded Conveyance, the 

Granter of which was infeft (Consolidation Act 1868, 

Schedule (M), No. 2) to be written upon the Conveyance, 91 
Assignation by the Grantee of an Unrecorded Conveyance to 

the extent of only part of the subjects therein contained, 92 
(See note prefixed to this Style.) 
Disposition and Assignation by the Grantee of an Unrecorded 

Conveyance to the extent of only part of the Subjects 

therein contained, ..... 93 

Disposition by the Vassal to the Superior, .94 

Minute for effecting Consolidation of Lands, . .95 

5 



xviil CONTENTS. 

PAGE 

Disposition of Superiority, ..... 95 
Disposition by Superior to Vassal, . .96 

(3) Completion of Titx.es of Tbustees, Gekebai« Disponees, 

Tbubtebs and Liqxtidatobs, Adjudoebs in Implement, New 

Tbustees, Benefioiabieb, Jxtdicial Faotobs, and of Minobs, 

Ac,, whose Estates are under Judicial management, . 97 

Note as to Deeds of Settlement of Lands, Ac, — Oonsolidation 

Act 1868, ? 20, . . . . . .97 

1. Cf Trustees and General Disjxmees; 

On a Trust-Disposition and Settlement to A, B, and C, and 

the Acceptors and Suryivors, as Trustees, . 98 

Warrant of Begistration where Deed contains no Clause of 

Direction, ' . . . . . .99 

Warrant of Begistration where the Deed contains a Clause of 

Direction, ...... 99 

Notarial Instrument on a Trust-Disposition and Settlement 
containing a Special Conveyance. — Consolidation Act 
1868, Schedule (J), . . . . .100 

Notarial Instrument on a Trust-Disposition and Settlement 
containing a Special Conveyance and a Clause of Direc- 
tion and Codicil thereto, .... 101 

Notarial Instrument on a Trust-Disposition and Settlement, 
containing a Special Conveyance to several Subjects, in 
some of which the Grantor was not infeft — Consoli- 
dation Act 1868, Schedule (J), . . . • 102 

Notarial Instrument on a General Trust-Disposition and Settle- 
ment or other General Testamentary Conveyance, the 
Granter of which was infeft — Consolidation Act 1868, 
Schedule (li), ...... 103 

Notarial Instrument on a Trust-Disposition and Settlement 
containing either a Special or General Conveyance, the 
Granter of which was not infeft. — Consolidation Act 
1868, Schedule (J), . . . . .105 

Notarial Instrument in favour of Trustees on a Probate of a 

Will, 106 

Notarial Instrument in favour of Trustees or Executors on a 

Deed containing no direct Conveyance of Lands to them, 107 

Title of ex officio^ Ac., Trustees by succession, . . . 108 

Notarial Instrument in favour of a General Disponee, 109 

2. Tide of a Trustee on a .Sequestrated Estate or Liquidator, 

Official or Voluntary, appointed to wind-up a Joint-Stock 
Company, ....... 109 

1. Trustee on Sequestrated Estate, . . .110 

2. Trustee in Sequestration or Liquidators of a Joint-Stock 

Company, ...... 110 



CONTENTS. 



XIX 



PAGE 



Notarial Instrument in favonr of a Trostee on a Sequestrated 
Estate, or of a liquidator of a Company in lands in 
which the Bankrupt or Company was infeft. — Consolida- 
tion Act 1868, Schedule (O), .... 

3. Of Adjudgers in Implement^ ..... 

Warrant of Begistration on Extract Decree of Adjudication in 

Implement against a person infeft, 
Notarial Instrument on a Decree of Adjudication in Implement 

against a person infeft, .... * 

Notarial Instrument on Decree of Adjudication in Implement 

obtained against a person not infeft. — Consolidation 

Act, Schedule (J), ..... 

4. TiUe of a BmefUAary under a Trust, .... 

Petition of Beneficiaries under a Trust for authority to com- 
plete a Title under section 14 of ** The Trusts (Scotland) 
Act 1867, *...... 

5. Title of Judicial FaetorSj New Trustees appointed by the Court, 

and PupilSf Minors, or Lunatics whose Estates are under 
Judicial Management, .... 

Observations, ...... 

6. Completion of Title to Share of a Divided Commonty, or part 

of a QUbe, ...... 

1. Completion of Title on Decree of Division of Commonty, 
ObservationB, ...... 

Notarial Instrument on a Decree of Division of Commonty 

where all the parties are not infeft, 

2. Completion of Title on a Decree of Sale under ''The Glebe 

Lands (Scotland) Act 1866," 
ObservationB, 

7. Sertiee of Heirs, ...... 

(1) General Service. 
Observations, ..... 

Petition as Heir of Line, .... 

Petition as Heir of Line where the deceased died upwards of 
ten years before the date of presenting the Petition, and 
the Petitioner cannot ascertain the place of the de- 
ceased's domicile, ..... 

Petition with Specification annexed, .... 

Observations, ....... 

Petition as Heir of Provision, ..... 

Petition as Heir of Tailzie, . . . . . 

(2) Special Service. 

Observations, ....... 

Petition as Heir of Line, ..... 



Ill 
112 

113 

113 



114 
114 



117 



119 
119 

123 

123 
123 

124 

126 
126 

127 

127 
127 



128 
129 
129 
129 
131 

132 
132 



XX CONTENTS. 

PAGE 

Petition as Heir of Provision, ..... 134 

Petition as Heir of Tailzie and Provision, 136 

Petition where there are several Parcels of Land or separate 
Estates, and it is desired to have separate Extract- 
Decrees, ....... 138 

3. Service of Heir of sole or last sorviving Trustee where the 
Destination in Trast-Deed does not include Heirs. — Con- 
veyancing Act 1874, § 43, . . . 139 
Observations, . . . .139 

Petition as Heir of sole or last surviving Trustee, 140 

8. CompUUon of Title of HdrB under Decrees of Service, .142 

(1) Special Service. 

Observations, ....... 142 

(2) General Service. 

Observations, ....... 142 

Notarial Instrument on a Decree of Special Service, . .143 

Notarial Instrument on an Unrecorded Decree of Special 
Service to which the party has acquired right by 
General Service, ...... 144 

Notarial Instrument on a Decree of General Service where the 

Ancestor was infeft. — Conveyancing Act 1874, J 31, . 145 

9. Cases on Computing Titles of Heirs, . . .. 146 to 168 
10. Title of Heirs or Disponees of Proprietors of Lands having only a 

Constructive personal right, ..... 158 

Observations, . . . . . .158 

Cases where competent, ..... 159 

Form not imperative, ...... 160 

Petition of a Person succeeding as Heir through an unbroken 

series of Heirs vested with Personal Bights, . 161 

Petition of Disponee of Heir having only a Personal Bight, . 164 
Petition of a Disponee whose Author was the Disponee of an 

Heir, &c., vested with a Personal Bight, . 165 

Petition of Trustees of a Person having only a Personal Bight, 166 
Completion of Petitioner's Title, . . .167 

(4) Entbt with the Sxtfbsiob. 

Provisions of the Conveyancing (Scotland) Act 1874 — 

1. Abolition of Renewal of Investiture, and Substitution of Con- 

structive Entry with the Superior, . . .168 

(1) Abolition of Charters and Writs by Progress, . 168 

(2) Constructive Entry with the Superior by Infeftment, 169 

2. TJie mode by which a former Proprietor may he relieved of Liability 

for future Feu-duties and performance of the ObUgaiions of 
the Feu, ....... 169 

Form of Notice to a Superior of Change of Ownership of Feu. 

—Consolidation Act 1874, Schedule (A), . 170 

Observations, . . . . . .171 



CONTENTS. 



XXI 



PAGE 



3. The periods vitun CasnaUies in Feus granted prUrr to the coin- 

meneement of the Conveyancing Act of 1874 arc now exigible 
where the lands are held (1) by Individuals; (2) by Corpora- 
tions or Trustees ; or (3) by Persons having separate interests, 
I. Where lands held by Indiyidoals, .... 
II. Whore lands held by Corporations or Trustees, 

1. Where by the Fen-right the period of payment of 

Casualties, whether legal or conyentional, is left to 
be regulated by law, .... 

(1) By Corporations, ..... 

(2) By Trustees, ..... 

2. Where by the terms of the Feu-right a taxed Composi- 

tion is payable on each sale or transfer of the Pro- 
perty as well as on the death of each Vassal, 

(1) By Corporations and Trustees, 

(2) By persons having separate interests, 

3. Where a Corporation or a Trustee or Trustees shall 

cease to be proprietors of the lands after having 
paid a composition or compositions in terms of the 

ACw, ...... 

4. The Redemption or Commutation of Casualties in Feus granted 

prior to the Act of \^7^, .... 

1. Parties entitled to avail themselves of the provisions for 

Bedemption or Commutation, 

2. What Casualties may be redeemed, . 

3. Terms and Conditions of Bedemption apart from Agreement. 

(1) Where exigible only on death of Vassal, 

(2) Where exigible also on each Sale or Transfer, 

(3) Where consisting of an annual sum for each year from 

date of last entry, .... 

(4) Casualties accruing before redemption must be paid, 

(5) Casualties of Mid-superiority, . 

4. Terms of Commutation of Casualties, 

5. Mode of completing Bedemption or Commutation of Casual 

ties, and effect thereof, .... 
Discharge of Casualties — Conveyancing Act, Schedule (F), 
Completion of Discharge, .... 

Memorandum constituting a Feu-duty in Commutation of 

Casualties — Conveyancing Act, Schedule (G), . 
Observations, ...... 

Completion of Commutation of Casualties, 

5. The Commutation of Carriages and Services, 

Mode of Completing the Commutation and its effect, . 
Memorandum constituting a Feu-duty in Commutation of Car- 
riages and Services — Conveyancing Act, Schedule (G), 
Completion of the Commutation of Carriages and Services, 



173 
173 

174 



174 
174 
174 



174 
174 

175 



175 

175 

176 
176 
176 
176 
176 

176 
176 
177 
177 

177 
177 
178 

178 

170-80 

180 

180 
180 

181 
182 



XXll CONTENTS. 



in f avonr of an 

• • • 

in f ayour of an 

• • • 

in f ayour of an 



PAGE 

182 
182 
183 

183 



6. AUo&xUon of Feu-Jhityf . 

Obsenrations, .... 
Memorandum of Allocation, 
Observations on do., . 

Writs saved from the operation of "The Oonveyandng (Scot- 
land) Act 1874, . , . 
Charter of Novodamus, .... 
Completion of Title, .... 
Entry of Heirs by Precept or Writ of Clare constat, 

1. Lands held of the Crown or Prince and Steward of 

Scotland, ..... 

2. Lands held of Subjects Superior, 
Crown Writ of Clare constat in favour of Heir-at-law, 
Crown Writ of Clare constat in favour of an Heir of Entail, 
Crown Precept, .... 
Writ of Clare constat by a Subject Superior 

Heir-of-line, 
Writ of Clare coTutat by a Subject Superior 

Heir of Provision, 
Writ of Clare constat by a Subject Superior 

Heir of Tailzie and Provision, . 
Precept of Cla/re constat by Subject Superior, 
Completion of Heir's Title, 

1. When made up by Writ of Clare constat, 

2. When proceeding on Precept of Cla/re constat, 
Instrument of Sasine on Crown Precept, 
Relinquishment and Extinction of Superiorities, 

1. Voluntary Belinquishment and Extinction, 
Deed of Belinquishment of Superiority — Schedule (CC), No. 1, 198 
Acceptance by Vassal written on Deed of Belinquishment — 

Schedule (CC), No. 2, . . . . . 199 

Crown Writ of Investiture written on a Deed of Belinquish- 
ment — Consolidation Act, Schedule (CC), No. 3, . 199 
Writ of Investiture by Subject Superior written on Deed of 

Belinquishment, ...... 200 

2. Judicial Forfeiture or Belinquishment of Superiority, 200 
Writ of Clare constat by Subject Superior proceeding on a 

Decree of Forfeiture or Belinquishment, . . 201 

(6) Bights of Land held bt Buboaoe ob by Bookxng Tenxtbe, 202 
1. Distinction between Forms of Burgage and Feu-Bights 

abolished, ...... 202 

Burgage Proprietors may grant Feus, 203 

Bules as to recording of Writs granted before and after 1874, 208 

Forms of Conveyance, . .... 203 

3. Warrant of Begistration now necessary, 204 
Disposition, ....... 204 



184 
184 
186 
186 

186 
186 
187 
188 
190 

192 

193 

195 
195 
196 
196 
197 
197 
197 
197 



CONTENTS. XXlll 

PAGE 

Gompletion of Title, ...... 205 

Note, — The second mode to be deleted as not now competent, See p. 400. 
Warrant of Begistration, ..... 205 

Instrament of Sasine in Burgage Subjects. — Consolidation Act 

Schedule (I), . . . . . .206 

(This Instrament is now incompetent, See Note p. 400.) 
Kotaxial Instrament in Burgage Subjects. — Consolidation Act, 

Schedule (J), ...... 206 

Assignation of Unrecorded Conveyances of Burgage Subjects, 207 
Assignation by the Grantee of an Unrecorded Conveyance, the 
Grantor of which was Infeft (as a separate Deed). — Con- 
solidation Act, Schedule (M), .... 207 

Gompletion of Assignee's Title ..... 208 

Warrant of Registration to be Written on a Conveyance, . 208 
Docquet to be written on Assignation, .... 208 

Notarial Instrument in favour of an Assignee to an Unrecorded 
Conveyance, to be Becorded along with the Conveyance. 
— Consolidation Act, Schedule (N), . . . 209 

Warrant of Begistration to be written on Disposition, 209 

Docquet on Instrument, ..... 210 

Notarial Instrument on an Unrecorded Conveyance to be Be- 
corded alone with a Warrant of Begistration. — Consoli- 
dation Act, Schedule (J), .... 210 

Assignation of an Unrecorded Conveyance (the Granter of 
which was Infeft) by a Person having Bight to it by 
Disposition and Assignation, Service, or otherwise (as a 
separate Deed), ...... 211 

Assignation of an Unrecorded Conveyance, the Granter of 
which was Infeft (to be written upon the Conveyance). 
— Consolidation Act, Schedule (N), . . 211 

Warrant of Begistration, . .212 

Assignation of an Unrecorded Conveyance of part only of the 

Subjects therein contained, .... 212 

Observations thereon, ...... 212 

Completion of Title of Trustees, &c., 212 

Title of Heirs, ....... 212 

Writ of Cla/re C!Em«ea^.— Consolidation Act, Schedule (N) No. 8, 213 
Completion of Title, . .... 214 

Warrant of Begistration, ..... 214 

Title of Adjudgers in Implement, .214 

(2) BEDEEMABLE BIGHTS. 
Alterations on Law by Consolidation Act, . 215 

(1) Dbids of Constitution. 

Bond and Disposition in Security where Executors are excluded. 

—Consolidation Act, Schedule (FF), . . .216 



xxiv CONTENTS. 



PAGE 



Special Clanses. 

Bond, &o., where Exeoators are not Ezdnded, .218 

Proyision for Insurance, ..... 219 
Beserved Power to grant Fens, .... 220 
Bonds to be Banked Pari Passu, .... 222 

Bond by a Hnsband, and Disposition of his Wife's Lands in 

Security, ...... 223 

Bond and Disposition in Security over Lands belonging to the 
Husband, in which his Wife has a right of Liferent 
Annuity, &c., ...... 224 

Bond and Disposition in Security in favour of a Married 

Woman, exclusive of the .^TTkzn^e, &c., . 224 

Bond and Disposition in Security to Testamentary Trustees, . 226 

Bond and Disposition in Security to a Judical Factor on a 

Lapsed Trust, ...... 226 

Bond and Disposition in Security for Money Invested by a 

Curator Bonis for a Lunatic, .... 227 

Bond and Disposition in Security for Money Invested by a 

Tutor-Nominate or a Tutor-Dative, . . . 228 

Bond and Disposition in Security by the Partners of a Com- 
pany over Subjects vested in some of the Partners in 
Trust for behoof of the Company, . 228 

Bond of Annuity and Disposition in Security, . 229 

Variation thereon. Note (a), . . . 230 

Completion of Creditor's Title, .... 231 

Warrant of Begistration to be written on Bond and Disposition 

in Security or other Deed of Constitution, . 231 

(2) Tbansmission of Secubtties and Relative Pebsonal Obuoations 

AND EN70B0EMENT THEREOF AGAINST HeIBS AND DiSFONSES. — 

Conveyancing Act, § 47, . . . . . 231 

Minute to be presented in the Bill Chamber or in a Sheriff- 
Court for Warrant to Charge an Heir or Disponee. — 

Conveyancing Act, Schedule (E), . . 232 

Deliverance on Minute, ..... 234 

Notes on do., ....... 234 

(3) Deeds OF Teansmission, ...... 234 

Note on Transmission by Assignation. — Consolidation Act, . 234 
Assignation of Recorded Security. — Consolidation Act 1868, 

Schedule (GG), ...... 235 

Assignation of Security the Infef tment on which has been 

taken by an Instrument thereon, . . 236 

Assignation by a Married Woman, with concurrence of her 

Husband, of Security in her favour, 236 



CONTENTS. XXV 

PAGE 

Ratification, ....... 237 

Aadgnation of part of som in Seoority, . 237 
Assignation of part of sum in Secnrity, which is to be prefer- 
able to the remaining sum, .... 238 

Assignation of Security partially discharged, 239 
Assignation of a Security by a person who has acquired right 

thereto by a series of Titles, . . .239 

Assignation of a Bond of Annuity and Disposition in Security, 241 

(4) OOMFLBTION OF TiTIJB OF AsaXONKB, .... 242 

Notarial Instrument in favour of an Assignee to an Heritable 
Security following on a Deed granted for further pur- 
poses. — Consolidation Act, Schedule (HH), . . 242 

Notarial Instrument in favour of Trustees in a General Dis- 
position not the Assignees of the Original Creditor. — 
Consolidation Act, Schedule (L), and Conveyancing 
Act, § 53, . . . . . .243 

Notarial Instrument in favour of General Disponee of the 

Original Creditor. — Conveyancing Act, Schedule (N), . 247 

Notarial Instrument in favour of General Trust Disponees not 
the Assignees of the Original Creditor. — Conveyancing 
Act, Schedule (N), . . . . .248 

Notarial Instrument in favour of the Assignees of a General 
Disponee of the Original Creditor. — Conveyancing Act, 
Schedule (N), ...... 260 

(5) MniTTTES £XCI<ITDIN0 EXECUTOBS, AMD OF BeMOVAL OF THE EXCLU- 

SION OF EXECUTOBS IM HZBTTABLE SeCUSITIES, 251 

I. Minvtes Exdnding Executors. 

Minute Excluding Executors, to be indorsed on the Bond or 
other Deed of Security or Assignation thereof, where 
the Security or Assignation has not been recorded or 
completed by infeftment. — Consolidation Act, Schedule 
(DD), 251 

Minute Excluding Executors from an Heritable Security or 
Assignation thereof, where the Security or Assignation 
has been recorded or completed by infeftment (as a 
separate Deed). — Consolidation Act, Schedule (DD), . 251 

Minute of Exclusion of Executors from an Assignation where 

Executors were not Excluded in Bond, . . . 252 

Minute of Bemoval of the Exclusion of Executors in Security 

or Assignation thereof, ..... 253 

Minute of Bemoval of Exclusion of Executors contained in an 
Assignation of a Security in which Executors were not 
Excluded, ...... 253 

Minute of Bemoval of Exclusion of Executors from an Heritable 

Security where the Exclusion is contained in a Minute, 254 



xxvi CONTENTS. 



PAGE 



(5) GOMFIiETION OS TiTLES OF TbUSTEE IN SeQUESTBATION, LiQUTDA- 
TOBS OF A JoIMT-StOOK COMPANY, AdJUBOEBS, AND BeNBFIGI- 
ABIES UNDEB LAPSED TfiUSTS, ..... 255 

Notarial Instrument in favour of a Tmstee on a Sequestrated 

Estate, or of a Liquidator of a Joint-Stock Company, 255 

Notarial Instrument in favour of a Trustee or Liquidator 
where the Bankrupt or Company has acquired right to 
the Security. — Consolidation Act, Schedule (LL), . 257 

2. Compleiion of TiUe of Adjfudgen in Implement, 

1. Under Decrees of Adjudication of Land for Payment of Debt, 257 
Warrant of Begistration to be written on Extract Decree of 

Adjudication against a person infef t, . . 258 
Notarial Instrument on a Decree of Adjudication against a 

person infeft, ...... 258 

Notarial Instrument on a Decree of Adjudication against a 

person not infeft, ..... 259 

2. Under Decrees of Adjudication of Heritable Securities, 259 

Observations, ...... 259 

3. Completion of Title of a Beneficiary under a Lapsed Trust, . 261 

Observations, ...... 261 

(7) Tbansmission or Hebttable Secubities fjiom the Dead to the 

LiviNo, ....... 261 

Observations, ..... 261-267 

Notarial Instrument in favour of the Executor-Dative of a 
Creditor in right of an Heritable Security constituted 
by infeftment from which Executors are not excluded. — 
Consolidation Act, Schedule (JJ), . . . 267 

Notarial Instrument in favour of Executors-Dative on a Bond 
and Disposition in Security, or other Security consti- 
tuted by Infeftment, from which Executors are not 
excluded, where the Executors are not entitled to the 
whole Estate for their own beneficial interest, and the 
Deceased had acquired right thereto. — Consolidation 
Act, Schedule (JJ), : . . . .269 

Notarial Instrument in favour of an Executor-Nominate of the 
Creditor in right of a Bond and Disposition in Security 
constituted by Infeftment from which Executors are 
not excluded. — Consolidation Act, Schedule (KE), . 270 

Notarial Instrument in favour of the General Disponee or 
Legatee of a Creditor in an Heritable Security consti- 
tuted by Infeftment from which Executors are not ex- 
cluded. — Consolidation Act, Schedule (EK), . . 271 

Notarial Instrument in favour of Trustees under a Trust-Dis- 
position and Settlement on a Bond and Disposition in 



CONTENTS. XXVll 

PAGE 

Seonrity oonstitated b^ Inf eftment from which Execu- 
tors are not excluded^ and to which the deceased acquired 
light by Assignation. — Ck)n8olidation Act, Schedule 
(KK), 272 

Notarial Instrument in fayour of Trustees under a Trust-Dis- 
position and Settlement on a Bond and Disposition in 
Security from which Executors are not excluded. — Con- 
solidation Act, Schedule (L), and Conveyancing Act 
1874, sec. 53, . . . . . .278 

Notarial Instrument in fayour of a Greneral Disponee of the 
Creditor in a Bond and Disposition in Security consti- 
tuted by Infeftment and from which Executors are not 
excluded. — Conveyancing Act, Schedule (N), . . 275 

Notarial Instrument in favour of a person acquiring right from 
a General Disponee of the Creditor in a Bond and Dis- 
position in Security constituted by infeftment, and from 
which Executors are not excluded. — Conveyancing Act, 
Schedule (N), ...... 276 

Notarial Instrument in favour of a General Disponee of the 
Creditor in a Bond and Disposition in Security consti- 
tuted by Infeftment, from which Executors are not ex- 
cluded, and to which the Creditor had acquired right. — 
Conveyancing Act, Schedule (N), . . . 277 

Writ of Acknowledgment in favour of the Executor-Nominate 
of the Creditor in a Security, from which Executors are 
not excluded. — Consolidation Act, Schedule (II), . 277 

Writ of Acknowledgment in favour of Executors-Nominate of 
the Creditor in a Security, from which Executors are 
not excluded, and to which the Executors aro not entitled 
wholly for their own beneficial interest. — Consolidation 
Act, Schedule (11), . . . .278 

Writ of Acknowledgment by a person not the original Debtor, 
in fayour of a Legatee of the Creditor in a Security, 
from which Executors are not excluded. — Consolidatiou 
Act, Schedule (II), . . . . .279 

Writ of Acknowledgment in favour of the General Trust-Dis- 
ponees of the Creditor in a Security, from which Execu- 
tors are not excluded, and to which the deceased had ac- 
quired right. — Consolidation Act, Schedule (II), . 280 

Writ of Acknowledgment in favour of the Heir-at-Law of the 
Creditor in a Security from which Executors aro ex- 
cluded. — Consolidation Act, Schedule (11), . . 281 

Writ of Acknowledgment in favour of the Heir-at-Law of the 
Creditor in a Security from which Executors aro ex- 
cluded by Minute. — Consolidation Act, Schedule (II), . 281 



XXVlll CONTENTS. 



PAGE 



Writ of Acknowledgment in f avonr of the Heir-at-Law of the 
Creditor in a Security from which Executors are ex- 
cluded, and to which the deceased had acquired right 
only in part. — Consolidation Act, Schedule (II), . 282 

Notarial Instrument in favour of the Heir-at-Law of a Creditor 
in a Security from which Executors are excluded. — Con- 
solidation Act, Schedule (JJ), . • . . . 283 

Petition of Special Service as Heir-of-Line in a Security from 

which Executors are excluded, .... 284 

Notarial Instrument in favour of the Grantee or Legatee of 
the Creditor in a Security from which Executors are ex- 
cluded. — Consolidation Act, Schedule (KE), . . 286 

Notarial Instrument in favour of the General Trust Disponees 
of the Creditor in a Security from which Executors are 
excluded.— Consolidation Act, Schedule (EE), . . 286 

Notarial Instrument in favour of a General Disponee of the 
Creditor in a Security from which Executors are ex- 
cluded. — Consolidation Act, Schedule (L), and Con- 
veyancing Act 1874, section 53, . . . . 287 

Notarial Instrument in favour of a General Disponee of the 
Creditor in a Security from which Executors are ex- 
■ eluded. — Conveyancing Act, Schedule (N), . . 287 

Notarial Instrument in favour of Executor-Dative of the 
Creditor in a Security which has not been constituted 
by Infef tment, and from which Executors are not ex- 
cluded. — Consolidation Act, Schedule (MM), . . 288 

Notarial Instrument in favour of Executors-Nominate of the 
Creditor in a Security not constituted by Infeftment, 
and from which Executors are not excluded, where the 
Executors are not entitled to the whole Estate for their 
own beneficial interest. — Consolidation Act, Schedule 
(MM) 288 

Notarial Instrument in favour of the Heir-at-Law of the 
Creditor in a Security not constituted by Infeftment, 
and from which Executors are excluded. — Consolidation 
Act, Schedule (MM), . . . . .289 

Notarial Instrument in favour of a General Disponee or 
Legatee of the Creditor in right of an Unrecorded As- 
signation of a Security constituted by Infeftment, and 
from which Executors are excluded. — Consolidation Act, 
Schedule (MM), ...... 290 

(8) Deeds of Extinction of Hebitable Secttbites, . . . 291 

Discharge of a Bond and Disposition in Security. — Consolida- 
tion Act, Schedule (NN), . . . .291 
Discharge of an Heritable Security on which Sasine has fol- 



CONTENTS. XXIX 



PAGE 



lowed, and to which the granter of the Discharge has 
acquired right. — Consolidation Act, Schedule (NN), 291 

Discharge by a person who has acquired right to a Security 
not recorded daring the lifetime of the original Creditor, 
bat on which Notarial Instrument was expede, and from 
which Executors have not, or from which they have, 
been excluded. — Consolidation Act, Schedule (NN), . 292 

Partial Discharge of a Bond and Disposition in Security. — 

Consolidation Act, Schedule (NN) . 293 

Deed of Bestriction of a Bond and Disposition in Security. — 

Consolidation Act, Schedule (00), . 294 

Partial Discharge and Deed of Bestriction of an Heritable 

Security. — Consolidation Act, Schedules (NN) and (00), 296 

Discharge of a Bond of Annuity and Disposition in Security. — 

Consolidation Act, Schedule (NN). . 295 

Completion of Discharge or Bestriction, 296 

Notarial Certificate where lands redeemed of Security, but 
Discharge cannot be obtained. — Conveyancing Act, 
Schedule (L), No. 2, . . . . .296 

Form of Notarial Certificate where lands have been redeemed 
of part of an Heritable Security, but Discharge cannot 
be obtained. Schedule (N), No. 2, . . . 297 

(9) Wbits comnboted with bealisino Hebitable Secubities, 298 

Schedule of Intimation, Bequisition, and Protest, by the 
Original Creditor. — Consolidation Act, Schedule (FF), 
No. 2, ...... . 298 

Certificate by Notary-Public to be written on copy of the 

Schedule. — Consolidation' Act, Schedule (FF), No. 3, . 300 

Schedule of Intimation^ Ac., where the Creditor has acquired 
right, and the Debtor is not the Granter of the Security. 
— Consolidation Act, Schedule (FF), No. 2, 800 

Notarial Certificate where Lands in Security are Sold and no 
surplus emerges. — Conveyancing Act, Schedule (L), 
No. 1, ...... . 801 

Obseryations, ....... 801 

Style, ........ 802 

(10) Bkaii Bubdzns on Land, ...... 802 

1. CoTigUtiUion of SecuriUes bj/ loay of real burden, 802 

Observation as to Constitution, .... 302 

Provisions of Conveyancing Act as to Transmission and Com- 
pletion of Title of Assignees, 303-307 

(1) DzKDS OF Tbansmzssion, ...... 307 

Assignation by the Original Creditor. — Consolidation Act, 

Schedule (GO) ; Conveyancing Act, 2 30, 807 



XXX CONTENTS. 



PAGE 



Assignation by the Original Creditor in a real bnrden oonsti- 
tnted by Disposition on which an Instrument has 
followed. — ConsolidationAot, Sohednle (GG) ; and Con- 
yeyancing Act, § 80, . . . . 308 

Assignation by the Original Creditor of part only of the snm 
dne. — Consolidation Act, Schedule (GK^); and Convey an- 
cing Act, 2 80, . . . . . . 808 

Assignation by a Person who has acquired right.— Consolida- 
tion Act, Schednle (GO) ; and Conveyancing Act, § 80, . 809 

(2) Completion of Title of Assignebs to Bsaij Bubdens, . 810 

1. By Begistration of the Deed, .... 810 

2. By Notarial Instroment, .... 810 
Notarial Instminent in f ayoor of an Assignee where the Beal 

Borden has not been oonyeyed *'by any Deed, Instru- 
ment, or Writing which has entered the appropriate 
Begister of Sasines." — Consolidation Act, Schedules (J) 
and (HH) ; and Conyeyandng Act, § 80, . . 810 

Notarial Instrument in favour of an Assignee whose Author's 
Title has not been recorded, where the Beal Burden has 
been conveyed by a ''Deed, Instrument, or Writing 
which has entered the appropriate Begister of Sasines." 
— Consolidation Act, Schedules (J) and (HH) ; and Con- 
veyancing Act, J 80, . . . . . 812 

(8) Tbansmission of Beaii Busdens fbom the Dead to the Livino, 818 
Observations as to liability of Beal Burdens to Inventory 

Duty, ....... 818 

(1) Where Executors are not excluded, .... 818 

(2) Where Executors are excluded, .... 8I4 

Mode of Maeino Up Titles. 

(1) Where Executors have not been excluded, . 314 

(2) Where Executors have been excluded, . . . 814 
Notarial Instrument in favour of the Executor-Dative of a 

Creditor in right of a Beal Burden from which Executors 
are not excluded, and which has not been conveyed by 
Deed, Instrument, or Writing which has entered the 
appropriate Begister of Sasines. — Consolidation Act, 
Schedule (J J) ; and Conveyancing Act, § 80, . . 815 

Notarial Instrument in favour of an Executor-Nominate of the 
Creditor in a Beal Burden from which Executors are not 
excluded, and which has been conveyed by a Deed, In- 
strument, or Writing which has entered the appropriate 
Begister of Sasines. — Consolidation Act, Schedule (EK) ; 
and Convej^ancing Act, § 80, . 31G 



CONTENTS. XXXI 

PAGE 

Writ of Acknowledgment by a Person not the Original Debtor, 
in favour of the Exeoutor-Nominate of an Assignee of 
the Original Creditor in a Real Burden from which 
Executors are not excluded. — Consolidation Act, 
Schedule (II) ; and Conyeyandng Act, § 80, . . 317 

Writ of Acknowledgment in favour of the Heir-at-Law of the 
Creditor in a Beal Burden fiom which Executors are 
excluded. — Consolidation Act, Schedule (IE) ; and Con- 
veyanoying Act, § 30, . . . . 318 

Notarial Instrument in favour of the Heir-at-Law of the 
Creditor in a Beal Burden from which Executors are 
excluded, and which has been conveyed by Deed, 
Instrument, or Writing which has entered the appro- 
priate Begisterof Sasines. — Consolidation Act, Schedule 
(J J) ; and Conveyancing Act, J 80, . .310 

Petition of Special Service as Heir-of-Line to the Creditor in 
a Beal Burden from which Executors are excluded, and 
which has been conveyed by a Deed, Instrument, or 
Writing which has entered the appropriate Begister of 
Sasines, ....... 320 

Notarial Instrument in favour of (General mortis causa Disponee 
of the Original Creditor. — Conveyancing Act, Schedule 
(•N), •••.... 322 

Notarial Instrument in favour of a General Disponee of the 
Creditor in a Beal Burden which has been conveyed by 
Deed, Instrument, or Writing which has entered the 
appropriate Begister of Sasines, and to which the 
Creditor had acquired right. — Conveyancing Act, 
Schedule (N), . .... 828 

(4) Deeds of Exunotion of Seoxtsztixs Constituted bt wat of 

BSAIiBUBDBN, ...... 824 

Discharge by the Original Creditor. — Consolidation Act, 

Schedule (NN) ; and Conveyancing Act, J 80, . . 824 



PART II. 

STTLES UZmEB " THE BEQISTMTION OF LEASES (SOOT- 
LAND) AOT, 1857." 

(1) Pbovibions of Act as to Leases which mat be Beqistebed, 827-880 
Building Lease, ....... 880 

Leases must have Warrant of Begistration (Foot-note 1), . 885 



XXXU CONTENTS. 



PAGE 



Begistration of Leases by Persons who have Acquired Eight 

thereto, ....... 336 

By Heir, ....... 336 

By an Assignee, ...... 337 

And Foot-note, ...... 338 

Notarial Instrument on an Unrecorded Lease in favour of the 

Heir of the Original Grantee. — Schedule (C), No. 1, . 839 
Notarial Instrument on an Unrecorded Lease in favour of a 

Person not the Immediate Heir of the Original Grantee. 

—Schedule (C), No 1, . . . .340 

Notarial Instrument on an Unrecorded Lease in favour of a 

Person who has acquired Bight as a Singular Successor 

by a Series of Titles.— Schedule (0), No. 1, 840 

Transmission of Begistered Leases, .... 841 
By Assignation inter vivos, .... 341 

Assignation of a Becorded Lease by the Original Grantee. — 

Schedule (A), ...... 342 

Assignation of a Becorded Lease by a Person who has Acquired 

Bight, ....... 845 

Assignation of part of subjects in lease, 846 

Completion of Title of Assignee, .... 347 

(2) Tbansmisszon to Heibs. 

Provisions of Act, . . . .347 

Writ of Acknowledgment in favour of an Heir in a Becorded 

Lease. — Schedule (E), No. 1, . . . . 349 

Writ of Acknowledgment in favour of an Heir who has Ac- 
quired Bight to part only of the Subjects Let. — Sche> 
dule (E), No. 1, . . . . . . 360 

Notarial Instrument on a Becorded Lease in favour of the Hei]> 

of the Original Grantee. — Schedule (F), No. 1, . 351 

Notarial Instrument on a Becorded Lease in favour of the Heir 

of an Assignee fully vested. — Schedule (F), No. 1, . 352 

Notarial Instrument on a Becorded Lease in favour of the Heir 
of an Assignee who was vested in only part of the Sub- 
jects, ....... 355 

Notarial Instrument on a Becorded Lease in favour of the Heir 
of an Assignee who has Died without Becording his 
Assignation. — Schedule (F), No. 1, . . . 355 

(3) TbANSIOSSION to GXNESAIi DiSPOMKES, .... 

Provisions of Act, ...... 356 

Notarial Instrument on a Becorded Lease in favour of the 

Trustees and General Disponees of the Original Grantee. 

— Schedule (F), No. 1, . . . . 366 

Notarial Instrument on a Becorded Lease in favour of the 



CONTENTS. XXXlll 

PAGE 

Oeneral Disponees of an Assignee folly Tested.— Sche- 
dule (F), No. 1, . .367 

[S«e another Style mfra,] 

[Notazial Insimment on a Becorded Lease in faTonr of the 
General Tmst-Disponees of an Assignee folly vested. — 
Schedole (F), No. 1,] . .869 

Notarial Instroment on a Becorded Lease in favour of the 
General Disponee of an Assignee who has Died withoot 
Beoording his Assignation, .... 860 

[See another Style infra.] 
[Notarial Instroment on a Becorded Lease in f avoor of the 

General Disponee of an Assignee who has Died withoot 

Beoording his Assignation. — Schedule (F), No. 1,] 861 
Notarial Listroment on a Becorded Lease In favoor of a Tros- 

tee on a Sequestrated Estate.— Schedole (F), No. 1, . 862 
Completion of General Disponee's Title, .862 

Benondation of a Becorded Lease, .... 862 

Completion of Extinction, ..... 868 

Secorities over Leases, ...... 868 

Provisions of Act, ...... 868 

Bond and Assignation in Secority over a Becorded Lease. — 

Schedole (B), . . .866 

Bond and Assignation in Security over a Becorded Lease, 366 

Completion of Creditor's Title, . . 367 
Notarial Listroment on a Bond and Assignation in Security 

which has not been Becorded in the Lifetime of the 

Grantee. —Schedule (F), No. 2, . 868 
Translation of a Bond and Assignation in Security.— Begistra- 

tion of Leases Act, Schedole (D), 869 

Translation by a Person who has Acqoired Bight, 869 

Partial Translation of a Bond and Assignation in Secority, 370 

Completion of Titles of Heirs and General Disponees, 871 

Provisions of Act, ...... 371 

Writ of Acknowledgment in f avoor of the Heir of the Creditor 
in a Bond and Assignation in Secority. — Schedole (E), 
No. 2, . . . . . . .371 

Writ of Acknowledgment in favour of the Heir of a Creditor 

who had acquired Bight to only part of the Debt, 872 

Notarial Instrument in favour of the Heir of the Creditor in a 

Bond and Assignation in Secority. — Schedole (F), No. 2, 878 

Notarial Instroment in f avoor of the Heir of a Creditor who 
had acqoired right to a Bond and Assignation in Seco- 
rity, ....... 874 

[See another Style mjra.] 



XXXIV CX)NTENTS. 

PAGE 

[Notarial Instrument in fayour of the Heir of a Oreditor who 
had acquired right to a Bond and Assignation in Secu- 
rity,] ..... 375 

Notarial Instrument in favour of the Qeneral Disponees of the 

Oreditor in a Bond and Assignation in Security, 876 

Discharge of a Bond and Assignation in Security. — Schedule 

^H ....... 377 



PART III. 
STTFPLEHENTABT WBITS. 



AsnoiiEs AND Conditions of Botjf of Hebitable Subjects, . 379 

(a) Where Signed by Agent for Exposer, 385 

(6) Where Subjects to be Exposed in Lots, 385 

(e) Where Searches are not to be furnished, 389 
(d) Where Subjects Exposed under Bond and Disposition iu 

Security, ....... 389 

Minute of Adjournment, ..... 393 

Minute of Preference and Sale, .... 393 

(a) Where Purchase made by Agent, 394 
Schedule of Intimation, Requisition, and Protest, by Uredilor 

in Security — Old Style — (Foot-note), . 394 

Instrument following thereon (Foot-note) 396 

Mandates fob Exfedino Sebyioes. 

General Sendee, ...... 395 



Special Service, .... 

Service as Heir of Entail, . 

Proof in Service, .... 
Deed of Declaration of Beservations, Conditions, &o 

Imported by reference into Feu-Bights, &o.. 
Completion of Declaration, 



396 
396 
387 
to be 

. 398 
399 



Note as to Instrument of Sasine in Burgage Subjects, 400 



CONTENTS. XXXV 



APPENDIX. 



PAGE 

1. '* The TrrLEa to Land Gonsoudation (Sootland) Act 1868," 81 

and32yiot. cap. 101, ..... 1 

2. *' The Land BBaiBTKBS (Scotland) Act 1868," 81 and 32 Viot 

cap. 64, ...... . 133 

3. '* The GoMYXTANCiNa (Scotland) Act 1874," 37 and 38 Viot. cap. 

4. *' The Bkobtbation or Leases (Scotlai^) Act 1857," 20 and 21 

Vict 01^. 26, . .185 

5. ' ' The Sbqibtbation of Leases (Scotland) Amendment Act 1877, " 

40 and 41 Vict cap. 36, .... . 196 

6. " An Act to Amend the Fobm of Waerant of Ezeotttion on geb- 

TAIN Extracts of Wbtts beqistkbed in the Books of 
GouNoiL AND Session and Shebiff Goubt Books in Scot- 
land; AND TO PBOVIDE FOB THE AUTHENTI CATION OF CEBTAIN 

EzTEACTB OF Wbits, 40 and 41 Viot oap. 40, .197 



STYLES 



OP 



DEEDS AND INSTRUMENTS 



INTRODUCTION. 

80LBMNITIE8 REQUIRED IN THE EXECUTION OF DEEDS, 

TN consequence of the very great and important alterations 
which have of late years heen made in regard to the 
solemnities required in the execution of deeds in order to 
render them probative, it may be convenient, before entering 
on the immediate subject of the present work, to explain 
those alterations, and to state generally how the law in this 
respect at present stands. 

I. — Former Law. 

Without here tracing minutely the course of the various 
provisions on the subject contained in the old Scots Acts 
from 1540 to 1696, it maybe mentioned generally that under 
them, in order to render a deed probative, it was required : — 

!• That the granter should subscribe each page of it. 

2. That there should be two subscribing witnesses, who, 
as well as the writer of the deed (who by one Act required 
also to be named), should be designed therein ; and 

^. That where written bookways each page of the deed 



2 INTRODUCTION. 

should be numbered, and that the number of pages of 
which it consisted should be mentioned in the testing clause. 
To these statutory requisites were generally added in 
practice the place where and the date when the deed was 
signed. 

II. Eecent Alterations in the Law. 

1. — Pagination dispensed with. 

The first change in these requisites was made by the 
Act 19 and 20 Vict. c. 89, which provided that it should not 
be competent to challenge " any deed or writing of any 
description whatever on the ground that the pages thereof 
are not marked by numbers; and it shall no longer be 
necessary to mark the pages of any deed or writing by 
numbers, any law or practice to the contrary notwithstanding ; 
provided always that nothing herein contained shall be 
construed to affect" "the provision of the said recited Act,* 
or of any other Act or Acts of Parliament, as to mentioning 
in the testing clause the number of the pages of which Uie 
deed consists, or the provision as to signing each page of the 
deed, or any other provision of the said recited Act." 

2. — Deeds allowed to be partly written and partly printed, dec. 

The next change introduced was by the Titles to Lands 
Acts of 1858 and 1860, which contained enactments author- 
ising deeds to be partly written and partly printed or en- 
graved, provided " that the name and designation of the 
writer of the written portion of the deed, writ, or instrument, 
and of the written portion of the testing clause, shall be ex- 
pressed at length in writing."t The corresponding enact- 

♦ 1696, c. 16. 

t 21 and 22 Viot. c. 76, { 84, and see 23 and 24 Vict. c. 143, I 20. • 



INTRODUCTION. 3 

raent in the Consolidation Act (§ 149) omitted the last part 
of the requirement of the former Acts, and declared "that no 
«uch deeds, conveyances, and documents executed prior to 
the commencement of this Act shall be challengeable on the 
ground that the name of the writer of the written portions 
of the testing clause is not mentioned." 

3. — Female Persons may be Instrumentary Witnesses, 

By the Consolidation Act (§ 139) it is declared, that any 
female person of the age of fourteen years or upwards, and not 
subject to any legal incapacity, may act as an instrumentary 
witness, and that no deed or writing of whatever nature, 
whether executed before or after the passing of that Act, 
shall be liable to challenge on the ground that any instru- 
mentary witness thereto was a female person. It may be 
doubted, however, whether any legal incapacity had pre- 
viously attached to female persons acting as instrumentary 
witnesses. See Setton, Feb. 24, 1816, 1 Murray 9; and 
More's Notes to Stair, 399. 

With reference to the expression — "Not subject to any 
legal incapacity," it is recommended that a wife should not 
act as instrumentary witness to a deed executed by her 
husband. 

4. — No longer necessary to name Writer or Printer, or to 
specify number of Pages. Designations of witnesses 
mxxy be appended to their subscriptions. 

So matters remained till the passing of The Conveyancing 
(Scotland) Act, 1874, when further important changes were 
made. Under the provisions of this Act it is now no longer 
necessary in order to render a deed, instrument, or writing, 
wl^ether relating to land or not, probative — 



4 INTBODUCTION. 

(1) That the writer or printer be named or designed : 

(2) That the number of pages be specified : or, 

(3) That the witnesses be "named or designed in the 
body of such deed, instrument, or writing, or in the testing 
clause thereof, provided that where the witnesses are not so 
named and designed their designations shall be appended to 
or follow their subscriptions ; and such designations may be 
so appended or added at any time before the deed, instru- 
ment, or writing, shall have been recorded in any register 
for preservation, or shall have been founded on in any 
court,* and need not be written by the witnesses them- 
selves." t 

By these changes all the solemnities formerly required 
in the execution of deeds, though still permitted to be 
used, have, as essential requisites,' with the exception 
of the subscription by the party and witnesses, been 
abolished, and deeds may now be attested according to the 
English form. Oases may no doubt occur where it may be 
convenient to take advantage of the option thus afforded^ 
and there the new system will be adopted; but in the 
ordinary case it is strongly recommended that the old form^ 
which, where there are many parties to the deed, will be 
found more convenient than the new, be used. The following 
may be taken as examples — 

Old style of Testing Clause. 

In witness whereof I have subscribed these presents^ 
written on this and the preceding pages by {or^ in 

case of there being marginal additions, these presents, con- 

♦See Dick's Tutors, Hume 908; MTherson, 7 Feb. 1855, 17 D. 857 ; 
TTOI, 6 Deo. 1870, 9 Macph. 223; Veasey, 2 June 1875, 2 E. 748. 
tAot,§88. 



INTRODUCTION. 5 

listing of this and the preceding pages, with the 

marginal additions, one on each of pages . and , 

or cts the case may 6e, all written by) A B, clerk to C D of 
Edinburgh, Writer to the Signet (or as the case may be), at 
(or, if there be any erasures, dec, to be noticed, under 
the declaration that the words {here qtu>te them) on the 
line counting from the top of page are written 

{or, are partly written) on an erasure (or, erasures), and 
that the words {here quote them) are interlined between the 
words and in the line counting from 

the top of pa^e before subscription at ), 

the day of , in the year One thousand 

•eight hundred and , before these witnesses 

E F, merchant in , and G H, his apprentice. 

E F, witness. P B. 

G H, witness. 

Style of Testing Clause where there are several Subscriptions. 

Where there are several parties to the deed, who sub- 
scribe at different times, the testing clause may be framed 
.as follows : 

In witness whereof these presents, written on this and 
the preceding pages by {or consisting of this and the 

preceding pages, with the marginal additions, one 
on each of pages and , or as the case may be, all 

written by) A B, clerk to C D of Edinburgh, W.S., are 
subscribed as follows, viz. by me, the said {insert name), 
M , the day of , in the year 

, before these witnesses, E F (insert designor- 
tion) and G H (inser designation), by me, the said (insert 
name)f at , the day of , 



6 INTRODUCTION. 

in the year last before mentioned, before these witnesses^ 
J K (insert designation) and L M {insert designation), (and 
80 on, through all the parties). 

New Style of Testing Clavse, and Form of Attestation. 

The Conveyancing Act contains no form of the testing 
clause or directions as to the attestation, but the following 
style of the testing clause may be adopted, viz. : — 

In witness whereof, I have subscribed these presents 
{if there are marginal additions add, with the marginal 
additions, one on each of pages and , and if there 

be am/ erasures or interlineations to he noticed, here refer 
to them as in the old* style, supra), the day of ^ 

in the year Eighteen hundred and 

The date, though not a statutory requisite, has by 
uniform practice been inserted in Scotch deeds, and may, 
as in the event of the supervening bankruptcy, or, in the 
case of testamentary deeds, of the alleged incapacity of the 
grantor, be of importance, and therefore should be inserted 
where the new style is adopted. In England, a deed, not- 
withstanding that there are many parties to it who sign at 
different times, bears but one date ; but in Scotland, where 
a different practice has prevailed, it is not easy to say what 
might be the effect of an erroneous statement in this 
respect, and it is therefore recommended that where a deed is 
signed at different times, the date on which it was subscribed 
by each of the parties be specified in the testing clause. 

Subscription by the Parties, 

The rule as to signing remains unchanged, and the deed 
win be subscribed by the grantor or grantors on each page,. 
and also at the marginal additions, if any. 



INTBODUOTION. 7 

Form of Attestation, 

In regard to the attestation where there is but one party, 

or where, if more than one, the parties all sign the deed at 

the same time, it will be sufficient that the witnesses sign at 

the end, their respective designations being appended, either 

by themselves or by some one else, thus 

PR 
E F, merchant in Edinburgh, witness. 

G H, apprentice to the said E F, witness. 

Where there are several parties tp the deed who subscribe 

at different times, either of the following modes may be 

adopted. 

1. There may be written above the signatures of the 
witnesses to each subscription or set of subscriptions, as 
follows, viz! — 

Signed by the said A B (or by the said A B and C D, 
or as the case may he), in presence of 
and thereafter will follow the signatures of the witnesses, 
their respective designations being appended as above, 
though they need not be inserted at the time ; or, 

2. After the designation of each of the witnesses there 
may be added the name or names of the party or parties 
whose subscription he attests, thus — 

E F, merchant in Edinburgh, witness to the signature 
(or subscription) of the said A B (or to the signa- 
tures (or subscriptions) of the said A B and D, 
or as the case may be). 

G H, Apprentice to the said E F, witness to the signa- 
ture {or subscription) of the said A B (or to the 
signatures or subscriptions) of the said A B and 
CD (or as the case may be). 
and 80 in regard to all the parties to the deed. 



8 INTRODUCTION. 

The first of these modes will be the more convenient of 
the two. 

Although not necessary, it is recommended as a security 
against error that where possible the designations of the 
witnesses be added at the time of subscription. 

Besides the changes which have now been noticed in the 
solemnities in the execution of deeds in general, others have 
been introduced in regard to 

5. — TJie Execution of Deeds by Parties wlio cannot Write. 

Formerly where the maker of a deed, if one relating to land 
or of great importance, was unable to write, it was necessary 
to have the deed signed by two notaries before four witnesses, 
and a certain ceremony (the touching of the notaries' pen by 
the grantor of the deed in token of his giving them authority 
to sign for him) was required to be observed, and to be set 
forth in the notaries' docquet. That mode of proceeding still 
remains competent, but by the Act of 1874, § 41, another has 
been introduced, and now 

1. Justices of the Peace as well as notaries may act; and 
in either case one is sufficient, whether the deed relates to 
land or not.* 

2. Though express authority must be given, the cere- 
mony of touching the pen in token of giving it is dispensed 
with ; and 

3. Two witnesses are sufficient. 

The deed must be read over to the maker in presence of 
the witnesses ; and this, as well as the authority given to the 
notary or justice to sign, and the reason why the maker can- 
not write, must be set forth in the docquet. 

* A mutual settlement signed by only two notaries for both parties has 
been sustained (Graeme, 21st Oct. 1868, 7 Macph. 14, where OrcUg, M. 
16,829 commented on), so that in such a case one notary or justice probably 
would now be sufficient. 



INTRODUCTION. ^ 

The statutory form of the docquet {infra) is adapted also 
to the case where a parish minister acts as notary, which 
in his own parish he is entitled to do as regards wills or 
other testamentary writings. 

The notary, justice, or parish minister, besides being de- 
signed as such in the docquet, must add the character in 
which he acts to his signature to the docquet ; and 

The docquet must be holograph. 
The following is the statutory 

Form of Docquet wkert Chranter of Deed cannot tartie. 

By authority of the above-named and designed A B, who 
declares that he cannot write, on account of sickness and 
bodily weakness (or, never having been taught, or otherwise 
as the case may 6e), I, C D (design him), Notary Public, (or, 
Justice of Peace for the county of {nams it), (or, as regards 
wills or other testamentary writings executed by a parish 
minister as Notary Public in his own 'parish, minister of the 
parish of {name it), subscribe these presents for him, he 
having authorised me for that purpose, and the same having 
been previously read over to him, all in presence of tjie 
witnesses before named and designed, who subscribe this 
docquet in testimony of their having heard {or seen) autho- 
rity given to me as aforesaid, and heard these presents read 

over to the said A B. 

(Signed) A B, Notary Public [or 

Justice of the Peace 

or Parish Minister]. 
E F, witness. 

G H, witness. 

Provision has been made by the Act of 1874 also in 
reference to— 



10 INTRODUCTION. 



6. — The Execuiion of Deeds by Companies Registered under 
'' The Companies Acts 1862 and 1867." 

There is no express direction in these Acts as to the 
execution of deeds generally, though there is as to particular 
deeds, and some diflBculty had been felt in determining what 
was the proper form of execution to bo adopted in Scotland. 
Such deeds may now be executed either in the way authorised 
by these Acts, or. in terms of the following provision, viz. : — 

" Any deed executed after the commencement of this 
Act to which any company registered under * The Com- 
panies Acts 1862 and 1867,' is a party, shall be held to be 
validly executed in Scotland on behalf of such company if 
the same is either executed in terms of the provisions of 
these Acts, or is sealed with the common seal of the com- 
pany and subscribed on behalf of the company by two of 
the ordinary directors and the secretary of the company, and 
such subscription on behalf of the company shall be equally 
binding and effectual whether attested by witnesses or not."* 

There is another enactment contained in the Act of 
1874, which, though relating to improbative deeds,, may 
here be noticed, viz., section 29, in terms of which 

7. — Deeds are not to he deemed Invalid because improbative, 
but Subscription by the Granter and Witnesses may 
be proved. 

Previously to the passing of the Act of 1874 deeds which 
were not probative apart from the effect of homologation or 
rei interventuSj could not in any way be set up or validated, 
but now the law is that — 

♦ Conveyancing Act 1874, J 66. 



INTRODUCTION. 11 

"No deed, instrument, or writing subscribed by the 
granter or maker thereof, and bearing to be attested by two 
witnesses subscribing, and whether relating to land or not, 
shall be deemed invalid or denied effect according to its 
legal import because of any informality of execution, but 
the burden of proving that such deed, instrument, or writ- 
ing so attested, was subscribed by the granter or maker 
thereof, and by the witnesses by whom such deed, instrument, / 
or writing bears to be attested, shall lie upon the party using 
or upholding the same, and such proof may be led in any 
action or proceeding in which such deed, instrument, or writ- 
ing is founded on or objected to, or in a special application to 
the Court of Session, or to the Sheriff within whose jurisdic- 
tion the defender in any such application resides, to have it 
declared that such deed, instrument, or writing was sub- 
scribed by such granter or maker and witnesses." * 

This provision restores the law to something like the state 
in which it was prior to the passing of the Act 1681, c. 5, 
when the defects of improbative deeds could ** be supplied 
by condescending upon the writter or the designation of the 
writter and witnesses." 

* Conyeyancing Act, § 89. A petition was presented under this section 
of the Act, the prayer of which was — ** To allow the petitioners a proof of 
the ayerments contained in this petition, and thereafter to declare that the 
trust-disposition and settlement above mentioned was subscribed by the 
said James Addison, the granter or maker thereof, and by the said George 
Idler and John Alexander liankin, the witnesses by whom the said trust- 
disposition and settlement bears to be attested, and that the taid trtut-dtspontion 
and ieitUment is a valid deed and entitled to effect according to its legal import/' 
The Court directed it to be amended by omitting the words in italics, and 
thereafter allowed a proof by commission ; and on considering the report 
found and declared ''that the trust-disposition and settlement was sub- 
scribed by the now deceased James Addison as the maker thereof, and by 
George Miller and John Alexander Bankin as witnesses attesting the 
sabscription of the said James Addison." Addison, &o,, 28 Feb. 1875, 
2 B. 457. 



13 



PAET I. 

"THE TITLES TO LAND CONSOLIDATION 

(SCOTLAND) ACT, 1868,"** 

AND 



"THE CONVEYANCING SCOTLAND ACT, 1874. 



fT 



1.— IRREDEEMABLE RIGHTS. 



(I) DEEDS OF CONSTITUTION. 

FEU CHARTER according to the Style in use prior to Ko. L 

the passing of the Act 1874.t 

ly A (designation) , heritable proprietor of the lands and 
others hereinafter disponed, in consideration of the sum of 

pounds sterling instantly paid to me by B 
(designation), and of the feu-duty and other prestations after 
mentioned, do hereby dispone to and in favour of the said 

* TblB Act was amended by the '* Titles to Land Consolidation (Scotland) 
Amendment Act, 1869," which repealed certain clauses of the Act of 1868, 
and substituted therefor others which are now incoiporated in that Act. 
Some amendments were made also in the same way by the Conveyancing 
Act of 1874. 

t It has been thought convenient to give one example of the former 
style In its simplest form, but it is not considered necessary to give more. 



14- IRREDEEMABLE RIGHTS. 

No. 1. B and his heirs and assignees whomsoever (or, and his heirs 
and successors, but excluding assignees before infeftment 
hereon or registration hereof in the Eegister of Sasines, and 
declaring that it shall not be competent, after the expiry of 
six months from the date hereof, to expede infeftment 
hereon, or to register these presents in the said Register of 
Sasines, to the effect of completing a valid feudal title under 
the same), heritably and irredeemably. All and whole, 
{here was inserted description of the lands) ; together with 
the teinds, parsonage and vicarage, and pertinents of the 
same ; with entry at the term of ; to be holden the 

said lands and others by the said B and his aforesaid of and 
under me and my heirs and successors as superiors of the 
same, in feu-farm, fee, and heritage for ever, paying therefor 
yearly, the said B and his aforesaid to me and my aforesaid, 
the sum of pounds 'sterling in name of feu-duty, 

and that at two terms in the year, Whitsunday and Martin- 
mas, by equal portions, beginning the first term's payment 
thereof at the term of for the half-year im- 

mediately preceding, and the next term's payment thereof at 
the term of thereafter, and so forth yearly 

and termly in all time thereafter, with interest at the rate of 
five per centum per annum of each term's payment from the 
term at which the same falls due until payment thereof, and 
doubling the said feu-duty the first year of the entry of each 
heir (and, if so stipulated, or singular successor) in the said 
lands and others, and that in full of all casualties of superiority 
accruing by law on the entry of or renewal of the titles to heirs 
See Note (a) or singular successors,(a) and I assign the writs, but to the 
P' ^^' effect only of maintaining and defending the said B and his 
aforesaid in the right of the lands and others hereby disponed, 
and for that purpose I oblige myself and my aforesaid to make 
the same forthcoming according to an inventory thereof 
annexed and subscribed by me as relative hereto, at the 
expense of the said B and his aforesaid, upon all necessary 
occasions, and that on a receipt and obligation for re-delivery 
thereof within a reasonable time, and under a suitable 



FEU-CHABTEB. 15 

penalty : And I assign the rents: And I bind myself to free No. i. 
and relieve the said B and his aforesaid of all feu-duties and 
casualties payable to my superiors now and in all time 
coming, and also to relieve the said B and his aforesaid of 
all public burdens or assessments preceding the said term of 
entry: And I grant warrandice: And I consent to registra- 
tion hereof in the Books of Council and Session, for preser- 
tion : In witness whereof (testing clause), 

(a) Taxed Composition, — The object of this clause was to exclude Note (a), 
the operation of the law in regard to casualties. Prior to the pass- P* 
ing of the Act of 1874 every person acquiring land was bound to 
enter with, and unless where otherwise provided by the feu-right, to 
pay what was called a legal casualty to his immediate lawful superior 
on the death of the last entered vassal These casualties consisted, in 
the case of an heir, of a year's feu-duty, called reHef duty, and in the 
case of a singular successor, of a year's rent of the lands, called com- 
position, but it was frequently stipulated in the feu-right that 
certain fixed payments, called taxed compositions or conventional 
casualties, should be substituted for the legal casualties ; and where 
this was done the clause in the style was used to give effect to the 
arrangement. By the Act of 1874 it is provided that in future feus 
no casualties "shall by law, irrespective of express condition or 
covenant, be payable to the granter of the feu," so that this clause is 
no longer in any case appropriate. 

FEU CHARTER (New Style). Ko.2. 

I, A (designation), heritable proprietor of the lands and 
others hereinafter disponed, in consideration of (if any 
price is to be paid, the sum of pounds 

sterling, instantly paid to me by B (designation) and of) the 
feu-duty and other prestations after written, do hereby(a) seeNote(a) 
DISPONE to and in favour of B (designation) (or, if already P- ^^' 
designed, the said B) and his heirs and assignees whom- 
soever, heritably and irredeemably (or(b) and his heirs andseeNote(6) 
successors whomsoever, heritably and irredeemably, but P*^®* 
exclusive of assignees before infeftment on or registration of 



16 IRREDEEMABLE RIGHTS. 

No. 2. these presents, with warrant of registration thereon, in the 
register of sasines, and declaring that the same shall not 
be a valid warrant for such infeftment, nor shall be so regis- 
tered after the expiry of six months from the date hereof) 
{if there are to he any burdens, reservations, or conditions, 
add what folhios, or so mtich thereof a^ may be suitable, and 
with and under the burdens, reservations, conditions, restric- 
tions, obligations, provisions, and declarations after specified, 
or referred to), All and whole (insert description of the 

See Note(c) lands, {c) lying within the parish of and county 

P- ^®' of , together with the teinds, parsonage and 

vicarage, and pertinents of the same {if there are to be any 
burdens, reservations, dtc, expressed, add what follows, or so 
much thereof as may be suitable, but always with and under 
the burdens, reservations, conditions, restrictions, obligations, 

See Note (d) provisious, and declarations following, viz.,(c?) here insert the 
p- 19. burdens, dec, and after their insertion add, all which burdens, 
conditions, provisions, restrictions, reservations, and clauses 
irritant before written are hereby declared to be real burdens 
affecting the said lands and others, and are appointed to be 
inserted in any notarial instrument which may follow hereon, 
and to be inserted or validly referred to in terms of law in all 
future deeds of transmission, writs, decrees, and instruments 
of or relating to the said lands, teinds, and others, or any part 
thereof, otherwise such deeds, writs, decrees, and instruments 

See Note («) shall be void and null) with entry at the term of(e) 

p. 87. . r^o BE HOLDEN, the Said lands, teinds, and others, by 

the said B and his aforesaid of and under me and my heirs 

, and successors as superiors of the same in feu-farm, fee, and 

heritage for ever {if there are real burdens, dtc, add, but 

always with and under the burdens, reservation^, conditions, 

restrictions, obligations, provisions and declarations before 

See Note (/) specified or referred to) : Paying(/) therefor yearly, the said 

p. 37. B and his aforesaid to me and my aforesaid, the sum of 

pounds sterling in name of feu-duty, and that at two terms 
in the year, Whitsunday and Martinmas, by equal portions, 
beginning the first term's payment thereof at the term of 



FEU-OHABTER. 17 

for the half-year immediately preceding, and No. a. 
the next term's payment thereof at the term of 
thereafter, and so forth, at the said two terms in the year (or 
yearly and termly) in all time thereafter, with a fifth part 
more of each term's payment of liquidate penalty for each 
term's failure in punctual payment thereof, and interest at 
the rate of five per centum per annum of each term's pay- 
ment of the said feu-duty from the term at which the same 
falls due until payment thereof, and paying the further or 
additional sum of pounds sterling at the 

term of in the year , and at 

the same term in every year thereafter, 

and that over and above the annual feu-duties for the 
respective years in which the said further or additional 
sum of pounds shall become due, 

with a fifth part more of each of the said further or 
additional sums of pounds of liquidate 

penalty for each failure in punctual payment thereof, and 
interest at the rate of five per centum per annum of each 
of the said further or additional sums of 
pounds from the term at which the same falls due until pay- 
ment thereof : And I assign the writs, but to the effect only 
of maintaining and defending the said B and his aforesaid in 
the right of the lands, teinds and others hereby disponed ; 
and for that purpose I oblige myself and my aforesaid to 
make the same forthcoming to the said B and his aforesaid, 
conform to an inventory thereof annexed and subscribed by 
me as relative hereto, at the expense of the said B and his 
aforesaid, on all necessary occasions, and that upon a receipt 
and obligation for redelivery thereof within a reasonable 
time and under a suitable penalty: And I assign the ient8(g): See Note (9) 
And I bind myself to free and relieve the said B and his ^* *^' 
aforesaid of all feu-duties and casualties payable to my 
superiors now and in all time coming, (A) and also to relieve See Note {h) 
the said B and his aforesaid of all public burdens or assess- ^' ^^' 
ments preceding the said term of entry: And I grant 
warrandice : And I consent to registration hereof in the books 

2 



18 IRREDEEMABLE RIGHTS. 

Ko. 2. of Council and Session (i) for preservation :{j) In witness 
"~ 7" WHEREOF (testing clause).* 

Set Note (0 \ sf / 

P. 41. 

See Note (j) ^^j Words of Conveyance. — The word " dispone," which formerly 
Note (a)' held so important a place in regard to conveyances of Scottish heri- 
^* ' tage, is no longer essential to the validity of such deeds. By the 
Consolidation Act of 1868, § 20, it was provided that no testamen- 
tary or mortis causa deed, or writing, purporting to convey or 
bequeath lands, should be held to be invalid on the ground that the 
granter had not used with reference to such lands the word '* dis- 
pone ;" and by the Conveyancing Act of 1874, § 27, the same rule 
has been extended to conveyances of land inter vivos. All that is 
now requisite in this respect is, that such deeds shall contain 
some "word or words importing conveyance, or transference, or 
present intention to convey or transfer ;" but there is no reason why 
the use of the word, though no longer essential, should be given up 
by conveyancers. 
Note ih\ (5) Destination. — ^This clause, which was of common occurrence 

in charters prior to the Act of 1874, was adopted for a very import- 
ant purpose, viz. — to protect the superior's rights. As already men- 
tioned,! superiors were, under the former law, entitled to certain 
casualties, legal or conventional, on the entry of heirs and singular 
successors of the vassal, but the former were always and the latter 
were generally, inseparably connected with the renewal of tbe inves- 
titure — ^if from the state of the titie the proprietor of the lands could 
not be required to take such a renewal, neither could he be called on 
to pay the casualty; and in consequence of this it sometimes happened 
that charters, instead of being exhausted by infeftment in favour of 
the grantee, were kept open and assigned to a purchaser or taken up by 
the grantee's heir, whereby the payment of a second casualty, though 
properly due, was avoided ; to prevent which was the object of this 
clause. It does not fall within the operation of § 22 of the Act of 
1874, whereby " Monopolies of Superior's Agents" are annulled, and 
therefore seems to be stiU competent, but renewal of investiture 
is now abolished % — in feus now to be granted casualties are pay- 
able only ex contractUf and where stipulated they must be of an ascer- 

* See obseryationB in Introdactioxi, p. 4 et seg. 

t Note (a), p. 16: 

t Ckmyeyanoing Aot of 1874, i 4.(1) 



FEU-GHABTEB. 19 

tained amount, and payable at fixed intervals, and will become No. 2. 

•exigible irrespective of the completion of the title ; so that, so far as 

r^aids casualties, it will be of no advantage to the superior to be p^ X5. 
entitled to see that the vassal's title is completed by infeftment ; 
and as while the right is personal the feuar is liable in payment of 
the feu-duties and performance of the conditions,* and even before 
infeftment he cannot refate invito superiorSff this clause apparently 
would not benefit the superior, and therefore may be omitted. 

(c) General Name or Names, — ^Where several lands are compre- Note (c), 
hend^ in one conveyance in favour of the same person or persons, it ^' 
may be declared that the whole lands therein contained shall in 
future be designed and known by one general name therein specified, 

or that certain lands shall be comprehended under one general name, 
and certain other lands under another general name.} Where this 
18 intended, insert here one or other of the following clauses : — 

Which several lands and others before disponed shall in 
future be designed and known by the general name of (insert 
name); or 

Which lands and others first, before disponed shall in 
future be designed and knovm-by the general name of (insert 
name) ; and which lands and others second before disponed 
shall in future be designed and knovm by the general name 
of (insert name). 

The description of the lands, instead of being inserted at length, 
may be referred to as in a prior recorded deed or instrument ;§ but 
as a feu charter is really the beginning of a new progress of titles, 
it is more convenient that the full description of the lands should 
appear in it. 

See as to clauses of description by reference to recorded deed 
and by general name under Disposition, Style No. 9 infra, 

(d) Beservations, Burdens, &c, — ^Here insert all reservations, if Note (^O, 
any, from the subject conveyed, and insert or refer to all reservations, ^' ' 
burdens, conditions, restrictions, and qualifications, if any, of the 
Tassal's light of property in the grant. 

• Proton^ 6 March 1805, M. *' Personal and Beal," App. Ko. 2. 
t EunUr, 16 Dec. 1834, 13 S. 205. 
t Gonaolidation Act 1868, 2 18. 

{ Oonv^andng Act of 1874, § 61, which repeals { 11 of the GonBOida- 
tknAoi. 



20 IBREDEEMABLE BIGHTS. 

No. 2. 

I. — Reservations from Subject conveyed. 
Soeobflerra. RESERVATION OF MINES AND MINERALS. 

tioiu, infrOf 
p. 21. 

Reserving always to me and my heirs and successors the 
p. iV.* whole mines, minerals, metals, fossils, coal, clay, limestone, 
ironstone, whinstone, freestone, and other stone of every de- 
scription (©r, the whole coal, fire-clay, ironstone, limestone, 
freestone, and all other stones and metals, and all fossils and 
minerals whatsoever) within the lands hereby disponed, with 
full power and liberty to me, or my aforesaid, or any person 
authorised by us, to search for, work, win, raise, calcine, and 
carry away the same, and to make bores, sink pits or shafts, 
open quarries, erect houses, steam engines and machinery, 
and to make aqueducts, levels, drains, roads, railways, and 
others necessary for all or any of these purposes, I and my 
aforesaid paying to the said B and his aforesaid all damages 
which the said lands or the buildings erected, or to be 
erected thereon, may sustain in and through any of the said 
operations, or the exercise of the said reserved right and 
power, as the same shall be ascertained by two arbiters — one 
to be chosen by me or my aforesaid, and the other by the 
said B or his aforesaid, or, in case of difference in opinion 
between the said arbiters, by any oversman whom they shall 
choose, and whom they shall in all cases nominate before 
they enter on the business of the submission : 

or 

Reserving always to me and my heirs and successors the 
whole mines, &c. (as be/ore), with full power and liberty to 
me or my aforesaid, or any person authorised by us, to search 
for, work, win, and carry away the same, but declaring 
always not only that we shall have no right to work or win 
the said mines, c£c., from the surface of the said lands, or in 
such 41 manner as to injure the surface thereof, or the build- 
ings erected or that may be erected thereon, but also |that 



FEU-CHARTEB. 21 

we shall satisfy and pay all damages that may be oc- ^^^ 
casioned to the surface of the lands or to the buildings ^ 
thereon by the working thereof, as the said damages shall be p. 16. 
Ascertained, dc. (as before,) 

See clause of reservation of minerals in style of Building Lease, 
infra. 

Observations an Clauses of Reservation of Minerals, 

Where in the treaty for a feu in which the minerals are to be 
leserved with right to work them, nothing is said in regard to the 
mode of working or the conditions on which the right is to be exer- 
cised, the feuar is not entitled to have any special clauses on the 
subject inserted in the conveyance — the rights of parties are left to 
•be regulated by the common law ; Stewart^ 17 July 1857, 19 D. 
1071. In such circumstances the only restriction is that which 
every owner of property is under, and which applies to both parties 
— Sic utere tuo ut alienum non laedas — ^per Lord President (Laglis), in 
EamilUmj 19 July 1867, 5 MT. 1086, and Lord-Chancellor 
(Selbome) in Buchanan, 10 March 1873, 11 M*P. (H. L.) 13. 

Where land is feued for a particular purpose, as for the construc- 
tion of a railway, though under reservation of mines and minerals 
and liberty to work them there is an impUed warranty that the 
irorking shall not damage the railway, and if the right cannot be 
exercised without occasioning such damage, the superior has no 
light to complain ; Sprot v. Caledonian Railway Company, 15 Feb. 
1854, 16 D. 559, and 955, as reversed, H. L., 16 June 1856, 19 D. 
3 ; 2 M*Q. 449. In such a case as this the only course is to sell 
the minerals instead of retaining them. 

On the other liand, where ground was feued under reservation of 
the whole coal, &c., with full power to work, win, and carry away the 
same at pleasure, *' and that free of all or any damage which may be 
thereby occasioned to the said second party, and it is expressly agreed 
that the said first party shall not be liable for any damage that may 
happen to the said piece of ground, buildings thereon, or existing here- 
after thereon, by or through the working of the coal, &c., in or under 
the same, or in the neighbourhood thereof," &c. ; and the feu-contract 
contained an obhgation on the second party to erect and maintain a 
'dwelling-house or villa on the ground, it was held in the House of 



22 IRREDEEMABLE RIGHTS. 

No. 2. Lords, reyeising the judgment of the Court of Session, that the^ 
vassal was not entitled to an interdict against the superior working 



pfls.' ^® minerals under his house on the ground that the workings would 
probahly injure or destroy it ; Andrew, 24 Feb. 1871, 9 MT. 654 ; 
H. L., 10 March 1873, 11 MT. iS. 

Where a special agreement is to be made, it should be expressed 
as distinctly as possible, and the following reference to decisions of 
the Court in construing such clauses may be useful 

(1) An obligation to give satisfaction for damage, "through 
leading or setting down of shanks/' was held to include damage 
through not leaving sufficient support to the surface ; Bain^ 4 Nov. 
1867, 6 MT. 1. 

(2) *' Reservation of minerals, with liberty to search for, work, 
win, and carry away the same," does not exclude claim of damages 
for injury through calcining in the neighbourhood of the feu; 
M'Gallum, 16 March 1861, 23 D. 729. 

(3) Where leave was given to calcine — ^it was held that an obli- 
gation to pay " all damage that shall be done to the surface, or 
grounds, and buildings thereon, by the working of the minerals in 
virtue hereof/' did not comprehend damage occasioned by the smoke 
or vapour emitted in the process of calcining ironstone; Murray^ 
26 Nov. 1868, 7 MT. 167. 

(4) A feued certain lands, " reserving aU and sundry the coal and 
limestone within the bounds of the lands before specified, so as it 
shall be lawful to the said A to set down coal pits, shanks, and 
sinks, and win coal and limestone within the bounds of the said 
lands, or any part thereof" — Held by the House of Lords, reversing 
judgment of the Court of Session, that the strata of coal and lime- 
stone were excepted horn the conveyance to the vassal ; and, there- 
fore, that the superior, as absolute proprietor of these strata, was 
entitled to form in them roads for the underground carriage of 
nnnerals between mines in other properties ; Oraham, 30 June 1868> 
6 MT. 965 ; 8 July 1869, 7 MT. 976 ; H. L., 28 July 1871, 9 
MT. 98. See also Blair, 22 Oct. 1875. 

(5) Where it was stipulated in a mineral lease that the tenant 
should not work the minerals nearer the mansion-house than 100 
yards — Held by the House of Lords, reversing judgment of Court of 
Session, that the measurement fell to be made from the outside of 
the underground foundation of the buildings, which extended beyond 
the walls as seen above ground ; Buasell^ 12 June 1868, 6 MT. 
926 ; H. L., 23 June 1871, 9 MT. 130. 



FEU-CHARTER. 23 

Where the proprietory instead of himself working the reserved No. 2. 
miDerals, has already let or contemplates letting them, it is sometimes 



stipulated that the fenar shall have recourse only against the tenants ^^ j^' 
for any damage which he may sustain through the working of them. 
In this case the following clause may be inserted after that of reser- 
vation of the minerals and the feuar's right to compensation, viz. : — 

Clause declaring that only the tenants shall be liable /or 

damage through working. 

But declaring always that if the said minerals, metals, 
dkc. {as before) {or, coal, fireclay, cfec, as before) , shall 
be worked by tenants or lessees in virtue of leases or 
other rights or authority already granted or that may 
hereafter be granted by me or my aforesaid, then the said 
B. and his aforesaid shall have recourse only against the 
tenants or lessees thereof for any damages which may be 
occasioned by the working thereof, and not against me or 
my aforesaid further than that I and my aforesaid have taken 
or shall take the tenants or lessees bound to settle all such 
damages with the said B and his aforesaid in terms of the 
before written provision. 

See as to such a clause as this, HamiUon, 19th July 1867, 5 
Macph. 1086, where, in the circumstances, it was held that both 
the superior and the tenant were liable, the one ex contractu and 
the other ex delicto. 

As to construction of clauses of reservation, see Menzies, 10 June 
1818, F.C. ; Duke of Hamilton, 29 June 1841, 3 D. 1121 ; Forth 
and Clyde Navigation Co.^ 21 Nov. 1848, 11 D. 122. 

II. — Ebservations, Conditions, &o., Qualifying or Be- 

STRICTING THE VaSSAL's EiGHT OF PROPERTY, Or, THE 

Superior's Eight of Property, in his Adjoining 
Lands. 

Formerly, in order to make reservations, conditions, &c., in the 
original conveyance of the lands to he hurdened with them efifectual, 
it was necessary that they should he inserted ad hngum and in ap- 
propriate terms made to affect the lands as real hurdens. This rule, 
in so far as regards dispositions and deeds of transmission, was re- 
laxed by the Lands Transference Act of 1847 and the Consohdation 



24 IRREDEEMABLE RIGHTS. 

No, 2. Act of 1868, which allowed reference to be made to the burdens &c., 

"3 77 as specified in a prior deed or instrument recorded in the appropriate 

p. 16. Register of Sasines, and by the Conveyancing Act of 1874, § 32 ; 

this principle of importing conditions by reference has been extended 

to original deeds of conveyance. (Infra, p. 36.) 

1. — Qualifications or Kestrictions of Eight of Property 

BT Clauses inserted in Charter. 

Of these the following are examples, — 

BIGHT OF PRE-EMPTION. 

Declaring that these presents are granted, and that the 
said lands and others are disponed as aforesaid, with and 
under the conditions following, viz., that it shall not be 
lawful to or in the power of the said B or his aforesaid to 
sell, alienate, or dispone the said lands and others, or any 
part thereof, to any person or persons (unless under statu- 
tory authority or compulsion) until the said B or his afore- 
said shall have previously made a written offer to sell the 
same to me or my heirs and successors, at the like rate or 
price that. may be offered for the same by any such person 
or persons, and which offer I or my aforesaid shall be 
allowed free days after receipt thereef to accept or 

decline. And if the said B or his aforesaid shall do m the 
contrary, then and in that case not only shall the right to 
be granted by him or them to such person or persons be 
void and null, without declarator, but also it shall be in the 
power of me or my aforesaid to declare that the said B and 
his aforesaid, so contravening this present provision and 
declaration, shall thereby forfeit their right and title to the 
said lands and others, and the same shall in that case revert 
and return to me and my aforesaid as if these presents had 
never been granted.* 

Observations on Clause of Pre-emption. 

1. This condition was supposed to be struck at by the provision 
of the 20 Geo. U, c. 60, which annuls clauses in charters prohibiting 

♦ See Obs. 2, inftu, p. 26. 



FBU-OHARTBR. 25 

alienations without the superior's consent, and its validity cannot No. 2. 
jet be held as established. In Tailors of Aberdeen, H. L., 3 August ~ ~" 
1840, 1 Rob., App. 296, the opinion of aU the judges of the Court ^ °^i2' 
of Session was given "that the validity of a clause of pre-emption 
still remains matter of doubt," and though the question has been 
since raised, it does not seem to have been decided. See Lumsden, 
5 Feb. 1843, and Strathallan, 4 July 1843, 5 D. 601 and 1318. 

2. An addition to this clause containing a reservation of a claim 
for bygone feu-duties, &c., has been sometimes suggested, but the 
competency of such reservation seems more than doubtful. A decree 
of irritancy oh non solutum canonem cuts off such claims for feu- 
duties ; ^aZZcnrfen, M. 7262; Magistrates of Edinburgh, 16 May 
1834, 12 S. 693 ; and as this arises from the effect of the decree, 
which is to extinguish the superiority as well as the feu, with aU 
the rights attached to it, it is thought the same principle will apply 
to, and the same result flow from, any forfeiture of the feu on what- 
ever grojond it may proceed. The right to a composition incurred 
previously for an entry which was sustained, notwithstandiug the 
forfeiture of the feu, {Magistrates of Edinburgh, ut supra) rests on a 
different principle. The reservation therefore is not recommended, 
hut if desired to be added, it may be in these terms, viz. — 

Without prejudice, however, to our legal rights and 
remedies against the said B and his aforesaid, for payment 
of the bygone feu-duties, and implement of the prestations 
incumbent on them under these presents, prior to the date 
of such forfeiture. 

PROHIBITION OF SUBINFEUDATION. 

This condition, which was of frequent occurrence in old feu- 
rights, is no longer competent. The Conveyancing Act of 1874, 
while declaring (§ 4, (2) ) that the implied entry under its provi- 
sions shall not be held to validate any sub-feu where subinfeudation 
had been effectually prohibited, enacts (§22) that ^'all conditions 
made after the commencement of this Act, to the effect that it shall 
not be lawful to the proprietor of lands to sub-feu the same to be 
holden of himself as immediate lawful superior thereof,'* — " shall, 
with aU irritant clauses applicable thereto, bo nuU and void, and not 
capable of being enforced." 



26 IRREDEEMABLE RIGHTS. 



Ho. 2. 



Koto (d), CLA USES applicable to feus for detached dtodling-housea 
P- ^^- or vilhs. 

But always with and under the burdens, conditions, 
provisions, obligations, and declarations following, viz.^ 
providing and declaring that the said B and his aforesaid 
shall be bound and obliged, within months from 

the date of these presents, to erect, and in all time there- 
after to uphold and maintain, and, when necessary, to 
renew or rebuild, upon the piece of ground hereby disponed, 
a dwelling-house or villa c^ after specified, which shall be 
used as a dwelling-house only, with suitable offices, and 
which dwelling-house or villa and offices shall be erected, 
and in all time coming maintained, and, when ne- 
cessary, renewed or rebuilt, so as in the opinion of 
the architect to be appointed by me or my aforesaid to 
be of the full value, the said dwelling-house or villa, of 

pounds sterling, and the said offices of the 
value of pounds sterling, in order to afford 

adequate security for payment of the feu-duties and casu- 
alties hereinafter specified, and the plans of which dwelling- 
house, or villa and offices, and of every dwelling-house or 
villa and offices to be at any time hereafter erected on the 
said piece of ground, shall in all cases be previously sub- 
mitted to and approved of by me or my aforesaid, as re- 
gards both the elevation and style of building, before the same 
shall be allowed to be executed ; and the said dwelling-house 
or villa and offices shall in all cases be constructed of stones 
from some quarry to be approved of by the architect to be 
appointed by me or my aforesaid, and not inferior in quality 
to quarry, and the front of said dwelling-house 

or villa shall be in all cases of polished ashler, and the other 
walls thereof shall be of droved or hammer-dressed coursed 
ashler; that the chimney stalks shall be of polished 
ashler; that the roofs shall be covered with slates, and 
there shall be no storm windows nor any raised breaks in 



FEU-OHABTEB. 27 

the roof in imitation of French roofs, or otherwise, in the Ko. 2. 

front or back of the said dwelling-house or villa ; that the 

said dwelling-house or villa shall in all cases be situated at p. i&^ 
least feet from the front of the said piece of ground, 

and the said offices shall in all cases be situated behind or 
at the back of said dwelling-house or villa. (1) And the said SeeObs. i 
B and his aforesaid shall be further bound to keep the said ^^' ^' '*" 
dwelling-house or villa and offices constantly insured in the 
joint names of themselves and of me and my aforesaid 
against loss by fire to the extent of at least pounds, 

and regularly to pay the premiums of insurance, and to 
exhibit the policy of insurance and receipts for the premiums 
at all times when required to do so by me and my aforesaid. 
And in the event of the said £ and his aforesaid failing or 
neglecting to insure the said subjects to the amount and in 
the manner foresaid, or to exhibit the policy or receipts for 
the premiums of insurance, then I and my aforesaid shall 
be entitled so to insure the same at the expense of the said 
B and his aforesaid, who shall be bound as by acceptance 
hereof the said B binds and obliges himself and them to 
repay to me or my aforesaid all sams that may be so 
expended by me or them, with interest thereof at the rate of 
five per centum per annum from the respective dates of 
advance till repayment thereof; and in the event of the 
destruction, total or partial, of the said subjects by fire, all 
sums that may be recovered in virtue of the said insurance 
shall be applied towards the expense of repairing or rebuild- 
ing the same as aforesaid, but without prejudice to the 
obligation on the said B and his aforesaid to repair or 
rebuild the same hereinbefore contained. And the said 
B shall be bound, immediately on delivery hereof, to 
erect or build boundary or division walls to the said 
piece of ground, which he shall be entitled to do on the 
and sides to the extent of one-half of the 

breadth or thickness thereof upon the adjoining ground 
which belongs to me, but on the side where the said 

piece of ground fronts a road or street, and on the 



28 IRREDEEMABLE RIGHTS. 

No, 2. side where the adjoining ground does not belong to me, the 
said boundary walls shall be built entirely upon the piece of 
^tle!' ground hereby disponed, and which walls shall, on the side 
fronting the said road or street, consist of a parapet wall of 
feet in height^ with a neat iron railing of feet in 

height thereon, and on the other sides shall consist of proper 
stone walls of feet in height, including a coping, and 

inches in thickness. And the said B and his aforesaid 
shall be entitled to receive paymentofone-half of the value of 
the said bouiidary or division walls on the and 

sides of the said piece of ground, if erected by him or them, 
from the person or persons who have feued or become pro- 
prietors of (or, who may hereafter feu or become proprietors 
of) the adjoining grounds (ovy areas of ground) in terms of a 
provision to that eflFect inserted (or, to be inserted) in their feu 
rights, as the said value, if not otherwise arranged, shall be 
ascertained by two arbiters, one to be chosen by the said B or 
his aforesaid and the other by the adjoining feuar or feuars, 
or in case of difference in opinion between the said arbiters, 
by any oversman whom they may appoint and whom they 
shall in all cases nominate before they enter on the business 
of the submission, and such walls shall thereafter be mutual 
and be maintained at the joint expense of the said B or his 
aforesaid and the feuars of the adjoining grounds (or, areas 
of ground). Providing always that the said B or his afore- 
said shall have no claim against me or my aforesaid for any 
part of the value of said division walls. (If mutual division 
walls have been already erected, then the obligation will be 
to inclose the ground in so far as not already done, and in 
place of the corresponding part of the preceding clauses will be 
inserted — And in respect that mutual division walls have 
already been erected on the and sides of the piece 

of ground hereby disponed, the said B and his aforesaid shall 
be bound to pay to the parties respectively in right thereof 
one half of the value of the said walls as the same, if not 
otherwise arranged, shall be ascertained by two arbiters, &c. 
(as before), and such walls shall thereafter be the mutual 



FEU-CHABTER. 29 

property of the said B and the said adjoining feuar or feuars, No. 2. 
and be maintained at their joint-expense.) And the said B 
and his aforesaid shall be bound and obliged, whenever p. le. 
required, to pay to me or my aforesaid the expense (or as the 
case may. be, one half of the expense) of making and in all 
time coming keeping in good and sufficient repair the roads 
or streets which have been already made (or, which shall be 
made) by me or my aforesaid in so far as such roads or 
streets extend (or, shall extend) along the piece of ground 
hereby disponed. And in respect that I have already con- 
structed a main drain or common sewer opposite to (or, in 
front of) the said piece of ground, the said B or his aforesaid 
shall be bound at the time of delivery hereof to pay to me 
or my aforesaid the sum of as a 

proportion of the expense of constructing the said main 
drain, and shall also pay to me or my aforesaid a proportion 
corresponding to the extent of the said piece of ground, of 
the expense of keeping the said main drain or common 
sewer in good repair in all time coming, and shall be bound 
to construct and in all time coming maintain, at the sole 
expense of the said B or his aforesaid, a proper and sufficient 
drain communicating between the piece of ground hereby 
disponed and the building erected or to be erected thereon 
and the said main drain. And it is further declared that it 
Bhall not be competent to the said B or his aforesaid to erect 
tipon the said portion of ground any buildings of any other 
description than a villa or dwelling-house and offices thereto 
as before specified, nor to convert such dwelling-house and 
offices to any other use or purpose ; and it shall not be law- 
ful to nor in the power of the said B or his aforesaid to erect 
or carry on upon the said ground, or any part thereof, any 
(2) steam engine or any soap-work, candle-work, tan-work, gee obe. 2 
slaughter-house, skin-work, dye-work, oil-work, lime-work, *^*' P- ^ 
distillery, brewery, or other manufacture or chemical process 
of any Idnd ; nor to deposit nauseous materials thereon ; nor 
to lay any nuisances or obstructions on the roads or streets 
adjoining said ground ; nor to do any other act which may 



30 IRREDEEMABLE RIGHTS. 

No. 2. injure the amenity of the place and neighbourhood for 
" "T private residences: And it is hereby expressly provided 
p. 16.' and declared, that if the said B or his aforesaid shall contra- 
vene or fail to implement any of the conditions, provisions 
and obUgations herein written, this present right, and all 
that may have followed thereon, shall, in the option of me 
and my aforesaid, become void and null, without declarator 
or other process of law to that effect, any law or practice to the 
contrary notwithstanding ; and the said B and his aforesaid 
shall amit, lose, and forfeit all right and interest in the 
ground hereby feued, and buildings thereon, which shall 
thereupon revert and belong to me and my aforesaid free 
and disencumbered of all burdens whatsoever, in like manner 
as if this feu-right had never been granted ; and we shall 
have right to remove the said B and his aforesaid from, and 
to enter to possession, and levy the rents of, the said subjects 
in all time thereafter. 

A reservation of bygone feu-duties in the event of forfeiture of 
the feu has sometimes been suggested, as to which see observation 2, 
supra^ p. 25. 



GLA USES applicable to Feus for building in Streets. 

I, A, &c., dispone to B, <fec., {as in style No. 2) All and 
Whole that lot or area of ground, part (or^ those lots or areas 
of ground, parts) of my lands of , being No. 

(or Nos. ) on the (3) ground plan for building 

See Obs. 3 on my said lands made out by , architect in 

^' ' , and signed by me as relative to the feu-rights to be 

granted by me of my said lands, and bounded the said area 
{or areas) as follows viz., {fiere insert boundaries) but always 
with and under the burdens, conditions, provisions, restric- 
tions, clauses irritant, and reservations following, viz., pro- 
viding and declaring that the said B or his aforesaid shall be 
bound and obliged, within months from the term 

of entry after specified, to erect, and in all time thereafter to 



FEU-OHABTEB. 31 

uphold and maintain, and when necessary to renew or re- No. 2. 
build, a dwelling house of stone and covered with slates on 
the said area (or, on each of the said areas), which house p. le. 
(or houses) shall be built according to the said ground 
plan, and in strict conformity to the elevation prepared by 
the said , (architect) and signed by me as relative 

to the feu-rights of my said lands, granted or to be granted 
by me^ and expressly declaring that no common stair shall 
be allowed in the said house, but that the same shall be a 
self-contained house or lodging (or, that except in the house 
at the comer of the street, no common stair shall be allowed 
in any of the said houses, but that each shall be a self-con- 
tained house or lodging) ; that the said shall 
famish the said B with working elevations, aqd a set of 
drawings of the full size for the stone mouldings of the said 
house (or of each of the said houses) ; and for which (pr^ each 
of which) the said B shall be bound and obliged to pay to 
the said the sum of so soon as the 
said drawings are prepared and ready for delivery, and he 
shall not be allowed to commence building until he shall 
have received and paid for the said drawings. That the 
whole of the front of the said house (or houses)^ as well as 
the ornamental parts thereof, shall be built with stone from 
quarry, or any other quarry which is not inferior to it 
in quality, such quarry to be approved of by the said 
in writing before any stones are used. That the said house 
(or J each of the said houses) shall consist of square 
etoreys and a sunk storey ; that the sunk storey (or storeys) 
shall be broached ashler and all above shall be polished 
ashler. That in order that the adjoining houses on either 
side may be properly connected, the ashler above the belt 
of the dining-room floor (or floors) shall be tusked at 
least six inches. That the roofs and chimney stalks shall 
be executed agreeably to a drawing or drawings to be fur- 
nished by the said as relative to the said 
elevation, and which elevation is hereby expressly referred 
to and made part of these presents. That the said house 



32 IRREDEEMABLE RIGHTS. 

Ko. 2. {pr^ each of the said houses) shall be feet in 

depth over walls, and shall have a sunk area and foot 

p. IP.' pavement in front as delineated on the said feuing plan, 
and shall have a good iron railing along the said area. 
That there shall be no dormer windows, or windows of what 
are called the uprights of French roofs, in the roof of the 
said house (or, roofs of any of the said houses), in the front or 
back thereof, but without prejudice to opening skylights or 
hatch-windows. That no building shall be erected on the back 
ground of the said lot or area {or lots or areas) of ground 
higher than the coping of the enclosing walls, as after speci- 
fied, except the coach-house (or coach-houses,) stables, and 
offices delineated on the said plan, which shall not be more 
than feet from back to front, and the walls of which 

shall not exceed feet, and the ridge feet, 

above the present surface level of the Meuse Lane. And 
the said B and his aforesaid shall be bound to inclose, and 
in all time coming to keep inclosed, the ground behind 
the said dwelling-house {or dwelling-houses), and that jointly 
with the adjoining proprietors {if any of tlie walla are not 
mutual^ add where the walls are mutual, and at his and their 
own sole expense where not so), the said inclosing walls ta 
be of stone, and not to exceed feet in height above the 

present level of the ground, and not less than inches 

thick, and to have a proper coping; and the said B and 
his aforesaid shall be bound to pay to the party or parties 
in right thereof one-half of the expense of erecting the 
mutual gable {or gables) and mutual division walls already 
erected and forming the boundary {or boundaries) between 
the said area {or areas) and the area on the side {or^ 

the areas on the and sides) thereof, as the said 

expense shall be Jtscertained by the architect to be appointed 
by me or my aforesaid. {If the mtUiml gables and diviaum 
walls have not been erected, in place of the preceding clause 
saj/y and the said B and his aforesaid shall be bound to keep 
in his or their own hands the mutual gable and enclosing wall 
(oTf gables and enclosing walls) to be erected by him or them 



FEU-CHARTER. 33 

on the and sides of the said area or piece ^^' ^' 

{or areas or pieces) of ground until the adjoining areas ^^^ .^ 
on those sides shall be feued, when he or they shall be P-W. 
entitled to receive from the adjoining feuars, who shall be 
taken bound to pay respectively, one-half of the expense 
of erecting such mutual gable and wall {or gables and 
walls), as the same shall be ascertained as aforesaid, but the 
«aid B or his aforesaid shall have no claim whatever against 
me or my aforesaid for any part of the expense of erecting 
such mutual gable and division wall {or gables and division 
walls) ; and the said B and his aforesaid shall be bound 
to pay to me or my aforesaid, at the rate of per 

lineal yard, as one-half of the expense of constructing 
the main drain in front of the said area {or areas), and 
that at his entry thereto, and he and his aforesaid shall 
be bound in all time coming, jointly with the opposite 
feuars, to maintain the said main drain running in front 
•of the said area {or areas) in good and sufficient order and 
repair. And the said B and his aforesaid shall be bound to lay 
the footpath in front of the said area {or areas) with broached 
pavement feet in breadth, and curb stone, and to 

causeway the street in front of the said area (or areas) to the 
extent of one-half of the breadth of said street, and he and 
they shall be bound in all time thereafter to keep and main- 
tain the said pavement and causeway in good and sufficient 
order and repair. And the said B and his aforesaid are 
hereby expressly prohibited from now, or at any time here- 
after, using, or permitting to be used or applied the said 
area {or areas), or any part thereof, or the buildings erected 
or to be erected thereon, or any part thereof, for the purpose 
of a distillery, manufactory of soot or blood, brewery, 
oandlework, kiln, or other manufactory, or shops, or yards 
for masons, wrights, coopers, smiths, weavers, or any 
nauseous, or noisy manufacture, or in any manner of way 
injurious to, or inconsistent with, the plan of feuing the 
said lands as aforesaid, and no (2) steam engine shall beseeOb8.2' 
.allowed on the premises: All which burdens, conditions, *'*-^''*^P- ^* 

8 



34 IRREDEEMABLE RIGHTS. 

No. 2. provisions, restrictions, and obligations shall be real burdens^ 
jj^.^ and shall constitute and operate as servitudes on the said lot 

p. 1^ or area (or lots or areas) of ground hereby disponed in favour 
of myself and my successors in my said lands, and also in 
favour of the purchasers or feuars of the other lots or areas of 
ground delineated on the said ground plan, who and the said 
B and his aforesaid shall respectively be entitled to compel 
each other to a strict adherence to the same, for which pur- 
pose I bind and oblige myself and my aforesaid to insert the 
same burdens, conditions, provisions, restrictions, and obliga- 
tions in all feu rights or conveyances of such other lots 
or areas of ground, and validly and effectually to constitute 
them real burdens and servitudes thereon in favour of 
the said B and his successors in the said lot or area 
of ground (or lots or areas of ground respectively) hereby 
disponed, and to take the said purchasers or feuars re- 
spectively bound to implement and fulfil the same ; but 
declaring that, in case of any deviation therefrom, or 
infringement thereof, the said B and his aforesaid shall 
have no claim against me or my aforesaid in consequence 
thereof, but shall have it in their power to take such 
measures as they may deem proper against the person or 
persons so deviating or infringing, to compel implement 
and performance of the said burdens, conditions, provisions^ 
restrictions, and obligations. 

Observations on the Preceding Clauses as to Feus for 

Building Ground. 

Obi. 1, 1. Ohltgation to maintain, — An obligation by a feuar to TnMwJaLin 

P* ^^' and uphold a building in a proper state of repair, and to keep it 

insured from loss by fire, Held to imply an obligation to rebuild 

where the building was consumed by damnum fatale ; Clark, 7 Aug. 

1854, H. L., 17 D. 27, 1 M*Q. 608, reversing 20 June 1860, 12 D. 

1047. 

Obi. 2, 2. Prohibition of Steam Engines, — Where this prohibition is in- 

P* ^ tended to be absolute, care should be taken that it is so expressed* 



FEU-OHARTBR. 35 

Where a feu-contiact declared that it should not be lawful " to No. 2. 
erect glassworks, foundries of brass, iron, or other metals, and steam 
engines or any other business, &c., which may be nauseous or hurt- p. le/ 
ful, or occasion disturbance to the neighbouring feuars," — ^it was held 
that the latter part of the clause qualified the terms of the prohibi- 
tion, and that it did not strike against the erection of a steam 
engine for printing ; Frame, 21 Dec. 1864, 3 MT. 290. See also 
the observations of the Judges on the import of this prohibition. 

3. Ground PlanSj Elevations^ and Conditions as to Buildings. Obi. 3, 

( 1 ) Where parties contract on the faith of plans, it is very important 
to see that they are to the extent and effect intended imported into 
the feu right. Where in a feu-contract of building stances each plot 
was described as fronting certain streets, and containing a certain 
measurement laid down on the feuing plan, and the description con- 
cluded as follows : — " as the said several steadings before described 
and disponed are measured and laid down upon the foresaid feuing 
plan," and in which respective measurements both parties acquiesced, 
but which plan was not signed in reference to the contract^ it was 
held that the reference was merely for identification of the lots, that 
the plan was not thereby incorporated in the contract, and that the 
feuars did not thereby acquire right to insist on the completion of 
all the streets delineated on the plan ; Barr, 12 July 1854, 16 D. 
1049 ; Trustees of Free St. Marks Church, 26 Jan. 1869, 7 M*P. 
415. Where, however, a plan is incorporated in the contract, effect 
will be given to it both against the superior (Henderson, 20 May 
1840, 2 D. 869 ; Oraw/ord, 15 Oct. 1874, 2 MT. 20) and against 
the vassal; Skinner, 5 Dec. 1855, 18 D. 158. 

(2) Where conditions are validly imposed they may be enforced 
at the instance of the superior, Campbell, 18 Dec. 1855, 18 D. 267 ; 
and where the superior or proprietor binds himself to impose and 
does impose the same on the other feus of his lands, they may be 
enforced at the instance of the other vassals or proprietors, provided 
they have an interest to do so ; M'Neill, 5 Feb. 1870, 8 MT. 520 ; 
M*0%hbon, 19 Jan. 1871, 9 MT. 423 ; Alexander, 5 March 1871, 9 
MT. 599. The superior may lose his right to enforce conditions 
against one feuar by acquiescence in the violation of them by others ; 
Brown, U May 1823, 2 S. 298 ; Can^U, 19 June 1868, 6 MT. 
943. 



36 IRREDEEMABLE RIGHTS. 

^0* 2. (3) Where a superior in a feu right imposed certain conditions 

~ and restrictions on the vassal's right to build, and bound himself to 

p. 16.' insert the same conditions in subsequent feu rights of the adjoining 
ground, — Held that the stipulation was binding, and that the vassal 
was entitled to enforce compliance with it unless the superior should 
establish by declarator his right in special circumstances to feu on 
diflferent terms; Watson, d:c, (Allan's Trustees), 9 Dec. 1868, 7 
MT. 193; aflF. 12 July 1870, 8 MT. 182. 

2. — Qualification or Eestrictions of right of Property 
imported by reference to recorded deed. 

By " The Conveyancing (Scotland) Act 1874," (§ 32), it is de- 
clared that * it shall be lawful for any proprietor of lands to execute 
a deed, instrument, or writing setting forth the reservations,* real 
burdens, conditions, provisions, limitations, obligations, and stipula- 
tions under which he is to feu or otherwise deal with or aflfect his 
lands or any part thereof, and to record the same in the appropriate 
Register of Sasines, and the same being so recorded, such reserva- 
tions, &c., may be effectually imported in whole or in part by refer- 
ence into any deed or conveyance relating to such lands subsequently 
granted by such proprietor, or by his heir or successor, or by any 
person whatsoever, provided it is expressly stated in such deed or 
conveyance that it is granted under the reservations, &c., set forth 
in such deed, instrument, or writing.' 

The following is the style given in the Schedule : — 

**But always with and under the reservations, real burdens, 
conditions, provisions, limitations, obligations, and stipula- 
tions {or as the case may be) specified in (refer to the deedj 
instrument, or writing, in such terms as shall he sufficient to 
identify it, and specify the register in which it is recorded, 
and the date of registration ; or where the deed, instrument, or 
writing referred to is recorded on the same date as the deed, 
instrument, or toriting containing the reference, here say, re- 
corded of even date with the recording of these presents.)* 

* The word " reservations " is here used not in the sense of reservatioxiB 
' from the lands conveyed, as of mines and minerals ; each reservations must 

be made in the conveyance itself. 



FEU-CHARTER. 37 

The clause, of which the following is the style, will be inserted o. 2. 
immediately after the description of the lands : — 

But always with and under the reservations, real burdens, p. le. 
conditions, provisions, limitations, obligations, and stipula- 
tions {or as the case may be), specified in (or if the deed or 
writing referred to contains conditions not applicable to 
the particular subject conveyed, say, But always with and 
under the reservations, real burdens, conditions, provisions, 
limitations, obligations, and stipulations (or a* the case may 
he) specified in articles of) the deed of declaration 

executed by me {or as the case may be), dated the 
day of , and registered in the division of the 

General Eegister of Sasines applicable to the County {or 
Counties) of {or in the Kegister of the Burgh, 

or in the Eegisters of the Burghs of ), on the 

day of : Which references to the said 

reservations, real burdens, conditions, provisions, limitations, 
obligations, and stipulations {or as the case may be), as speci- 
fied in {or as specified in articles of) the said deed 
of declaration {or as the case may be), shall be verbatim in- 
serted as herein contained in any notarial instrument which 
may follow hereon, and in all future deeds of transmission, 
writs, decrees, and instruments of or relating to the said 
lands, teinds, and others, or any part thereof, otherwise such 
deeds, writs, decrees, and instruments shall be void and 
nulL 

(c) Term of entry. — It is provided by the Act of 1874 (§ 28), Note (e), 
that where no term of entry is stated in a conveyance of lands, the P* ^^' 
entry, unless it shall appear from the terms of the deed that another 
term of entry was intended, shall be at the first term of Whitsunday 
or Martinmas after the date or last date of the conveyance — ^but the 
matter should not be left to be so fixed. 

(f) FeU'dviy and casualties, — Prior to the Act of 1874 consider- Note (f), 
able variety was found in the stipulations in regard to feu-duties and ^' 
casualties, it having been then competent to arrange them according 
to the views of the parties j but it is now provided that * ** the 

* Conveyancing Act, 1874 (? 23). 



38 IRREDEEMABLE RIGHTS. 

No. 2. annual fen-duty shall be of fixed amount or quantity, and no 

casualties or duties shall by law, irrespective of express condition or 

p. 16. covenant, be payable to the granter of the feu or his successors in the 
superiority ; " " but it shall be lawful to condition or stipulate for 
a permanent increase or reduction of the feu-duty, or for payment of 
a casualty in the form of a periodical fixed sum or quantity, pro- 
vided that the amount of such increase or reduction, or of such 
periodical additional sum or quantity, shall be certain, and that the 
time or times at which such additional sum or quantity shall be 
exigible, or from and after which such increase or reduction is to 
have eflfect, shall also be certain."— The reddendo of the charter must 
in every case be framed in conformity with this provision, and it 
may deserve consideration whether it is now competent to stipulate 
a grain feu-duty convertible according to the fiars prices, or it must 
be made payable in kind. 

Sometimes when, as in the case of building ground, it is contem- 
plated that the feu may be divided, an addition is made to the 
reddendo to the effect that in such case each parcel shall be liable for 
the whole feu-duty, but this is unnecessary, as each parcel is by law 
so liable. In connection with this the superior sometimes became 
bound, in the event of his so levying the whole feu-duty from one 
parcel, to assign his right so as to enable the party so paying to 
operate his relief, though such obligations were generally inserted, 
not in original charters, but in charters by progress, now abolished. 
Should it be thought desirable to insert such clauses they may 
be in the following terms viz. — 

Declaring, that if the said lands {oi- area, or piece of ground) 
or buildings erected or to be erected thereon, shall at any 
time be sold in separate parcels, each parcel shall be liable for 
the whole cumulo feu-duty and further or additional payments 
before specified, with relief against the other portions for any 
over-payment, and that no parcel shall be sold with a smaller 
annual feu-duty payable from it than the sum of 
sterling, and a corresponding portion of the said further or 
additional periodical payments. Declaring, that so often as 
the proprietors of any separate parcel shall be called upon to 
pay the whole of the said cumulo feu-duty, and further or 



FEU-OHARTER. 89 

edditioual payments, or any part thereof respectively exceed- N0..2. 
ing the proportions thereof eflfeiring to such separate parcel, 
I and my aforesaid shall be bound and obliged to grant our p. 17. 
concurrence for uplifting the same, in so far as due from the 
proprietors of the other parts of the said lands (or subjects), 
and if necessary to assign our right thereto, the concurrence 
and assignation being always granted at the expense of the 
party or parties applying for the same. 

(g) Assignation to rents, — ^Where the natural possession of the 
lands is not to be given, it is sometimes important that the inten- p^ 17'' 
tion of parties in regard to the rents fallmg due after the term of 
entry should be distinctly stated, so as to prevent questions which 
have sometimes arisen. See Maxwellf &c., 5 Nov. 1873, 1 B. 
122. The question is regulated by the ConsoHdation Act, section 8, 
which declares that the form of assignation ** shall, unless specially 
qualified, be held to import an 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 
■€ntry." 

(h) Relief of Minister's Stipend and other burdens, — ^It is some- 
times stipulated in feu rights that the superior shall reheve the ^ly]* 
vassal of all or some of the burdens affecting the lands which 
would otherwise fall upon him as the proprietor. In such cases 
^care should be taken to define clearly to what burdens or payments 
the obligation is to extend, and whether it is to comprehend aug- 
mentations or additions to the existing amount thereof, or burdens 
that may be imposed subsequent to the date of the feu. Where 
«ach obligation is to be undertaken by the superior, the particular 
burdens or payments to be so dealt with will be included in this 
^use, and for the construction of such obligations reference may be 
made to the following cases. In Eeid, 16 Feb. 1843, 5 D. 644, 
where the obligation was to reheve the vassal ** of all cesses, taxa- 
tions, supply, highway-money, and other pubHc burdens whatever, 
^e and payable forth or that anywise may be imposed upon 
the lands in all time coming,'' it was held that he was entitled to 
relief of poor rates. See also Lees, 11 l^ov. 1857, 20 D. 6 ; Hunter^ 



40 IRREDEEMABLE RIGHTS. 

No. 2. 16 July 1858, 20 D. 1311; Paterson, 10 Dec. 1863, 2 MT. 234; 

" ' and CamphelVs Trs,, 17 Nov. 1865, 4 MT. 50, where the question 

p. 17.' was as to poor-rates imposed under 8 and 9 Yict. c. 43, which was 
passed after the date of the feus, and where it was also held that an 
obligation to relieve ** of all minister's stipends " and " teind duties " 
payable for and forth of the lands " bygone and in all time coming,'^ 
entitled the vassal to relief of subsequent augmentation of stipend. 
It was in this case observed by Lord Deas that an obligation of 
relief ** of stipend imposed or to be imposed does not necessarily 
or even usually import relief from any augmentations," but the 
superior had been all along in the habit of paying the whole^ 
stipend. In a feu for building, granted in 1805, where the feu- 
duty was declared to be " in full of cess, ministers' stipend, and all 
other public burdens whatsoever, payable or which may be claimed 
or demanded furth of the subjects," it was held that the superior was 
bound to relieve the vassal of poor rates imposed on him under the 
Poor Law Act of 1845 as owner of the buildings as well as of the 
ground ; Nishet, 15 June 1869, 7 MT. 881. In Bosslyn (Locality of 
Dysart), 7 Dec. 1865, 4 MT. 140, it was held that an obligation to 
relieve the vassal ** of all public burdens except poor-rates and prison 
tax, which have been or shall be laid or assessed *' on the lands, did 
not include stipend, that being a burden not on the lands but on the 
teinds, which were not conveyed. An obh'gation to relieve " of public 
burdens imposed and to be imposed on the lands, was held not to- 
include burdens imposed under a statute subsequently passed ; Scott, 
25 June 1850, 12 D. 1077. 

It will be kept in view that, by **The Education (Scotland) 
Act 1872," for schoolmasters* salary there has been substituted an 
assessment called " school rate,'* which expression should now be 
adopted instead of the other. 

Opinion by majority of the whole Court, that an obligation in & 
feu-charter binding the superior, his heirs and successors, to relieve 
the vassals of future augmentations of stipend, is binding only on 
his successors in the superiority; Stewart^ 14 Feb. 1868, 6 MT. 
382 ; H. L. 17 Feb. 1870, 8 MT. 1. Question, whether the supe- 
rior's liability was limited to the amount of the feu-duty 1 Preston, 4 
Feb. 1870, 8 MT. 502. But see StewaH, 15th Feb. 1860, 22 D. 
755 ; H. L. 27 Mar. 1863, 1 MT. 25, where it was held that it wa». 
not so limited. 



FEU-OHABTER. 41 

(») Clause of Registration, — Tho statutory form, which imports a 



No. 2. 



consent to " registration in the books of Council and Session, or jj.^^ .^ 
other judges* books competent,* is not appropriate to an original p. 18. 
charter, which by the Act 1693, c. 35, is registrable only in the Books 
of Council and Session. 

(y ) Transference to the Record of the Conditions of the Grant, — Note (i). 
By the Consolidation Act of 1868, § 12, it is provided that **im- ^'^^' 
mediately before the testing clause of any conveyance of lands it 
shall be competent to insert a clause of direction "specifying the part 
or parts of the conveyance which the granter thereof desires to be 
recorded in the Eegister of Sasines, and when such clause is so in- 
serted in any conveyance," and such conveyance, " with a warrant of 
registration thereou, in which express reference is made to such 
clause of direction," " is presented to the keeper of the appropriate 
Register of Sasines for registration, such keeper shall record such part 
or parts only ;" and it was suggested by the late Mr Hendry, in his 
Styles of Deeds,t that " the transference to the record of the conditions 
and qualifications of the grant will be sufficiently secured by insert- 
ing in the charter a clause of direction." This suggestion, however, 
is inappropriate, and is founded on misapprehension. The danger 
to be guarded against arises when the title is completed, not by 
registration, but by notarial instrument. — ^Where a deed not contain- 
ing a clause of direction is presented for registration, it must be re- 
corded ad longum ;X but where it is used as the warrant for a notarial 
instrument there is a nsk that the party expeding tho instrument 
may omit the parts of the conveyance in question. 

Another proposed mode of securing the object in view may be 
here noticed. It is provided that, notwithstanding a clause of direc- 
tion, it shall be competent to expede a notarial instrument on the 
conveyance, " and where such notarial instrument shall be expede, 
no part or parts of the conveyance directed to be recorded shall be 
omitted from such instrument ;"§ and it has been suggested that the 
clause of direction may be made to embrace the whole conveyance, 
and thereby secure the insertion of the conditions. || This would be 

• Consolidation Act, i 188. 

t 2d edition, p. 8. See also Mamial of Conveyancing, Q. 282. 

X Consolidation Act, §§ 12 and 15. 

} Consolidation Act, J 12. 

H See Journal of Jurispradence, xii. 566. 



42 IRREDEEMABLE RIGHTS. 

No. 2. to use the clause in a case the very opposite of that contemplated by 

; the Act, which is where only part of the deed is desired to be 

V is* recorded, and it may be doubtful how far the statutory form which 

contemplates recital, not verbatim quotation of the conveyance, can 

be adapted to such an instrument, but the plan, if competent, will be 

effectual, though it must be kept in view that it makes no provision 

for the insertion of or reference to the conditions in subsequent writs. 

The object to be attained is a very important one, particularly 

now, when the renewal of investiture has been abolished ; but there 

seems to be no better way of effecting it than by inserting a clause 

appointing all the conditions and qualifications to be engrossed in 

any instrument following on the charter, and to be inserted or 

validly referred to in all subsequent deeds, decrees, and instruments, 

under pain of nullity.* The following is the statutory fonn : — 



CLA USE of DIBECTION. 

And I direct to be recorded in the Eegister of Salines 
the part of this deed from its commencement to the words 
[insert words] on the line of the page [and 

also the part from the words (insert words) on the 
line of the page to the words {insert tvords) on the 

line of the P^g^] > [p^^ I direct the whole of 

this deed to be recorded in the Kegister of Sasines, with the 
exception of the part {or parts, os the case may 6e, specifying 
the part or parts excepted^ as aftove)]. 

See remarks on clause of direction Note (j), p. 41. 



Ho. 8. FEV-DISPOSITION. 

The name Feu Disposition, though frequently met with in pro- 
gresses of titles, is hardly appropriate to the description of deed to 
which it is applied, which is properly a charter. A charter and a 
disposition differ in their character and object, the one being intended 

* See miproy p. 16. 



No. 8. 



FEU-OONTRAOT. 43 

to constitute a new fen to be held of the granter — the other to con- 
vey one already constituted, and to substitute the grantee in the 
place of the granter, and thus to make him hold of the granter's 
superior. The disposition in its original form, with the alternative 
manner of holding, was a combination of tlie two charters, one with 
a de me^ and the other with an a me, holding which had previously 
been granted in cases of sale. The feu-disposition in its original 
form differed from the feu-charter in having an obligation to infeft 
wherein the tenendaa and reddendo were incorporated instead of 
forming separate clauses as in the charter ; and as it did not fall 
under the Act 1693, c. 35, was registrable in any Judge Ordinary's 
books, and not only in those of Council and Session. This was its 
only advantage, and probably was the origin of its adoption. "Now 
that the insertion of an obligation to infeft in a disposition has been 
declared unnecessary,* and from the mode of completing the title 
the clause has become inappropriate, the difference between a feu- 
charter and a feu-disposition is almost nominal. The tenendas and 
reddendo may be expressed as follows — 

Which subjects above disponed are to be holden de me 
in feu-farm, fee and heritage, for ever, for payment to me 
And my heirs and successors of the sum of pounds 

sterling yearly, in name of feu-duty, and that at two terms 
in the year, Whitsunday and Martinmas, by equal portions, 
&c, {as in Feu-Charter^ p. 16). 

The registration clause will be in the statutory form,t viz. : — 
And I consent to Kegistration hereof for preservation. 
The other clauses will be the same as in the feu-charter. 



FEU'CONTBA CT. Ho i. 

It is contracted and agreed between the parties following, 
viz. : — A (designation)^ heritable proprietor of the lands and 

* (Consolidation Act, § 5. 
t See note (i), ntpra, p. 41. 



44 IRREDEEMABLE RIGHTS. 

N<>- *• otliers hereinafter disponed, on the one part, and B (designa- 

tion), on the other part, in manner foUowing— That is to say, 

the said A, in consideration of the sum of instantly 

paid to him by the said B, of which he hereby acknowledges 
the receipt, and of the feu-duty and other prestations after 
stipulated (or, if no sum is paid, say , in consideration of the feu- 
duty and other prestations after stipulated), hereby in feu-farm 
See Note (a) dispones (a) to the said B and his heirs and assignees whom- 
s«S'Note(6) soever, (6) heritably and irredeemably {or if it is desired to 
P- 1®- exclude assignees before infeftment, say, to the said B and his 
heirs and successors whomsoever, heritably and irredeemably, 
but exclusive of assignees before infeftment on, or registra- 
tion of, these presents, with warrant of registration thereon 
in the Kegister of Sasines, and declaring that the same shall 
not be a valid warrant for such infeftment, nor shall be so 
registered after the expiry of six months from the date 
hereof) (if there are to be auy burdens, dtc,, add, and with 
and under the burdens conditions, provisions, irritancies, 
and reservations after mentioned or referred to), All and 
See Note (c) Whole (insert description of the lands, (c) lying within the 
^' ' parish of and county of , together with the 

teinds, parsonage and vicarage, and pertinents of the same 
(if there are to be any burdens or reservations, &c., ex- 
pressed,"^ add, but always with and under the burdens, 
conditions, provisions, irritancies, and reservations follow- 
See Note wing, viz.,(c?) here insert the burdens, &c,, and after their 
^' ^ * insertion, add, all which burdens, conditions, provisions, 
irritancies, and reservations are hereby declared to be real 
burdens affecting the said lands and others, and are appointed 
to be inserted in any notarial instrument which may follow 
hereon, and to be inserted or validly referred to in terms of 
law in all future deeds of transmission, writs, decrees, and 
instruments of or relating to the said lands, teinds, and 
others or any part thereof, otherwise such deeds, writs,. 

*For clause where conditions are to be imported by reference to- 
recorded deed, A«., see p. 86. 



FEU CONTRACT. 45 

decrees, and instruments shall be void and null), with entry ^^-^ 

at the term of (e) gee Note w 

To be holden, the said lands, teinds and others, by the said«*pro,p.37. 
B and his aforesaid of and under the said A and his heirs 
and successors, as superiors of the same, in feu-farm, fee and 
heritage for ever, for payment of the feu-duty and further 
or additional payments alter mentioned {if there are any 
burdens, cfcc, add, but always with and under the burdens, 
conditions, provisions, irritancies, and reservations before 
specified, or as the case may he, referred to). And the said 
A assigns the writs, but to the eflFect only of maintaining 
and defending the said B and his ^foresaid in the right of 
the lands, teinds, and others hereby disponed, and for that 
purpose the said A obliges himself and his aforesaid to make 
the same forthcoming to the said B and his aforesaid 
according to an inventory thereof annexed and subscribed 
by, the said A as relative hereto, at the expense of the saidB 
and his aforesaid, and that upon a receipt and obligation to 
redeliver the same, within a reasonable time, and under a 
suitable penalty: And the said A assigns the rents :(gr) And See Note (a) 
he binds himself to free and relieve the said B and his**^*'^* 
aforesaid of all feu-duties, casualties, and services payable to 
or exigible by his, the said A's, superiors now and in all 
time coming, (A) and also to relieve the said B and his afore- See Note w 
said of all public burdens or assessments preceding the said "*^^ ^' 
term of entry: And the said A grants warrandice: For 
which causes, and on the other part, the said B binds and 
obliges himself {Ic) and his heirs and successors whomsoever 
iD the said lands, teinds, and others, to make payment (/) seeNote qc) 
to the said A and his heirs and assignees, of the sum ol^'^^ij^ 

pounds sterling yearly in name of feu-duty «*?*•«» P- ^r 
for the said lands, teinds, and others, and that at two terms 
in the year, Whitsunday and Martinmas, by equal portions, 
beginning the first term's payment thereof at the term of 

for the half year immediately preceding, and 
the next term's payment thereof at the term of 
thereafter, and so forth at the said two terms in the year {or 



46 IRBEDEEMABIiE BIGHTS. 

No. 4. yearly and termly) in all time thereafter; with one-fifth 
part more of each term's payment of liquidate penalty for 
each term's failure in the punctual payment thereof, and 
interest at the rate of five per centum per annum, of each 
temp's payment of the said feu-duty from the term at which 
the same falls due, during the not payment thereof, and fur- 
ther to pay to the said A and his aforesaid the further or 
additional sum of sterling, at the 

term of in the year , and at the same term 

in every year thereafter, and that over and above 

the annual feu-duties for the respective years in which the 
said further or additional sum of shall 

become due, with a fifth part more of each of the said 
further or additional sums of of liquidate 

penalty for each failure in punctual payment thereof, and 
interest at the rate of five per centum per annum of each of 
the said further or additional sums of 
from the term at which the same falls due until payment 
thereof: And further, the said B binds and obliges himself 
and his aforesaid to implement and perform the whole other 
prestations, conditions, and provisions herein contained 
incumbent on them: And both parties consent to regis- 
See Note (0 tration hereof (t) for preservation and execution. (/) In 

SeeNotot/) WITNESS WHEREOF, &C. 
p. 41. 

Note (Jfe) (^) Obligation to pay fevrduty, — ^The form of this obligation in 

ftti>ra,p.45. the style is the appropriate one, as the intention of parties generally 
is that the personal Hability of the heirs of the feuar for payment 
of the feu-dnty shall continue only so long as they remain pro- 
prietors of the fen. Sometimes, however, it is framed as follows : — 

For which causes, and on the other part, the said B binds 
and obliges himself and his heirs, executors^ and successors 
whomsoever to make payment to the said A, &c. 

The effect of an obligation in this form is to render the personal 
representatives of the feuar, so long as any exist, hable in payment 
of the feu-duty, though they may have been divested of the lands ; 



FEU-CONTRACT. 47 

King's College ofAherdeea ; H. L. 11 Aug. 1854, 17 D. 30, reversing No. 4. 

11 Maich 1852, 14 D. 675. The obligation in this case was con- 

tained, not in the contract, but in a separate personal bond ; but the 
principle seems to be equally applicable to an obligation in the contract. 
The same effect was given to an obligation for the yearly payment con- 
ceived in similar terms in a contract of ground-annual ; Miller^ H. 
L. 17 March 1853; Royal Bank, 13 May 1853, 15 D. 38 and 45, 
reversing 3 February 1849, 11 D. 495, and 8 March 1851, 13 D. 
912. Though feu-duties and ground-annuals are the same in this 
respect, there is a difference between them in another, viz., that in 
consequence of the privity of contract the vassal for the time is 
personally liable in payment of the feu-duty, while the proprietor 
of the lands is not so liable in payment of the ground-annual. 

COMPLETION OF VASSAL'S TITLE. 

The vassal's title may be feudally completed either by 

1. Itecording in the Eegister of Sasines the feu-charter, feu- 
disposition, or feu-contract, with warrant of registration thereon ; or 

2. Expeding and recording in the Eegister of Sasines a notarial 
instrument on the feu-charter or other deed. 

l.'^Ccmpletion of Feudal title hy recording of Hie feu-charter, &c. — 

Clause of Direction, 

By *'The Titles to Land Consolidation Act 1868," it is provided 
§ 15), that it shall not be necessary towards obtaining infeftment 
in land to expede and record an instrument of sasine, but it shall 
be competent and sufficient for the person or persons in whose favour 
the conveyance or deed is granted or conceived, instead of expeding 
and recording such instrument of sasine, to record the conveyance 
or deed itself in the appropriate Eegister of Sasines, and the con- 
veyance or deed being presented for registration in such Eegister with 
a warrant of registration thereon in or as nearly as may be in the 
form No. 1 of schedule (H) annexed to the Act, and being so re- 
corded along with such warrant, shall have the same legal force and 
effect in all respects as if the conveyance or deed so recorded had 
been followed by an instrument of sasine expede in favour of the 
person on whose behalf the conveyance or deed is presented for 



48 IRREDEEMABLE RIGHTS. 

registration and recorded in the appropriate Eegister of Sasines at 
the date of recording the said conveyance or deed. 

It is further provided (§12) that immediately before the testing- 
clause of any conveyance of lands, it shall be competent to insert a 
clause of direction in or as nearly as may be in the form No. 1 of 
schedule (F) annexed to the Act, specifying the part or parts of the 
conveyance which the granter thereof desires to be recorded in the 
Eegister of Sasines ; and when such clause is so inserted in any con- 
veyance, and (such conveyance),* with a warrant of registration 
thereon in which express reference is made to such clause of direc- 
tion, such warrant being in the form or as nearly as may be of No, 
2 of schedule (F), is presented to the Keeper of the appropriate 
Register of Sasines for registration, such Keeper shall record such 
part or parts only, together with the clause of direction and the 
testing-clause and warrant of registration; and in the absence of 
such express reference in the warrant of registration such convey- 
ance shall be engrossed in the register as if it had contained no 
clause of direction, and the recording of such part or parts of the 
conveyance, together with the clause of direction and the testing- 
clause and the warrant of registration, shall have the same legal 
effect as if at the date of such recording a notarial instrument con- 
taining such part or parts of the conveyance had been duly expede 
and recorded in the appropriate register of sasines in favour of the 
person on whose behalf the conveyance is presented, provided that^ 
notwithstanding such clause of direction, it shaU be competent for 
the person entitled to present the conveyance for registration to 
record the whole conveyance or to expede and record a notarial 
instrument thereon in the same manner as if the conveyance had 
contained no such clause of direction, and where such notarial in- 
strument shall be expede, no part or parts of the conveyance directed 
to be recorded shaU be omitted from such instrument. 



Ho. 5. WARRANT OF REGISTRATION where the Deed does 

not contain a Clause of Direction, 

Register on behalf of A B {insert designation)^ in the 
register of the County of 0, {or if the deed contains lands in 

* These words seem to be omitted in the Aot. 



COMPLETION OF VASSAL'S TITLE. 49 

more than one county, in the registers of the counties of C, D, no. 6. 
E & F (or as ^Ae ccLse may be). 



Signed 


AB. 


(or) 


G H. 




W.S., Edinburgh Agent. 


{or) 


J K and L. 




W.S., Edinburgh Agents 




(or as the case may be). 



WARRANT OF REGISTRATION where the Deed con- Ho.a 

tains a Clause of Direction. 

Begister the above deed in terms of the clause of direc- 
tion therein contained on behalf of A B {insert designation), 
in the register of the county of {or, if the deed contains 
lands in more tlian one county, in the registers of the counties 
of C, D, B and Y, or as the case may he). 

Signed A B. 

{or) G H. 

W.S., Edinburgh Agent. 

(or) J K and L. 

W.S., Edinburgh Agents 

{or as the case may he). 

Note. — ^Where the grantee, notwithstanding a clause of direction 
in the deed, desires to record the whole of it the warrant of registra- 
tion, Style ]^o. 5, will be used. 

It is very improbable that a clause of direction will occur in a feu- 
charter or other original deed of grant, as it is the granter of the deed 
who is entitled to insert such clause, and in this case he has no interest 
to do 80. The interest which under the law prior to the Act of 1874 
he might have had, viz., to render ineffectual a renunciation of the 
legal casualties, is now lost through the abolition of such casualties, 
and even if he have an interest to serve by recording only parts 
of the deed, his purpose could be defeated by the grantee recording, 
as he is entitled to do, the whole deed. 



50 IRBEDEEMABLE RIGHTS. 



2. Completion of Feudal Title by expeding and recording a 

Notarial Instrument, 

Ho. T. NOTARIAL INSTRUMENT ON FEU-CHARTER, &c. 

At there was by {or on behalf of) A B 

(designation) presented to me, Notary Public subscribing, a 
Feu-Charter {or other deed, or an extract of a feti-charter 
or other deed, as the ca^e may he) granted by D {design 
nation) and dated {insert the date, and if the wai^ant he 
an extract, add and recorded in the Books of Council and 
Session, or as the case may he, on the day of ) 

by which Feu-Charter {or as the case may he) the said C D 
disponed to and in favour of the said A B and his heirs and 
assignees whomsoever {or as] the case may he), heritably and 
irredeemably, all and whole {iiisert the description of the lands 
conveyed, and any real burdens, conditions, &c,, or any 
reference to the sam>e, all as in the feur-charter, or other deed^ 
and if so conditioned in the deed, add all which burdens, 
conditions, &e., are declared to be real burdens, and 
appointed to be inserted in these presents, and to be inserted 
or validly referred to in terms of law in all future deeds of 
transmission, writs, decrees, and instruments of or relating 
to the said lands, teinds, and others, or any part thereof, 
otherwise such deeds, writs, decrees, and instruments shall 
be void and null), with entry at the term of : To 

be holden the said lands, teinds and others by the said A B 
and his aforesaid of and under the said C D, his heirs and 
successors, as superiors of the same in feu-farm fee and 
heritage for ever — paying therefor yearly the said A B and 
his aforesaid {insert the terms of the reddendo as in the feu- 
charter or other deed) : Whereupon this instrument is taken 
in the hands of L M {insert name and designation of Notary 
Public), in the terms of " The Titles to Land Consolidation 
(Scotland) Act, 1868." In witness whereof these presents, 
written on this and the preceding pages by G H, my clerk 



COMPLETION OF VASSAL'S TITLE. 51 

(or as the case niay he)* are subscribed by me before these No. 7. 
witnesses the said G H, and J K, also my clerk (or as the case 
may be). 

(Signed) L M, Notary Public. 
G H, witness. 

J E, witness. 

Note. — ^A warrant of registration must be written on the instru- 
ment, before it is presented to be recorded, for which purpose the 
Form No. 5, p. 48, will be used. 



(2) DEEDS OF TEANSMISSION. 

Certain clauses which formerly served important purposes in 
deeds of transmission of land rights, though not abolished or ex- 
pressly dispensed with, have by the operation of the recent Acts 
been rendered unnecessary or inappropriate, viz. :- 

1. Tenendas. — ^The 6th section of the Consolidation Act pro- 
vided that, where no holding was expressed, the conveyance should 
be held to imply that the lands were to be held a me oi a me vel de 
me according as the titles did or did not contain a prohibition 
agidnst subinfeudation, after which the only case in which it served 
any purpose to insert a clause of tenendas was where, notwithstand- 
ing such prohibition, it was desired to have a temporary base hold- 
ing, and this was effected by inserting an a me vel de me holding, of the 
infefbnent following on which confirmation could be obtained from 
the superior within a certain time, — ^but under the Conveyancing Act 
of 1874 it is provided, § 4 (2), that " every proprietor who ia at 
the commencement of this Act, or thereafter shall be duly infeft in 
the lands, shall be deemed and held to be, as at the date of the 
TQgistmtion of such infeftment in the appropriate Eegister of 
SiwinfiB, duly entered with the nearest superior whose estate of 
superiority in such lands would, according to the law existing prior 

* This fonn of testing clause is, by the Consolidation Act, a statutoiy 
zeqiiisite in aU Notarial Instruments ezpede under its proyisions, but by the 
qpention of 2 67 of the Conveyancing Act, whereby ** aU statutes, laws, and 
tamgOB at variance with any of the provisions of this Act are repealed," the 
tise of the new mode of attestation, introduced by i 88 of that Act, is ren- 
doped competent. 



52 IBREDEEMABLE BIGHTS. 

No. 7. to the commencement of this Act, have been not defeasible at the 

will of the proprietor so infeft, to the same effect as if such superior 

had granted a writ of confirmation according to the existing law and 
practice." There is now therefore no room for the operation of 
an alternative holding, while its insertion, where in the case of an old 
feu subinfeudation is prohibited, might be held to be an infringement 
of the Act. 

2. Clause of Resignation, — ^As entry by resignation is now 
abolished,* this clause is rendered unnecessary and inappropriate in 
any case, and where inserted in a conveyance of Burgage subjects, it 
is to be held pro non 8cripto,\ 

No. 8. DISPOSITION according to Style used prior to " The 

Conveyancing {Scotland) Act 1874" 

I, A (designation), heritable proprietor of the lands and 
others hereinafter disponed, In consideration of the sum 
of pounds sterling, instantly paid to me by B (deaig- 

nation), as the price thereof, do hereby sell and dispone 
to the said B, and his Tieirs and assignees whomsoever, 
heritably and irredeemably. All and whole (description of 
or refer CTice to description of the lands, in terms of iJie Act in 
force at the time); with the pertinents of the said lands and 
others, and my whole right, title, and interest present and 
future therein ; with entry at the term of .J 

To be holden, the said lands and others, a me, or a me vel 
de me: And I resign § the said lands and others for new infeft- 
ment, or investiture : And I assign the writs, and have deli- 
vered the same according to inventory : And I assign the 
rents : And I bind myself to free and relieve the said B and 
his aforesaid of all feu-duties, casualties, and public burdens : 
And I grant warrandice: And I consent to registration 
hereof for preservation : In witness whebeof, &c. 

♦ Gonveyancing Act, § 4 (1). 

t Ck)nsolidation Act, § 7, and Oonyeyancing Act, § 26. 

X See Obseryations, 9fU/pni, p. 37. 

§ See Obseryations, tuprc^ p. 51. 



DISPOSITION. 53 



DISPOSITION {New Style). . No. 9. 

I, A (designation), heritable proprietor of the landa and 
others hereinafter disponed, In consideration of the sum of 

pounds sterling instantly paid to me by B 
{designation), as the price thereof, of which sum 1 hereby 
acknowledge the receipt, do hereby sell and dispone* to 
the said B, and his heirs and assignees whomsoever, heri- 
tably and irredeemably, All and whole {Jiere insert descrip- 
tion of the lands from the prior titles, adding the county or 
counties, or the parish or parishes and county or counties in 
which the lands lie, or refer to description in prior recorded 
deed or instrument, ut infra) (a) ; with the pertinents of the ^^^^^^ 
said lands and others, and my whole right, title, and interest 
present and future therein ; (6) (e) with entry at the term of ^^^^^ 

: (c) And I assign the writs, and have delivered See Note («) 
the same according to inventory: (g) And I assign the rents: Sw Note (c) 
And I bind myself to free and relieve the said B and his sJi^tei^) 
foresaids of all feu-duties, (A) casualties, and public burdens : g^jS; 
And I grant warrandice: {If there be any leases or feu-rights p. 6i 
of the lands, add — But excepting always from this warran- 
dice the current tacks or leases,t and all feu-rights and other 
subaltern rights of the said lands, made and granted by me 
or my predecessors or authors, without prejudice neverthe- 
less to the said B or his aforesaid to quarrel or impugn the 
same on any ground of law not inferring warrandice against 
me or my irforesaid:) (i) And I consent to registration here- See Note (o 
of for preservation : {J) In witness whereof, &c. SeeNote(j) 

pp. 62 ACL, 
(a) Ducription of lands by reference to prior recorded deed or in' ^^^ W 
strumenL — ^The first proviBion for shortening the description of lands 
in deeds containing or referring to them, was in § 15 of "The Titles 
to Land (Scotland) Act, 1868," which declared that it should be 

* See Kote (a), wpra, p. 18. 

t Leases of shootings are not effeotoal against singular snooessors, as not 
eoming within the provisions of the Act 1449, c. 18 — Pollock, Oilmour ^ Co,, 
5 June 1828, 6 8. 918 ; Birkbtek, 22 Dec. 1865, 4 Idacph. 272. If, there- 
f6re, there be snch leases, an arrangement regarding them should be come 
to between the aeQer and pnrohaser. 



54 IBBEDPIMABLE BIQHTS. 

No. 9. sufficient to specify the leading name or names, or other short 
distinctive description of the lands conveyed, and the name of the 



• — ^ — - — — — — — . — ^ — -J — 

Nete (a). gQ^mjjy ^j^d parish, or supposed parish, and to refer to the particular 
description contained in a prior recorded conveyance or writ. This 
provision was repealed by § 34 of "The Titles to Land (Scotland) 
Act, 1860," and there was substituted therefor another, which de- 
clared that it should be sufficient to specify the name of the county, 
or of the burgh and county, and to refer to the particular description 
contained in a prior recorded deed or instrument. This provision 
again was changed by "The Titles to Land Consolidation (Scotland) 
Act, 1868," in which the idea of the leading name was again adopted, 
and the provision in the Titles Act of 1858 in substance re-enacted.* 
The style, however, was not found convenient in practice, and by 
"The Coveyancing (Scotland) Act, 1874," the 11th section of the 
Consolidation Act was repealed, and a provision to the same effect as 
that in the Titles Act of 1860 made, which has a retrospective 
operation, and saves £rom challenge any specification and reference 
to any particular description of lands contained in any prior deed or 
instrument, provided such specification and reference states correctly 
the name of the county, or of the burgh and county,''as the case may 
be, in which the lands are situated, and refers directly to the prior 
deed or instrument containing the description of such lands.t 

The following examples of the clause of reference are taken from 
Schedule (0) annexed to the Act of 1874. 

All and whole the lands {or subjects) and others {fyr 
the lands of A and others), in the county of , 

being the lands {(yr subjects) particularly described in the 
Disposition {or other cofiveyance or deed), granted by (insert 
designation) in favour of D (insert designation), and dated 
(insert date), and recorded in the particular Register of 
Sasines for the county of (or, in the division 

of the General Eegister of Sasines applicable to the county 
of ) (or, in the General Eegister of Sasines kept 

at Edinburgh), on the day of (or parti- 

cularly described in the Instrument of Sasine, or Notarial 

* Oonsolidation Act, § 11. f Ck^nyeyancing Act, { 61. 



DISPOSITION. 56 

Instrument) in favour of (designation) ^ recorded in the ^^' ^ 
{speciji/ the JBegister o/Sasines as above) on the (insert date). ^.^^ . 

All and whole the lands (or subjects) delineated and 
coloured on a copy of the Ordnance Survey Map, hereto 
annexed, and signed as relative hereto, in the county of 

, being the lands (or subjects) particularly de- 
scribed in the tKsposition (or other conveyance or deed) 
granted by C (designation) in favour of D (designation), 
and dated (insert date) and recorded in the (specify Register 
ofSasines as in the preceding example), on the day of 

, in the year (or, as particularly 

described in the Instrument of Sasine, &c., as in preceding 
example). 

All and whole the house Number Ten Street 

and others, in the county of (o?' in the burgh 

of , and county of ), being the 

subjects particularly described in the Notarial Instrument 
in favour of C (designation), recorded in the (specify 
^Register of Sasines) on the day of in the 

jear (or in the Disposition, &c., as in first example). 

Where part only of lands is to be conveyed, the clause may 
be in this fonn : — 

All and whole the lands delineated and coloured 
on a copy of the Ordnance Survey Map hereto annexed, and 
signfed as relative hereto in the county of L, being part 
of the lands particularly described in the Instrument of 
Sasine in favour of D (designation), recorded, &c. (or as the 
case may be). 

(or) 

All and whole the lands of X and others, in the county 
of L, being the lands as particularly described in the In- 
strument of Sasine in favour of D (designation), recorded in 



Note (a). 



56 IBEEBEEMABLE RIGHTS. 

Wo. 9, the (specify Register o/Sasines) on the day of 

' in the year ; with the exception of all and whole 

(describe the part excepted). 

Although not required by the statutory schedule, it is recom- 
mended that in referring for the description of the lands to prior 
deeds or instruments, the name and designation of the grantee as 
well as of the granter, and of the person in whose favour the instru- 
ment was expede he specified. It may frequently happen, as in the 
case of feu-rights, that various deeds, granted by the same person, are 
recorded on the same day, and the mere date of recording is a some- 
what imperfect mode of identifying the particular instrument re- 
ferred to. 

General Name. — ^Where several lands are comprehended in one 
conveyance in favour of the same person, it is provided by The Titles 
to Land Consolidation (Scotland) Act, 1868 (sec. 13), that it shall be 
competent to insert a clause in the conveyance, declaring that the whole 
lands conveyed and therein particularly described, shall be designed 
and known in future by one general name, to be therein specified ; and, 
on the conveyance containing such clause, or on an instrument fol- 
lowing thereon and containing such particular description and clause, 
being duly recorded in the appropriate Eegister of Sasines, it shall be 
competent, in all subsequent conveyances, and deeds, and discharges, of 
or relating to such several lands, to use the general name specified in 
such clause as the name of the several lands declared by such clause 
to be comprehended under it, and such subsequent conveyances, and 
deeds and discharges, of or relating to such several lands under the 
general name so specified, shall be as effectual in all respects as if the 
same contained a particular description of each of such several lands, 
exactly as the same is set forth in such recorded conveyance or in- 
strument; provided that reference be made, in such subsequent con- 
veyances, and deeds and discharges, to a prior conveyance or instrument 
recorded as aforesaid, in which such particular description and clause 
are contained : Provided also, that it shall not be necessary in such 
clause to comprehend under one general name the whole lands con- 
tained in the conveyance in which such clause is inserted, but that it 
shall be competent to comprehend certain lands under one general 
name, and certain other lands under another general name, it being 
clearly specified what lands are comprehended under each general name. 



Note (a). 



DISPOSITION. 67 

Where one or more general names are to be given to lands con- ^^ ^* 
tained in a conveyance, the style or styles in Feu-Charter No. 2, 
note (c), p. 19, may be adopted, and where such general name or 
names are to be used in subsequent deeds, the description and 
reference to the prior deed may be as follows : 

All and whole the lands of X (or the lands of X, Y, 
and Z) in the county of , (or as the case 

may be) as particularly described in the Disposition (or other 
deed) granted by C (designation) to D (designation) ^ and 
bearing date (insert date), and recorded in the particular 
Register of Sasines for the county of , (or, in 

the division of the General Kegister of Sasines applicable to 
the comity of ), on the day of 

, in the year , (or, as particularly de- 

scribed in the Instrument of Sasine or Notarial Instrument 
in favour of D (designation), recorded (specify the Register 
of Sasines), on the day of in the year 

), and in v\rhich the lands hereby conveyed are 
declared to be designed and known by the said name of X 
(or, by the said names of X, Y, and Z). 

(5) Reservations, Rurdens, dc, — Here insert all reservations, if Not© (6), 
any, from the subject conveyed, and insert or refer to all reservations, P* ^' 
huidens, conditions, restrictions, and qualifications, if any, of the 
grantee's right of property. 

I. Reservation from Subject Conveyed. 

Beservations from the subject conveyed, as of mines and minerals, Rescrva- 
may occur in dispositions as well as in original charters, and the 
mode of expressing them is in both cases the same. Eeference is 
therefore made to the clause in a feu-charter, — Style No. 2, note (d), 
p. 19, and the observations thereon. 

IL Burdens, Reservations, Conditions, &c,, qualitying Bordens, 
THE Grantee's Right of Property. *^ 

These burdens, &c., may be of three descriptions, viz. — 1st, such 
as axe for the first time imposed by the disposition — 2d, such as 



Note ih). 



68 IRREDEEMABLE RIQHTS. 

^^ 9« have been already imposed by the original; charter, or by prior dis- 
positions or other conveyances,— or 3d, such as are to be imported 
into the disposition by reference to a Deed of Declaration, executed 
and recorded in terms of the Conveyancing Act of 1874, § 32. 

(1) Burdens J d:c,, to he Imposed hy the Disposition. 

These burdens will be constituted in exactly the same way as in 
an original charter, and reference is made to the clauses and relative 
observations in Style No. 2, note ((2), pp. 23 et seq, 

(2) Burdens Imposed hy Prior Dispositions^ &c. 

By the Consolidation Act it is provided (§ 10) that where lands 
are or shall be held under any real burdens or conditions, provisions, 
or limitations whatsoever, appointed to be fuUy inserted in the investi- 
tures of such lands, it shall, notwithstanding such appointment, not 
be necessary in any conveyance or deed of or relating to such lands, 
to insert such real burdens, or conditions, or provisions, or limitations, 
provided the same shall, in such conveyance or deed, be specially 
referred to as set forth at full length, either in the conveyance or 
deed recorded in the appropriate Eegister of Sasines wherein the 
same were first inserted, or in any such conveyance or deed of sub- 
sequent date recorded as aforesaid, and forming part of the progress 
of titles of the said lands. The clause may be as follows : — 

But always with and under the real burdens, conditions, 
provisions, restrictions, limitations, and obligations {or «wcA 
of these as may apply or have reference to the case) specified 
in a Disposition (or other deed) of the said lands and others 
granted by A (designation) to B (designation) ^ and dated 
(insert date), and recorded in the particular Register of 
Sasines for (or, the division of the General Eegister of 
Sasines applicable to) the county of , (or as the 

case may be) on ttie (insert date) ; (or, in an Instrument of 
Sasine or Notarial Instrument in favour of A (desigruition) in 
the said lands and others recorded in the particular Eegister 
of Sasines for (or, the division of the Gteneral Eegister of 
Sasines applicable to) the county of , (or as the 

case may be) on the (insert date) ; or, ifUie deed or instrument 



DISPOSITION. 69 

as recorded has been previously referred tOy say, in the said ^^' ®« 
DiBposition (or other deed) of the said lands and others, ^^^ ^. 
granted by the said A to the said B {or, in the said Instru- 
ment of Sasine or Notarial Instrument) in the said lands 
and others, in favour of the said B), recorded as aforesaid on 
the day of , in the year, &c.* 

It will be kept in view that it is essential that the reference be 
to a recoided deed or instrument f in which the conditions, &c., are 
"set forth at full length;'* and not to one where they are only 
lefened to. 

(3) Burdens^ dfc, to he Imported hy reference to Recorded Deed of 
Declaration^ in terms of " The Conveyancing {Scotland) Act, 
1874," § 32. 

Beference is made to the observations and clause in Style of Feu- 
Charter No. 2, note (d), p. 36, which are equally applicable to the 
case of a disposition. 

III. Obligation by Purchaser to Believe Seller of Feu- 

DUTIBS, &0., SUBSEQUENT TO THE TeRM OF EnTRY. 

Prior to the Act of 1874, a vassal remained liable in payment of 
the feu-duty, and performance of the prestations in the feu-right, 
until another person was entered as vassal, and under that Act he 
remains so liable until the purchaser has been infeft, and until notice 
of the change of ownership shall have been given to the superior.J 
The Act provides that this liabihty shall be ** without prejudice to 
the right of the proprietor last entered in the lands, and his fore- 
saids, to recover from the entered proprietor of the lands all feu-duties 
which such proprietor last entered in the lands, or his foresaids, may 
have had to pay in consequence of any failure or omission to give 
such notice." This provision does not come into operation until the 

* From the terms of the Schedule (D) it rather appears that in referring 
back to the deed or instroment, the date of recording, though not the 
register, requires to be repeated. 

t InBtnunents are included in the definition of ** deed and conveyance " 
in the Oonsolidation Act, i 8. 

% Ckmreyanoing Act, § 4 (2). 



60 IRREDEEMABLE RIGHTS. 

No. 9. purchaser shall have entered by taking infeffcment on the conveyance, 
which the seller has no means of compelling him to do, and though 



Note (6). ^jj^pQ og^ -^ jjQ doubt that at common law the purchaser is liable in 
such relief, yet in the case of Hyslop * some of the judges seemed 
to attach importance to an obligation to that effect being expressed 
in the disposition. Prior to 1847 this was done in the obligation to 
infeft, which was under the condition that the purchaser should 
relieve the seller of all feu-duties, and other duties and services 
exigible by the superior, and the shortened form of the obligation 
introduced by the Lands Transference Act of that year was declared 
to imply a similar obligation j f but the obligation to infeft having 
disappeared from the disposition, the relative obligation, express or 
implied, has gone with it. It may therefore be thought desirable to 
insert an express obligation of relief in the disposition, which may 
be in these terms : — 

Declaring that the said B and his aforesaid shall be 
bound, as by acceptance hereof he binds and obliges himself 
and them, to relieve me, and my heirs and successors whom- 
soever, of all feu-duties and other duties and services exi- 
gible by my superior of the said lands and others, from 
and after the said B's'term of entry thereto under these 
presents. 

The clause may be inserted immediately after the specification of, 
or reference to, other burdens or conditions if there be any such, 
or if there be none, then immediately after the description of the 
lands. 

Note(c), (c) Assignation to Writs, — Sometimes the titles are not delivered, 

P* • either because the seller requires to retain them, or because they or 
some of them are not in his possession. In these cases one of the 
following clauses may be used : — 

And I assign the writs, according to inventory thereof, 
annexed and signed by me as relative hereto ; but as the 
same contain other subjects of greater value, and so cannot 
be delivered up, I bind myself, and my heirs and successors, 
to make the same forthcoming to the said B and his afore- 

♦ 18th March 1863, 1 MT. 635. 1 10 and 11 Vict. c. 48, § 2. 



DISPOSITION. 61 

said, at their expense, on all necessary occasions, and that ^®- *• 
upon a receipt and obligation to redeliver the same within a ^^^ . 
reasonable time and under a suitable penalty. 

or 

And I assign the writs, &c., {as above) and have delivered 
the same, except numbers thereof, which are not in 

my possession, but I assign the said B and his aforesaid in 
and to the obligation to make the same forthcoming when 
required, contained in the Disposition (or other deed) of the 
said lands and others granted by C (designation), in my 
favour, dated (insert date) (or, in and to all obligations of 
which I am in right to make the same forthcoming). 

See another form of this clause in Style No, 11, p. 64. 

(g) Assignation to the Bents. — See observations under Style No, ^^ , . 
2, note {g)f p. 39. p. »/ 

(h) Belief of Casualties, — ^This clause, which is in the statutory Note {h), 
Ibnn, imports an obUgation to reUeve "of all casualties payable or ^'^' 
]>Te8table to the superior," '' due from or on account of the lands 
conveyed prior to the date of entry."* Under the law prior to 1874 
if the lands sold were in non-entry the purchaser was entitled to 
require the seller to enter with the superior ; and under the present 
law, where a casualty is due at the time of the sale, the purchaser is 
entitled to require the seller to pay it, but if he means to enforce 
bis right, at least where the casualty is a legal one, he must take 
care to do so before accepting the disposition, as otherwise he will 
lose the right. A superior can recover such a casualty only by pro- 
ceeding against the lands, which he cannot do through a proprietor 
who has been divested and has ceased to be in possession ; he must 
therefore proceed against the purchaser, but as the purchaser if infeft 
has been constructively entered by force of the statute, the casualty 
which he pays is one due by himself in respect of his own entry, and 
not by the seller or prior to the date of the purchaser's entry to the 
lands, 80 that it does not fall under the obligation of reUef. Even if 

* Consolidation Act, i 8, and Schedule B. 



,. i;xi8ti«^ ^f \^ price, a 
1' ^ ^^S^t ^^r ir^^i^ ^° tt l^a ^' 



DISPOSITION. 63 

to be a real burden upon and affecting the said lands and No. lO. 

others, and further, in consideration that it has been agreed 

on that the sum of sterling, which already consti- 

tutes a real burden on the said lands and others in virtue of 
the Bond and Disposition in Security after referred to, is to 
remain on the security of the said lands and others, and which 
sums of and and , amounting together 

to , make up the price of the said lands and others : 

Do hereby sell and dispone to and in favour of the said B 
and his heirs and assignees whomsoever, heritably and irre- 
deemably (Aere insert or refer to description), declaring always, 
as it is hereby expressly provided and declared, that the said 
lands and others are disponed under the real burden of the 
said sum of sterling, being that part of the purchase 

money of the said lands remaining unpaid to me as before 
mentioned, interest thereof at the rate of five per centum 
jper annum from the term of , during the not 

payment thereof, and a fifth part more of the said principal 
Eum of liquidate penalty in case of failure in punctual 
payment thereof to me, my executors (oTy my heirs, ex- 
cluding executors),* or assignees whomsoever, at the term 
of , all conform to Bond of this date granted 

by the said B to me therefor : And which sum of , 

interest and penalty as aforesaid, are hereby declared a real 
and preferable burden affecting the said lands and others 
before disponed, and are appointed to be engrossed in any 
Notarial Instrument which may follow hereon, and also to 
be engrossed, or validly referred to in terms of law, in all 
future deeds of transmission, writs, decrees and instruments, 
of or relating to the said lands and others or any part thereof, 
otherwise such deeds, writs, decrees and instruments shall 
be void and null : With entry at the term of 

The other clauses of the deed will be in the usual style, except 
the clause of warrandice, which will be as follows : — 

« This declaration as to the right of saooession is necessary in oonse- 
qaence of the proYision in 2 30 of The Conyeyancing Act, 1874. 



64 IRREDEEMABLE RIGHTS. 

No. 10. And I grant warrandice, but excepting and reserving 

from this warrandice a Bond and Disposition in security for 
the sum of sterling granted by me in favour of C 

(designation) y dated (insert date), and recorded in the (speci/y 
Register ofSasines) on the (date), which sum of it 

has been agreed is to remain on the security of the said lands 
and others as aforesaid, and the said B is to take upon him- 
self the obligation to repay the same ; (and if the purchaser 
agrees, in terms of the provision in § 47 of the Conveyancing 
Act, 1874, to undertake the personal obligation in the bond, 
there will he added) : And it is further agreed, as the said B by 
acceptance hereof declares and agrees, that the personal ob- 
ligation to pay principal, interest, and penalty contained in 
the said Bond and Disposition in security, shall be a burden 
upon his title in the same manner as it was upon that of me, 
the said A, without the necessity of a Bond of Corroboration, 
or other deed or procedure, and the personal obligation may 
be enforced against him by summary diligence or otherwise 
in the same manner as against me."*" 

No. u. DISPOSITION by Builder of one of the Flats of a Tenement 

of Houses, and containing stipulation for additional 
FefUrduty. 

I, A (designation), heritable proprietor of the subjects 
hereinafter disponed, In consideration of the sum of 
pounds sterling instantly paid to me by B (designation), as 
the price thereof, whereof I hereby acknowledge receipt, do 
hereby sell and dispone to the said B, and his heirs and 
assignees whomsoever, heritably and irredeemably, all 
and WHOLE that lodging or dwelling house (specify rooms, 
Ac), being the third or uppermost flat of that tenement of 
houses erected by me on the area or lot of ground distin- 
guished as numbers of the street called street and 
part of the lands of , the said lodging or dwelling house 

* See as to this provision imder Heritable Securities, tf|/ra. 



DISPOSITION. 65 

hereby disponed being entered from the common stair, number No. ii. 

in said street, together with the coal cellar in the area 
in front of said house, being the fourth cellar from the east 
end of said area ; and also a mutual right, in common with 
the other proprietors of said house, to the water-cellar, being 
the fifth from the east end of said area, and to the green be- 
hind the said house ; with right of access to the subjects 
hereby disponed by the common stair and common passages 
in said house, and to the roof thereof by the hatchway in the 
ceiling at the top of said common stair, for the purpose of 
cleaning the vents of the subjects hereby disponed, and 
other necessary purposes, and to the said cellars by the area 
stair ; which tenement, of which the said dwelling house is 
a part, is bounded {insert boundaries) , with all the privileges 
and pertinents thereto belonging, lying within the parish of 

and county of ; but always with and 

under the conditions, provisions, and burdens following, vide- 
licet, that the said B and his aforesaid shall bear one- 
part of the expense of upholding the roof of said tenement, 
and a proportion corresponding to the part of the cumulo 
feu-duty hereinafter allocated on the said dwelling-house ; of 
the expense of keeping in repair the pavement, railings, 
causeway, water pipes, and common sewers, and others, 
common or mutual to the said tenement of which the said 
subjects form a part ; and also with and under the other con- 
ditions, provisions, restrictions and obligations, so far as 
applicable to the subjects hereby disponed, specified in the 
Disposition {or other deed) of the tenement of which the said 
subjects hereby disponed form a part, granted by C {designa- 
tion) in my favour, and dated the day of , and 
recorded in the division of the General Register of Sasines 
applicable to the county of {or cw the case may he) 
on the {insert date) ; and also with and under the burden of 
the yearly payment by the said B, and his heirs and suc- 
cessors, to the superior of said subjects, of the sum of 
pounds sterling of feu-duty, being the proportion allocated 
on the subjects hereby disponed of the whole yearly feu-duty 



66 IBBEDEEMABLE BIGHTS. 

No. 11. of payable for the said tenement of which the said 

subjects are a part, and that at two terms in the year, Whit- 
sunday and Martinmas, by equal portions, beginning the 
first term's payment thereof at the term of for Uie 

half-year immediately preceding, and the next term's pay- 
ment thereof at the term of thereafter, and so forth 
at the said two terms in the year in all time thereafter, with 
a fifth-part more of each term's payment of liquidate penalty 
for each term's failure in punctual payment thereof, with 
interest at the rate of five per centum per annum of each 
term's payment of the said feu-duty fi*om and after the term 
at which the same falls due until paid, and imder burden of 
the payment of the further or additional sum of 
sterling at the term of in the year , and at 
the same term in every year thereafter, and that over and 
above the annual feu-duties for the respective years in which 
the said further or additional sum of shall become 
due, with a fifth-part more of each of the said further or 
additional sums of of liquidate penalty for each failure 
in punctual payment thereof, and interest at the rate of five 
per centum per annum of each of the said further or additional 
sums of from the term at which the same falls due 
until payment thereof: With entry at the term of 

:* And I assign the writs according to inventory there- 
of hereunto annexed, and signed by me as relative - hereto ; 
but as the said writs, so far as in my possession, are to be 
delivered to N (designation)^ who has purchased other parts 
of the property therein contained, I oblige myself to take 
the said N and his heirs and successors bound to make the 
whole writs so to be delivered to him forthcoming to the said 
B and his aforesaid, at their expense, on all necessary 
occasions, on a receipt and obligation to redeliver the same 
within a reasonable time, and under a suitable penalty : And 
I assign the said B and his aforesaid in and to the obligation 
to make the other writs in the inventory forthcoming con- 
tained in the said Disposition by the said C in my favour 

* See f omiB of this clause in style of Disposition No. 9, wpra, p. 60. 



DISPOSITION. 67 

{or as the case may be) : And I assign the rents : And I bind No. il. 
myself to free and relieve the said B and his aforesaid of all ' 

feu-duties, casualties, and public burdens: And I grant 
warrandice: And I consent to registration hereof for 
preservation : In witness whereof, &c. {testing clause)^ 

DISPOSITION proceeding upon Articles ofBoup. HcU, 

I, A {designation)^ heritable proprietor of the lands and 
others hereinafter disponed, ooNsmEBtNG that the said lands 
and others were exposed by me to public roup and sale on 
the day of , in terms of certain Articles 

and Cionditions of Boup executed by me upon the 
day of , and were purchased by B {designation) 

at the price of pounds sterling: (a) And seeing See Note (a) 

that the said B has instantly made payment to me of the **^ 
said price: Therefore I do hereby dispone to the said B, and 
his heirs and assignees whomsoever, &c. {as in Style No. 9, 
p. 53). 

(a) Where the lands have been purchased by an agent of the 
purchaser in his absence, the substuuptiye and dispositive clauses 
may proceed thus : — 

And SEEiNa that the said B has since declared that he 
made the said purchase for behoof of C {designation)^ and 
that the said G has accordingly made payment to me of the 
said price, of which I hereby acknowledge the receipt: 
Therefore I the said A, with consent of the said B, and I 
the said B, for all right, title, and interest I have in and to 
the sidd lands and others in consequence of my said purchase, 
and we both, with joint consent and assent, do hereby dispone 
to the said 0, &c. 

And the clause of warrandice will be :— 

And I the . said A grant warrandice ; and I the said B 
bind myself to warrant this conveyance from my own facts 
and deeds only. 



No. 13. 



Vo.14 



68 IRREDEEMABLE RIGHTS. 



DISPOSITION by a Wife, with consent of her 

Husband,* 

I, A, wife of B {designation) y and heritable proprietor 
of the lands and others hereinafter disponed, with the special 
advice and consent of my said husband ; and I, the said B, 
for my own right and interest, and as taking burden on me 
for my said wife ; and we both, with joint consent and assent. 
In CONSIDERATION of the sum of pounds sterling, 

instantly paid to us by C (designation), as the price of said 
lands and others, whereof we hereby acknowledge the receipt, 
DO hereby bell and dispone to the said C, and his heirs and 
assignees whomsoever, heritably and irredeemably, all and 
WHOLE (description of subjects ^ tvith refercTice to burdens j (&c., 
as in Style No. 9, p. 53), with the pertinents of the said 
lands and others, and our whole right, title, and interest, pre- 
sent and future therein : With entry at the term of : 
And we assign the writs, and have delivered the same accord- 
ing to inventory : And we assign the rents : And we bind 
ourselves to free and relieve the said C and his foresaids of 
all feu-duties, casualties and public burdens : And we grant 
warrandice : And we consent to registration hereof for pre- 
servation : In WITNESS whereof, &c. (testing clause). 

Ratification. — ^This deed ought to be judicially ratified by the 
wife, the ratification being in the following form : — 

At , the day of , in the 

year , In presence of M, one of Her Majesty's 

Justices of the Peace for the county of , and also 

in presence of me,t Notary-Public, and the witnesses sub- 
scribing, — Compeared personally A, wife of B (designation), 
and, in absence of her said husband, ratified and approved 
of the preceding Disposition, dated the , granted 

by her and her said husband to C (designation), and declared 
that she was noways compelled or seduced to grant or con- 

* See Note (a), Style No. 15, p. 69. t See Obseryation at end of Style. 



DISPOSITION. 69 

cnr in the same, but that she did so of her own free will and No. K 

motive ; and she gave her great oath that she should never 

quarrel or impugn the same, directly or indirectly, in any 
manner of way in time coining, as she should answer to 
Grod. WTiereupon N (designation) , as procurator for the said 
Cy asked and took instruments in the hands of me, Hotary- 
Public. These things were so done, place, day, month and 
year foresaid, before and in presence of these witnesses to 
the premises, specially called and required, viz., G and H 
{designations), 

{Signed) A. 

M, J. P. 
G, witness. {motto) 

H, witness. X, Notary-Public. 

The ratification is Bometimes made without the presence of a 
Notary-Public. When this form, which is quite sufl&cient, is adopted, 
the parts of the preceding style printed in italics will be omitted. 



DISPOSITION by a Husband, of Lands in which his Wife iro.15- 

Jias a Bight of Liferent, &c. (a) See Note (a) 

I, A {designation), heritable proprietor of the lands and 
others hereinafter disponed, with consent of L, my wife, for 
^11 right of liferent, conjimct fee, terce, annuity, or other 
right, legal or conventional, which she has or may have in 
or affecting the said lands and others ; and I, the said L, 
for my own right and interest, with the special advice and 
consent of my said husband ; and we both, with joint con- 
sent and assent {here state the cavse of granting) : And now 
seeing that the said B has instantly made payment to me, 
the said A, of the said sum of , whereof I hereby 

acknowledge the receipt : Therefore we do hereby sell and 
DKPONB, &c. {as in Style, No. 13, p. 68). 

This deed will be ratified by the wife. — See Style No. 14, p. j68. 

(o) In reference to conveyances of property over which a married Note (a) 
woman holds security for her marriage-contract provisions, attention "^''^ 



70 IBBEBEEMABLB BIGHTS. 

II0.X& is directed to the case of Menzies, &c., 9th March 1875, 2 K. 507, 

where Lord Deas expressed himself as follows : — ** I am of opinion 

^^' that by the law of Scotland provision may be made in favour of 
the wife in an antenuptial contract of marriage, which cannot be 
evacuated during the marriage. More particularly, I am of opinion 
that it is competent thereby to provide to the wife in the event of 
her being the survivor, either in the way of liferent or annuity^ and 
either out of the husband's estate or out of her own estate, or out 
of the estate of some friend or relative who becomes a party to the 
contract, a life income, of the benefit of which it shall not be in her 
power to deprive herself by any gratuitous deed, although consented 
to by her husband, executed during the subsistence of the marriage.'^ 
In the case referred to the property was the wife's, and there was a 
trust, but the principle stated by Lord Deas would operate irrespec- 
tive of this. 

iro.16. DISPOSITION by a Minor, with consent, of his 

Curators. 

I, A (designation of minor), heritable proprietor of the 
lands and others hereinafter disponed, with the special ad- 
vice and consent of L, M, and N (designaiions), curators 
appointed to me by R {designation), my father, conform to 
Trust-Disposition and Settlement, containing a nomination 
of tutors and curators, executed by him, dated the 

, and registered in the Books of Council and Ses- 
sion on the day of , whereby a majority 
of the said tutors and curators acting at the time is declared 
a qnonmi, GoNSiDEBiNa that the said lands and others were 
exposed by me with consent of my said curators to public 
roup and sale on the day of , in terms of 
certain articles and conditions of roup executed by me and 
my said curators upon the day of , and were pur- 
chased by B {designation), at the price of pounds 
sterling, and in which articles of roup it was agreed by me, 
VTith consent foresaid, that the purchaser of the said lands 
and others should apply the price offered by him in payment 
of the following debts due by my said father, viz. {here specify 



DISPOSITION. 71 

the debts and the grounds thereof) : And now seeing that the No. 16. 
said B has accordingly applied the said price in payment 
of the said debts and delivered to me the several grounds 
of debt, with discharges by the respective creditors, do there- 
fore hereby sell and dispone, &c. 

Conveyances by minors being reducible on the ground of lesion, 
the best course is to seU the lands publicly, and to allow the pur- 
chaser to a{^ly the price ; but if the lands are sold privately, and 
the price paid to and applied by the minor himself^ the necessary 
alteratioDS on the style can easily be made. 

The deed will be signed by the curators as weU as by the minor. 

COMPLETION OF DISPONEE'S TITLE. 

The disponee's title may be completed either by 

1. Becording in the Eegister of Sasines the disposition, with 
wanant of registration thereon ; or 

2. Expeding and recording in the Begister of Sasines, with 
ifBoant of registration thereon, a notarial instrament proceeding 
on the disposition. 

1. — Completion of Fevdal title by recording the disposition. 

By the Consolidation Act,* it is provided that it shall be com- 
petent and sufficient for the person in whose favour a conveyance of 
land is granted or conceived, instead of expeding and recording an 
ingtrmnent of sasine, to record the conveyance itself in the appro- 
priate B^;iBter of Sasines, with a warrant of registration thereon, 
flcnd 1^ conveyance, being so recorded along with such warrant, shall 
hxve the same legal force and effect in all respects as if the convey- 
ance 80 recorded had been followed by an instrument of sasine ex- 
pede in favour of the person on whose behalf the conveyance is pre- 
sented for registration, and recorded in the appropriate Eegister of 
Saones at the date of recording the said conveyance. 

By the Conveyancing Act of 1874 it is provided that ** every 
proprietor who is at^ the commencement of this Act, or thereafter 
Bhall be duly infeft in the lands, shall be deemed and held to be as 

• 216. 



72 IRREDEEMABLE RIGHTS. 

at the date of the registration of such infeftment in the appropriate 
Eegister of Sasines, duly entered with the nearest superior whose 
estate of superiority in such lands would, according to the law exist- 
ing prior to the commencement of this Act, have been not defeasible 
at the will of the proprietor so infeft, to the same effect as if such 
superior had granted a writ of confirmation according to the existing 
law and practice, and that whether the superior's own title or that of 
any over-superior has been completed or not." * 

Under these provisions, the disponee's title will be feudally com- 
pleted by recording the conveyance, with a warrant of registration 
thereon on his behalf, in the appropriate Eegister of Sasines, to the 
same effect as where under the former law he had been infeft and 
had obtained also a charter from the superior. 

» 

COMPLETION OF TITLE OF CREDITOR IN SUM OF MONEY CONSTI- 
TUTED A REAL BURDEN IN THE DISPOSITION OB OTHER 
CONVEYANCE OF THE LANDS. 

Eegistration of a conveyance operates in favour only of the person 
or persons on whose behalf the conveyance is presented, but to this 
there is an exception where the conveyance is one of lands under 
the real burden of a sum of money in favour of another person. 
Eeal burdens do not admit of infeftment in the person of the 
creditor ; and though they constitute a security in his favour on the 
land, they do so through the infeftment of the debtor or proprietor. 
When, therefore, the disponee's title is completed, that of the cre- 
ditor is completed along with it, and it is neither necessary nor com- 
petent to have a separate registration on his behalf, or to include 
hirn in the warrant of registration on behalf of the disponee. 

The style of the warrant of registration on a disposition is in the 
ordinary case the same as that on a feu-charter, but variations some- 
times occur, of which the following are examples : — 

Investiture proprtia m<inibtis, — Under the old system the superior 
sometimes appeared on the ground, and himself gave sasine to the 
vassal without the intervention of a bailie, which was described in the 
instrument as giving sasine jpropriVs stiia manibusy and in this case the 
charter did not contain a precept which, in the circumstances, would 
have been inappropriate. In modem times the most common if 

* § 4 (2). 



COMPLETION OF DISPONEE'S TITLE. 73 

not the only, example of such sasine, was where a husband gave 
liferent sasine to his wife. The instrument, where correctly framed, 
contained a declaration at the end that it had been signed by the 
granter of such sasine in presence of the witnesses to the ceremony, 
though a sasine has been sustained where the instrument, though 
signed, did not bear such declaration. — Anderson, 3 Ist January 1828, 
6 S. 463. 

By the Consolidation Act,* it is provided that "where it is 
desired to give investiture proprits manibus, it shall be competent 
for the person in whose favour the conveyance or deed has been or 
shall be granted or conceived to record the conveyance or deed itself 
in the Eegister of Sasines applicable to the lands therein contained, 
with a warrant of registration thereon," " signed by such person ; 
and such conveyance or deed, being so recorded along with such war- 
rant, shall have the same legal force and effect in all respects as if 
the conveyance or deed so recorded had been followed by an instru- 
ment of sasine," " proprits manibus, expede in favour of the wife of 
such person, and signed by such person, and recorded at the date of 
recording the said conveyance or deed according to the law and 
practice heretofore in force." 

The following is the form of the warrant. 

Begister on behalf of A B (insert designation) in the ho.17 
Eegister of the county of (or, in the Kegisters of the 
counties of C, D, E and*F, or as the case may be), and also 
ex prcpriis manibtis on behalf of L, wife of the said A B, 
in liferent (or as the case may be). 

(Signed) A B. 

As the disponee must himself sign the warrant, it will be in- 
appropriate for an agent also to sign it. 

Where the Disponee desires the whole deed to be recorded, 
whether it contains a clause of direction or not : — 

Begister on behalf of A B (insert designation) in the Ho. 18. 
Register of the county oi C (or if the conveyance, dec, or 

* § 15 and 8ohed. (H) 3. 



74 IRREDEEMABLE RIGHTS. 

No. 18. torit coniaina lands in more than one county^ in the Begisters 
"'— of the counties of C, D, E, and Y or as the case may he), 

(Signed) A R 

[or] G H, 

Writer, Glasgow, Agent 

Where the Conveyance contains a clause of direction, and the 
Disponee does not desire the whole deed to be recorded: — 

Ho. 19. Register the above deed in terms of the clause of direc- 

tion therein contained on behalf of A B {insert designation) 
in the Register of the county of C (or if the writ contains 
kmds in more than one county, in the Registers of the counties 
of C, D, E and ¥, or as the case may be), 

(Signed) A B. 

[or] G H, 

Writer, Glasgow, Agent. 

See Note on completion of Vassal's Title, p. 49. 

Where the destination is to " A in liferent and B in fee ;"* 
or to ^^ A and B in conjunct fee and liferent for the said 
B's liferent use allenarly and their heirs in fee;^' or 
to ^^ A and B jointly and their respective heirs;" or 
to ** A amd B and the survivor of them and their 
heirs ; " or to ** A and B jointly amd the Ji^irs of the 
said 5 ; " or to " .4 and B jointly, and, in the event of 
his survivance, to the said B and his heirs :*' — 

No. SO. Register on behalf of A and B (insert designations), for 

their respective rights and interests, in the Register of the 
county of C (or, in the Registers of the counties of 0, D, E 
and F, as above, or as the case may be). 

(Signed) A. 

B. 
[or] C, 

S.S.C., Edinburgh, Agent. 

This fonn of warrant may be used in ^all cases of coiyunct des- 
tmation, which do not create a fiduciary fee for behoof of persons 
mrnamed. 



COMPLETION OP DISPONEB'S TITLE. 76 

Where the desHncUum ia to persona named in liferent^ for life- 
rent uee aUenarly, and to persons unnamed in fee : — 

or 

To certain persons nam^ed and others unnamed in fee. 

In these cases a difficulty has been sometimes suggested as to the 
competency of infeftment by registration of the deed with warrant, in 
respect of the requirement of the Act and relative schedule that the 
warrant shall be signed by the person on whose behalf the deed is pre- 
sented or by his agent, and it has therefore been recommended that the 
title should in such cases be completed by notarial instrument. This 
dif&culty, however, does not seem to be well founded, at least not to 
its full extent. Under the old system of sasines there was no ob- 
jection to the liferenter or one of the fiars appearing for himself, and 
as procurator for the £ars or other fiars, whether named or unnamed, 
and the same principle seems to apply to warrants of registration, 
but at all events there can be no doubt that a warrant signed by an 
agent will be perfectly valid, there being no difference between the 
signing thereof on behalf of persons unnamed and the presenting of 
the deed itself to a notary, and it is recommended that the warrant 
should be signed by an agent, and not by the liferenter or other 
party. The foUowing forms may be used :— 

Register on behalf of A B (designation), in liferent for Vo.si. 
his liferent use allenarly, and the heirs of his body (or, and 
his children bom or to be bom, or cw the destination in the 
deed may be) in fee, in the Register of the county of G (or if 
the deed contains lands in more than one county, in the Regis- 
ters of the connties of C, D, E and Y, or as the case may 
he). 

(Signed)"^ G H, 

W.S., Edinburgh, Agent. 

Register on behalf of A B {insert designation) son of Ho. 
D (insert designation) and any other child or children who 

* If the wanant is to be signed by the party it will be done as followB : — 
(SigMcf) A B, f or myself and the heirs of my body (or as 

th$ eate may be). 



76 IRBEDEEMABLE RIQHTS. 

No. 22. may be bom of the said C D, equally among them, share and 

share alike (or as in the destination) y in the Eegister of the 

county of C (or cw the case mat/ he). 

(Signed)* G H, 

W.S., Edinburgh, Agent. 

2. Completion of Feudal Title by expecting and recording Notarial 

Instrument, 

Ho. 28. NOTABIAL INSTB UMENT on a Conveyance in favour of 
persons named in liferent for liferent use allenarly^ and 
persons unnamed in fee, or on a Conveyance to certain 
persons named and others unnamed in fee. 

At Edinburgh, there was by A B (insert designation) , on 
behalf of himself {or, there was,t on behalf of A B, insert 
designation), and the heirs of his body, for their respective 
rights and interests as af termentioned, presented to me. Notary 
Public subscribing, a Disposition {or other deed, or an extract 
of a deed, as the case may be) granted by C D (insert designer 
tion), and dated the day of {and- if an extmct, 

add, and recorded in the specify register and date) by which 
Disposition {or as the case maybe) the said C D disponed (or, 
gave, granted, and disponed, or otherwise as the case may be) 
to the said A B, in liferent for his liferent use allenarly and 
the heirs of his body in fee {or otherwise as the case may be), 
heritably and irredeemably. All and Whole {insert descrip- 
tion of lands conveyed, and any real burdens, conditions, pro- 
visions and limitations, or any reference to the same, all as in 
the disposition or other deed): Whereupon this instnmient is 
taken in the hands of L M (insert name and designation of 
Notary-Public), in the terms of " The Titles to Land Conso- 
lidation (Scotland) Act, 1868." In witness whereof these 
presents, written on this and the preceding pages by 

♦ If the warrant is to be signed by the party it will be done as follows :— 
{Signed) A B, for myself, and any other child or children 

who may be bom of the said D. 
t It is recommended that this course be adopted. 



COMPLETION OP DISPONEE'S TITLE. 77 

G, H,, my clerk, are subscribed by me before these wit- 
nesses the said O. H. and J, jff., also my clerk.* 

(Signed) L M, Notary-Public. 
O Hj witness. 

J Ky witness. 

or 

At Edinburgh, there was by A B (insert designation), son Vo.24. 
of C D {insert designation), on behalf of himself (or, there 
was on behalf of A B (insert designation), son of C D 
(insert designation), and any other child or children bom 
or to be bom of the said D), presented to me, Notary-Public 
subscribing, a Disposition (or as the case may be) granted by 
E F (designation), and dated {insert date), hj which Disposi- 
tion (or as the case may he) the said E F gave, granted, and 
disponed (or as the case may be) to the said A B, and to any 
other child or children born or to be bom of the said C D, 
equally among them, share and share alike (or as the case 
may 6e), heritably and irredeemably, All and Whole (insert 
the description of the lands conveyed, and any, real burdens, 
conditions, provisions, and limitations, or any reference to the 
same, all as in the disposition or deed): Whereupon this 
instrument is taken, &c, (as in No, SS). 

Where it is not desired to record in the Eegister of Sasines the 
whole of a conveyance or deed relating to lands, it is competent and 
sufficient to expede and record in the appropriate Eegister of Sasines 
a notarial instrument setting forth generally the nature of the deed, 
and containing those portions of the same by which the lands are 
conveyed, and by which real burdens, conditions, provisions, or 
lunitations are imposed ; and where by any deed separate lands or 
separate interests in the same lands are conveyed in favour of the 
same or different persons, it is not necessary to record the whoJe of 
such deed, but it is competent and sufficient to expede and record as 
aforesaid a notarial instroment setting forth generally the nature of 
the deed, and containing the part or parts of the deed by which 

* The Act directs the testing clause to be in the form contained in Schedule 
(I) as abore ; bnlf the changes introduced in this respect by the Act of 1S74 
are applicable to Instruments, though, as stated in the introduction, it is 
recommended that the Form in the Schedule be adopted. 



78 IBBEDEEMABLE RIGHTS. 

particular lands are conveyed to the person in whose fiaYOur the 
instrument is expede, and the part which specifies the nature and 
extent of the right and interest of such person, with the real burdens, 
conditions, provisions, and limitations, if any. The form of such 
instrument is in Schedule (I) annexed to the Act, Titles to Land Con- 
solidation Act, 1868, § 17. 

In completing by separate notarial instruments the title of the 
different disponees to whom by the same deed separate lands are 
conveyed, and where the deed contains a clause of direction, it seems 
to be essential that no part or parts of the conveyance directed to be 
recorded shall be omitted from any of the instruments,* but each 
instrument will operate in favour only of the person on whose behalf 
it is expede and recorded. 

Ho. 25. NOTARIAL IN8TBUMENT on a Deed containing a 
Conveyance of Lands, and granted for fwrther Pur- 
poses. 

At Edinburgh^ there was on behalf of A B {insert desig- 
nation), and C D {insert designation)y and wife of the said 
A B, presents to me, Notary-Public subscribing, an ante- 
nuptial Contract of Marriage entered into between and exe- 
cuted by the said A B and the said C D therein designed, 
{insert designation as in contract), and dated the 
day of ; by which Contract of Marriage the said 

A B DISPONED to himself the said A B and the said C D in 
conjunct fee and liferent, for the said C D^s liferent use 
allenarly , and to the heirs of their marriage in fee, whom fail- 
ing, to the said A B and his heirs and assignees whomsoever 
{according to the destination as in deed), heritably and irre- 
deemably. All and whole {insert description of suljjects,with 
any burdens, conditions, dec, or any reference to the same, as 
in deed) : Whereupon this instrument is takeu in the hands 
of L M {insert name and designation of Notary-Public), in 
the terms of "The Titles to Land Consolidation (Scotland) 
Act, 1868: In Witness whereof {insert testing clause as in 
Style No. 28, p. 76). 

* Consolidation Act, § 12. 



COMPLETION OP DISPONBE'S TITLE. 79 

NOTARIAL INSTRUMENT on a Conveyance containing Ho. 

a Clatise of Direction. 

It is provided by the Consolidation Act that, notwithstanding a 
clause of direction in a conveyance, it shall be competent ''to expede 
and record a notarial instrument thereon as after provided in the 
same manner as if the conveyance had contained no such clause of 
direction, and where such notarial instrument shall be expede no 
part or parts of the conveyance directed to be recorded shall be 
omitted firom such instrument/'* There is no form of the instru- 
ment given in the Act, and it has been suggested that the parts of 
the deed appointed to be recorded should be not narrated but in- 
serted by way of quotation in the instrument, and that the clause of 
direction and testing clause also should be so inserted.t But this 
seems to proceed on a misreading of the Act, which appoints the in- 
strument to be framed '^ as after provided," that is, in terms of the 
17th section and Schedule (J), where the conveyance is directed not 
to be quoted but simply to be narrated. Again, where the convey- 
ance is recorded, although both the clause of direction and testing 
clause are appointed to be included, this is because not of anything 
in the deed, but of the direction to the Keeper of the Eecords '' to re- 
cord such part or parts only, together with the clause of direction 
and the testing clause and warrant of registration;" the meaning of 
which seems to be very plain, viz., — to show why the whole deed is 
not recorded, and to prevent the clause of direction being read as 
meaning that so important a part as the testing clause should be 
omitted in recording the deed. The insertion of the clause of direc- 
tion will not per ae show that its terms have been complied with, 
and there is no reason why the testing clause of the deed should be 
inserted in an instrument of this description while it is not inserted 
in any other. There seems to be no reason why the style of this in- 
strument should differ from any other, though care must be taken 

not to omit any part of the deed appointed to be recorded. 

• 

At Edinburgh^ there v^as, on behalf of A B (insert design 
nation), presented to me, Notary-Public subscribing, a Dis- 

• }12. 

t See the late Mr. Hendzy's Styles, 2d ed. p. 28. The Act then in force 
was the Titles to Land Act, 1860, but the terms of that Act and of the Oon- 
iiolldaiiop Act aze in this respect the same. 



80 IRREDEEMABLE RIGHTS. 

No. 26. position {or other deed as the case may be) granted by C D 
■ (insert desigrmtion), and dated the day of ; 

by which Disposition (or as the case may be) the said C D 
SOLD and disponed to the said A B and his heirs and assig- 
nees (or OjS the case may be) All and whole (insert the de- 
scription of the lands conveyed and any real burdens, condi- 
tions, provisions, and limitations, or any reference to the same, 
all as in the deed, and every part of the deed appointed in the 
clause of direction to be recorded) : Whereupon this instru- 
ment is taken in the hands of L M (insert name and desig- 
nation of Notary-Public) in the terms of "The Titles to Land 
Consolidation (Scotland) Act, 1868 :" In witness whereof 
(insert testing clause as in No, 23, p, 76). 

If it should be desired to adopt the other fonn above referred to, 
it may be in the following terms : — 

Ho. 27 At Edinburgh, there was on behalf of A B (insert desig- 

nation), presented to me, Notary-Public subscribing, a Dis- 
position (or other deed) granted by C D (insert designation) 
in favour of the said A B, and dated (insert date), by which 
Disposition (or other deed) the said C D sold and disponed to 
the said A B and his heirs and assignees whomsoever, heri- 
tably and irredeemably, the lands and others after described: 
Which Disposition (or other deed) contains also a clause 
of direction appointing the following parts thereof to be 
recorded in the Register of Sasines (here quote verbatim the 
parts of the disposition or other deed, appointed to be recorded, 
and then add), which Disposition (or other deed) contains also 
the said clause of direction and a testing clause which 
are in the following terms, viz. (Jiere quote the same): 
Whereupon this instrument is taken in the hands of L M 
. (insert nam^e and designation of Notary-Public), in the terms 
of "The Titles to Land Consolidation (Scotland) Act, 1868'* 
(insert testing clause), 

ASSIGNATIONS OF UNRECORDED CONVEYANCES. 

It is provided by the ConsoHdation Act of 18G8 that it shall be 
competent to any person having right to an unrecorded deed or con- 



COMPLETION OF DISPONEE'S TITLE. 81 

Teyance, whether granted in fiEiyour of himself or originally granted 
in favour of another person, to assign the deed or conveyance in or as 
nearly as may be in the form No. 1 of Schedule (M), setting forth the 
deed or conveyance and the title or series of titles, if any, by which 
he acquired right to the same, and the nature of the right assigned ; 
and the assignation, or, in the event of there being more than one, the 
successive assignations may be recorded in the appropriate register 
of sasines along with the deed or conveyance itseK, and a warrant of 
registration thereon in or as nearly as may be in the form No. 2 of 
Schedule (H) ; and it shall be competent to write the assignation or 
assignations on the deed or conveyance itself in or as nearly as may be 
in the form No. 2 of Schedule (M), setting forth the deed or con- 
veyance, and the title or series of titles, if any, by which such per- 
son acqiiired right to the same, and the nature of the right assigned ; 
in which case the assignation or assignations and the deed or con- 
veyance may be so recorded, along with the warrant of registration 
thereon, which warrant shall be in or as nearly as may be in the 
form No. 1 of Schedule (H), and the deed or conveyance with the 
warrant of registration and the assignation or assignations separate 
from the deed or conveyance, and those written upon the deed or 
conveyance, if any, being so recorded, shall operate in favour of the 
assignee on whose behalf they are presented for registration, as fully 
and effectually as if the lands contained in the assignation — or, if 
there be more than one, in the last assignation — had been disponed 
by the original deed or conveyance in favour of such assignee, and 
the deed or conveyance with the warrant of registration had been 
recorded of the date of recording such deed or conveyance and assig- 
nation or assignations (sec. 22). — See note on Style 37, p. 88. 

The word " conveyance," according to the interpretation clause, 
includes, among other writs, decrees of adjudication, and these being 
assignable, may accordingly be assigned in the manner prescribed by 
the statute. 

ASSIGNATION of an Unrecorded Conveyance, the Oranter No. 28. 
of which was in/eft. — Consolidation Act, Schedule (M), 
No. 1. 

(As a separate deed.) 

I, A B (designation), in consideration of the sum of 
pounds sterling instantly paid to me by C D (designation) 



82 IRREDEEMABLE RIGHTS (UNRECORDED). 

No. 28. (^ as the case may be), hereby assign to the said D, and 
his heirs and assignees {or otherwise, as the case may be), the 
Disposition (or other deed, as the case may be) granted by E 
F (designation), dated the day of , by which he 

conveyed, heritably and irredeemably, All and Whole* the 
lands of , as therein described, to me : With entry at 

the term of : And I assign the writs, and have de- 

livered the same according to inventory : And I assign the 
rents : And I bind myself to free and relieve the said B 
and his aforesaid of all feu-duties, casualties, and public 
burdens : And I grant warrandice : And I consent to regis- 
tration hereof for preservation : In witness whereof {testing 
clause). 



COMPLETION OF ASSIGNEE'S TITLE. 

The assignee under this deed may be feudally vested by any of 
the following methods : — 

1. £y recording the assignation along with the disposition itself 
and a warrant of registration (Style No. 29) thereon on the assignee's 
behalf in the appropriate register of sasines, the assignation being 
docqueted with reference to the warrant (Style No. 30) : or, 

2. By expeding, in favour of the assignee, a notarial instru- 
ment, ConsoUdation Act 1868, Schedule (N), (Style No. 32), setting 
forth the disposition and the assignation, and by recording the dis- 
position, with a warrant of registration (Style No. 33) thereon on 
his behalf, along with the notarial instrument docqueted (Style No. 
34) with reference to the warrant : or, 

* The expresBion in the Schedule is ''the lands of X, as therein de- 
scribed,** which indicates that the disposition is to be referred to for the de- 
scription of the lands, bnt the use of the term '* lands of X " seems to imply 
that there is to be some description in the assignation. If there be a general 
name of the lands in the conveyance which can be inserted in the assigna- 
tion so as sufficiently to connect the deeds, it may be adopted, but otherwise 
the better way seems to be either to complete the disponer's own title and 
take an ordinary disposition, or otherwise to take a disposition and assigna- 
tion of the lands, with a particular description, and complete the title by 
notarial instrument proceeding on both deeds — Schedule (J). 



COMPLETION OF ASSIGNEE'S TITLE. 83 

3. By expeding in favour of the assignee a notarial instrument, 
Consolidation Act 1868, Schedule (J), (Style No. 35), setting forth 
generally the nature of the deed or conveyance, and containing those 
portions of the deed or conveyance by which the lands in regard to 
which the said instrument is expede are conveyed, and by which real 
burdens, conditions^ provisions, or limitations, if any, are imposed, 
and also setting forth the title by which the assignee acquired right 
to the deed or conveyance ; and by recording the instrument alone, 
with a warrant of registration thereon. (Style No. 5.) 

The latter form of notarial instrument has this advantage, that it 
obviates the necessity for recording the disposition or for docqueting 
the instrument. 



FOBHS under the First Method of completing Assignee's Title. 

1. WARRANT of REGISTRATION, to he m-itten on a Ho. 89. 

Conveyance when presented toith Assignation apart. — 
Consolidation Act, Schedule (H), No. 2. 

Begister on behalf of D (insert designation), in the Regis- 
ter of the County of C {or if the conveyance, &c,, or iirrit, con- 
tains lands in more than one county, in the Eegisters of the 
Counties of C, D, E, and ¥ {or o^ the case may be), along 
with the Assignation docqueted with reference hereto. 

{Signed) C D. 
[or] G H, W.S., Edinburgh, Agent. 

[or] J, K, & L, W.S., Edinburgh, 

Agents. 

2. DOCQUETtohe written on Assignation, — Consolidation No. so. 

Act, Schedule (M) No. 1. 

Docqueted with reference to Warrant of Registration 
on behalf of C D, written on the said Disposition {or other 
deed, as the case may be). 

{To be signed by the person or his agent, in the same 

mannei^ as the vxirrant) 



84 IRMIDEEMABLE RIGHTS (UNRECORDED). 



H0.8L 3. WARRANT of Registration where the unrecorded Con- 
veyance contains Clause of Direction. 

The Titles to Land Act of 1860, § 25, Schedule (K), contained ex- 
press provision for this case, but the Consolidation Act does not con- 
tain such provision. The clauses (22 and 23) which deal with titles 
under assignations to unrecorded conveyances, refer exclusively to the 
forms of warrant of registration in Schedule (H), in which no refer- 
ence is made to dispositions containing clause of direction ; but the 
expression used in the provision, that the warrant shall be " in or as 
nearly as may be in the form No. 2 of Schedule (H)," allows some 
latitude, and may sanction the adaptation of the warrant to the cir- 
cumstances of the case; while the provision in § 12, — that when a 
conveyance containing a clause of direction, and with a warrant " as 
nearly as may be in the form of No. 2 of Schedule (F)," is presented 
for registration, the Keeper shall record only the parts so directed, — is 
not necessarily to be limited to the case of the conveyance being re- 
corded on behalf of the original disponee. There seems therefore, 
at least in principle, to be no objection to adapting the form of the 
warrant to the case in question ; and if this view is adopted the 
warrant may be as follows : — 

Register the above deed in terms of the clause of direc- 
tion therein contained on behalf of C D {designation) in the 
Register of the County of C {or in the Registers of the 
Counties of C, D, E, and F, or cw the case may 6e), along 
with the Assignation docqueted with reference hereto. 

(To be signed as in the previous Styles.) 

Should it be thought not desirable to adopt this course, then the 
title must be completed by expeding a notarial instrument in the 
form of Schedule (J), which will be found under the Third Method 
of completing assignee's title (Styles 35 and 36, infra, pp. 86 and 87). 



COMPLETION OF ASSIGNEE'S TITLE. 85 

F0BH8 nndor the Second Method of completing Assignee's Title. 

1. NOTARIAL INSTRUMENT in favour of an Assignee No. 82. 

to an unrecorded Conveyance^ to be recorded along toith 
the Conveyance, — Consolidation Act, Schedule (N). 

At Edinburgh^ there was by {or on behalf of) A B {de- 
signation) presented to me, Notary Public subscribing, a 
Disposition {or other deed o^' extract, as the case may be, 
specifying the nature of the deed), granted by C D {designa- 
tion), and dated the day of {if an extranet, 
add, and recorded in the specify register and date) ; by 
which Disposition the said C D conveyed to E F {designa- 
tion). All and whole the lands of {here insert the description 
as in the assignation),* as therein described, and which Dis- 
position is to be recorded along with this instrument : As 
also there was presented to me {liere specify the title by which 
A B acquired right, which must be set forth as having been 
produced to tJie notary public, such as an Assignation granted ^ 
by the said E F, and dated the day of , by 
which Assignation the said E F assigned to the said A B, 
and his heirs and assignees, the foresaid Disposition, or other 
deed, as the case may be): Whereupon this instrument is 
taken in the hands of L M {insert name and designation of 
notary public), Notary Public, in the terms of ** The Titles to 
Land Consolidation (Scotland) Act 1868": In witness 
WHSBEOF {testing clause). 

2. WARRANT of REGISTRATION to be ivritten on ho.88. 
Disposition. — Consolidation Act, Schedule (H), No. 2. 

Register on behalf of A B {insert designation), in the 
Eegister of the County of C {or in the Registers of the Coun- 
ties of C, D, E, and F, or as the case may be), along with the 
Notarial Instrument docqueted with reference hereto. 

{Signed) A B. 

[or] G H, W.S., Edinburgh, Agent. 

• See foot-note, mpra, p. 82. 



86 IRREDEEMABLE RIGHTS (UNRECORDED). 

No 84. 3, DOCQUET to he written on NotaHal Instrument — 

Consolidation Act, Schedule (M), No. 3. 

Docqueted with reference to warrant of registration on 
behalf of A B, written on the said Disposition {or other deed, 
as the case may be). 

(To be signed by the person or his agent in the same manner as the 

warrant.) 

FOBHS under the Third Method of oompleting Assignee's Title. 

Ho. 86. NOTARIAL INSTRUMENT on an unrecorded Conveyance 

in favour of an Assignee. To be recorded alone^ with 
a warrant of registration. — Consolidation Act, Sche- 
dule (J). 

At Edinburgh there was by {or on behalf of) A B {de- 
signation) ^ presented to me, Notary Public subscribing, a 
Disposition {or other deed, or an extract of a deed, as the 
^ case may be), granted by C D {designation) ^ and dated the 
day of {and if an extract^ add^ recorded in 

the specify register and date) ; by which Disposition (or 
otherwise^ as the case may be) the said D sold and disponed 
{or gave, granted, and disponed, or otherioise, as the case 
may be) to E F {designation), and his heirs and assignees 
whomsoever, {inse^-t the destination, if any, as far as may be 
necessary), heritably and irredeemably. All and Whole 
{insert description of lands conveyed, and any real burdens, 
conditions, provisions, and limitations^ or any reference to 
the samCf all as in the disposition or other deed) : As also 
there was presented to me {here specify the title by which 
the said A B acquired right, and the nature of his right — as) 
an Assignation granted by the said E F, and dated the 
day of ; by which Assignation the said E F 

assigned to the said A B and his heirs and assignees the 
foresaid Disposition {or other deed) : Whereupon this instru- 
ment is taken in the hands of N {insert name and designa^ 
tion of notary public). Notary Public, in the terms of " The 
Titles to Land Consolidation (Scotland) Act 1868:" In 
WITNESS WHEREOF {testing clause). 



COMPLETION OF ASSIGNEE'S TITLE. 87 

NOTARIAL INSTRUMENT on an unrecorded Convey- Ho. 86. 
ance containing a Clavse of Direction, To he recorded 
alone, with a toarrant of registration. 

For the reasons stated suprat p. 79, the preceding Style seems to 
he equally applicahle to the case of an unrecorded conveyance con- 
taining a clause of direction, care heing taken that every part 
of the conveyance directed to be recorded shall be set forth in 
the instrument ; but if it is desired to adopt the Style correspond- 
ing to that of the instrument No. 27, supra, the following may be 
used: — 

At Edinburgh there was by {or on behalf of) A B (de- 
signation), presented to me, Notary Public subscribing, a 
Disposition (or other deed, or an extract of a deed, as the 
case may be) granted by C D (designation), and dated the 
day of (or if an extract^ add, and recorded 

in the specify register and date), and containing the clause 
of direction and testing clause hereinafter inserted, by which 
Disposition (or otherunse, as the case may be), the said C D 
sold and disponed (or gave, granted, and disponed, or other- 
wise, as the case may he) to E F (designation), and his heirs 
and assignees whomsoever, the lands and others after de- 
scribed in manner specified in the said Disposition, and in 
the parts thereof directed by said clause of direction to be re- 
corded in the Register of Sasines ; and which parts of said 
Disposition so directed to be recorded are in the following 
terms: — "I, C D, Merchant in Edinburgh, in considera- 
tion,** Ac, (insert, verbatim^ the parts directed to he re- 
corded) ; and which clause of direction and testing clause 
in the said Disposition are in the following terms: — 
"And I direct," &c. (insert clauses verbatim, with signa- 
tures)'. As also there was presented to me {here specify 
the title or series of titles by which the said A B axiquired 
right, and the nature of his right, as) an Assignation granted 
by the said E F, and dated the day of ; 

by which Assignation the said E F assigned to the said 
A B, and his heirs and assignees, the foresaid Disposition 
(or as the case may he) : Whkreupon, Ac. [as in immediately 
preceding Style). 



88 IRREDEEMABLE RIGHTS (UNRECORDED). 

Ho. 87. ASSIGNATION of an unrecorded Conveyance {the granter 

of which tvas tn/eft) by a person having right to it by 
Disposition and Assignation, Service, or otherwise, — 
Consolidation Act, Schedule (M), No. 1. 

(As a separate deed.) 

I, A B {designation), in consideration of the sum of 
pounds sterling instantly paid to me by C D {designation), 
hereby assign to the said C D, and his heirs and assignees 
{or othej-wisej as the case may be), the Disposition {or other 
deed) granted by E F {designation) y dated tlie day of 

; by which he conveyed, heritably and irredeem- 
ably, All and Whole the lands of* , as therein de- 
scribed, to G H (designation), and his heirs and assignees: To 
which Disposition I have acquired right conform to the fol- 
lowing series of writs {here specify them, as) viz. : — (First) 
Disposition and Assignation granted by the said G H, and 
dated the day of ; by which Disposition and 
Assignation the said G H disponed to J K {designation), and 
his heirs and assignees, heritably and irredeemably, the said 
lands and the said Disposition {or other deed): (Second) 
Decree of General Service of L M {designation), as eldest 
son and nearest and lawful heir in general of the said J K, 
obtained before the Sheriff of Chancery on the day of 
, and recorded in Chancery on the day of 
; and (Third) Assignation granted by the said 
L M, dated the day of , by which Assigna- 
tion the said L M assigned to me, and my heirs and assig- 
nees, the said Disposition {or other deed) : With entry 
at the term of : And I assign the writs : 
And I assign the rents : And I bind myself to free and 
relieve the said C D and his aforesaid of all feu-duties, 
casualties, and public burdens: And I grant warrandice: 
And I consent to registration hereof for preservation : In 
WITNESS WHEREOF {testing clause). 

* See foot-note, st/prdj p. 82. 



COMPLETION OF ASSIGNEE'S TITLE. 89 

Completion of Assignee's Title, — The assignee's title under this 
deed may be completed either (1) by expeding a notarial instrument, 
Consolidation Act 1868, Schedule (N) (Style No. 38, infra), and by 
recording the disposition, with a warrant of registration thereon on his 
behalf, along with the notarial instnmient, docqueted with reference to 
the warrant; or (2) by expeding a notarial instrument, Consolidation 
Act 1868, Schedule (J) (Style No. 39, p. 90), and by recording it alone, 
with a warrant. Where the assignee, as in this Style, has acquired 
right to the disposition by disposition and assignation, or otherwise 
than by an assignation in the form of Schedule (M), the feudal in- 
vestiture cannot be completed by recording the disposition along with 
the connecting title ; but where the assignation or successive assig- 
nations are in the statutory form, and the assignee desires to complete 
the title without having recourse to a notarial instrument, the dispo- 
sition and the assignations will be recorded in the order of their dates, 
each of the latter being docqueted with reference to the warrant of 
registration on the disposition. 

NOTARIAL INSTRUMENT on Assignation.— Style No. Ho. 88. 
37, p. 88 (Consolidation Act 1868, Sch. N). {To be 
recorded along loith the disposition,) 

At Edinburgh there was by {or on behalf of) D (de- 
signation) ^ presented to me, Notary Public subscribing, a Dis- 
position {or other deed, or an extract of a deed, as the case may 
6c, specifying the nature of the deed), granted by E F {desig- 
nation), and dated the day of ; by which 
Disposition the said E F conveyed to G H {designation), and 
his heirs and assignees, heritably and irredeemably, *All and 
Whole the lands of , as therein described (Aere insert 
the description of the lands as in the assignation), and which 
Disposition is to be recorded along with this instrument: 
As ALSO there was presented to me {here specify the ivrits by 
which the said C D acquired right, as) Disposition and As- 
signation granted by the said G H, and dated the day 
of , by which Disposition and Assignation the said 
G H disponed to J E {designation), and his heirs and assig- 
nees, heritably and irredeemably, tho said lands and the said 

* See foot-note, supra, p. 82. 



90 IRREDEEliABLE RIGHTS (UNRECORDED). 

No. 38, Disposition (or other deed) : As also there was presented to 
me Decree of General Service of L M {designation), as eldest 
son and nearest and lawful heir in general of the said J K, 
obtained before the Sheriff of Chancery on the day 

of , and recorded in Chancery on the day 

of : As also there was presented to me Assignation 

granted by the said L M, and dated the day of , 

by which Assignation the said L M assigned to A B {desig- 
nation), and his heirs and assignees, the said Disposition 
{or other deed) : As also there was presented to me Assigna- 
tion granted by the said A B, and dated the day 
of , by which Assignation the said A B assigned to 
the said C D and his heirs and assignees the said Disposi- 
tion {or other deed) : Whereupon, &c. {as in Style No. 35, 
p. 86). 

Before being presented for registration, the instrument wiU be 
docqueted in the same terms, Style No. 34, as the instrument Style 
No. 32. 



Ho.39. NOTARIAL INSTRUMENT on Assignation.Style No. 

37, p. 88 (Consolidation Act 1868, Sch. J). {To be 
recorded alone, with warrant of registration.) 

At Edinburgh there was by {or on behalf of) C D {desig- 
nation), presented to me, Notary Public subscribing, a Dis- 
position {or other deed, or an extract of a deedy as the case may 
be) granted by E F {designation) and dated the day 

of , by which Disposition {or otherwise, as the case 

may be) the said E F conveyed {or otherwise, as in Disposi- 
tion) to G H {designation), and his heirs and assignees 
{insert destination as in Disposition), heritably and irre- 
deemably. All and Whole {here insert the description or 
reference to the description of the lands as in the disposition 
or other deedy and any real burdens, conditions^ provisions^ 
and limitations, or any reference to the same, all as in the dis- 
position or other deed) : As also there was presented to me 
Disposition and Assignation granted by the said Q H, &c. 



COMPLETION OF ASSIGNEE'S TITLE. 91 

{here specify seriatim, as presented to the notary, the lorits by No. 39. 
which the said C D acquired right to the disposition, as in 
assignation) : Whereupon, &c. (as in Style No. 35, p. 86). 

Where the unrecorded conyeyance coDtains a clause of direction 
the instrument may be as in the preceding Style, or, if desired, the 
Style No. 36, p. 87, may be adapted to the case, but see supra, p. 79. 

ASSIGNATION by the Grantee of an unrecorded Convey- Ho. 4a 
ance, the Granter of which was infeft, — (Consolidation 
Act 1868, Schedule (M), No. 2.) (To be ivritten upon 
the Conveyance,) 

I, A B (designation), in consideration of the sum of 

pounds sterling, instantly paid to me by D (designation) 

{or otherwise, as the case may be), hereby assign to the said 

C D and his heirs and assignees (or othertoise, as the case 

may be), the foregoing Disposition (or other deed, as the case 

may be) of the lands of X*, as therein described, granted in 

my favour (or othertoise, as the case may be, specifying the 

fuxture of the right conveyed or assigned. State the term of the 

Qssignee^s entry, and other particulars^ if any, which ought to 

ht specified as in Style No. 28) : In witness whekeof (testing 

clotwe). 

Before the disposition is presented for registration a warrant of 
legiBtration must be written thereon in the following terms — (Con- 
wlidaiion Act, Schedule (H), No. 1) :— 

Begister on behalf of C D (insert designation) along with Ho.4L 
^© Assignation hereon in the Register of the county of 
(or in the Registers of the counties of 0, D, E, and F, or as 
^ case may be), 

(To be signed as in previous Styles.) 

*Thi8 being the statutory form, should be followed, though the assigna- 
tion being written on the disposition it might be sufficient to say, '* the lands 
*Bdothe^ therein described and disponed. *' See foot-note, supra, p.S2. 



92 IllREDEEMABLE RIGHTS (UNRECORDED). 

Ho. 42. ASSIONA TION by the Gh-antee of an unrecorded Convey- 
ance to the extent of only part of the svhjects therein 
contained. 

In Mr Hendry's Styles there is a fonn of a deed of this descrip- 
tion, and in reference to it there is the following note : — " Sec. 13 of 
the Titles Act 1858, as to assignations to unrecorded conveyances, 
does not expressly provide for partial assignations ; but from the 
direction in the relative Schedule to specify * the nature and eaieni 
of the right conveyed,' it is thought there can be no doubt of the 
competency of using the statutory form in such cases." From the 
Schedule (M) to the Consolidation Act the word "extent" above re- 
ferred to, which occurred in Schedule (J) to the Titles Act of 1858, 
has been omitted, and the terms of the Schedule are otherwise not 
suited to the case ; but independently of this, the competency of an 
assignation of part of an unrecorded conveyance seems very doubtful, 
while it is not attended with any advantage, but^rather the reverse, 
so far as regards the completion of the assignee's title. This plainly 
could not be effected in any way that involves recording of the con- 
veyance, because there is no provision in any case for such partial 
recording. In the case of a conveyance of separate lands to the same 
or different persons,* the title must be completed by independent 
notarial instruments. To record the whole deed would not be 
appropriate, because the registration must be in favour of the person 
named in the warrant, and, moreover, such recording might interfere 
with the completion thereafter of the original disponee's title to 
the remainder of the lands. The title must therefore be completed 
by notarial instrument in the form of Schedule (J), which is neces- 
sarily more expensive than the recording of the disposition, and 
the best course is for the original disponee to complete Ins own title 
to the whole lands and then to grant an ordinary disposition of the 
particular portion ; but if for any reason this is inconvenient, then it 
is recommended that the form of disposition and assignation in Style 
No. 43 be adopted. If it is desired to use the form of assignation 
instead of disposition, the following may serve as a Style : — 

I, A (designation), in consideration of the sum of 
pounds sterling instantly paid to me by B {designaiion) , 
hereby assign to the said B, and his heirs and assignees, to 

* Consolidation Act, § 17. 



OOMPLETION OF ASSIGNEE'S TITLE. 93 

the extent after mentioned, the Disposition granted by M No. 42. 
(designation), dated the day of , by which 

he conveyed to me inter alia (insert description of part to be 
conveyed): But that only to the extent of the lands and 
others hereinbefore described, (or, by which he conveyed to 
me All and Whole, insert description): But that only as 
regards the following portion of the said lands, viz.: — All 
and Whole (insert particular description of portion of lands): 
(insert also any real burdens, conditions, jyrovisions, and limi- 
tations affecting the same, or any reference thereto): With 
entry at the term of : And I assign the writs: 

And I assign the rents : And I bind myself to free and re- 
lieve the said B and his aforesaid of all feu-duties, casualties, 
and public burdens : And I grant warrandice : And I con- 
sent to registration hereof for preservation : In witness 
WHEBBOF (testing clause). 

If this form be adopted, the title must be completed by notarial 
instrument. — Consolidation Act (Schedule J). 

DISPOSITION and ASSIGNATION by the Grantee of Ho.4S. 
an unrecorded Conveyance to the extent of only part of 
the subjects therein contained, 

I, A (designation), in consideration of the sum of 
pounds sterling instantly paid to me by B (designation), do 
hereby sell and dispone to the said B, and his heirs and as- 
signees whomsoever, heritably and irredeemably. All and 
Whole (insert particular description of part to be. conveyed), 
being part of the lands of (insert description) contained in 
the Disposition granted by F (designation) to me, and dated 
the (or, if the description in the original Disposition 

admits of it, All and Whole, insert description, which lands 
and others were inter alia disponed to me by F (designation) 
by Disposition dated the ), with the pertinents of the 

subjects hereby conveyed, and my whole right, title, and 
interest, present and future, in the subjects hereby conveyed 
(here insert or refer to burdens, conditions, &c., if any): With 



94 IRREDEEMABLE RIGHTS (UNREOORDr^x,^. 

entry at the term of : And I assign the writB {see 

clauses^ pp. 60, 61, 66) : And I assign the rents : And I bind 
myself to free and relieve the said B and his foresaids of all 
feu-duties, casualties, and public burdens : And I grant war- 
randice : And I consent to registration hereof for preserva- 
tion : In witness whereof {testing clatise). 

The disponee will be feudally vested by expeding and recording 
a notarial instrament in the form of Schedule (J), ConsoUdation Act 
1868, Style No. 39, p. 90, in which, after narrating the convey- 
ance in favour of the granter of the disposition and assignation (the 
description, where the deed admits of it, being limited to the part of 
the lands conveyed to the assignee), add : — 

As also there was presented to me a Disposition and 
Assignation granted by the said G H in favour of the said 
C D, and dated the day of ; by which 

Disposition and Assignation the said G H sold and disponed 
to the said C D, and his heirs and assignees whomsoever, 
heritably and irredeemably. All and Whole {insert descrip^ 
tion of part conveyed, or, if already described, say, the said 
lands and others, and insert or refer to burdens, cfec, if any, as 
in Disposition and Assignation); and the said G H thereby 
assigned the writs : Whereupon, &c. 



DISPOSITIONS OF PROPERTY AND SUPERIORITY. 

Disposition bt the Vassal to the Superior. 

The object of this disposition being, not as in the ordinary a 
to transmit the feu to a new -holder, but to reunite or to afford 
means of reuniting the two estates, the deed previously to 
passing of the Act of 1874 differed in some respects from the c 
nary form of disposition. (1) The holding was a me ; and (2) 
clause of resignation of the lands was ad perpetuam remanefi 
the purpose of which was that the right of property might b 
solidated with the right of superiority in the person of the dis* 
and this was effected either by recording the disposition, or 



DISPOSITION BY VASSAL. 95 

peding and recording a notarial instrument. As by the provisions 
of the Act of 1874, charters by progress and entry by resignation 
are abolished, a clause of tenendaa in dispositions is rendered unne- 
cessary, and the infeftment on the disposition operates a constructiye 
entry with the superior,* there is now no reason for any difference 
in the form of this disposition, which may be framed according to 
Style No. 9. 

The title is completed either by recording with warrant in register 
of sasines, or by expeding and recording notarial instrument with 
warrant. 

Though by virtue of his infeftment the superior is entered 
holding immediately of himself, the two fees, until they are con- 
solidatedy remain separate, and descend as separate estates, and, 
where the destinations are different, to the different series of heirs. 
When it is desired to effect consolidation, it is done by the pro- 
prietor of the two estates executing a 



MINUTE for effecting Consolidation of Lands. No. 44. 

(Conveyancing Act 1874, Schedule C.) 

I, A B {designation), heritable proprietor both of the 
immediate superiority and of the property {or of the mid- 
OTperiority) of All and Whole {describe or refer to the lands) 
hereby consolidate the property of the said lands {or the 
mid-superiority of the said lands) with the immediate supe- 
riority thereof: In witness whereof {testing clause). 

When this minute has been recorded with warrant in the appro- 
priate register of sasines, the Act declares that it shall be held to 
consolidate the property or the mid-superiority, as the case may 
be, with the superiority, all to the same effect as consolidation by 
resignation ad perpetuam remanentiam, according to the prerious 
law and practice ;t but the consolidation does not affect or extend 
the rights or interests of any over-superior, or entitle him to any 
more than the duties or casualties to which he would otherwise have 
had right.t 

♦ Supra, p. 61. t Act, ? 6. t Act, § 7. 



96 IRREDEEMABLE RIGHTS. 



Ho. 45. DISPOSITION of SUPERIORITY. 

This disposition, though only of the superiority, conveys the lands 
by description in the same way as if it were of the property, and the 
only differences between the form of this deed and that of a disposi- 
tion of the property are — 

1. That the granter is described as superior instead of heritable 
proprietor. 

2. That in the clause of warrandice there is an exception of the 
feu-rights; and 

3. That for the clause of assignation of rents is substituted an 
assignation of feu-duties and casualties. 

These clauses may be framed as follows : — 

Clause of Wai^andice, — And I grant warrandice: Ex- 
cepting always from this warrandice the feu and other 
rights or infeftments of property of the said lands granted 
by me and my predecessors and authors to the feuars and 
vassals thereof, without prejudice to the said B (dtsponee) 
to quarrel or impugn the same on any ground of law not 
inferring warrandice against me and my aforesaid. 

Assignation to Duties and Casualties, — And I assign the 
feu and blench duties and casualties of superiority due and 
payable from and after the said term of entry. 

It will be kept in view that the statutory form of assignation is 
applicable only to rents and not to feu-duties, and therefore that the 
terms of the agreement in this respect should be specified in the dis- 
position. 

Completion of Title, —The disponee's title will be completed in 
the ordinary way by recording the disposition, or by expeding and 
recording a notarial instrument * in each case with a warrant of regis- 
tration in the register of sasines, which will have the same effect as 
if the disponee had been entered under the former law with the over- 
superior, by writ of confirmation.! 

* Consolidation Act, Schedule (J). t Conyeyanoing Act 1874, { 4 (2). 



DISPOSITION TO VASSAL. 97 



DISPOSITION BY SUPERIOR TO VASSAL. ^^^^ 

There is no difference between the form of this deed and that of 
a disposition by the superior to any other person (Style No. 45). 
The title is completed in the same way, and the two fees will, until 
consolidated, remain separate estates in the person of the proprietor, 
and as such descend to his heirs in the same way, and subject to 
the same rules, as explained in reference to the case of a superior 
acquiring the property.* The consolidation may be effected by 
Minute for effecting Consolidation of Lands {Style No. 44), which will 
operate in the same way as explained supra^ p. 95. 



(3) COMPLETION OF TITLES OF TRUSTEES, GENERAL 
DISPONEES, TRUSTEES AND LIQUIDATORS, AD- 
JUDGERS IN IMPLEMENT, BENEFICIARIES UNDER 
TRUSTS, JUDICIAL FACTORS, NEW TRUSTEES, AND 
OF MINORS, &c., WHOSE ESTATES ARE UNDER 
JUDICIAL MANAGEMENT. 

Deeds of Settlement of Lands, &c. (Consolidation Act 1868, § 20.) 

Though deeds of settlement of heritable property do not properly 
come within the scope of the present work, it may be not out of 
place to make one observation on the change in the law regarding 
them introduced by the Consolidation Act of 1868, as there has 
sometimes been some misapprehension on the subject. Thus, in 
Fiicaim, Feb. 23, 1870, 8 Macph. 604, under a testament which 
contained a declaration that ** my effects shall all descend to my 
brother C," C claimed lands belonging to the testator; and in 
Edmond, Jan. 30, 1873, 11 Macph. 348, under a bequest to P of 
*' the whole of property, either in money, bonds, debets, bussness, 
and other afficts whatsoever," P claimed a long lease held by the 
testator ; but in both cases the claims were ineffectual, the principle 
of the decisions being that the writings founded on did not contain 
words descriptive of the species of property claimed. What is to 
be observed therefore, is, that the alteration in the law applies ex- 
closively to the terms or words used to convey or give right to the 

* Supra, p. 95. 
7 



98 IRREDEEMABLE RIGHTS. 

property, and that it is still essential in the description to use words 
or terms appropriate to the kind of property referred to. To give 
a simple illustration — a clause in the following terms, viz. : ** I, A 
B (designation), leave [or bequeath) to C D {designation) the whole 
heritable or real proper-ty and estate which shall belong to me at the 
time of my death," would carry all lands and other heritable or real 
property of whatever description. 

In the case of Reid, dec, (M'Leod's Trs.), Feb. 28, 1875, 2 R. 
481, it was held that a mortis causa deed which contained no words 
of direct conveyance or gift, but appointed trustees and empowered 
them " to realise all my heritable and moveable property," operated 
as a conveyance of the testator's heritable estate. 

An English will, tested in the English form, and containing a 
conveyance of Scotch heritage, was held to be a valid conveyance 
thereof under § 20 of the Consolidation Act ; Adam, dtc, [Connd^s 
Tr8,\ March 16, 1872, 10 Macph. 627. 

1. Of Trustees and General Disponees. 

On a Trust-Disposition and Settlement to A, B, and G, and 
the acceptors and survivors, as Trustees. 

Where the trust-disposition or other deed ' is granted by a 
person who was infeft, and contains a special conveyance of the 
subjects, whether lands or any other " heritable subjects, securities, 
or rights," the title of the trustees may, like that of a disponee in a 
deed irUer vivos, be completed either by recording the trust-convey- 
ance, or by expeding and recording a notarial instrument, in either 
case with a warrant of registration thereon, on their behalf, in the 
appropriate Register of Sasines. 

Leases recorded in virtue of The Registration of Leases {Scotland) 
Act 1857, it is thought, do not come within the operation of the 
above rule. They do not fall under the above definition, which is 
taken from the interpretation clause of the Consolidation Act,* or 
under that of lands in the Conveyancing Act, which is, " all subjects 
of heritable property which are or may be held of a superior accord- 
ing to feudal tenure, or which have been or might have been held 
by burgage tenure or by tenure of booking," or under the definition 

• Act, § 8. 



COMPLETION OF TITLES OP TRUSTEES. 99 

of estate in land in the same Act, which is '^any interest in land, 
whether in fee, liferent, or security, and whether beneficial or in 
trust, or any i*eal burden on land."* The title of trustees to such 
leases must therefore be completed in the manner directed by the 
Eegistration of Leases Act 1857, of which infra, 

WABBANT of BEQISTBATION where Deed contains Ho. 47 

no Clause of Direction. 

Register on behalf of F, G, and H (designations) , as 
Trustees for the uses and purposes specified in the foregoing 
deed, in the Register of the county of B (or if the Conveyance 
contains lands in more than one county, in the Registers of 
the counties of B, C, D, and "E, or as the case may be). . 

(Signed) F. 

G. 
H. 
[or] K, W.S., Edinburgh, Agent. 

Trust-deeds are generally conceived in favour of the trustees ** and 
the survivors and survivor of them ; " but it would be inappropriate 
to notice this in the warrant of registration. An opinion was in one 
case expressed that " where a conveyance is made to certain parties 
as trustees and their heirs, so long as one of the trustees is alive the 
trost subsists, and the powers can be competently exercised by him ; 
Chrdon's Truces, 17th July 1851, 13 D. 1381. 

It is now provided by 24 and 25 Vict. c. 84, § 1, that " all trusts 
constituted by virtue of any deed " " under which gratuitous trustees 
aie nominated, shall be held to include,'' '^ unless the contrary be 
expressed," " a provision that the majority of the trustees accepting 
and surviving shall be a quorum." 

WABBANT of BE0I8TBA TION where the Deed contains Ho. 48. 

a Clatise of Direction. 

Register the above deed in terms of the clause of direc- 
tion therein contained, on behalf of, &c. 

♦ Act, § 8. 



100 IRREDEEMABLE RIGHTS. 

Where it is not desired to record the whole deed, the trustees' 
title may be completed by expeding and recording with warrant 
thereon the following : — 

Ho. 49. NOTARIAL INSTRUMENT on a Trust-Disposition and 
Settlement^ containing a Special Conveyance, (Consoli- 
dation Act 1868, Sch. J.) 

By ''The Conveyancing (Scotland) Act, 1874," § 51, it is de- 
clared that " The production to any Notary Public of the probate of 
the will or other testamentary settlement of a person deceased, issued 
by any Court of Probate in England, or in Ireland, or in any 
British Colony or dependency, or of an exemplification of such 
probate, shall, for the purpose of expeding a notarial instrument or 
otherwise completing a title to any estate in land, or to any heritable 
security, be held to be equivalent to, and as effectual as, the produc- 
tion to such Notary of the will or settlement itself, or of an extract 
thereof from the books of Council and Session." {Style No, 54, 
infra,) 

At Edinburgh, there was by {or on behali of) A, B, and C 
(designations), as Trustees under the Trust-Disposition and 
Settlement after mentioned, presented to me, Notary-Public 
subscribing, a Trust-Disposition and Settlement (pry an 
extract registered Trust-Disposition and Settlement), granted 
by the now deceased M (designation), and dated the 
day of (if an extract, add and registered in the 

(specify register) on the day of ) ; by which 

Trust-Disposition and Settlement the said M gave, granted, 
and disponed (or otherwise, cw in Settlement) to the said A, 
B, and 0, and to the acceptors or acceptor, survivors or 
survivor of them, &c. (or otherwise, as the case may 6c), 
heritably and irredeemably. All and Whole (here insert 
description of subjects specially conveyed, with burdens^ 
restrictions, &c,, if any, as in Settlement), but always 
in trust and for the uses and purposes mentioned in 
said deed: Whsreupon this instrument is taken in the 
hands of B (insert name and designation of Notary^ 



COMPLETION OF TITLES OF TRUSTEES. 101 

Public), in the terms of " The Titles to Land Consolidation ^«- *^- 
(Scotland) Act 1868." In witness whereof (insert testing -^-"" 
clausCy as in Style No. 23, p. 76). 

Completion of title of Trustees of whom some appointed by deed con- 
taining clause of direction and others appointed by codicil, — It is by the 
Consolidation Act 1868, § 3, declared that ^' all codicils, deeds of nomi- 
nation, and other writings annexed to or indorsed on deeds or convey- 
ances, or bearing reference to deeds or conveyances separately granted, 
and decrees of declarator naming or appointing persons to exercise 
or enjoy the rights or powers conferred by such deeds or convey- 
ances, shall be deemed and taken, for the purposes of this Act, to 
be parts of the deeds or conveyances to which they severally relate, 
and shall have the same effect in all respects, as to the persons so 
named and appointed, as if they had been named and appointed in 
the deeds or conveyances themselves." In such a case the title of 
the trustees may be completed by notarial instrument in the follow- 
ing form : — 



NOTARIAL INSTRUMENT on a Trust-Disposition and ho 50. 
Settlement containing a Special Conveyance and a Clause 
of Direction* and Codicil thereto. 

At JSdinburghy there was on behalf of A, B, C, and D 
(designations) y as Trustees of the now deceased M (desig- 
nation) under the Trust-Disposition and Settlement and 
Codicil after mentioned, presented to me, Notary Public 
gubscribing, an extract registered Trust-Disposition and 
Settlement, granted by the said M, dated the day of 

and registered in the Books of Council and Session 
on the ; by which Trust-Disposition an(J 

Settlement the said M gave, granted, and disponed (or other- 
vrise, as in Settlement) to the said A and B, and to L (desig- 
naium)y and to the acceptors or acceptor, &c. (insert 
destination), heritably and irredeemably. All and Whole 
(insert the description of the lands conveyed, and any real 

♦ See Obsenrations supra, p. 79, and Style No. 27. 



102 IRREDEEMABLE RIGHTS. 

No. S9, burdens, conditions^ provisions, and limitations, or any refer-- 
ence to the same, and refer to the purposes of the Trust, all as 
in the Trust-Disposition and Settlement, omitting no part of 
the deed that is by the clause of direction appointed to be 
recorded) : As also there was presented to me a Codicil 
granted by the said M, dated {insert date), annexed to the 
said Trust-Disposition and Settlement and (or, a separate 
Codicil to the said Trust-Disposition and Settlement granted 
by the said M, and dated, insert date, and) recorded there- 
with in the Books of Council and Session the said (insert 
date), and by which Codicil the said M recalled the appoint- 
ment of the said L as trustee under the said Trust- 
Disposition and Settlement, 'and nominated and appointed 
the said C and D to be Trustees along with the said A 
and B, and with the same powers and privileges as if 
the said C and D had been originally appointed Trustees 
in the said Trust-Disposition and Settlement (or otherwise, 
narrating codicil) : Whereupon this instrument is taken in 
the hands of, &c. (as in preceding Style), 



H0.5L 



NOTARIAL INSTRUMENT on a Trust-Disposition and 
Settlement, containing a Special Conveyance to several 
subjects, in some of which the Granter vxis not infe/l, 
(Consolidation Act 1868, Sch. J.) 

At Edinburgh, there was on behalf of A, B, and C (desig- 
nations), as Trustees of the now deceased K (designation) 
under the Trust-Disposition and Settlement after mentioned, 
presented to me, Notary Public subscribing, a Disposition 
(unrecorded conveyance by person last vest in the subjects to 
which the truster had a personal title) granted by P (desig- 
nation) and dated the day of , by which Dis- 
position the said P sold and disponed (or otherwise) to the 
said R and his heirs and assignees (insert destination), herit- 
ably and irredeemably. All and Whole (inse^'t description of 
subjects, and burdensj conditions, dec, if any) : As also there 



COMPLETION OF TITLES OF TRUSTEES. 103 

was presented to me a Trust-Disposition and Settlement No. 5i. 
granted by the said E, and dated the day of ; 

by which Trust-Disposition and Settlement the said R gave, 
granted, and disponed {or otherwise^ as in Settlement) to the 
said A, B, and C, and to the acceptors or acceptor, &c. 
(insert destination), heritably and irredeemably, (First) All 
and Whole the said lands and others, along with the writs 
thereof; and (Second) All and Whole (subjects in which the 
truster vxis infeft) ; but always in trust and for the uses 
and purposes mentioned in the said Trust-Disposition and 
Settlement: Whereupon &c. (as in Style No. 49). 

Under the old system, where a sasine proceeded on two dispo- 
sitions, it was held that two stamps were required, one for each 
precept (Mackintosh, May 12, 1831, 9 S. 583); but this rule does 
not apply to notarial instruments. In general, however, it will be 
more expedient to expede separate instniments as the progresses of 
titles will be different 



NOTARIAL INSTRUMENT on a general Trust-Dis- Ha.M. 
position and Settlement or other general Testamentary 
Conveyance, the Granter of which was infeft. (Consoli- 
dation Act 1868, Sch. L.) 

At Edinburgh, there was on behalf of A, B, and 
(designations), as Trustees of the now deceased M (designa- 
tion) under the Trust-Disposition and Settlement after- 
mentioned (or otherwise, as the case may be), presented to 
me, Notary-Public subscribing, a Disposition granted by L 
(designation) to the said M, and dated the day of 
(or other deed or extract thereof as the case mxiy be), and 
recorded (or, a Notarial Instrument in favour of the said M, 
recorded) in the (specify register of sasines and date of record- 
*^)>(^) ^y which recorded Disposition (or instrument, or Bt^'S^A/b (a) 
otherwise, as the case may be) the said M was infeft in All and '^' 
Whole (describe the lands or other subjects, as the case may be, 



104 IRREDEEMABLE RIGHTS. 

No. 62. 08 the same are described in the said disposition or other deed 
or instrument, and insert or refer to any real burdens, condi- 
tions, &c,): As ALSO there was presented to me a General 
Trust- Disposition and Settlement {or other testam^entary deed 
or vxriting, as the case may be, or an extract of such deed) 
granted by the said M, and dated the day of , 

and registered &c. {or as the case may be) ; by which (General 
Trust-Disposition and Settlement {or othe9' testamentary deed 
or writing, as the case may be) the said M disponed {or gave, 
or granted, or bequeathed, or otherwise, as the case may be) to 
the said A, B, and 0, &c. {insert destination) heritably and 
irredeemably. All and Sundry the whole heritable estate 
{or otherwise, as the case may be) of which he was {or might 
die) possessed {or otherwise, as the case may be), but always 
in trust for the uses and purposes mentioned in said Qeneral 
Trust-Disposition and Settlement {or other testamentary deed 
or writing on which the instrument proceeds) : Whereupon, 
Ac. (as in Style No. 49, p. 100). 

Note(o). (a) Or, Disposition granted by K {designation) to L' 

{designation), and dated the day of , and 

along with the Assignation after-mentioned, granted by the 
said L to the said M, recorded on behalf of the said M in 
{specify register of sasines and date of recording) : As also 
there was presented to me the said Assignation {if written 
on the disposition, add, written on the said disposition, and) 
granted by the said L to the said M, and dated the said 
day of , and recorded along with the said 

Disposition in the said Eegister of Sasines the said 
day of , by which recorded Disposition and Assig- 

nation, &c. 

It may be observed that schedule L of the Consolidation Act 
differs from the corresponding schedules of the Titles Acts of 1858 
and 1860 in as much as it substitutes **infeft" for **ve8t," thua re- 
moving a doubt which had been entertained as to whether it was 



COMPLETION OF TITLES OF TRUSTEES. 105 

necessary to produce to the Notary the warrant on which the sasine 
or instrument proceeded as well as the sasine or instrument itself. 
All that is now required to be produced is the recorded deed or in- 
strument by which the party was infeft. 



NOTARIAL INSTRUMENT on a TruaUDisposition and Ho. 58. 
Settlement containing either a special or general convey^ 
ance, the Granter of which was not infeft, (Consolida- 
tion Act, 1868, Sch. J.) 

At Edinburgh^ there was on behalf of A, B, and C {d&- 
signations), surviving and accepting Trustees of the now de- 
ceased 6 (designation), under the Trust-Disposition and 
Settlement after mentioned, presented to me, Notary Public 
subscribing, a Disposition {unrecorded conveyance hy person 
last infeft in the subjects) granted by F {designation), and 
dated the day of ; by which Disposition {or 

other deed) the said F sold and disponed {or otherwise) to 
the said G and bis heirs and assignees {insert destination), 
heritably and irredeemably, All and whole {insert the de- 
scription of the lands conveyed, and any real burdens, conditions, 
dec, or any reference thereto, alias in the disposition or deed) : 
As ALSO, there was presented to me a [General] Trust-Dis- 
position and Settlement granted by the said G, and dated 
the day of , by which the said G assigned and 

disponed to the said A, B, and C, and to D {designation), 
who declined to accept the trust, and to the deceased E 
{designation)^ and the survivors and survivor, &c. {insert 
destination), heritably and irredeemably, All and whole the 
said lands and others [or, in the case of a general conveyanccy 
All and sundry the whole heritable estate of which he was 
{or, might die) possessed] ; and he thereby assigned the 
writs, but always in trust for the uses and purposes men 
tioned in said [General] Trust-Disposition and Settlement 
Whereupon, &c. {as in Style No. 49, p. 100). 



106 IRREDEEMABLE RIGHTS. 

The title of the trustees under a trust-disposition and settlement, 
whether containing a special or general conveyance, the granter of 
which was not infeft, may likewise be completed by expeding 
a notarial instrument (Consolidation Act 1868, Sch. N) on the 
unrecorded conveyance by the person last infeft in the subjects and 
the trust-deed, and by recording that conveyance with a warrant of 
registration along with the notarial instrument, in which must be 
deduced the trust-disposition and settlement, or other connecting 
title. A form of this instrument will be found Style No. 32, p 85. 
The instrument must be docqueted before being presented for r^is- 
tration. 



Ho. 64. NOTARIAL INSTR UMENT in favour of Trustees on a 

Probate of a Will. 

At Edinburgh^ there was by (or, on behalf of) A, B, and 
C (designations), Trustees of the now deceased 'M. (designor 
tion), under his Will (or other testamentary tvriting) after 
mentioned, presented to me. Notary Public subscribing, a 
Disposition by L (designation), to the said M, &c. (as in 
Style No. 62, p. 103) : As also there was presented to me a 
Probate (or, an exemplification of the Probate) of the said 
Will (or other testamentary im^iting) of the said M, issued by 
the Principal Court of Probate in England (or as the case 
may be), on the (specify date)y which Will (w other testa- 
m.entary tvriting) is dated (specify date), and whereby, as to 
all the real estate and personal estate whatsoever and where- 
soever over whicli he, the said M, then had or at the time 
of his decease might have any power of gift, devise, be* 
quest, disponement, conveyance, disposition, and appoint- 
ment, all which said real and personal estate is thereafter 
referred to as his said trust-estate, he, the said M, gave, 
devised, bequeathed, disposed, disponed, appointed, and con- 
veyed the same unto his said trustees, their heirs, executors, 
and administrators respectively, upon trust &c. (or otJienoise 
as the destination may be) : Whereupon this instrument is 



COMPLETION OF TITLES OF TRUSTEES. 107 

taken in the hands of {insert name and designation of Notary No. 64. 
Public), in terms of "The Titles to Land Consolidation 
(Scotland) Act, 1868," and " The Conveyancing (Scotland) 
Act, 1874/' In witness whereof {testing clavse). 



NOTARIAL INSTR UMENT in favour of Trustees or Ex- Ho. 66. 
ecutors on a Deed containing no direct conveyance of 
Lands to them. 

It is provided by "The Conveyancing (Scotland) Act, 1874," 
sec. 46, that " where in any mortis causa conveyance, grant, or testa- 
mentary deed or writing, purporting to convey or bequeath lands 
within the sense and meaning of the 20 th section of * The Titles to 
Land Consolidation (Scotland) Act, 1868,' and appointing trustees 
or executors, the words of conveyance, grant, or bequest, are not 
expressed to be in favour of such trustees or executors, it shall never- 
theless be lawful for such trustees or executors to complete a title to 
such lands in their own persons, to the same effect and in the same 
manner as if the conveyance, grant, or bequest had been expressed 
to be in favour of them as such trustees or executors, and that by 
notarial instrument, or in any other manner competent to a general 
disponee, and to hold, administer, and dispose of such lands for the 
purposes of such mortis causa conveyance, grant, or testamentary 
deed or writing.*' 

At Edinburgh, there was by {or, on behalf of) A, B, and 
C {designations), Trustees and Executors {or as the case may 
be) appointed by the now deceased D {designation), in his 
Disposition and Settlement {or cw the case mxiy be) after 
mentioned, presented to me, Notary Public subscribing, a 
Disposition {specify the disposition or other deed or instrur- 
ment or extract thereof^ cw tlie case may be, and its date)y 
recorded in the {specify register of sasines and date of record- 
^^)) l>y which recorded Disposition {or as the case may be) 
the said D was infeft in All and Whole {description as in dis- 
position or other deed) : As also there was presented to me the 
said Disposition and Settlement (or as the case may be) granted 



108 IRREDEEMABLE RIGHTS. 

No. 66. by the said D, and dated (insert date)^ by which Disposition 
and Settlement {or as the case may he) the said D {insert des- 
tination) gave (or granted, or bequeathed, or as the case may 
be) to E and F {designations) ^ heritably and irredeemably 
{or cw the case may 6e), All and Sundry the whole heritable 
estate {or as the case may be) of which he might die pos- 
sessed {or as the case may be), but always for the purposes 
mentioned in the said Disposition and Settlement {or as the 
case mxiy 6e), and in which Disposition and Settlement {or as 
the case may be) the said D appointed the said A, B, and C 
to be his Trustees and Executors {or as the case may be) : 
Whereupon this instrument is taken in the hands of {insert 
name and designation of Notary Public), in terms of " The 
Titles to Land Consolidation (Scotland) Act, 1868, and " The 
Conveyancing (Scotland) Act, 1874." In witness whereof 
{testing clause), 

« 

Title of ex officio, d:c,, Trustees by Succession, 

It is provided by ** The Conveyancing (Scotland) Act, 1874," 
§ 45, that ** When by the tenor of the title to any estate in land 
held in trust duly completed in favour of the trustee or trustees 
therein named, or any of them, and recorded in the appropriate 
Register of Sasines, the office of a trustee has been or shall be con- 
ferred upon the holder of any place or office, or proprietor of any 
estate, and his successors therein, any person subsequently becoming 
a trustee by appointment or succession to the place or office or estate 
to which the office of trustee has thus been or shall be annexed shall 
be deemed and taken to have a vahd and complete title by infeft- 
ment in the estate, in the same manner and to the same effect as if 
he had been named in the completed and recorded title, without the 
necessity of any deed of conveyance or other procedure." 

It will be observed, however, that the operation of the above 
provision is dependent on the trust having been completed by infeft- 
ment. 



COMPLETION OF TITLE OF GENERAL DISPONEE. 109 



NOTARIAL INSTRUMENT in favour of a General Ho. 56. 

Dtsponee. 

At Edinburgh, there was by (pr, on behalf of) A B {de- 
signation) presented to me, Notary Public subscribing, a 
Disposition (specify the disposition or other deed or instru- 
ment or extract thereof, as the ca^e may be) dated the {specify 
the date, and, if an extract y add the date ofrecordtTtg and the 
register) recorded in the {specify registers ofsasine and date 
of recording) by which recorded Disposition {or otherwise as 
the case may be) C D {designation) was infeft in All and 
Whole {describe the lands or other subjects as the case may 
he, as the same are described in the said disposition or other 
deed or instrument, and insert or refer to burdens, conditions, 
dc, if any) : As also there was presented to me a General 
Disposition {or other deed or conveyance as the case may be, 
or an extract of such deed) granted by the said C D, and 
dated {insert date), by which General Disposition {or other- 
wise as the case may be) the said C D disponed (or gave, or 
granted, or as the case may be) to the said A B, and his 
heirs and assignees {or as the case may be) heritably and 
irredeemably {or as the case may be) All and sundry the 
whole heritable estate of which he was {or might die) pos- 
sessed {or otherwise as the case may be. If the deed be 
granted under any real burden, condition, or qualification, add 
here) but always under the real burdens, <fec. : Whereupon, 



2. Of a Trustee on a Sequestrated Estate, or Liquidators, 
Official or Voluntary, appointed to wind up a 
Joint-Stock Company. 

(1) Trustee on Sequestrated Estate. 

The Bankruptcy (Scotland) Act (19 and 20 Vict., cap. 79, sec. 
105) provides that *' the trustee may, without making up a feudal 



110 IRREDEEMABLE RIGHTS. 

title in his person, and without concurrence of the hankrupt, grant 
conveyances of the heritahle estate beloBging to the bankrupt, with 
such procuratories, precepts, or other warrants as the bankrupt 
might competently have granted ; which conveyances shall be as 
eflfectual to the purchaser as if they had been granted by the bank- 
rupt with concurrence of the trustee." There is therefore no object 
in making up a feudal title in the person of the trustee unless under 
special circumstances, as, for example, where by doing so preferable 
rights will be excluded. 

The trustee, where he so desires, may make up a feudal title by 
disposition of lands or assignation of heritable securities by the 
bankrupt in his favour, which the bankrupt is bound to grant, and 
registration. 

(2) TnLstee in Sequestration or Liquidators of a Joint-Stock 

Company, 

Where bankrupt, dbc, infefi. — Under the Consolidation Act, 
1868,* the trustee on a sequestrated estate, or the liquidators, official 
or voluntary, appointed for the purpose of winding up a joint-stock 
company, may complete a title by expeding and recording a notarial 
instrument in the form of Schedule (Style No. 57, p. Ill) in the 
case of lands, or in the form of Schedule LLf in the case of herit- 
able securities. 

Where Bankrupt, (Be, not infefi. — If the title of the bankrupt, 
&c., is an unrecorded conveyance, the trustee or liquidators may be 
feudally vested by expeding and recording a notarial instrument. Con- 
solidation Act, 1868, Schedule J (Style No. 35, p. 86); or by expeding 
a notarial instrument. Schedule N (Style No. 32, p. 85), and recording 
the conveyance, with a warrant of registration thereon, along with the 
instrument duly docqueted ; the trustee's act and warrant of con- 
firmation, or the liquidators' appointment, and other connecting 
title, if any, being in either case set forth as produced to the notary-^^ 
and specified in the instrument. 

Where Bankrupt apparent Heir. — Where the Bankrupt has be^n 
possessing lands on apparency, and has granted heritable securitL^e^ 

♦ § 25. t Infra, Heritable Securities. 



TITLE IN SEQUESTRATION OR LIQUIDATION. Ill 

to his creditors, the trustee ought to complete a feudal title in his 
own person so as not only to avoid validating these securities by ac- 
cretion, which would he the effect of completing a title in the person 
of the bankrupt, but also to prevent the creditors themselves from 
taking steps to validate their securities. This may be done by the 
trustee presenting, in virtue of the act and warrant in his favour, a 
petition to the Sheriff, under the Conveyancing Act of 1874,* 
praying to have it found that he is entitled to procure himself infeft 
in the lands, and recording the decree, with warrant of registration 
thereon, in the Register of Sasines. (See Style infra.) 

In the case of a recorded lease, or a bond and assignation in 
security over a recorded lease, in which the bankrupt was vested, the 
trustee may complete his title by expeding and recording, in the ap- 
propriate register, a notarial instrument in the form of Schedule F, 
under the Registration of Leases Act. 



NOTABIAL INSTRUMENT in favour of a Trustee on a lto.67. 
Sequestrated Estate, or of a Liquidator of a Company, in 
lands in which the Bankrupt or Company was infeft, 
(Consolidation Act, 1868, Sch. 0.) 

At Edinburgh, there was by (or, on behalf of) A (desig- 
ncUion), as Trustee on the sequestrated estate of B {designa- 
tion), (or, as Liquidator for winding up insert name of 
Company), presented to me, Notary-Public subscribing, a 
Disposition granted by R (designation) to the said B (or, 
to the said Company), and dated the day of , 

and recorded in (specify register and date of recording)^ by 
^hich recorded Disposition the said B (or the said Company) 
^as infeft in All and whole (insert or refer to description, 
and burdens, &c,, if any) : As also, there was presented to 
me an Extract Act and Warrant of Confirmation in favour 
of the said A, dated the day of (or here specify 

the appointment of the liquidator, and the date thereof): 
Whereupon, 4c. (as in Style No, 49). 

♦ J 10, Sched. E. 



112 IRBEDEEMABLE RIGHTS. 

A style of this instrament applicable to Heritable Securities will 
be found under Part II., infra. 



3. Of Adjudgers in Implement.* 

By the Consolidation Act of 1868, sec. 62, as amended by and em- 
bodied in the Conveyancing Act of 1874, sec. 62, it is provided that in 
all cases a decree of adjudication, whether for debt or in implement ; or 
a decree of constitution and adjudication, whether for debt or in imple- 
ment; or a decree of declarator and adjudication, or a decree of sale, 
shall be held '' equivalent to and shall have the legal operation and 
effect of a conveyance in ordinary form of the lands therein contained 
granted in favour of the adjudger or purchaser by the ancestor of such 
apparent heir, or by the owner or proprietor in trust or otherwise, and 
whether in life or deceased, of the lands adjudged, or by the seller of 
the lands sold, although in nonage or of insane mind ;" and that " it 
shall be lawful and competent to such adjudger or purchaser to com- 
plete feudal titles to said lands not only by infeftment on such de- 
cree as a conveyance," but also " by using it for the purpose of in- 
feftment as an assignation, or as one of a series of assignations of an 
unrecorded conveyance, as the case may be, in the manner provided 
by this Act." The same clause of the Act coiltains a proviso that 
" the right of the superior to the composition payable by the adjudger 
or purchaser as due under the existing law is hereby reserved entire, 
and the adjudger or purchaser, by taking infeftment on any such 
decree in any of the modes above mentioned, shall become indebted 
in such composition to the superior, and shall be bound to pay the 
same on the superior tendering a charter or writ of confirmation, 
whether such charter or writ shall be accepted or not, and the supe- 
rior shall be entitled to recover such composition as accords of law;" 
but this matter is now regulated by the Conveyancing Act of 1874. 

Where the person adjudged from tvas infeft, — Where the person 
from whom or from whose successor the lands are adjudged was in- 
feft, the adjudger's title may be completed by recording with warrant 
of registration in the appropriate register or registers either the abbre- 
viate of adjudication or the extract of the decree, though if the de- 

* See as to Adjudication for Debt under Bedeemable Bights, ittfhi. 



TITLE OF ADJUDQEfiS. 113 

cree contains several subjects, partly held feu and partly held bur- 
gage, it may be more expedient to complete the title by separate 
notarial instruments applicable to each description of subjects, for 
registmtion in the appropriate register. (See Styles of Instrumenti 
Nos. 59 and 60.) 

Wkere title penondL — Where the title of the person whose lands 
are adjudged is an unrecorded conveyance, the adjudger may in all 
cases be infeft by expeding and recording with warrant a notarial 
instrument — Consolidation Act 1868, Schedule (J), (Style l^o, 35, 
p. 86); or by expeding a notarial instrument. Schedule (N), (Style 
No. 32, p. 85), and recording the conveyance, with a warrant of re- 
gistration thereon, along with the instrument duly docqueted ; the 
decree of adjudication and other connecting titles, if any, being in 
either case produced to the notary and deduced in the instrument. 



WARRANT OF REGISTRATION on Extract Decree of Ho.5». 
Adjudication in Implement against a person infeft, 

Begister on behalf of A B {insert designation) in the 
register of the county of {or^ if the decree contains lands in 
more than one county, in the counties of C, D, E, and F, or as 
the case may be). 

Signed A B. 
(or) a H., W.S., Edinburgh, Agent. 



NOTARIAL INSTRUMENT on a Decree of Adjudica- ho.59. 
iion in Implement obtained against a person infeft. 

At Edinburgh, there was by (or on behalf of) A B (desig- 
nation), presented .to me, Notary-Public subscribing, an Ex- 
tract Decree of Adjudication in implement, obtained at the 
instance of the said A B in an action before the Lords of 
Oonncil and Session against C D (designation) ^ and dated 

.8 



114 IRREDEEMABLE RIGHTS. 

No. 59. (insert date), and. with abbreviate thereof duly registered on 
the (date), by which decree the said Lords adjudged from the 
said C D All and Whole (insert description of lands or sub- 
jects), and decerned and declared the same to pertain and 
belong, heritably and irredeemably, to the said A B, and his 
heirs and assignees, in implement and satisfaction to them of 
a Minute of Sale dated (insert date) entered into between the 
said D and A B, whereby the said C D, for the causes 
therein specified, bound and obliged himself, his heirs and 
successors, to subscribe and deliver an heritable and irre- 
deemable Disposition of the foresaid lands (or subjects) in 
favour of the said A B and his foresaids ; and ordained the 
said A B and his foresaids to be infef t and seised in. the said 
lands (or subjects) and others so adjudged : Whereupon, &c. 

Where the subjects adjudged are held by burgage tenure, the 
only difference is that the title will be recorded in the Burgh Re- 
gister of Sasines. 



Ho.eo. NOTARIAL INSTRUMENT on Decree of Adjudication 
in Implement obtained against a person not infefi. (Con 
solidation Act, Sch. (J), Style No. 35.) 

At Edinburgh, there was by (or on behalf of) A B (desig- 
nation), presented to me. Notary Public subscribing, a Dispo 
sition (or as the case may be), granted by C D (designation), 
and dated (insert date), by which Disposition (here narrate 
the deed, as in previous Styles) : As also there was presented 
to me an Extract Decree of Adjudication, 4c. (as in pre 
ceding Style) : Whereupon, &c. 



4. Of a Beneficiary under a Trust. 

The title of the person having the beneficial interest in special 
subjects under a trust, or in the residue of the estate after the other 
purposes of the trust have been fulfilled, is made up by conveyance 



TITLE OP BENEFICIARY UNDER TRUST. 1 15 

from the trustees, and registration, or notarial instrument. But 
where all the trustees are dead, the title will be made up by one or 
other of the following methods : — 

(1) If the trust-deed contains a destination to the survivors and 
survivor of the trustees and the heir of the last survivor, or of the 
truster, — ^By service of the heir of the last surviving trustee, or of 
the truster, as heir of provision under the deed of settlement, either 
in special or in general, according as his ancestor was or was not 
infeft ; or where though there is no destination to heirs in the deed 
there is no contrary provision therein, and no contrary order shall be 
made by the Court of Session, By service of the heir of the last 
trustee as heir of provision in terms of the 43d section of the Con- 
veyancing Act of 1874 (tn/ra, p. 139), and after the heir has been 
vested by registration or notarial instrument he will convey the trust 
subjects to the beneficiary in ordinary form. 

(2) If the heir of the last surviving trustee should not be 
inclined, or, from being in pupilage or any other cause, should not be 
in a position to interpose, the title may be made up by leading a 
declaratory adjudication, at the instance of the beneficiary against 
such heir, and calling as defenders all parties appearing to have an 
interest (Dalziel v. Henderson, 11th March 1766, M. 16,204 ; Drum- 
mond V. Mackenzie, 30th June 1758, M. 16,206); ^d according to 
the state of the title (that is, according as it has or has not been 
completed by infeftment) in the person of the last trustee, and the 
nature of the subject adjudged (lands or heritable securities), re- 
cording the abbreviate or extract of the decree of adjudication, or 
ezpeding and recording a notarial instrument thereon as explained 
Bupra, p. 112: or 

(3) A title may be made up by petition to the Court of Session 
imder the combined operation of the provisions of '*The Trusts 
(Scotland) Act 1867 " and " The Titles to Land Consolidation (Scot- 
land) Act 1868." By the Trusts Act, § 14, it is provided that 
" When any person shall be entitled to the possession for his own 
absolute use of any heritable property " '* the title to which has 
been taken in the name of any trustee or curator bonis or factor loco 
aheeniis or factor loco tutoris or judicial factor, or other person who 
has died or become incapable of acting, without having executed a 
conveyance of such property, it shall be lawful for the person bene- 
ficially entitled to such property to apply by petition to the Court 



116 IBBEDEEMABLE BIGHTS. 

for anthority to complete a title to such property in his own name," 
and such petition shall specify and describe the heritable property 
"to which such title is to be completed ;" and "it shall be lawM 
for the Court to grant a warrant for completing such title as afore- 
said, which warrant shall specify and describe the heritable property 
to which it is applicable ;" " and such warrant shall be effectual as 
a conveyance of such heritable property in favour of the petitioner, 
in like manner and to the same effect as a warrant in favour of a 
judicial factor granted under the authority of the 38th section of 
"The Titles to Land (Scotland) Act 1860." By the 24th section of 
the Consolidation Act, which declares " that the whole enactments 
and provisions herein contained shall extend and apply to all peti'^ 
tions to and warrants by the Court of Session under . ' The Trusts 
(Scotland) Act 1867/ " unless where they are inapplicable, it is pro- 
vided that in any application by a judicial factor for authority to 
complete a title, where the " petition or note has specified and de- 
scribed or shall specify and describe the lands to which such title is 
to be cotaipleted, or has referred or shall refer to the description of 
the same in the form or as nearly as may be in the form of Schedule 
(E) hereto annexed, or of Schedule (G) hereto annexed, as the case may 
be, the warrant granted for completing such title shall also so specify 
and describe theiands to which such title is to be completed, or shall 
so refer to the description thereof; and such warrant shall be held to 
be a conveyance in due and common form of the lands theteia 
specified in favour of such judicial factor granted by the peiTson 
whether in life or deceased whose estate is under judicial manage- 
xneht;" "and such warrant may, with tvBrrant of registration 
thereon, be recorded in the appropriate register of sasines as tt con- 
veyance in favour of such judicial factor." It will be obsetved that 
the clause of the Consolidation Act just referred to allows the 
deseriptioh of the lands to be referred to in the form set forth in 
Schedules (E) or (G) annexed to the Act; but section 11 of the 
Act in which Schedule (E) is first mentioned having been re- 
pealed by "The Conveyancing (Scotland) Act 1874," $ 61, and 
re^uacted in a somewhat different form with a new Schedule (0) * 
annexed to that Act, it will be proper to adopt it, and not Schedule 
(E), as the form where the description of the lands is to be refeited 

• Bupra, p. tB. 



TITLE OF BBNBPIOIARY UNDER TRUST. 117 

to in the petitioiL When the warrant in favour of the beneficiary 
has been obtained, it will be recorded with warrant of registration 
in the appropriate Eegister of Sasines, which wiQ complete his title. 



PETITION by BENEFICIARIES under a Trust, for H«.eL 
authority to complete a Title under § 14 0/ " The Trusts 
(Scotland) Act, 1867." 

TJnto the Eight Honourable the Lords of Council and 
Session, the Petition of A B, C D, and E F 
(names and designations 0/ the petitioners), 

Humbly Sheweth, 

That the late G H (designation), died at on the 

day of , leaving a Trust-Disposition and 

Deed of Settlement dated the day of By 

tiie said Trust-Disposition and Deed of Settlement he inter 
aUa disponed, conveyed, and made over from him, his heirs 
and successors (here insert destination as in trust-deed, as) to 
and in favour of J K and L M (nam^sand designations ofth§ 
irusUes), and the acceptors or acceptor, &c. (as in deed), but 
in trost always for the ends, uses, and purposes thereinafter 
mentioned, the following heritable subjects then belonging 
to him, viz.. All and Whole (here insert general description 
of the sulyects with reference to which the petition is presented), 
all as therein and hereinafter particularly described. 

By the said Trust-Disposition and Deed of Settlement 
the said G H directed and appointed his said trustees to 
hold the said subjects for behoof of N (designation), in 
IJiferent for his liferent use allenarly, and after his death to 
oonvey the same to the petitioners, the said A B and C D, 
and to the now deceased P Q (designation), equally among 
them, share and share alike, in fee. The said G H left no 
oth^ directions for the disposal of the said subjects. 

That the Trustees accepted of the Trust and entered on 
the management of the estate, but have all died without 
haying completed a title in their persons as Trustees to the 



118 IRREDEEMABLE RIGHTS. 

No. 61. said subjects, or having conveyed the same in terms of the 

directions contained in the said Trust-Disposition and Deed 

of Settlement. There was no Deed of Assumption of new 
trustees executed by the Trustees before named. 

That the said N 0, who was liferented in the said subjects, 
died on or about the day of 

The said P Q survived the said G H, but died on or 
about the day of , leaving an only child, the 

said E F, who is now entitled to his share of the said subjects. 

The following are the parties beneficially entitled to the 
said subjects under the said Trust-Disposition and Deed of 
Settlement, viz., the Petitioners, the said A B and C D, and 
the said E F, as in right of the said P Q. 

By § 14 of " The Trusts (Scotland) Act 1867," it is en- 
acted that " When any person shall be entitled to the posses- 
sion for his own absolute use," &c. {here quote the section.) 

The whole of the trustees named by the said G H having 
died without assuming new trustees, and without liaving 
executed a conveyance in favour of the petitioners of the 
said subjects, the petitioners are desirous that the Court 
should, in terms of the provisions of the said recited Act, 
grant authority to them to complete a title in their own 
names to the said subjects, as the only parties beneficially 
entitled thereto under the said Trust-Disposition and Deed 
of Settlement. 

May it therefore please your Lordships to appoint this 
Petition to be intimated on the walls and in the 
Minute Book in common form, and to order such 
further or other intimation and service, if any, as 
your Lordships shall see proper ; and thereafter, on 
resuming consideration thereof, with or without 
answers, to grant warrant to the petitioners to com- 
plete a title in their own names, in terms of " The 
Trusts (Scotland) Act 1867," aforesaid, or by any 
other habile means to the subjects before referred 
to, equally among them, share and share alike, viz.. 
All and Whole {here describe the subjects^ and^ if 



TITLE OF BENEFICIARY UNDER TRUST. 119 

necessary^ add but always with and under the bur- uo. 61. 

dens, conditions, reservations, &c., contained in the 

title deeds of the said subjects), or to do otherwise 
in the premises, or further, as to yotlr Lordships 
shall seem proper. 

According to Justice, &c. 

5. Of Judicial Factors, New Trustees appointed by the 
Court, and Pupils, Minors, or Lunatics whose Estates 
are under judicial management. 

Pioviaions as to the completion of titles in these cases are contained 
in " The Trusts (Scotland) Act 1867," " The TiUes to Land Con- 
solidation (Scotland) Act 1868," and "The Conveyancing (Scotland) 
Act 1874." 

By the Trusts Act, § 12, it is provided that '*When trustees 
cannot be assumed under any trust-deed, or when any person who is 
the sole trustee acting under any such trust-deed has hecome insane 
or incapable of acting by reason of physical or mental disabihty, the 
Court may, upon the application of any party having interest in the 
tmst-estate, after such intimation and inquiry as may be thought 
necessary, appoint a trustee or trustees under such trust-deed, with 
all the powers incident to that office, and on such appointment 
being made in the case of any person becoming insane or incapable 
of acting as aforesaid, such person shall cease to be a trustee under 
each trost^leed, and the Court may on such appUcation grant a war- 
rant to complete a title to any heritable property forming part of 
the trust-estate in favour of the trustee or trustees so appointed, 
which warrant shall specify and describe the heritable property to 
which it is applicable." " And such warrant shall be effectual as a 
conveyance of such heritable property in favour of the trustee or 
trostees so appointed, in Hke manner and to the same effect as a war- 
rant in favour of a judicial factor granted under the authority of the 
38th section of ' The Titles to Land (Scotland) Act I860.' " 

By the ConsoHdation Act of 1868, § 24, it is provided that 
*• "Where in a petition to the Court of Session for the appointment of 
a judicial factor authority has been or shall be asked for the comple- 
tion of a title by such factor to any lands forming the whole or part 
of the estate to be managed by such judicial factor, or where a 
judicial factor hto appUed or shall apply by petition or note to the 



120 lAREDEEMABLE BIGHTS. 

said Court for authority to complete a title to such lands, either in 
his own person as judicial factor* or in the person of any pupil, 
minor, or lunatic to whom he may have been appointed judicial 
fjEUitor, and where any petition or note has specified and described, or 
shall specify and describe, the lands to which such title is to be 
completed, or has referred or shall refer to the description of the same, 
in the form, or as nearly as may be in the form, of Schedule (E) 
hereto annexed, or of Schedule (G) hereto annexed, as the cdse may 
be, the warrant granted for completing such title shall also so specify 
and describe the lands to which such title is to be completed, or shall 
so refer to the description thereof, and such warrant shall be held to 
be a conveyance in due and common form of the lands therein speci- 
fied in favour of such judicial factor, granted by the person, whether 
in life or deceased, whose estate is under judicial management, (»r, 
where the estate is that of a pupil, minor, or lunatic, in whose peiaan 
« title has not been made up, such warrant shall be held to be such 
a conveyance in favour of the pupil, minor, or lunatic, or of the 
judicial factor appointed to such pupil, minor, or lunatic, as the case 
may be, granted by a predecessor or author having such title, or 
where such judicial factor has been or shall be appointed on an estate 
which shall have been vested in a trustee or former judicial factor, 
such warrant shall be held to be such a conveyance granted by such 
trustee or former judicial factor, whether in life or deceased, for the 
puiposes of jsuch estate or trust or factory." 

As already mentioned,t the provisions above quoted apply to 
petitions and warrants under the Trusts Act, but the form of reference 
to the description of the lands to be used is that in Schedule (0) 
annexed to the Conveyancing Act of 1874, and not that in Schedule 
(£) in the Consolidation Act. 

By the Conveyancing Act, § 44, it is provided that " When a 
trust title has been duly completed and recorded, and any person is 8u]>- 
sequently appointed by the Court to administer the trust, in whole or 
in part, as a trustee or judicial factor, the interlocutor whereby the 
appointment is made shall specify the trust-deed and the other title 
or titles (if any) by which the trust-title had been completed as afore- 
said, in such manner as to identify the same, and shall refer to the 
Register or Kegisters of Sasines where such deed or title or titlss is 

* By the interpretation clause (§ 8) judicial factor includes ouratorB bonii 
factors loco tutaris, factors loeo ahamtii, and all judicial managers, 
t Supra, p. 116. 



TITLE OF FAOTOBS, TBU8TEES, WARDS, ETC. 121 

or aie recoidedi and also set forth the lauds by description or refer- 
ence; and an extract of such interlocutor being recorded in the 
appropriate Register of Sasines shall operate a title by infeftment in 
the estate in favoor of the trustee or judicial factor thereby appointed 
in the same manner as if he had been a trustee named in the com- 
pleted and recorded title, in conformity always with the nature and 
terms of the appointment, and to the effect of enabling him to per- 
form the duties of the office to which he is appointed." 

There are one or two points in the provisions just referred to 
which may be here noticed. 

] st, It will be observed that under the clause in the Consolidation 
Act there is one imiform rule for completing the factor's or trustee's 
oir ward's title, viz., by recording the decree without regard to the state 
of the title to the lands, whether standing on a completed infeftment or 
an unrecorded conveyance or open precept, which is contrary to the 
ordinary principles of conveyancing. Then the clause in the Con- 
veyancing Act, which however is limited to the case of new trustees 
or judicial factors on trust-estates, but which to that extent is a re- 
enactment of the provision of the Consolidation Act, limits this 
mode of completing the title to the case where the trust-title has been 
duly completed and recorded. If the Conveyancing Act operates in 
this respect as a repeal of tlie Consohdation Act, then there remains 
(at least under the Acts now referred to) no mode of completing 
tlie new trustee's or judicial factor's title where the trust-title 
has not been duly completed and recorded, unless some one can 
be discovered in the other provisions of the Acts. The ap- 
propriate, if competent, way is to expede a notarial instrument 
on the unrecorded conveyance (Consolidation Act, schedule J or 1^), 
using the decree as a connecting title ; but then the question arises 
— Has the factor or trustee such a right to the unrecorded conveyance 
as to entitle him so to use it ) The Act declares the decree to be 
equivalent to a conveyance of the lands, but not to an assignation to 
the titles, and it was stated in Smith, ^'ov. 26, 1869, 8 MT. 204 
{per Lord Kinloch), that a disposition ''does not by itself, or without 
some additional clause, convey to the disponee any personal right 
exeated by some previous deed in the disponer's favour, such as the 
right to execute a still unexecuted procuratory of resignation or pre- 
cept of sasine. In order to convey such right it is necessary that the 
deed should either specially assign the right or contain a general as- 



122 IRREDEEMABLE RIGHTS. 

fiignation of writs and evidents." In the Conveyancing Act, § 29, it 
is provided that "no decree, instrument, or conveyance" '* shall be 
deemed to be invalid " " because any general disposition forming a 
part of the series does not contain a clause of assignation of writs ; " 
and if this provision can, notwithstanding its express terms, be read 
as applying to special as well as to general dispositions, the difficulty 
is removed, but otherwise the only way seems to be to proceed by 
declaratory adjudication. 

2d, The authority given'in the Consolidation Act for making up 
a title to the ward's property in the person of the curator or factor is 
anomalous and inconvenient, as it involves the necessity for a con- 
veyance by the curator or factor to the ward on his attaining 
majority or recovering. The proper course is, either under the provi- 
sions of the Act or by service, to complete a title in the person of the 
ward. 

When the necessary warrant has been applied for in the manner 
above explained, and obtained, the title of the factor, new trustee^ or 
curator, will be completed as follows : — 

1. Where the truster, 'prior trustee, or factor^ or the predecessor or 
author of the ward, was infeft — By recording the extract decree with 
warrant of registration in the appropriate register or registers of 
sasines ; or, by expeding and recording, with warrant thereon, in 
such register or registers, a notarial instrument on the decree (Con- 
solidation Act, schedule J) Style 35, p. 86. 

2. Where the truster^ 'prior trustee^ or factor, or the predecessor or 
author of the ward, was not infeft, either (as may be preferred)—* By re- 
cording the extract decree with warrant of registration thereon in the 
appropriate register or registers of sasines, or by expeding and re- 
cording, with warrant of registration thereon, in such register or 
registers, a notarial instrument on the unrecorded conveyance and 
extract decree (Consolidation Act, schedule J, Style No. 39, p. 90); or^ 
by expeding and recording in such register or registers, along with 
the unrecorded conveyance, a notarial instrument, proceeding on the 
imrecorded conveyance and decree (Consolidation Act, schedide N, 
Style No. 38, p. 89); a warrant of registration being written on the 

* But see Obserrations, p. 121. 



TITLE OP FACTORS, TRUSTEES. WARDS, ETC. 123 

unrecorded conveyance, and the instrument being docqueted before 
being presented for registration. 

If thought necessary, the title may be completed both by record- 
ing the decree and by expeding and recording a notarial instrument. 



6. — Completion of Title to share of a divided Commonty, 

OR Part of a Glebe. 

(1) Completion of Title on Decree of Division of Commonty, 

It is by " The Conveyancing (Scotland) Act 1874," § 35, provided 
that "A decree of division of commonty or of common property or runng 
lands, whether pronounced by a court of law or by arbiters or by an 
oversman, shall have the effect of a conveyance containiug assigna- 
tions of writs by all the joint proprietors in favour of the several 
parties participating in the division of the shares severally allotted to 
them, and the extract decree pronounced by the Court, or the decree 
pronounced by the arbiters or oversman, or an extract thereof from 
any competent Court books, may be recorded in the appropriate 
Eegister of Sasines in ordinary form on behalf of all or any of the 
parties, or may be used by all or any of the parties for the purpose 
of infeftment in, or of acquiring a personal right to, the shares sever- 
ally allotted to them, or to any portion thereof, as an assignation, or 
one of a series of assignations, of an unrecorded conveyance or of a 
personal right under this Act." 

It will be kept in view that under this provision the decree forms 
a direct warrant for infeftment by registration only where or in so 
for as the other joint proprietors (granters of the constructive con- 
Teyance) are infeft ; where any of them are not infeft, it operates, as 
regards them, only as an assignation of an unrecorded conveyance or 
of a personal right, as the case may be, and the title of the parties 
wishing to be infeft must be completed accordingly. 

Where all the parties are infeft the extract decree may be recorded 
with a warrant of registration in the usual form, but if for any reason 
it is more convenient, the title may be completed by a notarial instru- 
ment (Consolidation Act, schedule J), expede on the decree, the 
** Whereupon," &c., of which instrument will bo in terms of the im- 
mediately following style. 



124 IBfi£D££MABL£ BIQHTS. 



Hcea. NOTARIAL INSTRUMENT on a decree of Division oj 

Commonty where all the parties are not infejt. 

At Edinburgh^ there was by (or, on behalf of) A B (desig- 
naiion) {orj^ of A B, C JD, &c., names and designations of aU 
the partieSy if more tlian one^ by whom the instrument is ex- 
pede) presented to me, Notary Public subscribing, a Disposi- 
tion {or oilier deed) granted by E F (designation), and dated 
{iiisert date), by which Disposition {or other deed) the said 
E F sold,' alienated, and disponed {or as the case may he) to 
G H {designation), and his heirs and assignees, heritably 
and irredeemably. All and Whole {insert description of lands) 
{here set forth seriatim as presented to the Notary, and narrate 
so far as necessary, the unrecorded conveyances in favour of 
each of the parties not infeft, after which proceed) : As also 
there was presented to me an extract decree of the Lords of 
Council and Session in an action of declarator and division 
of the commonty of , at the instance of {insert 

nam£s and designations of pursuer or pursuei's) against {insert 
names and designations of defenders), and dated the {insert 
date), and extracted the {insert date), by which decree {here 
narrate the decree so far as necessary, including the descriptiou 
of the shares or divisions of the commonty allocated to the 
person or persons by whom the instruToent is expede, as) the 
said Lords approved of the division as carried through under 
the directions of the Commissioner, and of the reports by 
the Surveyor, Nos. of process, and relative plan, No. 
of process, and of the report of the Commissioner, No. 
of process ; Found that the boundaries of the said ComnK)nty 
of are as follows {here insert the boundaries) ; Found 

that the said A B has an interest in the said Commonty to 
the extent of , in respect of his lands of and , 

and that the proportion of the said Commonty to which he 

* This is competent under the Act, but it will be more conyenient to ex- 
pede separate instruments. 



TITLE TO SHARE OF COMMONTT. 126 

I 

is entitled in respect thereof, and whicli is thereby set apart ^»- ^ 
and allocated to him in two separate allotments, in exclusive 
property, extends to acres; Found that the said A 

B's first allotment for his lands of contains 

acres, and is bounded {here insert boundaries)] Found that 
the said A B's second allotment in respect of his lands of 
contains acres, and is bounded (here insert 

boundaries) ; Found that the proportion of peat ground to 
which the said A B is entitled in respect of his said lands of 
and , and which was thereby set apart and allocated 
to him in one allotment, extends to acres or thereby, and 
lies (here insert description) ; Found that the whole marches 
around the said Gommonty , in so far as the same are not natural 
marches, such as burns, or unmistakeable marches, such as 
dykes, have been made apparent on the ground by march lines 
being cut and by march stones having been placed at the 
various points; Found that in like manner the marches be*- 
tween the various allotments, as exhibited on the plan, have 
been marked out on the ground by march lines being cut 
and by march stones being placed at every point where the 
boundary of one party meets the boundary of another; Found 
that the whole roads, whether public or access roads, laid 
down on the said plan, are to be held withdrawn from the 
property of the several parties through whose lands they re- 
spectively pass, and are to be held as and for the purpose of 
roads in all time to come; Found that, subject to said right 
of roads, and (in so far as no access roads are laid down to 
the various allotments for peats) subject to the right of 
access for the purpose of working and carrying away such 
peats, the several allotments of Gommonty of the parties to 
the said process respectively described in the said decree 
shall pertain and belong to them respectively, heritably and 
irredeemably, as their own absolute property, and as parts 
and pertinents of th^ir respective lands in all time coming ; 
Found that none of the parties, pursuers and defenders in 
the said process, shall have in future any right in any por- 
tion of the Gommonty divided by the said decree other than 



126 IRREDEEMABLE RIGHTS. 

No. 62. the portions allotted to them respectively, as therein set forth, 
and discharged the pursuers and each of the defenders from 
interfering in all time coming with the respective boundaries 
therein set forth, or with the allotments belonging to others 
than themselves, and from trespassing the one upon the 
allotments of the others, and decerned accordingly, &c. 
Whereupon this instrument is taken in the hands of L M 
{insert name and designation) ^ Notary Public, in terms of 
" The Lands Consolidation (Scotland) Act 1868," and " The 
Conveyancing (Scotland) Act 1874." In Witness whereof. 



(2) Completion of Title on a Decree of Sale under " TJie Olehe Lands 

{Scotland) Act 1866." 

By the provision of "The Glebe Lands (Scotland) Act 1866," 
section 17, any proprietor whose lands are conterminous to the glebe 
is entitled to purchase the whole or part thereof, on terms to be fixed 
by the Court, and where he does so, the Court is authorised to pro- 
nounce a decree of sale thereof in his favour ; but the only mode of 
completing a title contained in that Act was by obtaining a charter 
from the Crown, for which the decree was declared to be a warrant. 
It is now, by " The Conveyancing (Scotland) Act 1874," § 36, pro- 
vided that the decree ** shall have the effect of a conveyance by the 
minister of the parish at the sight of the heritors of the parish and 
of the presbytery of the bounds, to the heritor in whose favour it is 
pronounced, and his heirs and assignees whomsoever, of the glebe or 
portion of glebe therein contained ; and, on an extract of such 
decree being recorded in the appropriate Register of Sasines, shall 
vest in such heritor the glebe or portion of the glebe described there- 
in, with a holding of the Crown for payment of a penny Scots 
yearly, if asked only, as fully and completely as if he had obtained a 
charter from the Crown by virtue of such decree, and been infeft 
thereon in common form." 

The extract decree will be recorded with warrant of registration 
thereon in the usual form. 

From the terms of the provision in the Act it does not seem com- 
petent in this case to adopt the form of completion by notarial in- 
strument (Consohdation Act, schedule J). If the person in whose 



TITLE UNDER GLEBE LANDS ACT. 127 

favour the decree is pronounced should die without having recorded 
it, or should assign it, his heir, after expeding general service, or his 
assignee, will complete his title by expeding and recording along with 
the extract decree a notarial instrument (Consolidation Act, schedule 
N), referring in the conclusion to both the Consolidation and the 
Conveyancing Acts, as in Style No. 62, supra, 

7. Service of Heirs. 

(1) Oeneral Service, 

Petitions for general service alone may be presented either to the 
Sheriff of the County within which the deceased had at the time of 
bis death his ordinary or principal domicile or to the Sheriff of 
Chancery, but if the deceased had at the time of his death no domi- 
cile within Scotland, then in every such case it must be presented to 
the Sheriff of Chancery — Consolidation Act 1868, § 28. 

If the deceased died upwards of ten years prior to the date of 
presenting a petition for general service as heir to him, it is not neces- 
sary to state or prove the county within which he had his ordinary 
or principal domicile at the time of his death, or that such domicile 
was forth of Scotland, but so far as regards the domicile of the 
deceased, it is sufficient for the heir to state in his petition, and if 
zequired in the Court of service to make oath, that he is unable to 
pioYB at what place the deceased had his ordinary or principal domi- 
cile at the time of his death — Consolidation Act, § 34. In such 
cases the petition must be presented to the Sheriff of Chancery. 

PETITION of GENERAL SERVICE as Heir of Line. Ho.es 

Unto the Honourable the Sheriff {specify the county 
within which the deceased had his principal domi- 
cile^ or say of Chancery), the Petition of A B 
{designaiion) ; 

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 

{stoic the month and year at full length)^ and had at the time 



128 IRBEDEEKABLE RIGHTS. 

No. 63. of his death his ordinary or principal domicile in the County 

of {ovy furth of Scotland, as the case may he). 

That the Petitioner is the eldest son {pt state what other 
relationship or character of heir the petitioner hears)^ and 
nearest lawful heir in general of the said D. 

May it therefore please your Lordship to serve the 
Petitioner nearest and lawful heir in general to the 
said C D. 

According to Justice, Ac. 

{Signed hy the petitioner or his mandatory.) 



H0.64. PETITION of GENERAL SERVICE as Heir of Line 
where the deceased died upwards of ten years hefore the 
date of presenting the Petition and the Petitioner cannot 
ascertain the place of the deceased^s domicile. 

Unto the Honourable the Sheriff of Chancery the 
Petition of A B {here name and design the Peti- 
tioner); 

Humbly sheweth, 

That the late C D {designation of ancestor to whom service 
is sought) died on or about the day of {state the 

month and the year at full length)^ but the Petitioner is 
unable to prove at what place the deceased had his ordinary 
or principal domicile at the time of his death. 

That the Petitioner is the immediate younger brother of 
the said C D, who died unmarried and without issue {or 
staie what other relationship or character of heir the petitioner 
bears) f and is thus the nearest lawful heir in general of the 
said C D. 

May it therefore please your Lordship to serve the Peti- 
tioner nearest and lawful heir in general to the 
said C D. 

According to Justice, &c. 

{Signed by the petitioner or his mandatory.) 



GENERAL SERVIOE OF HEIBS. 129 

PETITION of OENEBA L SEE VICE with Specification Ho. 66 

annexed. 

The object of this form of service was to limit the liability of the 
petitioner for his ancestor's debts (Consolidation Act, § 49), but it is 
now rendered unnecessary by § 12 of the Conveyancing Act of 
1874, which provides that an heir shall not be liable for the debts of 
his ancestor beyond the value of such ancestor's estate to which he 
sncceeds. The form, though not now necessary, is probably not in- 
competent ; if desired to be adopted, the petition will be in the form 
of Style No. 63, p. 127, adding at the end of the statement of the 
petition — " But the petitioner desires HuU his general service shall he 
limited to the contents of the specification annexed;" and adding at 
the dose of the prayer of the petition — " hut under limitation as 
q/bresaid to the contents of the specification annexed," 

Annexed to the petition there will be a specification in the follow- 
ing terms: — 

Specification of the lands and other heritages which be- 
longed to the deceased G D, referred to in the Petition for 
General Service presented to the Sheriff of by A B as 

heir in general (or, of provision in general) to the said de- 
ceased G 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 tlian one, 
by a separate number). 

(Signed by the petitioner or his mandatory,) 

The operation of such a service as a title is limited to the same 
lands. 



PETITION of GENERAL SERVICE as Heir of Ho. 66. 

Provision. 

Unto the Honourable the Sheriff of the County of 

(or, of Chancery), the Petition of A B 
(desigfuUion of petitioner) ; 
Humbly sheweth, 

That the late G D (designation of ancestor to tvhom service 

9 



130 IRBEDEEMABLE BIGHTS. 

No. 66. is sought) died on or about the day of {state the 

month and year at Jull length), 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), 
(a) That the Petitioner is the eldest Son (or state what 
other relationship or character of heir the petitioner hears) ^ 
of the deceased G H {designation) , who was the immediate 
younger brother of the said C D, who died without male 
issue, and the Petitioner is thus the nearest lawful heir- 
male of provision in general of the said C D, under and 
by virtue of a Disposition {or other deed) {specify the deed 
of provision, as the case may be), executed by E F {designa- 
tion), dated the day of , whereby he disponed 
the lands of Z, therein described, to and in favour of the 
said C D and his heirs-male whatsoever {or otherwise de- 
scribe the deed so as to clearly identify it). 

May it therefore please your Lordship to serve the Peti- 
tioner nearest and lawful heir-male of provision in 
general to the said C D under and by virtue of the 
said Disposition {or other deed). 

According to Justice, &c. 
{Signed by the petitioner (»• his mandatory.) 

Note (a). (a) Or, That the petitioner is the only 6on procreated of the 

marriage between E F and G H {designations), and as such, and by 
the death of the said C D without heirs of his b(^y, is nearest and 
lawful heir of provision in general of the said C D under and by 
virtue of a deed of settlement {specify the deed) executed by J K, 
dated the day of , whereby he disponed the 

lands of Z and others, therein described, to and in favour of the 
said C D and the heirs of his body, whom failing to the heirs pro- 
created or to be procreated of the marriage between the said E F 
and G H, whom failing to the other heirs therein specified. 



GENERAL SERYIOB OF HEIRS. 131 



PETITION of GENERAL 8EB VICE as Heir of Tailzie. Ho 67 

Unto the Honourable the SheriflF of the County of 

(or, of Chancery), the Petition of A B 
(design the petitioner) ; 

Humbly sheweth, 

That the late C D (design the ancestor to whom service is 
sought) died on or about the day of (state the month and 

year at full length), 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 heir-male of the 
body of the sard C D (or state what other relationship the 
petitioner bears), and as such is nearest lawful heir of tailzie 
and provision in general of the said C D under and by 
virtue of a Disposition and Deed of Entail granted by E F 
(designation), dated the day of , and recorded 

in the Begister of Tailzies the day of , 

whereby the said E F conveyed the lands of M therein 
described to and in favour of J K (designation), and the 
heirs-male of his body, whom failing to the said C D and 
the heirs-male of his body (here set forth the destination or 
such part thereof as may be deemed necessary, and say, and 
the other heirs therein mentioned); but always with and 
under the conditions, provisions, and prohibitory, irritant, 
and resolutive clauses (or, clause authorising registration in 
the Begister of Tailzies, as the case may be), contained in the 
said recorded Deed of Entail, and here referred to as at length 
set forth therein. 

May it therefore please your Lordship to serve the 
Petitioner nearest and lawful heir of tailzie and 
provision in general to the said C D under and by 
virtue of the said Disposition and Deed of Entail. 

According to Justice, &c. 
(Signed by the petitioner or his mamdatory.) 



132 IRREDEEMABLE RIGHTS. 

(2) Special Service. 

Petitions for special service, whether the lands are held feu or 
hurgage, may he presented to the Sheriff within whose jurisdiction 
the lands or the hurgh containing the lands are situated, or to the 
Sheriff of Chancery, and where the lands are situated in more 
counties than one, or in more burghs than one, if such burghs are 
in different counties, then in every such case to the Sheriff of 
Chancery. 

Where several separate lands or estates are included in the same 
petition, separate extract decrees applicable to each or to one or more 
of such parcels of lands or separate estates, if prayed for in the peti- 
tion, may be obtained. 

A service as heir in general in the same character as that in 
which special service is sought may be included in the same petition. 

Ho.e8. PETITION of SPECIAL SERVICE as Heir of Line. 

Unto the Honourable the Sheriff of the County (specify 
county where the lands lie, or say of Chancery), 
the Petition of A B (here name and design the 
petitioner) ; 

Humbly sheweth. 

That the late C D (Jiere name and design the ancestor) 
died on or about the day of (state the month and 

year at full length) , last vest and seised in (Aere insert de- 
scription of lands as in C Us infeftment, or * describe or 
refer y as in Schedule (0), Conveyancing Act 1874, or Schedule 
(G), Consolidation Act, to the lands or subjects with reference 
to which the service is sought, as) AH and Whole the lands 
of X and others, in the county of Z, (a) conform to Dis- 
position (or other deed or conveyance) granted by E F 
(designation), in favour of L M (designation), dated the 
day of and (b) along with warrant of registra- 

tion thereon on behalf of the said C D, recorded in the 

• This direction is in terms of Schedule (Q), but the proper way saems 
to be to describe the lands as in the ancestor's inf eftment 



SPECIAL SEBVIGE OF HEIRS. 133 

Particular Eegister of Saeines for the County of , {or^ No. 68. 

in the General Eegister of Sasines, or in the division of 
the General Begister of Sasines applicable to the County 
of ) on the day of {and if there are any 

real burdens, conditions, provisions, or limitations proper to 
be inserted or re/erred to, here insert them or such of them as 
may apply or have reference to the case, or refer to them in 
or as nearly as may be in the form of Schedule (D), Gonsoli- 
dationAct, as) but always with and under the real burdens, 
conditions, provisions, and limitations specified in (here 
specify the recorded deed, conveyance, or instrument in which 
the burdens, &c., were first inserted, or any subsegv^ent re- 
corded deed, conveyance, or instrument in which they are 
inserted, forming part of the progress of the titles to the lands, 
as) Disposition of the said lands and others, granted by J E 
(designation) to the said E F, dated the (insert date) and 
[orj Instrument of Sasine in the said lands and others in 
favour of J K (designation)] recorded in the (y[>ecify register 
of sasines and date of recording, or, if the deed or instrument 
as recorded has been already referred to, say the said Dispo- 
sition, or other deed, of the said lands and others granted by 
the said (name) (or. Instrument of Sasine in the said lands 
and others) in favour of the said (name) recorded as afore- 
said, (c) on the day of in the year 

That the Petitioner is the eldest son (or state what other 
relationship or character the petitioner bears, setting forth 
every link in the chain of connection) and nearest lawful 
heir in special of the said C D, in the lands and others 
foresaid, (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 (adding, where proper, but always with 
and under the real burdens, conditions, and provi- 
sions above written, or referred to). 

According to Justice^ &c. 

(Signed by the petitioner or his mandatory.) 



131 IRBEa)£EMABLE RIGHTS. 

No. 96. (a) Or, confonn to Disposition granted b j E F (designation) (or 

Kote (a), whaiever else was the deed or conveyance on uihich the ancestor's in- 
fefiment proceeded^ here specify it), in favour of the said C D, dated 
the day of , and to Instrument of Sasine following 

thereon in favour of the said C D {if dated, specify Uk/e date) and 
recorded in the {specify register of sasines, as above) on the 
day of ^ {or otherwise specify the tide of the deceased as recorded 

in the register qfsasines). 

UfAit (I). {V} In all cases where reference is made to a recorded conveyance 

as the writ of investiture, it is necessary to mention the warrant of 
registration. It is according to the schedule not necessary to do ao. 
in the case of a sasine or, by analogy, in that of a notarial instru- 
ment, but, if desired, it may be done thus : — '^ Notarial Instrument 
in favour of the said C D, along with warrant of registration theireon 
on his behalf recorded in the {specify register and date)," The 
distinction to be drawn from the terms of the Schedule (Q) fieoms 
to be that wherever the deed or decree admits of being recorded (m 
behalf of another than the original party to or by whom it was 
granted or obtained, the warrant should be referred to; where it does 
not admit of being so recorded, the warrant need not be referred to. 

Kote (0). (^) I^ seems to be necessary to repeat the date. 

Note(cn ^^ If it is wished to embrace a service in general in the same 

character as that in which special service is sought, say — *' That the 
Petitioner is likewise heir in general {or, heir-male in general, w cu 
the case may be) of the said C D ;" and at the end of the prayer add^ 
''and likewise nearest and lawful heir in general {or heir-male in 
general, or whatever the character is in the petition) of the said G D." 



jj^^ PETITION of SPECIAL SERVICE as Heir of 

Provision, 

Unto the Honourable the Sheriff of Chancery {or^ of 
the County of , being the county where tiie 

lands lie) the Petition of A B (designation) ; 

numbly sheweth. 

That the late C D (designation), died on or about the 
day of (state the month and the year at JvU 



SPECIAL SBRVIC£ OF HEIRS. 135 

length) last vest and seised in All and Whole (insert descrip- ^^' ^ 
tion/rom infe/tmenty or* describe or refer as in Scliedule (0), 
Conveyancing Act 1874, or Schedule (G), Consolidation Act, 
to the lands taith reference to which the service is sought) (a) 
confonn to Decree of Special Service of the said C D as 
nearest and lawful heir of provision of the late P Q 
{designation) ^ obtained before the Sheriff of on the 

day of , and recorded in Chancery on the 

day of , and along with warrant of registra- 

tion thereon on behalf of the said C D, recorded in the 
{specify register of sasines) on the day of ; 

{if {here are any real hardens, conditions, provisions, or limi- 
icUions proper to be inserted or referred to, here insert them, or 
such of them as apply to the case, or refei* to them in or 
as nearly as may be in the form of Schedule (D), Consolidor- 
tion Acty thus — ^but always with and under the real burdens, 
conditions, provisions, and limitations specified in {here 
specify the recorded deed or instrument in which the burdens, 
dtc., were first inserted, or any subsequent recorded deed or 
writ in which they are inserted, forming part of the progress of 
the titles to the lands, thus — a Disposition of the said lands and 
others granted by J K {designation) to E F {designation), [or, 
an Instrument of Sasine in the said lands and others in favour 
ef 6 H {designation)] recorded {specify register of sasines and 
date of recording) \or if the deed or conveyance {or instru- 
ment as recorded has been previously referred tOy say — in the 
said Disposition granted by the said {name), {or Instrument 
of Sasine) in favour of the said {name), or as the case may be, 
recorded as aforesaid on the day of in the year ]• 
That the Petitioner is the only son procreated of the 
marriage between B S and L M {designations), and as such, 
and by the death of the said C D without heirs of his body, 
is tidaiest lawful heir of provision in special of the said G D 
in the lands and others foresaid, under and by virtue of 
a Disposition and Deed of Settlement executed by the 
deceased N {designortion) , dated the day of 

* See foot-note, p. 182. 



136 IRBEDEEMABLB BIGHTS. 

No. 69. whereby he disponed the said lands and others to and in 
favour of the said P Q and the heirs of his body; whom 
failing, to the said deceased C D and the heirs of his body; 
whom failing, to the heirs procreated or to be procreated of 
the marriage between the said B S and L M; whom failing, 
&c. (insert the remainder of the destination, or say and the 
other heirs therein mentioned). (6) 

May it therefore plejtse your Lordship to serve the 
Petitioner nearest and lawful heir of provision in 
special of the said deceased C D in the lands and 
others above described (but always With and under 
the real burdens, &c., if any, above written or re- 
ferred to). 

According to Justice, &c. 
{Signed by the petitioner or his mandatory,) 

Note (a). (a) Or, conform to writ of Clare Constat granted hj JW^deiigna- 

tion) in favour of the said C D, dated the day of , and 

recorded in the Begister of Sasines (specify register), on the 

day of {or otherivise specify the title of deceased as 

recorded in the register of sasines). 

Note(6>. (h) If it is wished to embrace a service in general in the same 

character a« that in which special service is sought, say — *' That tho 
petitioner is likewise heir of provision in general of the said C JU, 
t imder and by virtue of the said disposition and deed of settlement ;" 
and add to the prayer, ^* and likewise to serve the petitioner nearest 
and lawful heir of provision in general of the said C D, under and 
by virtue of the said Disposition and Deed of Settlement." 



Ho.70.' PETITION of SPECIAL SERVICE as Heir of 

Tailzie and Provision, 

Unto the Honourable the Sheriff of Chancery {pr^ of 
the County of Z), the Petition of A B {deaignaiioiC) ; 

t These words are not in the Schedule (Q), but they seem to be neoee- 
sary. In the Services Act 1847, the combination of special and general aer- 
Tice was limited to the cases of heir of line or heir male, to which alone it 
seems appropriate. 



SPBOIAL SERVIOE OF HEIRS. 137 

Humbly sheweth, No. 70. 

That the late C D (designation) died on or about the 
day of , last vest and seised in All and Whole 

the lands and estate of L and others, in the County of {*here 
describe or refer as in Schedule (0), Conveyancing Act 1874, 
or Schedtde (G), Consolidation Act, to tlie lands toith reference 
io which the service is sought), conform to (here speci/y the 
deed or writ constituting the ancestor's infeftment, as) Decree 
of Special Service of the said G D as nearest and lawful 
heir of tailzie and provision of the late J K (designation), 
obtained before the Sheriff of , dated the 

and recorded in Chancery on the day of ; 

and, t along with warrant of registration thereon on behalf 
of the said C D, recorded in the General Begister of Sasines 
(or, in the Particular Begister of Sasines for the County of 
, or in the division of the General Begister of Sasines 
applicable to the County of ) on the day of , 

(here insert the conditions^ dc, at fuU length, or refer to 
ihem as follows — ^but always with and under the conditions, 
provisionsy and prohibitory, irritant and resolutive clauses ; 
or (clause authorising registration in the Begister of Tailzies 
as the case may be), contained in a Disposition and Deed of 
Entail granted by the deceased G H (designation) dated the 
day of (here set forth the destination or such part 

thereof as may be deemed necessary, as) (a) whereby the said 
6 H disponed the said lands and estate and others to and 
in favour of th^ deceased J E (designation), and the heirs- 
male of his body; whom failing, to the said deceased C D, 
and the heirs-male of his body, and to the other heirs spe- 
cified in the said Disposition and Deed of Entail; and 
which conditions, provisions, and prohibitory, irritant and 
resolutive clauses (or clause authorising registration in the 
Begister of Tailzies, as the case may be) are (or is) herein 
referred to as at length set forth in the said Disposition and 
Deed of Entail which is recorded in the Begister of Tail- 
sdes on the day of in the year 

* See foot-note, p. 182. f See note (6), p. 184. 



No. 70. 



138 IBBfiDEEMABLE RIQHT8. 

(o^f as at length set forth in the above-mentioned recorded 

Decree of Special Service of the said C D, or in any other re- 
corded deed or conveyance). 

That the Petitioner is the eldest son and heir-male of 
the body of the said C D, and therefore nearest and lawful 
heir of tailzie and provision in special of the said D in 
the lands and others foresaid, under and by virtue of the 
said Disposition and Deed of Entail. {If general service aiao 
is desired, acW^That the Petitioner is likewise heir of tailzie 
and provision in general of the said C D * under and by 
virtue of the said Disposition and Deed of Entail). 

May it therefore please your Lordship to serve the 
Petitioner nearest and lawful heir of tailzie and 
provision in special of the said deceased C D in the 
lands and others above described {add here i/neces- 
sary — ^and likewise nearest and lawful heir of tailzie 
and provision in general of the said C D,* under and 
by virtue of the said Disposition and Deed of Entail) ; 
but always with and under the conditions, provisions, 
and prohibitory, irritant, and resolutive clauses (or, 
clause authorising registration in the Register of 
Tailzies) above referred to (or above written). 

According to Justice, Ac. 

(Signed by the jpeiitiona* or his mandatory,) 

Note (a) (^^ Q^^ jjj favour of the deceased J K (designation) and the 
male of his body, whom faihng, in favour of the said C D and 
heirs-male of his body, whom failing, in favour of the other 
specified in the said Disposition and Deed of Entail. 

Ho.71 PETITION of SPECIAL SERVICE where there 

several Parcels of Land or serrate Estates^ and U is 
desired to have separate Extract Decrees, 

Unto the Honourable the Sheriff, Ac., the Petition o 
A B, kc, ; 

* See foot-note t, p. 186. 



1 



SPECIAL SEBVIGE OF HEIBS. 139 

Humbly Sheweth, No. 71. 

That the late C D, 4c., died on the, &c., last vest and 
seised in — 1, All and Whole the lands of : 2, All 

and Whole the lands of : and 3, All and Whole the 

lands of {here describe the several estates or sepa- 

rate parcels of land as in the infeftments^ and set forth tlie 
ancestof^s infeftments therein respectively , if separate, and 
rtfer to conditions, (fee, if any , and continue statement in peti- 
iiony as in previous Styles, to the end). 

May it therefore please your Lordship to serve the 
Petitioner, &c., and to grant warrant to the Director 
of Chancery to issue separate Extract Decrees, 

one thereof applicable to the lands before described 
in the first place; one thereof applicable to the 
lands before described in the second place {and so 
with the several estates). 

According to Justice, &c. 

{Signed by the petitioner or his mandatory,) 

(^} Service of Heir of sole or last surviving Trustee where the Destina- 
tion in Trust-deed does not include Heirs, (ConveyanciDg Act 
1874, § 43.) 

Where the destination in a trust-disposition includes the heir of 

^^ truster or of any particular trustee, or of the last surviving or 

^tiag trustee, the heir so called is entitled, on the failure of all 

^^ trustees, to make up a title in his own person under the trust- 

**^^, and administer the trust; but prior to 1874, if the destina- 

^^li was limited to the trustees named, without any mention of 

'^^ixB, then, on the failure of the last of them, his heir had no right 

^ take up the trust, and only some person appointed by the Court 

^^y the purpose could make up a title to the estate. It is now pro- 

^'^^d that when a sole or last surviving trustee shall have died pos- 

^^^^ of land held in trust, although there is no destination to heirs, 

^ ^ere shall be no contrary provision in the deed of trust, and no 

contrary order shall be made by the Court of Session, the heir-at-law 

<>f Kach trustee, being of AiU age and not subject to legal incapacity, 



140 IRREDEEMABLE RIGHTS. 

may, subject to the conditions after stated, complete a title thereto as 
trustee in his room, in the manner provided by the Consolidation Act 
of 1868 with respect to the title of any other heir. 



Ho.72. PETITION of SPECIAL SERVICE as Heir of soU 

last surviving Trustee, 



CT 



Unto the Honourable the Sheriff of the County of 

{or of Chancery), the Petition of A B 
{designation). 

Humbly sheweth, 

That the late C D {designation) was the sole {or last 
surviving) Trustee acting under the Trust-Disposition and 
Settlement after mentioned, made and granted by the now 
deceased E F {designation), and died on or about the 
day of {state the month and the year at JuU length) last vest 
and seised as Trustee foresaid in All and Whole {here insert 
description of lands as in the Trustees infeftment) conform to 
Notarial Instrument in favour of the said C D {or, in favour 
of the said C D and of G H and J K {designations), both now 
deceased), recorded along with warrant of registration there- 
on* on his {or their) behalf in the {specify register of sasines) 
on the {specify date) ; but in trust always for the ends, uses, 
and purposes specified in the said Trust-Disposition and 
Settlement, dated the day of , made and granted 

by the said C D, whereby he disponed the said lands to 
and in favour of the said C D {or^ the said C D, G H, and 
J K, and the acceptors or acceptor, survivors or survivor of 
them, or otherwise, as the terms of the destination may be). 

That the said G H died on or about the day of 

, and the said J K died on or about the 
day of , or as the case may be. That it is by the 

43d section of '*The Conveyancing (Scotland) Act 1874," 
enacted, that ** When a sole or last surviving trustoe, &c., 
{here quote section), 

. ♦ See note (6), p. 184. 



8PE0UL SERVICE OF HEIRS. 141 

That the Petitioner is the eldest son and nearest lawful No. 72. 
heir of the said D, and that he is of full age, and is entitled 
under and by virtue of the provision contained in the fore- 
said section of " The Conveyancing (Scotland) Act 1874," 
to be served nearest and» lawful heir of provision in special 
of the said D in the lands and others foresaid, but in trust 
always for the ends, uses, and purposes mentioned in the 
said Trust-Disposition and Settlement, and to the effect and 
subject to the provisions and qualifications specified in the 
43d section of "The Conveyancing (Scotland) Act 1874," 
aforesaid. 

May it therefore please your Lordship to serve the Peti- 
tioner nearest and lawful heir of provision in special 
of the said G D in the said lands and others ; but in 
trust always as aforesaid, in terms of and to the 
effect and subject to the provisions and qualifica- 
tions specified in the 43d section of " The Convey- 
. ancing (Scotland) Act 1874." 

According to Justice, &c. 
(Signed by the petitioner or his mandatory.) 

In regard to this case, it is to be observed, that though the heir, 
where not interpelled, is authorised to make up a title to the lands, 
such title per se gives him no power of administration of the trust, 
the Act providing that he shall not, unless under the orders of the 
Court, or with the consent and approval of all the beneficiaries, 
being all above age and not subject to any legal incapacity, ad- 
minister, the trust, but shall make over the lands to any trustee or 
factor appointed by the Court for the purpose, or to any trustee or 
trustees appointed by any person having power under the trust-deed 
to make such appointment, or to any person or persons whom the 
beneficiaries may appoint to execute the trust, or to the beneficiaries 
themselves, if all the other purposes of the tmst have been exe- 
cuted** 

Oeneral service of Jieir of last trustee, — If in this case a general 
service should be required, the petition can be easily framed from 
the preceding Style. 

* OonTeyancing Act, i 48. 



142 IRREDEEMABLE RiaHTS. 



8. Completion of Title of Heirs under Decrees of 

Service. 

(1) Special Sermce, 

1. The title of an heir under a special service may be completed 
either — (1) by recording the decree, with a warrant of registratioii 
thereon on his behalf, in the appropriate Eegister of Sasines ; or (2) 
by expeding and recording in such register a notarial instmment, 
with warrant of registration thereon. 

2. Where the heir has not used the decree for the purpose of 
completing his title, he may assign it as an unrecorded conyeyancey 
and the assignee may complete his title to the lands by means of 
the decree and the assignation in the same way as has been explained 
in regard to the assignee of an unrecorded conveyance, supra^ p. 82 
and p. 91. 

3. Where the heir has neither so used nor assigned the decree, his 
heir may acquire right to it as an unrecorded conveyance by expeding 
a general service as heir to him, and completing his title as on an 
unrecorded conveyance.* 

As already stated, a special service may include several subjecls, 
though held partly feu and partly burgage, and the decree may be 
recorded with separate warrants in the different registers; but in 
such cases, or where the lands are in different counties, it will be 
better either to get separate extracts [supra, pp. 132, 138) or to com— 
plete the heir's title by separate notarial instruments applicable 
each description of subjects, or to the lands in each county, for re 
gistration in the appropriate register. 

(2) General Service, 
General service has always operated as a title to open precepts 



unrecorded conveyances, but a new effect has been given to it by 
Conveyancing Act of 1874, which provides (§ 31) that ** When a pro- 
prietor has died, or shall have died infeft in lands, and the heir of tl&o 
investiture has expede or shall have expede a general service as heir o^ 
such proprietor, the decree of general service in favour of such heir shall 
be equivalent to a mortis causa general disposition of the lands by saith 
proprietor in favour of such heir, to the effect of enabling such heir 

* Consolidation Act, { 46. 



COMPLETION OP TITLE OP HEIRS. 143 

or those deriving right from or by Ruccession to him, to expede and 
record in the appropriate Register of Sasines all notarial instruments 
applicable to such lands which a general disponee, or those deriving 
right from him, may expede and record under or in terms of ' The 
Titles to Land Consolidation (Scotland) Act 1868,' or of this Act, 
and that notwithstanding that such proprietor may have died in 
nonage, or been of insane mind, or laboured under any other disa- 
bility whatever, provided always that no general service shall have 
such effect in any case where the heir so served shall have died 
before the commencement of this Act ; and a general service expede 
by the heir of any person so served, and dying after the commence- 
ment of this Act, or by any of the successive heirs of the investiture, 
or by the heir of any general disponee, shall have the like effect as 
a transmission of the right to the lands ; and any such services shall 
be sufficient links in the series of titles for the connection of the 
person expeding such instrument with the person last infeft, in the 
same manner as is hereinbefore* provided with reference to two or 
more general dispositions forming links in such series. "t 

It will be observed that this provision is only permissive, and 
therefore if the person making up the title be the last in an unbroken 
series of heirs of the proprietor last infeft, though e^ch of the inter- 
vening heirs may have been served heir in general to his immediate 
ancestor, there will be nothing to prevent such person proceeding 
according to the previous law and practice, passing over all the 
intervening heirs, and expeding a service in his ovm favour as heir 
in special to the proprietor last infeft, and this, where competent, 
will generally be the simpler and better course. 



NOTARIAL INSTRUMENT on a Decree of Special Ho 78. 

Service, 

At Edinburgh^ there was by {oi\ on behalf of) A B {de- 
dgnation) presented to me. Notary Public subscribing, an 

* GonTeyanoing Act, { 29. 

t There seems to be an omission in the last part of this clause. To 
malEa the provision complete it should have declared that any general dis- 
poaitionfl as weU as *' any such services shall be sufficient links in the series 
of titles," aa from the prior reference to a service ''by the heir of any 
general disponee " seems to have been intended, and there is no reason why 
they sbould not be so— bat the omission is probably immateriaL 






144 IRREDEEMABLE RIGHTS. 

No. 78. Extract-Decree of Special Service obtained before the Sherifi 
of , on the day of , and recorded in 

Chancery on the day of , whereby the said 

Sheriff found that the late C D (designation), died last vest 
and seised in All and Whole {insert description of or re/erence 
to lands as in decree) conform to (here sipecify the ancestor's 
infeftment as in decree, and insert or refer to burdens^ restrict 
tions, &c.y if any, all as in decree) ; and that the said A B is the 
eldest son and nearest and lawful heir in special of the said 
C D in the lands and others aforesaid (but always with and 
under the burdens, &c. {if any), above inserted or referred 
to) : Whereupon this instrument is taken in the hands of L 
M {insert name and designation of Notary Public)^ in the 
terms of " The Titles to Land Consolidation (Scotland) Act 
1868." In witness whereof {testing clause). 



Ko.74. NOTARIAL INSTRUMENT on an unrecorded Decree of 
Special Service to xohich the party lias a^cquired right by 
Decree of General Service. Consolidation Act, § 46. 

At Edinburgh, there was by {or on behalf of) A B {desig- 
nation, presented to me, Notary Public subscribing, an Ex- 
tract Decree of Special Service obtained before the Sheriff 
of on the day of , and recorded in Chancery 

on the day of , whereby the said Sheriff" found 

that the late C D {designation), died last vest and seised in 
All and Whole {insert description of or reference to lands as 
in decree) conform to {liere specify anc€sto7*'s infeftment as in 
decree, and insert or refer to burdens, dc, if any, all as in the 
decree) ; and that E F {designation), was the eldest son and 
nearest and lawful heir in special of the said C D in the 
lands and others aforesaid (but always with and under the 
burdens, &c. {if any), above inserted or referred to) : As 
ALSO there was presented to me an Extract Decree of Greneral 
Service obtained before the Sheriff of on the day 

of , and recorded in Chancery on the day of 



COMPLETION OF TITLE OF HEIRS. 145 

, whereby the said Sheriff found that the said E F 
died on or about the day of , and had at the 

time of his death his ordinary or principal domicile in the 
County of , and that the said A B is his eldest son and 

nearest and lawful heir in general, and therefore served the 
said A B nearest and lawful heir in general to the said E F, 
and decerned : Whereupon this instrument is taken, &c. 



NOTARIAL INSTRUMENT on a Decree of General Ser- 
vice^ where the ancestor was infeft. Conveyancing Act 
1874, § 31. 

At EdinburgJiy there was by (or on behalf of) A B (de- 
signation), presented to me, Notary Public subscribing, a 
Disposition (or other deed), granted by C D (designation) to 
the now deceased E F (designation), and dated the day 

of , and recorded (or, a Notarial Instrument in favour 

of E F (designation), recorded) in tlie (specify register of 
aasines and dai^ of recording), by which recorded Disposition 
(cr other deed) (or, Instrument), the said E F was infeft in 
All and Whole (here insert description of lands, and re- 
ference to burdens, cfec, if any, as in the deed or instrument) : 
As ALSO there was presented to me an Extract Decree of 
Greneral Service, obtained before the Sheriff of on the 

day of , and recorded in Chancery on the 

day of , whereby the said Sheriff found that the said 

E F died on or about the day of , and had at the 

time of his death his ordinary or principal domicile in the 
County of , and that the said A B is the eldest son and 

nearest and lawful heir in general of the said E F ; and there- 
fore served him nearest and lawful heir in general to the 
said E F, and decerned: Whereupon this instrument is 
taken in the hands of L M (insert name and designation of 
Notary), in terms of "The Titles to Land Consolidation 
(Scotland) Act 1868," and "The Conveyancing (Scotland) 
Act 1874." In witness whereof, &c. 

10 



Ho. 76. 



146 ' IRREDEEMABLE RIGHTS. 

9. Cases on Completing Titles op Heirs.* 

1. To complete a title where the ancestor died infefb in lands 
held of the Crown : — 

(1) By service to the ancestor as heir in general or in special; 
Crown writ of dare constat proceeding on the decree of service ; and 
registration of writ, with warrant of registration on hehalf of the heir, 
in the Eegister of Sasines : or, 

(2) By special service ; and registration of decree, with warrant 
of registration : or, 

(3) By service to the ancestor as heir in general ; notarial in- 
strament proceeding on the ancestor's infeftment, and the heir^s 
decree of service (Style No. 75), and registration of the instrument 
with warrant. 

2. To complete a title where the ancestor died infeft in lands 
held of a subject superior : — 

(1) By writ of dare constat and registration thereof, with war- 
rant of registration : or, 

(2) By special service, and registration of decree with warrant : 
or, 

(3) By general service ; notarial instrument on the ancestor's in — 
feffcment, and the decree (Style No. 75) and registration with 



3. B was served as heir in general to his father, A, whose title was 
unrecorded conveyance, but died without being infeft. 
complete a title to the lands in the person of C, the h 
ofB:— 



The personal right under the unrecorded conveyance having 
vested in B by his general service to A, C will take it up by genexai 
service to B, and complete his title by expeding and recording with 
warrant a notarial instrument proceeding on the conveyance, and two 
decrees of service — Consolidation Act 1868, Schedule (J); or ex- 
peding and recording along with the conveyance a notarial instro- 
ment— Schedule (N) (Style No. 35 or No. 32). 

"* It is not to be understood that the whole modes of completing thetitie 
are in every case given. 



OASES ON COMPLETING TITLES OF HBIBS. 147 

4. By after haviog been served as heir in special to A, his father, 

whose title was complete, died without being infeft on the 
decree of service. To complete -a title in the person of C, 
the heir of B : — 

(1) C will serve as heir in general to B, whereby he* will acquire 
right to B's special service as an unrecorded conveyance {Consolida- 
tion Act, § 46), and will complete his title by expeding and re- 
cording with warrant notarial instrument (Schedule J), or expeding 
and recording along with the decree of special service a notarial 
instrument (Schedule N) (Style No. 35 or No. 32) : or 

* (2) C, passing over B, iflay serve as heir in special to A, and re- 
cord decree of service with warrant : or 

* (3) Obtain a writ of dare constat as heir of A, and record writ, 
with warrant of registration. 

The first of these modes is the one that should be followed. 

5. A, infeft, feued to B, who was infeft ; B succeeded as heir to 

A. To complete B's title, and re-unite the two estates in 
the person of B : — 

B will first make up a title to the superiority by any of the 
methods specified in Case No. 2, supra ; and he will then consolidate 
the two fees of superiority and property by executing and recording, 
with warrant of registration, a minute for effecting consolidation of 
lands (Style No. 44, p. 95). 

6. A feued to B, who was infeft ; and A afterwards succeeded as 

heir to B. To make up A's title, and re-unite the two 
estates in A's person : — 

By writ of clare constat by A, in favour of himself as heir of B 
in the property, and registration thereof, with warrant ; and execut- 
ing and recording, with warrant of registration thereon, a minute for 
efitecting consolidation of lands, as in Case No. 5, swpra, which will 
lennite the two estates. 

7. A feued lands to B, who was infeft> and he afterwards disponed 

the superiority of the lands to B, who was infeft therein, 
but died without effecting consolidation of the two fees. 
To make up the title of C, the heir of B : — 

* See foot-note, p. 160. 



148 IRREDEEMABLE RIGHTS. 

C will obtain and record a writ of clare constat, or expede and re- 
cord decree of special service as heir of B in the superiority ; he will 
then grant in his own favour, and record, a writ of clare constat as 
heir of B in the dominium utile ; and consolidate, hy executing and 
recording minute, as in Case 5, supra. 

8. A, who was infeft, feued lands to B, who recorded his disposi- 

tion, and afterwards re- disponed to A. A died without 
having been infeft on the re-conveyance. To make up the 
title of C, the heir of A : — 

1st, By service of C as heir in special to A in the superiority, and 
registration of decree, or by writ of dare constat and registration ; 
2d, Service of G as heir in general to A in the property, and notarial 
instrument. Consolidation Act 1868, Schedule (J) (Style No. 35, p. 
86) ; and 3d, Minute for effecting consolidation of lands (No. 5, 
supra), • 

9. A, who was infeft, disponed to B, and B completed his title by 

. expeding and recording notarial instrument. On B's death 
his heir, C, discovei's an error in the instrument, the effect 
of which is doubtful. To make up C*s title : — 

Serve C as heir in general to B, and expede and record notarial 
instrument proceeding on the disposition by A to B, and the decree 
of service of C ; and obtain and record writ of clare constat in favour 
of C as heir of B : or 

Expede service of C, as heir in special and in general of B, and 
1st, record the decree of service, with warrant of registration ; and 
2d, expede and record notarial instrument on the disposition by A to 
B and C's decree of service. 

In either way C will have an alternative title. 

10. A, by a delivered deed, but under reservation of his liferent, 

disponed to B, whom failing to G, and B predeceased A 
without having made up a title. To make up C*8 title : — 

G win be served as heir of provision in general of B, and being 
thus in right of the unrecorded conveyance by A, wiH complete his 
title by expeding and recording, with warrant, a notarial instrument, 



I 



i 



CASES ON COMPLETING TITLES OF HEIRS. 149 

Consolidation Act 1868, Schedule (J) (Style No. 35, p. 86) ; or by 
expeding a notarial instrument, Schedule (N) (Style No. 32, p. 85), 
and recording the conveyance by A, with a warrant of registration on 
behalf of C, along with the notarial instrument docqueted with re- 
ference thereto. 

11. By mortis causa deed of settlement, which remained unde- 

livered till the granter's death, lands are disponed to A 
and the heirs of his body, whom failing to B and the 
heirs of his body, whom failing to C and the heirs of his 
body; A and B predecease the granter, without issue. 
To make up C*s title : — 

Under this destination C is conditional institute, and may com- 
plete his title either by direct registration of the deed or by ex- 
peding and recording a notarial instrument (Consolidation Act 1868, 
Schedule J), in either case with a warrant of registration. 

ffutchis&n, 20th December 1872, 11 M*Ph. 229. See note 
under Case No. 13. 

12. To make up C's title under the above destination if A pi:e- 

deceased but B survived the granter without making up 
any title : — 

In this case B was conditional institute, and C will complete his 
title by service as heir of provision in general to B, and expeding 
and recording notarial instrument (Consolidation Act, Schedule J), 
or by expeding a notarial instrument (Schedule N) and recording 
the ' deed, with a warrant of registration on behalf of C, along with 
the instrument docqueted with reference thereto. 

Hutchison, ut supra. See note under Case No. 13. 

13. By mortis causa settlement, which remained undelivered till 

the granter's death. A, infeft, disponed to the heirs of his 
body, whom failing to B, whom failing to C. A having 
died without issue, and B having survived him, but having 
died without making up a title, to make up C's title : — 

Here B was conditional institute, and C will complete his title 



15U IRREDEEMABLE RIGHTS. 

by service as heir of provision in general to B, and notarial instra- 
ment in either of the ways stated in preceding Case. 
Hutchison, ut supra. 

Note, — The exposition given by the Court in the case of Hutchison 
of the principle which determines the character, whether that of 
conditional institute or of heir of provision, in which a person takes 
under a destination in an undelivered mortis causa deed, has settled 
the law as to the proper mode of completing the title in such cases, 
and removed the doubts previously entertained by conveyancers in 
consequence of the view taken of the decisions in Gordon of Carleton, 
M. 14,366; Peacock, 4 S. 742; Colquhoun, 9 S. 911; Fogo, 4D. 
1063, 2 Bell's App. 195. The Lord President, in delivering the 
opinion of the Court in Hutchison^ when he reviewed the prior cases 
and the opinions founded on them, expressed himself as follows : — 
''A mortis causa deed remaining undelivered in the hands of the 
granter, produces no change on the title of the property conveyed " 
— ** if it remains undelivered it is ambulatory, revocable, and abso- 
lutely inoperative, as much as a testament nominating an executor, 
till the granter*s death gives it the effect of a delivered deed. 
During his own life the granter of such an undelivered deed plainly 
takes nothing as his own disponee, his original title being entirely 
undisturbed and unaffected. Just as little can he take anything in 
that character after his own death. No doubt, if the granter con- 
veys to himself nominatim as the first member of a destination, the 
well settled rules of conveyancing have fixed that any one who takes 
after him takes as his heir of provision, and this is not an un- 
reasonable construction of such a disposition, which is read as equi- 
valent to a resignation in favour of himself and a series of heirs. 
But it seems a violent and unnatural extension of that rule to say 
that the only disponee must still be the granter himself where the 
conveyance is simply from him to another party, whether that party 
be a person named, or the heirs of his own body, or any other class 
of heirs nascituri. It may also be possible, in particular dispositioiis 
where the granter does not expressly name himself as disponee or 
first member of the destination, nevertheless to construe the words 
used as importing the same thing and expressing the intention of the 
granter, that no person or class named in the destination shall take 
otherwise than as heirs-substitute of provision to him. But it seems 
impossible, according to sound principle, to put such a construction 



CASES ON COMPLETING TITLES OF HEIRS. 151 

on a destmatdon diiectly to the heirs of the grantor's body non- 
existent, but possible, whom failing to A, B, and C, where there is 
nothing else in the deed to lead to such a construction. It must 
now be held as settled for all practical purposes that when by a 
mortis causa undelivered disposition the conveyance is directly to 
A nominatim, whom failing to B, and A predeceases the granter, 
B takes as conditional institute and not as heir either of A or of 
the granter. If this be so, it is difficult to understand how the 
circumstance that instead of a person named, the heirs of the 
grantor's body are first called, should vary the character of the 
person called in the second place in the destination, when upon the 
grantor's death it is found that no heirs of the body ever existed, and 
there is no one to stand between the person second named and the 
estate conveyed." 

14. B J mortis causa settlement, which remained undelivered till 
the granter's death. A, infeft, disponed to himself and the 
heirs of his body, whom failing to B. To make up B's 
title on the death of A's son, assuming (1) that A's son 
predeceased his father ; or (2) survived, but died without 
making up a title : — 

A being institute, B will, on either assumption, complete his 
title by service as heir of provision in general to A ; and notarial 
instrament — Consolidation Act 1868, Schedule (J) or Schedule (N), 
as in Case No. 12. 

« 

15. By mortis cawa settlement, the granter of which was infeft, 
lands were disponed to the heirs-male of A, and a scries 
of substitutes. On the granter's death, to make up the 
title of B, the heir-male of A : — 

It is thought that B may either expede and record a notarial in- 
strament with warrant (Style No. 7, p. 50) Consolidation Act, Sche- 
dule (J), or record the deed with warrant of registration on his own 
behalf. The instrument will be expede, or the warrant of regis- 
tration will be conceived, on behalf of B as eldest son and heir-male 
of A. 

See Maules, 14th June 1876, 13 Scot. Law Eep. 532, and 
note under Case No. 16. 



152 IRREDEEMABLE RIGHTS. 

16. A disponed to B in liferent, and the heirs of his body in fee. 
On B*8 death, to make up, C, his heir's title *: — 

Here, as in the preceding case, C may either expede and record a 
notarial instrument with warrant, Consolidation Act, Schedule (J), 
or record the deed with a warrant on his own behaK. The inatni- 
ment will he expede, and the warrant will be framed on behalf of 
C as eldest son and heir of the body of B. 

See MauleSj supra. 

Note. — Though the import and effect of such destinations as those 
in the last two cases have often been the subject of discussion among 
conveyancers, it is believed that the question as to the proper mode of 
completing titles under them came for the first time before the Gonrt in 
the case of MauleSj cited. There was no opposition, the point having 
arisen incidentally in a petition for authority to disentail, so that the 
judgment is not strictly one pronounced in /oro conterUtoso^ but it was 
necessary to deal with the question in order to dispose of the peti- 
tion, and therefore the opinions expressed by the Judges must be 
regarded as an authoritative exposition of the law on the point. 
ITie question arose under an entail contained in a contract of mar- 
riage executed by the lady's father, with a destination to hinmelf in 
liferent, and after his death in favour of the intended spouses and 
the survivor in terms which were construed as restricting their right 
to one of liferent, and in favour of the heirs-male, whom failing the 
heirs-female of the ifiarriage in fee. On the dissolution of the mar- 
riage by the death of the husband, there were three daughters sur- 
viving, of whom the eldest was heir of the marriage. The entail was 

* *' 19. A disponed to B in liferent, and the heirs of his body in fee. On 
B's death, to make up his heir's title : — 

'' (1) If infeftment has been expede in terms of the destination in favoiir 
of * B in liferent, and the heirs of his body in fee,' it is thought the heir's 
title may be made up by service as heir of provision in special to B, and 
registration of the decree, with a warrant. 

*' (2) If no infeftment has been taken on the conveyance, or if the infeft- 
ment has been limited to B in liferent, it is thought the title may be made 
up by service as heir of provision in general to B, and notarial instnunent. 
Titles Act 1858, Schedule B or Schedule K, as in Oase Ko. 12.— -Duff's Fend. 
Oonv., pp. 446, 453."— J/r Hendry' t StyUt, 2d Ed, p. 78. See tn/ro, p. 154. 



OASES ON COMPLETING TITLES OP HEIRS. 153 

in the form of a procuratory of resignation on the charter following 
on which the spouses had been infeft, but simply for their own life- 
rent right, and the fiduciary fee constituted in them for the heirs 
of the marriage had not been feudalised. There having been some 
idea that under the terms of the contract of marriage the mother 
might be fiar, the petition was presented in her name as well as in 
name of the eldest daughter as heir of the marriage. The Court, as 
already mentioned, held that the mother was only a liferenter, and 
that at the moment of the dissolution of the marriage the daughter 
became institute of entail, and was entitled to disentail in terms of 
the Entail Amendment Act. It was necessary for the purposes of 
the petition that a title should be made up in the person of the 
daughter, but doubts had been suggested as to the proper mode of 
doing so, and the case was reported on this and other points by the 
Lord Ordinary to the First Division of the Court. At advising, the 
Lord President observed : — " Under the destination in the procura- 
tory of resignation there was no one to take the proper fee when 
Mr Binny, the entailer, died, and the joint liferent of the spouses 
came into existence." " There were at that date no children of the 
marriage bom, I think, and certainly no one could tell who was to 
be the heir of the marriage. The legal consequence of that was 
that the liferenters must sustain a fiduciary fee for the heirs of the 
marriage, and therefore during the subsistence of the marriage there 
was such a fee in the spouses. At the moment of the dissolution of 
the marriage the heir of the marriage was ascertained, the right of 
the real fiar at that moment emerged, and the fiduciary fee came to 
an end. The survivor of the spouses had therefore no fiduciary fee, 
for that is created by necessity of the law ; the fee must be some- 
where, and a fiduciary fee is an ingenious contrivance of the law to 
meet that necessity so long as it is impossible to discover who is the 
real fiar. But there is now no doubt as to who the heir of the marriage 
is, and that ingenious contrivance is no longer needed. When the 
marriage was dissolved, the heir of the marriage was ascertained just 
as the heir of the body is ascertained on the decease of the party of 
whose body he is the heir. Miss Maule, therefore, became the party 
entitled to take up the fee as disponee under this deed." " It only 
Temains to add that Miss Maulc's title is not made up, but that is 
part of the procedure that must be attended to by Lord Rutherfurd 
Clark when the petition is remitted again to him." Lord Ardmillan 



154 IRREDEEMABLE RIGHTS. 

observed — " There was no doubt a fiduciary fee in the spouses, but 
that fiduciary fee is only needed till the heir of the marriage be 
ascertained. As soon as that is ascertained by the dissolution of 
the marriage the fiduciary fee disappears. If Mrs Maule was not 
the fiar, Miss Maule was ; and I am of opinion that Mrs Maule had 
never more than a fiduciary fee, which disappeared at that moment." 
The case having been remitted to the Lord Ordinary, Miss Maule's 
title was made up by notarial instrument in her favour as ** eldest 
daughter and heir of the marriage/' proceeding on the charter of 
resignation ; on considering which Lord Rutherfurd Clark found 
" that the petitioner . . . will, on recording the notarial instrument, 
.... have duly completed her title to the entailed estate." 

It will be observed that the circumstances in Case ^o. 15 do not 
agree exactly with those in Maules^ there being no interim fiduciary 
fiar ; and it is difficult to see, consistently with the principle that the 
grantor of the deed is entirely divested at his death, where the fee is 
to be till the heir be ascertained ; but the rule will probably apply 
in this case also. 

Prior to Maulea* case, the view generally entertained on the 
point was that the fee, though fiduciary, was in its nature so real that 
it required to be taken out of the person in whom it was vested and 
transferred to the fiar, for which purpose difi*erent modes of procedure 
were followed, as — (1) Service, as stated in the passage from Mr 
Hendry's 2d edition, quoted in the footnote, p. 152 ; (2) Where cir- 
cumstances admitted of it. Conveyance by the fiduciary fiar ; and (3) 
Declaratory adjudication — See opinions of the Judges in Douglas 8 
M*Ph. 374. If thought desirable, in order to fortify the title, it 
may be made up in one of these ways, and also in conformity with 
the rule laid down in Maules thus — Supposing, as in that case, there 
is an open precept, and that it is considered necessary to take it 
up, the fiduciary fiar being dead, the heir of the marriage, or whoever 
the fiar may be, may expedo a service as heir of provision in general 
to him, and produce the decree to the notary and set it forth in the 
instrument. A title so made up is good in either view, as the service 
if required has been obtained and used as a connecting link, and if 
not required, it is only superfluous. Where, in consequence of the 
fiduciary fiar being alive, service is excluded, a conveyance by him 
may be resorted to for the same purpose. 

Although, however, the principle laid down in Maules funushes 



OASES ON OOMPLETING TITLES OF HEIRS. 155 

a very clear rule to be followed where the circumfltances are the same, 
cases may occur which it seems hardly to meet. It happened there 
that the charter had been used for infeftment only in liferent, so that 
there remained an open precept, forming a warrant for infeftment 
which the fiar could use — Dundaa, 2 S. 145; hut it is often essential 
to feudalise the heir's Tight of fee under a marriage- contract, — as, for 
example, to protect him against his father's creditors, which can be 
effectually done only by infeftment in the full terms of the destina- 
tion (see FaJconeVy 3 S. 455; HouUitch, 9 D. 1204 ; Barstow, 20 D. 
612), but where infeftment has been so taken, the precept is ex- 
hausted, and there seems to be no mode of making up the heir's title 
unless by adopting one of those above mentioned. 

It may occur to conveyancers as a question, whether, in complet- 
ing a title by notarial instrument on the principle laid down in MauUs^ 
evidence of the party's right to expede the instrument should be pro- 
duced to the notary, and if so, what that evidence should be f In the 
case referred to there was produced to the notary a certified copy of 
the interlocutor of the Court, but there seems to be no necessity for, 
and possibly no propriety in, adopting that course. The validity of the 
title made up by means of the instrument depends on the fact of the 
party in whose favour it is expede being entitled to use the warrant on 
which it proceeds, and that fact, if questioned, must be proved hahili 
mode J irrespective altogether of the instrument. The principle on which 
such instruments proceed is, that there shall be produced to the notary 
all the deeds or writs connecting the party with the lands, and con- 
stituting a sufficient warrant for completing a title in the way adopted, 
but beyond this nothing is required. Further, a notary acts simply 
ministerially, and to produce to him evidence as to matters of fact 
seems to be either vesting him with powers or imposing on him a 
duty which the law does not contemplate. The instnmient is 
expede, as a writ of dare is granted by a superior, periculo petentis, 
and the notary must in many cases, as the superior's agent does, rely 
very much on the information given by the party applying to him. 
It is certainly very important, however, to be able, if necessary, to 
prove the fact of the ^party's character and right, and for this purpose 
to preserve a record of the evidence, which may bo done by expeding 
a general service as heir of provision under the deed, and, if thought 
desirable, the decree may be referred to in the opening part of the 
instrument as — "on behalf of A, heir," <Src., " conform to decree of 



156 IRBEDEEMABLE BIGHTS. 

general service," &c., but without producing it to the notary, though 
as already observed, its production will in no way invalidate the 
instrument 

17. To complete the title under a conveyance to A in liferent, and 

B in fee, with power to A to dispone, either onerously or 
gratuitously : — 

If the granter was infeft, registratic^ of the deed, with a warrant 
on behalf of A and B, for their respective rights and interests, or if 
the granter was not infeft, notarial instrument in favour of A and B, 
(Consolidation Act, Schedule J or Schedule N) and registration, 
with warrant, of the instrument or of the deed and instrument^ will 
complete the title of both, and on the death of A nothing further 
is necessary, because the power to dispone, although if exercised it 
will defeat B's right, is a mere faculty, and the feudal fee, though 
defeasible by A during his lifetime, is in B. 

18. To complete C's title under a destination to A and B, spouses, 

in conjunct fee and liferent, for B's liferent use allenarly, 
and to C, their son, in fee. 

Under this destination, A has a full feudal fee, which must be 
taken up by service of C, as heir of provision to A, in special or in 
general, according as the destination was feudalised or not, and by 
registration of the decree of service, or of the disposition, with notarial 
instrument, Schedule (N) ; or by expeding and recording notarial 
instrument. Schedule (J), Consolidation Act. 

19. A disponed to himself, and B, his son, and his heirs. B pre- 

deceased A, his father. To make up the title of C, B's heir, 
after A's death : — 

This destination being equivalent to a destination by a father 
"to himself, whom failing to B, his son," C^s title will be completed 
by service as heir of provision to A, either in special or in general, 
according as the destination was feudalised or not, and by registra- 
tion or notarial instrument, as in Case 'No. 18. 

An infoftment in favour of A and B on the deed would, as 
regards B, be inept. 



CASES ON COMPLETING TITLES OF HEIRS. 157 

Napier, M. 15,418 and 15,461, 2 Paton's App. 108 ; Gordon 
V. M'Culloch, Bell's 8vo Cases, p. 190; Wilson, 14 Dec. 1819, 
F.C. 

20. A disponed to B in liferent for liferent use aUenarly, and to 
C and D, children of B, and any other children to be pro- 
created of B, equally among them, share and share alike ; 
and infeftment followed in the same terms. There were 
other children horn of B, of .whom some survive, and 
others are dead, leaving issue. C and D are still alive. 
How are the survivors of the children born after the date 
of the disposition, and the issue of those who are dead, to 
make up their titles to their respective shares of Ihe pro- 
perty 1 

The practice in this case has been to make up the titles of the 
survivors of the children subsequently born and of the issue of those 
who are dead by conveyances by C and D in their favour. 

Now, the principle laid down in Maules, 14th June 1876, 13 
Scot. Law Rep. 532, seems to apply, in which case the shares of the 
fee will without any conveyance pass from C and D, the fiduciary 
fiars, into the persons of the other children and issue, whose titles 
may be completed by registration or instrument, but there is the 
difficulty arising from the exhaustion of the precept, as stated supra, 
note to Cases 15 and 16, which see. An alternative title may be 
made up by conveyance from C and D. 

21. A acquired several lands by purchase, which he conveyed to 
B as trustee for his creditors, with power to sell and grant 
dispositions to the purchasers, and a direction to divide 
the price or prices among the creditors, and after full 
payment of the debts to account to him, A, for any rever- 
sion that might be left. B was infeft and entered. A 
died before the debts were fully paid. After the debts 
had been all paid, a considerable part of the lands re- 
mained unsold. How is the title of C, the heir of A, to be 
made up to those lands % 

By service or writ of dare constat, or other competent mode, as 
heir of A. The trust was a mere burden on A's title, and did not 
diveat him of the radical right of property. A conveyance by the 



158 IRREDEEMABLE RIGHTS. 

truBtee to C would therefore be inept — Campbell^ M. voce Adjad. 
App. No. 11 ; M'MUlan, 9 S. 551, and 7 W. andS. 441 ; Qilmour, 
11 Macph. 853. 

10. Title of Heirs or Disponees of Proprietors of Lands 
having only a constructive personal right. 

"The Conveyancing (Scotland) Act 1874," § 9, provides that 
'' a personal right t o every estate in land descendible to heirs shall, 
without service or other procedure, vest or be held to have vested in 
the heir entitled to succeed thereto, by his survivance of the person 
to whoin he \a entitled to succeed, whether such person shall have 
died before or after the commencement of this Act, provided the heir 
shall be alive at the date of the commencement of this Act, if such 
person shall have died before that date, and such personal right shall ** 
" be transmissible in the same manner as a personal right to land 
under an unfeudalised conveyance, according to the existing law 
and practice." 

The provisions in regard to making up a title in such cases are as 
follows : — " A title of an heir to, or disponee of, a proprietor of any 
lands who was neither infeft nor served, but vested only with a per- 
sonal right to such lands, by virtue of this Act, or of any person ac- 
quiring right from such heir or disponee, may be made up in like 
manner as if the person making up a title had held a disposition from 
the proprietor last infeft in the lands in favour of his immediate suc- 
cessor therein, and a disposition and assignation from each heir or 
disponee, if any, intervening between such immediate successor and 
the person so making up a title in favour of his immediate suc- 
cessor therein ; and such title may be made up in manner foUowing, 
viz. : — The heir or disponee or other successor making up such 
title shall present to the Sheriff of Chancery, or to the Sheriif 
of the county where the lands are situated, a petition which may 
embrace several separate lands or estates, and may be in the form 
of Schedule (E) hereto annexed, or as nearly in that form as the 
circumstances in each particular case will permit, setting forth the 
name of the proprietor last infeft, a description of the lands, or a 
valid reference thereto, and the names and, so far as known, the de- 
signations of every proprietor having only a personal right therein, 
whether by succession, bequest, gift, or conveyance, who has inter- 



CONSTRUCTIVE PERSONAL RIGHT. 169 

veiled 'between the proprietor last infeft and the petitioner, and also 
setting forth the petitioner's own right to the said lands ; and on the 
decree pronounced on said petition finding the facts therein set forth 
proved, and that the petitioner is entitled to he infeft in the said 
lands, being extracted in one or several extracts, and on such extract 
decree or decrees, as the case may he, being recorded in the appro- 
priate register of sasines, the petitioner shall he held to be duly infeft 
in the said lands contained in the extract or extracts so recorded. 

** Such petition shall be presented, published, and carried 
through in all respects as if the same were a petition for special ser- 
vice under the now existing law ; and the extract decree or decrees 
on such petition, as the case may be, shall be equivalent to a decree 
of special service, and when duly recorded as aforesaid in the appro- 
priate register of sasines, shall have the same effect as regards the 
lands therein contained as an extract decree of special service duly 
recorded under the now existing law." Conveyancing Act, § 10. 

Caaei where tjiia form ia competent — This form can be adopted 
only where there occur in the chain of succession one or more per- 
sons vested only with a constructive personal right under the Act, 
and the first heir who died unserved and uninfeft must have been 
alive at the commencement of the Act, if the person to whom he 
succeeded died before then. Thus, suppose A, vest and seised, 
to have died in 1860, succeeded by B, who, without having made 
up any title, died in 1870, and was succeeded by C, C*s title 
could not be made up in this way, because B never had a con- 
structive personal right. Again, there must be kept in view the 
3l8t clause of the Act, whereby a general service is in certain cir- 
cumstances made equivalent to a mortis causa general disposition, so 
that where the right is derived entirely by succession through heirs, 
each of whom has expede a general service to his immediate ancestor ; 
fir where it is derived partly through heirs and partly through actual 
disponees, if each heir in the series has expede such service, this 
form would not be competent, because none of the intervening pro- 
prietors had been vested only with a personal right under the Act. 
The proper mode of completing a title would be, in the first case 
either to expede a special service to the ancestor last infeft or to 
proceed under the 31st clause, and in the second case, to proceed 
under the 3l8t clause of the Act 



160 IRREDEEMABLE RIGHTS. 

* If, again, the immediato successor of the proprietor last infeft 
has expede and extracted, but not recorded in the Begister of 
Sasines, a special service as heir, and the person making up the 
title IB his direct heir, though there may have been intervening heirs 
possessing on constructive personal rights, which would make this 
form competent, his proper course is, under the provisions of "The 
Titles to Land Consolidation (Scotland) Act 1868," section 46, to 
make up a title by general service as heir to his ancestor who had 
been served, and so to acquire right to his special service as an un- 
recorded conveyance of the lands. 

* Form not imperative, — This provision in regard to the mode of 
making up a title is only permissive, so if the person making it up 
be the direct though not the immediate heir of the proprietor last 
infeft, and there have been no intervening service of any one as heir 
to such proprietor, there is nothing to prevent such person pasBUig 
by the intervening heirs, and making up his title according to th^ 
previously existing practice by a service to the proprietor last infef%^ 
nor will an intervening unrecorded special service prevent bis 
making it up, though in this case the other mode already suggested 
preferable. 



* While this part of the work was passing through the Press, it has 
ascertained that the competency of making up titles in the way suggested haz^ 
and in some of the cases of completing hoirs' titles, viz., by passing over "tJia 
intervening heir or heirs and serving immediately to the common ancestor, 
is questioned, and it therefore seems proper to notice the objection stated 
to it. The objection is rested on two grounds, though they resolve into one : 
— ^First, That by the operation of the statute the lands themselves are imkoo. 
out of the person of the ancestor and vested in the person of the heir ; vad. 
second, that the Act divests the ancestor of the personal right to the lands* 
and leaves nothing to be taken up, either by special service or by genera^ 
service and notarial instrument, in the case of any heir after the first 

I. The answer to the first of these grounds of objection is, that if by 
the operation of the Act the estate of the ancestor is vested in any heir, i^ 
must be so vested in the immediate heir as well as in one more remote, id^ 
therefore in this view a service is no more necessary to complete the eos^^ 
structive statutory title of the immediate heir than is a writ of oonfinxiatio^ 
necessary to complete the constructive statutory entry of a disponed vitts 
the superior, which will hardly be maintained ; but the view now nnd^ 
consideration proceeds on a misreading of the 9th section of the Conv^yaiuv 
ing Act, which provides, not that '* every estate in land descendible to hein^" 
but that ^'a personal right to every estate in land descendible to hein 



CONSTRUCTIVE PERSONAL RIGHT. 161 



UTITIOU of a PERSON succeeding as Heir through an Ho. 76. 
unbroken series of Heirs vested with Personal Bights. 

The Scliedule (E) does not requiie the date of the death of any 
the parties mentioned in the petition to be set forth therein, hut 
the competency of the petition may depend on the fact of the first 
br who died nnserved and nninfeft haying been alive at the com- 
sncement of the Act, it may be convenient to specify such dates as 
iy require to be proved, so that they may enter the decree. 

TJuto the Honourable the Sheriff of {specify the county 
where the lands lie^ or say of Chancery), the Peti- 
tion of A B {name and designation of Petitioner)^ 

ambly Sheweth, 

That the late D {name and designation of person last 
H and seised) died last vest and seised in AU and Whole 
escribe or refer to the lands as the same are described or 

31 vest in the heir without service, &o., and the reason for the provision 
^ of this character is because its object was not to alter the system of 
-«8 or the law of service of heirs, which was not necessary, but 
^ply to enable an heir to deal with an estate to which he had sao- 
^ded, bnt to which he had not completed, and daring his lifetime 
9^t not have an opportunity of completing, a title ; and this is the 
^eud case which required to be, and was provided for by the mode of com- 
*^tng a tiUe introduced by i 10 of the Act Further, the very terms of 
k enactment in § 9, that the personal right thereby conferred shall vest 
tbe heir '* without service," show that for the vestlug of the estate 
^ serrice is still necessary, and any other view than this is irreconcileable 
til } 81 of the Act, which provides a new mode of completing an heir's 
U where the ancestor was inf ef t, by general service and notarial instru- 
^ as weU as with the form of petition for completing a title under § 10, 
« of the cases in which is that D died inf eft and was sacceeded by E F, 
K eldest son, who ezpede a special service but died without being inf eft 



Q. The second ground of objection is, that the Act divests the ancestor 

the personal right to the lands, and leaves nothing to be taken up, either 

' ipedal service or by general service and notarial instrument, in the case 

•ny except the immediate heir, though it is admitted, and after the cases 

Imtm (1 Sandford 284), Forbet (16 F.O. 728), Cochrane (1 8. 91), and 

"tkm (18 D. 135), cannot well be disputed, that where no intervening heir 

11 



162 IRREDEEMABLE RIGHTS. 

No. 76. referred to in the recorded deed or instrument in favour of 
the person who was last vest and seised in the landSy or"^ refer 

* This direction is in terms of Schedule (E), but the description should 
be taken from the infeftment of the person last vest and seised. 



has been served there is nothing to prevent an heir, however remote, being 
served heir in general to his ancestor. 

1. Here, as in the former case, the first answer is, that the provision 
of the Act, whatever its import may be, must take effect at the death of the 
common ancestor, and therefore, if the view referred to be correct, there 
is as little left to be taken up by service, special or general, in the case of 
the immediate, as in that of any subsequent heir. 

2. The second answer is, that the effect attributed to the oonstmotive 
personal right under the Act goes far beyond the effect of an actual per- 
sonal right. An actual personal right to land is that which is held by the 
disponee in an unfeudalized disposition thereof, but the disposition p«r u 
neither divests the granter nor invests the grantee ; and aocordizigly (1), 
though a proprietor leaves a disposition in favour of his heir it is quite 
competent for the heir, or if he possess on apparency, for his heir, to pass 
by the deed and make up his title by service — ^Erskine iii. 8, 61 ; and (2), 
until lately, where a proprietor left an imperfect disposition in ixwa of 
a stranger, the only mode of completing his title (and the mode is still com- 
petent) was by adjudication against the heir, so as through him to take the 
land out of the hcereditas jaeena of his ancestor. 

8. Another test of the effect of the constructive personal right may be 
applied. If the holder of an open precept leaves a disposition in favour of 
his heir, it operates as a transmission of the personal right, and enables the 
heir to 'use the open precept for infeftment ; but if, in the case of inteatmaj^ 
the Act divests the ancestor of the personal right and, as must neoesMriliy 
follow, vests it in the heir, then the heir should in the same way and without 
service be entitled to use the open precept ; though this mode of oomplating 
his title would be regarded as hardly satisfactory. 

4. The object of the Act was not to interfere with or abrogate any o^^^^wg 
mode of making up a title where the right to the lands has flowed thiovg^ an 
imbroken course of heirs, or in any case where an existing mode was i^fvo- 
priate, but to meet a case which had not previously existed, and for widdi, 
therefore, the law had not provided, viz., where, through the exeraae by 
an unentered heir of the power conferred by the 9th section of the Act, 
the course of succession had been diverted by the intervention of a dis- 
ponee or disponees ; and accordingly, even in this case, the piovisioii is 
only permissive. — '* A title of an heir to, or disponee of, a proprietor of 
any lands who was neither inf eft nor served, but vested only with a penonil 
light to such lands by virtue of this Act," &c., ^^may be made up** in the 
way specified. No doubt this enables also an heir, not being the immediala 
one, so to make up a title, but it does not make it imperative onlumtodoaix 



CONSTRUCTIVE PERSONAL RIGHT. 163 

to them as described in some other recorded deed or instrvr- No. 76. 
ment a«), conform to Instrument of Sasine in favour of the 
said G J) {or Disposition granted by R S {designation) in 
favour of the said C D, dated the day of and 

along with warrant of registration thereon on behalf of the 
said D) recorded in the {specijy register ofsasines and date 
of recording; (a) and where there are any real burdens, condi- 
tions, or qtuxlificationsy speci/y or refer to them as contained in 
some deed or instrument forming part of the progress of titles, 
and recorded in the register of sasine, as) : But always with 
and under the real burdens, conditions, &c., specified in a 
Disposition {or other deed) of the said lands, granted by L 
M {designation) to N {designation), dated {insert date), 
and recorded in the {specify register of sasines and date of 
recording). 

That on the death of the said C D he was succeeded by 
E F {designation)^ his eldest son {or as the case may be), as 
his heir in the said lands. That the said E F died on or 
about the day of , unserved, and having only 

a personal right to the said lands, and was succeeded by the 
Petitioner, the said A B, his eldest son {or otherwise, as the 
case may be), and nearest and lawful heir in the said lands. 

mieie is no express repeal, and in the case of heirs the new mode is certainly 
not so inconsistent with or antagonistio to the previoosly existing modes 
as by implication to operate a repeal of them. It is said as a reason against 
a more remote heir being allowed to proceed by service that he might do so 
fnmdolently ; bnt prior to 1874 service was — in some cases and even now may 
be— the ooly competent conise. VThere fraud is intended, it may be practised 
as easily under the one form as under the other, the facts to be proved being 
in boih cases the same ; and besides, this raises a question, not of the competency 
of service, but of the persons who may be entitled to oppose the petition for it. 
Lastly, a weU known way of validating a diqiosition by an heir uninfect 
Is by ooiapleting his title, which thereupon aooresces to that of the disponee. 
Xfais, according to the view of the Act referred to, would now be incompetent, 
bat one of the cases in the form of the petition is that of an heir who, after 
fasving granted a disposition, has died unserved, which implies that he still 
xnig^ have been served, and therefore that the ancestor had not been divested, 
and indeed tiie fact that the form of petition under the Act in every case starts 
tnoL the person, dead or aUve, yibo was last infeft, deaily shows that the 
lands axe assomed to be still either in his person or in his hctreditat jaant. 



164 IBBEDEEMABLE BIGHTS. 

Na 76. May it therefore please your Lordship to find the facts 

above set forth proved, and that the Petitioner is 
entitled to procure himself infeft in the foresaid 
lands in terms of " The Conveyancing (Scotland) 
Act 1874," and to decern. 

According to Justice, &c. 

{Signed by the petitioner or his mandatory?^ 

(a) If the lands are held under entail, here specify (he 
conditions of entatlj or refer to them thus — But always with 
and under the conditions, provisions, and prohibitory, irri- 
tant, and resolutive clauses (or clause authorising registra- 
tion in the register of tailzies, as the case may he) contained 
in a Disposition and Deed of Entail granted by G H (Aer^ 
name and design the granter) dated the day of , 

and recorded in the Kegister of Tailzies {or ifw>t so reccrd^^^^ 
say^ in the {^ecify the register of sasines) on the day of 

{or if the entail is not recorded in the register of 
sasines, say, contained in the Notarial Instrument in favcz^nr 
of J K {designation), or other deed or instrument), reco 
in the {specify register of sasines and date). 

The rest of the petition will be as in the preceding Style. 



Ho. 77. PETITION of DI8P0NEE of HEIR having only a 

Personal Bight, 

Unto the Honourable the Sheriff of {specijy the cauniy, 
or say, of Chancery), the Petition of A B {nam 
and designation of petitioner). 

Humbly Sheweth, 

That G D {designation) was last vest and seised in All 

and Whole {here describe or refer to thi lands, and specify 
the iiUe and date of recording, and if there are any real 



00N8TBU0TIVE PERSONAL BIGHT. 165 

burdens, dc., speci/y or refer to them, all as in the preceding Ko. 77. 

Style). That the said D, by Disposition, dated {specify 

date) conveyed the said lands to E F {designation). That 
the said E F died on the day of , never having 

been infeft in the said lands. 

That G H, eldest son of the said E F (or a« the case may 
be), is his heir in the said lands, but is unserved, and has 
only a personal right thereto. 

That the said Q H, by Disposition, dated (specify date) 
conveyed the said lands to the Petitioner. 

May it therefore please your Lordship to find the facts 
above set forth proved, and that the Petitioner is 
entitled to procure himself infeft in the foresaid 
lands in terms of " The Conveyancing (Scotland) 
Act 1874," and to decern. 

According to Justice, &c. 
{Signed by the petitioner or his mandatory.) 



PETITION of a DI8P0NEE whose Author was the Lis- Ho. 78. 
ponee of an Heir, dtc., vested tvith a Personal Bight. 

Onto the Honourable the Sheriff of {specify the county, 
or say, of Chancery), the Petition of A B {designa- 
tion). 

Humbly Shewetb, 

That the late C D {designation) was last vest and seised 
in All and Whole {here describe or refer to the lands, and 
specify the title and date of recording, and if there are any real 
burdens, dtc, specify or refer to them, all as in Style No. 76). 
That the said C D died on the day of , and was suc- 

ceeded by Ei F {designation), his eldest son {or as the case may 
be), as his heir in the said lands. That the said E F expede a 
special service as heir of the said C D in the said lands, 
oonform to decree of the Sheriff of Chancery {or as the case 
may be), in his favour as heir foresaid, dated {specify date), 
bnt {if dead) died without being {or was not) infeft thereon 



166 IRREDEEMABLE RIGHT& 

Ka 78. {or that the said E F expede a general service as heir of the 
said D, conform to decree {specify the decree and its dak)^ 
hut made up no further title. 

That the said E F disponed the said lands {or, conveyed 
his whole estate, heritable and moveable), to G H {designa- 
tion)^ conform to Disposition {or other deedj as the case may 
be) J dated the day of 

That the said G H died having only a personal right to 
the said lands, and was succeeded by E L, his eldest son {or 
as the case may be), and his nearest and lawful heir in the 
said lands. That the said K L also died having only a per- 
sonal right to the said lands, (a) 

That M N, eldest son of the said Kh {or a^ the case may 
be), is his heir in the said lands, but has only a personal 
right thereto. That the said M N by Disposition dated 
{specify date), conveyed the said lands to the Petitioner. 

May it therefore please your Lordship to find tlie facts 
above set forth proved, and that the Petitioner is 
entitled to procure himself infeft in the foresaid 
lands in terms of " The Conveyancing (Scotland) 
Act 1874," and to decern. 

According to Justice, &c. 

{Signed by the petitioner or his mandatory). 

Note (a) (a) Or, if the petitioner is the heir of K L, add here, and was sao* 

ceeded by the petitioner, the said A B, his eldest son {or as the com 
may he), and nearest and lawful heir in the said lands, and omit the 
next paragraph of the Style, 



Ho. 79. PETITION of TB USTEE8 of a Person having only a 

Personal Bight. 

Unto the Honourable the Sheriff of {specify county^ 
or say of Chancery) the Petition of A B and D 
{designations). Trustees appointed by the late 



i 



CONSTBUOTIVE PERSONAL RIGHT. 1 6? 

E F (designation) in his Trust-Disposition and No. 79. 
Settlement after mentioned. 



Humbly Sheweth, 

That G H {designation) was last vest and seised in All 
and Whole (here describe or refer to the lands, and specify the 
title and date of recording, and if there are any real burdens, 
cfec, specijy or refer to them, all as in Style No. 76). That J K, 
eldest son of the said G H (or cw the case Tnay be), is his heir 
in the said lands, but has only a personal right thereto. 
That the said J K, by Disposition, dated (specify date) con- 
veyed the said lands to L M (designation) j who was never 
infeft therein. That by decree of adjudication obtained at 
the instance of the said E F, in an action before the Lords 
of G>uncil and Session against the said L M, and dated the 
day of , the said Lords adjudged the said lands 

from the said L M, and decerned and declared the same to 
belong to the said E F, who was never infeft therein. 
That the said E F disponed the said lands (or, conveyed 
his whole estate, heritable and moveable, or a^ the case 
may be), to the Petitioners, the said A B and C D (insert 
destination as in deed), conform to Trust-Disposition and 
Settlement executed by him, and dated (specify date), but in 
trust always for the ends, uses, and purposes therein-men- 
tioned. 

May it therefore please your Lordship to find the facts 
above set forth proved, and that the petitioners are 
entitled to procure themselves infeft in the foresaid 
lands as trustees foresaid, in terms of "The Convey- 
ancing (Scotland) Act 1874," and to decern. 

According to Justice, &c. 
(Signed by the petitioners or their mandatory.) 

GOHFLETION OF PeTITIONER'b TiTLK. 

The title is completed by recording the extract-decree, with 
^warrant of registration thereon, in the appropriate register of sasines. 



168 IRREDEEMABLE RIGHTS. 

(4) ENTRY WITH THE SUPERIOR. 

The Conveyancing (Scotland) Act 1874. 

Charteis and writs by progress, by means of whicb entry with 
the superior, or renewal of the investiture, had under the former law 
been effected, and which formed so important a part of the Scottish 
system of Conveyancing, were, with some exceptions, abolished by "The 
Conveyancing (Scotland) Act 1874," and a constructive entry tbiou^ 
the operation of the statute was substituted therefor, while other 
provisions were made in order to preserve certain rigbts and effects 
which formerly flowed from or were connected with the renewal of 
the investiture so abolished, as well as for carrying out certain alt %- 
tions in the law relating to superior and vassal. Those provisiaih.; 
so far as connected with the present branch of the subject^ embrace : — 

1. The abolition of renewal of investiture, and the substitatioiL 
therefor of a constructive entry with the superior. 

2. The mode by which a former proprietor may be reUeved of 
liability for future feu-duties, and performance of the obligatione of the 
feu. 

3. The periods when casualties in feus granted prior to the com- 
mencement of the Conveyancing Act of 1874 are now exigible where 
the lands are held — (1) by individuals ; (2) by corporations or trus- 
tees ; or (3) by persons having separate interests. 

4. The redemption or commutation of casualties in such feus. 

5. The commutation of carriages and services. 

6. Allocation of feu-duty. 

These, and the deeds or writs connected with them, will be noticed 
in their order. 

1, The Abolition op Renewal op Investitukb, and the substitu- 
tion THEREFOR OF A CONSTRUCTIVE EnTRY WITH THE SUPE&IOR. 

(1) Abolition of Charters and Writs hy Progress, 

This is eflfected by § 4 (1) of the Act, whereby it is enacted that 
where lands have been feued, whether before or after the commence- 
ment of the Act, and notwithstanding any condition or provision in 
force at the passing of the Act, or in any deed, instrument, or writ- 
ing, whether dated before or after the passing of the Act, it shall not 
be necessary, in order to the completion of the title of any person 



STATUTORY ENTRY WITH SUPERIOR. 169 

having a right to the lands in whole or in part, howsoever acquired, 
that he shall obtain fiK)m the superior any charter, precept, or other 
writ by progress, and that it shall not be competent for the superior in 
any case to grant any such charter, precept, or other writ by progress.* 

(2) Gcnstrudive Entry with the Superior hy infeftment 

The Act provides, § 4 (2), that every proprietor duly infeft 
in the lands shall be deemed and held to be, as at the date 
of the Titration of such infeftment, duly entered with his 
immediate lawful superior, or, as the Act expresses it, *Hhe 
nearest superior whose estate of superiority in such lands would, ac- 
cording to the law existing prior to the commencement of this Act, 
have been not defeasible at the will of the proprietor so infeft,'' to the 
same effect as if such superior had granted a writ of confirmation ac- 
cording to the previous law and practice, and that whether the supe- 
rior's own title or that of any over-superior has been completed or not. 

2. Thb Modb bt which a fobhsb Proprietor mat be relieved of 
Liability for future Feu-Duties and Performance of the 
Obuoatioks of the Feu. 

By the old law the entry of the new proprietor relieved the last 
entered vassal of his liability for payment of the feu-duty and per- 
formance of the prestations of the feu.f 

To prevent the implied entry under the statute operating in this 
-way, it is provided, § 4 (2), "that notwithstanding such implied 
entry the proprietor last entered in the lands, and his heirs and 
lepresentatives, shall continue personally liable to the superior for 
payment of the whole feu-duties affecting the said lands, and for 
pexformance of the whole obligations of the feu until notice of the 
change of ownership of the feu shall have been given to the superior." 
The new proprietor, however, is liable to the superior in payment 
of the feu-duties, and to the former proprietor in relief of all feu- 
dnties paid by him, for effecting which relief the remedies compe- 
tent to the superior are by the Act assigned to such former proprietor, 
the proviso in the Act being "without prejudice to the superior 

* There is a proTiso saying certain writs from the operation of the Act, 
as to which see infrOf p. 184. 

t WaUaee^ M. 4195 ; Eytlop, 1 MT. 585. 



170 IRREDEEMABLE RIGHTS. 

having all his remedies against the entered proprietor under the 
entry implied by this Act, and without prejudice also to the right of 
the proprietor last entered in the lands, and his foresaids, to recover 
from, the entered proprietor of the lands all feu-duties which such 
proprietor last entered in the lands, or his foresaids, may have had 
to pay in consequence of any failure or omission to give such notice, 
and for this purpose all the remedies competent to the superior for 
recovery of feu-duties shall, by virtue of this Act, be held to be 
assigned to the proprietor last entered in the lands, and his foresaids, 
to the eflFect of enabling them to recover payment of any sums so paid 
by them as aforesaid, but that always under reservation of and with- 
out prejudice to the superior's rights, remedies, and securities, for 
making effectual and recovering all other feu-duties due and to be- 
come due to him/' 

There are three points to be observed in this provision, — 
(1) The notice to the superior has per se no effect in relieving 
the last entered vassal of his liability ; it is only the combined ope;x* 
ation of the new proprietor's implied entry and the notice to 
superior, that produces this effect. (2) So long, therefore, 
new proprietor remains uninfeft, the last-entered vassal contiu^«3.e8 
liable, just as under the previous law the vassal did, until his dis- 
ponee had been received by the superior,* and there seems to bd xio 
way of compelling a disponee to procure himself infeft ; and (3^ Xn 
regard to the powers given by the Act, whether to the superior ox* to 
the former proprietor, to proceed against the new proprietor, tJxat 
being directed against ** the entered proprietor " they depend for tJx^ir 
effect on the new proprietor being infeft. See supra^ p. 69. 



Ho. 80. FORM of NOTICE to a Superior of Change of Ownersk^ 

of Feu, Conveyancing Act 1874, Schedule (A). 

(Place and date^ as) Edinburgh, 18 . 

Sir, 

I {or We) hereby intimate to you that {here mt^ 

the name, designation, and address of the new proprietor, C^ 

of each of the new proprietors, as the case may he, as) A ^^t 

merchant, residing in Glasgow, (or A B, as before, and I^f 

* Wallace and Bytlop, supra dt. 



NOTICE OF CHANGE OF OWNERSHIP. 171 

manufacturer, residing in Glasgow, or in Street, ^o. ao 

Glasgow), has {or have) now right to {here insert the name 

6y which the lands or subjects are generally hnorvn^ so as to 

distinguish them to the Superior, as) (a) the lands of Z, lying 

in the Parish of and County of , which 

lands {or subjects) formerly belonged to {insert the name of 

ihe last entered vassal^ whether by actual entry previous to the 

^^^ynmencement of the Conveyancing Act q/'1874, or by implied 

^try under it, as) E F(6), merchant, residiDg in Glasgow. 

I am {or We are), 

Sir, 

Your most obedt. Servt. (or Servts,), 

Signed (c) EF; 

or G H, heir (or executor, or for myself and the other 

executors of the said E F); 
or IK, one of the Trustees of the said E F, for myself 

and my Co-Trustees ; 
or L M, W.S., Edinburgh, Agent of G H, heir {or as 

the case may be) of the said E F. 

f ^ jS" 0, Esq. {name of Superior), \ (A C, 

/ \ W.S., 

^^ {designation ofdo.),l ) Edinburgh, 

^ ^^ \ Agent of N" {name of 
Edinburgh {address o/do.)\ j Superior) of (designa- 

tion), 

(o) Or, The ten^ent of houses on the east side and forming No. Note (a). 

of Street in the town or village of ; 

Or, The area of ground, and houses built thereon, lying on the 
side of Street in the town of , and 

*^*^3cimg Nos. of that Street ; 

i)r, The lands or subjects lying in the parish of and county 

^\ , contained in feu-charter granted by R S of (name and de- 

*^^*^€ition of granter), in favour of T W {name and designation of 
^^^ntee), dated the day of 

The Schedule (A) requires that the notice shall specify the 
^^68 by which the lands or subjects are generally known, so as to 



172 IBBEDEEMABLE RIGHTS. 

No. 80. distingaifili them to the superior, but without giving any detailed 
description of the lands or subjects, and if in a town or village that it 
shall specify the number of the street, or otherwise difltingniah the 
fcu> and it is provided that if a reference to the feu-right will more 
easily and clearly distinguish the lands or subjects, a reference to the 
feu-right can be given, but the superior shall not be entitled to 
object either that the name or designation or address of the new 
proprietor or proprietors of the feu is erroneous, or that the fonn in 
which the lands or subjects are referred to is insufficient or erroneoiu^ 
unless it can be shown that the notice given as to these paiticokn 
or any of them was intended to mislead the superior as to the iden- 
tity of the new proprietor or proprietors of the feu, or as to the pft^ 
ticular lands or subjects to which the notice should have refened. 

Note (&). Q>) The Schedule (A) requires only that the name of the last 

entered vassal shall be inserted ; but it may be convenient to add tk 
designation. 

Note (0). (c) The schedule directs that the notice may *' be signed (bnt not 

attested) by the seller of the feu, or by the heir or trustees or exeeo- 
tors of a deceased proprietor, or by any one of the trustees or execor 
tors for himself and his co-trustees or co-executois, or by an agent 
of any of these parties." 

Note (d). (c2) The schedule directs that the notice shall be addressed and* 

posted or delivered to the superior or to his known agent, or to tb^ 
person to whom the feu-duties of the feu have been paid, and in tb>^ 
event of the superior being unknown or doubtful, that the notice shftl* 
be addressed *^ to the superior " of the lands mentioned in the notice 
without name (in the event of the proprietor being unable to aaca^ 
tain name of the superior), and shall be posted or sent to the keeper ^ 
the Office of Edictal Citations in Edinburgh, and published in d»^ 
register of these citations, and also (where there is doubt as to tb^ 
superior) to the person or to the agent of the person as to whomauc** 
doubt exists. 

It may sometimes be important for the proprietor last infeft ^ i 
preserve evidence of his having sent the statutory notice, and tto 
Act provides, § 4 (2), that for this purpose it shall be sufficient "if a 
copy of such notice, certified by the sender thereof as having been 



NOTICE OP CHANGE OP OWNERSHIP. 173 

delivered or put into the post-office by him in presence of two wit- 
nesses, who shall also subscribe the certificate, is preserved, or that 
the notice is acknowledged by the superior or his agent to have been 
leceivedy either on a duplicate thereof or by a separate acknowledg- 
ment ; and the superior, or his agent, on receiving such intimation 
in duplicate, with a fee of five shillings, shall, if required, be bound 
to letum one of the copies, with an acknowledgment of intimation 
theieon subscribed by him." 

It IB not quite clear how far the despatch of the notice in terms 
of the above provision will be effectual if (as where it is put into the 
poet-office, or sent to the Office of Edictal Citations) the superior does 
not receive or learn of it. The safe course, therefore, wherever 
possible, is to send the notice iii duplicate, and get from the superior 
or his agent an acknowledgment of intimation, and, where it is 
sent by post, to register the letter. At the same time, as the Act 
leqnires only that notice shall be *' given to the superior,'' if this shall 
be done in compliance with the directions in the Act it will probably 
be sufficient. 

3. Thb Periods when Casualties in Feus granted prior to the 
goionencement of the conveyancing act op 1874 are now 

EXGIBLB WHERE THE LaNDS ARE HELD (1) BY INDIVIDUALS; (2) 

BT Corporations or Trustees; or (3) by Persons having 
SEPARATE Interests. 

(L) Where Lands held by Individuals. — Casualties in feus 
granted prior to the commencement of the Conveyancing Act of 1874 
aie of two descriptions, legal and conventional or taxed. The legal 
casnalties were payable as the condition of entry with the superior, 
» ^{l became due on the death of the last entered vassal, when the new 
proprietor was bound to enter. The legal casualty payable by an 
heir, called relief-duty, is a year's feu-duty ; that payable by a pur- 
chaser or singular successor, called composition, is a year's rent of the 
IftTii^ii- The conventional or taxed casualties in those feus are very 
various in r^ard both to their amount and to the periods at or 
occaaions on which they are exigible. 

The introduction of the constructive entry might have produced 
one of two results — either it might through the abolition of non-entry 
have deprived the superior of his right to the casualty, or it might in 



174 IRREDEEMABLE RIGHTS. 

respect of the implied entry have made the proprietor liable in pay- 
ment of it sooner than otherwise he should have been. As legaids 
the case now under consideration, the Act leaves the former law, 
whether as regards legal or taxed casualties, unchanged, and declares, § 
4 (3), that the ''implied entry shall not entitle any superior to demand 
any casualty sooner than he could, by the law prior to this Act or 
by the conditions of the feu-right, have reqxdred the vassal to enter 
or to pay such casualty irrespective of his entering." 

n. Where Lands held by Corporations or Trustkeb. — Ab 
superiors were not bound to enter a corporation or a body of troB- 
tees, these cases were formerly made matter of arrangement by 
fixing a certain period on the lapse of which, or by naming an indiri- 
dual on whose death another casualty should be payable, and this 
may still be done ; but in the absence of arrangement the following 
are the rules : — 

1. Where hy the feu-right the period of payment of casualties, tohether 

legal or conventional^ is left to be regulated hy law, 

(1) Corporations, — Corporations acquiring the lands pay at the 
date at which the first composition would have been payable if the 
Act had not been passed, and every twenty-fifth year thereafter, i 
sum equal to what, but for the Act, would have been payable on 
entry by a singular successor.* 

(2) Trustees, — Where a composition payable on the death of the 
vassal becomes exigible from any trustee or body of trustees, another 
composition is payable at the end of every twenty-five years, so long 
as the lands shall be vested in such trustee or trustees.* 

2. Where hy the terms of the feu-right a taxed Composition it fSf 

able on each sale or transfer of the property as ioeU os on 
the death of each Txissal, 

(1) Corporations and Trustees, — Corporations and trustees acq1li^ 
ing the property, and so becoming liable in a composition, pay another 
composition at the end of every fifteen years from the date of theacqni- 
sition of the lands by such corporation or trustee or trustees, so bng 
as the lands shall be vested in such corporation or trustee or trasteee, 
with such interest, if any, during the not payment as may be stipn- 
lated for in the feu-rights.* 

• Act, i 6. 



WHEN LEGAL CASUALTIES NOW EXIGIBLE. 175 

(2) Persons having Separate Interests, — ^Where there lias been 
an implied entry in favotir of two or more parties having separate in- 
terests, as liferenter and fiar respectiyely or as successive liforenters, 
a composition, or, in the case of parties interested pro indiviso^ a 
rateable share of a composition, becomes due by each of such parties 
in the order in which they severally take benefit under such entry, 
witii such interest, if any, during the not payment as may be stipu- 
lated for in the feu-right.^ 

8. Where a corporation or a trustee or trustees shall cease to he 
proprietors of the lands after having paid a composition or 
compositions in terms of this provision of the Act, 

In this case " the successor of such corporation, or of such trustee 
or trustees, who shall be duly infeft in the lands '' when, but for the 
dbange of ownership another composition would have been payable 
by such corporation or trustees, that is, at the expiration of twenty- 
five years or fifteen years, as the case may be, from the date of the 
last payment of a casualty by such corporation or trustees, then pays 
a composition, and the casualties thereafter become due and payable 
at the same time and in the same manner as if the lands had never 
been vested in such corporation or in such trustees.* 

By the terms of the clause of the Act just referred to it is only 

til© successor ** duly infeft " who is made liable in payment of the 

casualty, and as the casualty is due only by force of the Act, it may 

adndt of question whether payment of the casualty can be enforced 

against a successor not infeft j but probably the provision in § 4 (4), 

^ a superior who would but for this Act be '^ entitled to sue an 

^tion of declarator of non-entry against the successor of the vassal 

^ the lands, whether by succession, bequest, gift, or conveyance, 

^y raise in the Court of Session against such successor, whether he 

^hall be infeft or not, an action of declarator and for payment of any 

^ftSQalty exigible at the date of such action " may apply to the case 

^ question. 

4. The BsDEMFnoN or Commutation of Casualties in Feus 

GRANTED PRIOR TO THE AcJT OF 1874. 

Under the former law ther« was no mode, except by agreement, 

♦ Act, I 5. 



176 IRREDEEMABLE RIGHTS, 

of dealing with casualties, but the following provisions on the subject 
were made by the Conveyancing Act of 1874 : — 

1. Parties entitled to avail themselves of the provisions far 
Redemption or Commutation, 

The power of redemption is conferred on the proprietor * or on a 
mid-superior t alone; that of commutation is conferred on the superior 
alone,} axid comes into operation only if and when the proprietor or 
mid-superior proposes to exercise his power of redemption.§ 

2. What casualties may he redeemed. 

It is only casualties incident to a feu created prior to the com- 
mencement of the Conveyancing Act which may be redeemed,* bat 
all such may be redeemed '' except those which consist of a fixed 
amount stipulated and agreed to be paid in money or in fungibleB aft 
fixed periods or intervals." * The reason for the exception is, that 
this is the only kind of casualty that may now be stipulated for,|| 
and in such feus redemption is not competent. 

It is no bar to tbe redemption that the casualties are subject to 
the fetters of an entail^ 

3. Terms and conditions of redemption apart from agreement 

(1) Casualties exigible only on the death of the vassal may be 
redeemed on payment of the amount of the highest casualty, esti- 
mated as at the date of redemption, with an addition of 50 per cent* 

(2) Casualties exigible on each sale or transfer of the property, as 
well as on the death of the vassal, may be redeemed on payment of 
two and a-half times the amount of the casualty, estimated as afore- 
said, payable on such occasions.* 

(3) Casualties consisting of an annual sum for each year ficom the 
date of the last entry may be redeemed upon payment of eighteen 
times the amount of such annual sum.* 

(4) In all cases, except by agreement, any casualty which has 
become due, and, in the case of such annual sums, the amount of 
such annual sums since the last payment thereof, must be pail 
before redemption is allowed and the redemption applies only to 
future and prospective casualties.* 

♦ Act, i 15. t Act, § 19. X Act, } 17. 

§ Act, §§ 16, 17. II Act, § 23. t Act, 1 18. 



REDKMPTION OB COMMUTATION OP CASUALTIES. 177 

(5) The terms and conditions of redemption of the casualties in- 
cident to an estate of mid-superiority, and of those incident to an 
estate of property, are in all respects the same.* 

4. Terms of commutation of casualties. 

Where the superior; whether a fee-simple proprietor or heir of 
entail, so elects, the redemption money is to be converted into an 
annual sum equal to 4 per cent, upon the capital f 

5. Mode of completing redemption or commutation of casualties^ 

and effect thereof, 

(1) Eedemption, — ^Where redemption is agreed to, the superior, 
whether holding in fee-simple or subject to the fetters of an entail, is 
on payment or tender of the redemption money bound, at the expense 
of the party redeeming, to discharge all right to the casualties so re- 
deemed. The discharge may be in the form of Schedule (F) annexed 
to the Act, or in a similar form. 

DI8CHAB0E OF CASUALTIES.— GouYeyejicing Act, iro.8i 

Schedule (F). 

There is a proviso in the Act regarding this deed which, though 

only giving effect to the common law, may be mentioned, viz., that 

irhen the superior shall have granted an heritable security affecting 

tbe saperiority, no discharge granted to the vassal redeeming shall be 

effecioal without the consent of the creditor in such security. § 16. 

I, A B (designation of superior), proprietor of the estate 
of superiority in the lands of (describe the lands discharged, 
® in the original feu- right or other deed or instrument , or 
^fer to a description of them in terms of Schedule (0) Con- 
^'^^'S^'incing Act, or Schedule (G) Consolidation Act)y whereof 
^lie estate of property belongs to D (designation of vassal), 
itt consideration of the sum of now paid to me by the 

^d C D, (or state cause of granting), hereby discharge in 
favour of the said D, and his heirs and successors, (a) all 

•Act, §19. tAct, §?17, 18. 

12 



178 IRREDEEMABLE RIGHTS. 

No, 81. casualties incident to my said estate of superiority exigible 
in respect of the said estate of property ; and I consent 
to the registration hereof for preservation. In witnbbb 
WHEREOF (testing clav^e). 

Note (a). (j£^ J (J)y, ifordy some of the casualties are redeemed^ specify tohai 

they arCf as) the casualties incident to my said estate of superioritj 
exigible in respect of the said estate of property on each sale or 
transfer of the said lands, but reserving full and entire my right to 
all the other casualties incident to my said estate of superiority exi- 
gible in respect of the said estate of property. 

Completion op Discharge. 

The discharge is recorded with warrant of registration in the 
appropriate register of sasines, and, being so recorded, operates as a 
valid and effectual discharge of the casualties to which it refers, sah- 
ject to the proviso above referred to. 

The discharge of casualties may be effected also by charter of 
novodamus. See infra^ p. 184. 

(2) Commutation, — Where the superior, whether a fee-simple pro- 
prietor or heir of entail, elects that the redemption money shall be 
converted into an annual sum, a mutual agreement or memorandimif 
specifying the amount of such annual sum, is signed by the parties ox 
their respective agents, and recorded in the appropriate register of 
sasines, whereupon such annual sum is deemed to be feu-duty, witib 
aU the legal qualities thereof, and forms an addition to any existisi^ 
feu-duty j and the superior'^ right to all casualties is discharged. 

Ho. 82. MEMORANDUM constituting a Feu-Duty or additum^^ 
Feu-Duty in Commutation of Casualties. — Conveyancing 
Act, Schedule (G). 

It is agreed between A B (name and designation of wp^ 
ricr), immediate lawful superior of the lands of (describe or 
refer to a description of the lands), on the one part, and T^ 
(navne and designation of proprietor of estate of property)^ th^ 

X Partial redemption can be made only by agreement. 



COMMUTATION OP CASUALTIES. 179 

proprietor of the dominium utile of the said lands, on the No. t». 
other part, that the dominium utile of the said lands shall, 
from and after the term of (state term), be liable in payment 
to the superior thereof of a (a) feu-duty of £ (or if 

there be afeorduty already payable, of an additional feu- duty 
of £ over and above the existing feu-duty of £ ) ; 

and that yearly, at two terms in the year (state the terms at 
which the/eu'duty is to be paid) (or, and that at the term of 
(sta^te term) yearly), beginning the first term's payment (state 
term, and whether the payment is for the half -year or year pre- 
ceding, and if it is to be subject to penalty and to bear intereM 
insert provision therefor, all as in Note (a))\ which feu-duty 
(or additional feu-duty) is constituted in respect of a commu- 
tation of casualties incident to the said A B's estate of 
superiority in the said lands, exigible in respect of the said 
C IXs dominium utile of the said lands (or if only some of the 
casualties are commuted, specify what they are) (b) : In wit- 
ness WHEREOF (testing claiMe). 

(a) The above is the statutory form, hut the use of it is not compulsory, Note (a) 
and^if preferred^ the ordinary style of constituting a feu-duty may he used, 
thus: — ^A yearly feu-duty of £ (or, as the case may he, an addi- 

tional yearly feu-duty of £ over and above the existing yearly 

fem-duty of £ ), and that at the term of yearly, beginning 

the fint payment thereof at the term of in the year , 

for the year immediately preceding (or, and that at two terms in the 
year, and , by equal portions, beginning the first term's 

payment thereof at the term of in the year for the 

half-year immediately preceding, and the next term's payment there- 
of at the term of thereafter), and so forth, at the said term in 
each year (or at the said two terms in the year) in all time thereafter, 
with a fifth part more of each term's payment of liquidate penalty for 
each term's failure in punctual payment thereof, and interest at the rate 
of five per centum per annum of each yearly {or term's) payment of 
the said feu-duty (or additional feu-duty) from the term at which the 
same fedls due until payment thereof. 

Where there ia an existing feu-duty the additional feu-duty should, 
as regards terms of payment, interest, &c., be made to correspond 
with the existing one. 



180 IRREDEEMABLE RIGHTS. 

Va SX The consent of the creditor in an heritable security affecting the 

saperiority is not by the Conveyancing Act, nor does it seem by the 
common law, to be required to the memorandum. 

((). (5) As already mentioned, the memorandum may be signed by 

the agents of the parties ; and there is a note to the Schedule (G) in 
the following terms, viz. : — " If the memorandum be executed by 
the agents of either or both of the parties, it will be stated in the 
testing clause that the memorandum is signed by them in that 
capacity for and on behalf of their constituent or respective con- 
stituents." This seems to imply that the memorandum, though to 
be signed by the agents or one of them, is, till it reaches the testing 
clause, to proceed in name of the parties themselves. It is not stated 
in the Act whether or not an agent requires to have written authority 
to sign such deeds. 

Completion of ComiUTATioN of Casualties. 

The memorandum, with warrant of registration, is recorded in the 
appropriate register of sasines, on which the superior's right to all 
casualties is discharged. 

5. The Commutation of Cabruoes and Sebvioes exigible bt a 

supebiob. 

Carriages and services exigible by any superior, including heiis of 
entail,* may be commuted either by agreement, actual or construc- 
tive, or judicially by application to the Sheriff of the county, for i 
yearly feu-duty or additional feu-duty equal to their annual money 
value, and the commutation may be effected by either the superior or 
the vassal. Carriages and services cannot be redeemed unless by 
agreement. 

Mode of Completing the Commutation^ and its Effect. 

The annual money value, where ascertained by agreement, may 
be stated in a memorandum in the form set forth in the Scheduk 
(G), annexed to the Act, or in a similar form, signed by the 
parties or their respective agents, and on such memorandum or the 

♦ Oonveyanoing Act, §§ 20, 21. 



COMMUTATION OF OARRIAGES AND SEBVIOBS. 181 

extract-decree by the Sheriff being recorded in the appropriate 
register of sasines, such annual money value is deemed to be feu-duty, 
with all the legal qualities thereof, and forms an addition to any ex- 
isting feu-duty, and the superior's right to the carriages and services 
is held to be discharged. 

MEMORANDUM constituting a Feu-Duty or additional M^t 
Feu-Duty in Commutation of Carriages and Services. 
Conveyancing Act, Schedule (G). 

It is agreed between A B (name and designation 0/ 
superior), immediate lawful superior of the lands of (insert 
description or reference to description of lands as in vassal's 
infeflment), on the one part, and C D (name and designation 
of the vassal or proprietor of the estate of property), the pro- 
prietor of the dominium utile of the said lands, on the other 
part, that the dominium utile of the said lands shall, from 
and after the term of (state term), be liable in payment to 
the superior thereof of a yearly feu-duty of £ (or as 

the case may be, of an additional yearly feu-duty of £ 
over and above the existing yearly feu-diity of £ ), 

and that at the term of yearly, beginning the first 

payment at the term of in the year , for the 

year immediately preceding (or, and that at two terms in 
the year, and , by equal portions, beginning 

the first term's payment thereof at the term of in the 

year , for the half-year immediately preceding, and the 

next term's payment thereof at the term of thereafter), 

and so forth at the said term in each year (or at the said 
two terms in the year), in all time thereafter, with a fifth 
part more of each term's payment of liquidate penalty for 
each term's failure in punctual payment thereof, and interest 
at the rate of five per centum per annum of each yearly (or 
each term's) payment of the said feu-duty (or additional 
fen-duty) from the term at which the same falls due until 
payment thereof, which feu-duty (or additional feu-duty) is 
constituted in respect of a commutation of all carriages and 



182 1UB£DE£MABLE RIGHTS. 

Ho. 88. services {or as the case may he) incident to the said A Fs 
estate of superiority, exigible in respect of the said l^s 
estate of property or dominium utile : Ik witness whbbiof 
{testing clause), 

Eeference is made to the observations as to the terms and mode 
of execution of the memorandum in relation to the commutation of 
casualties {supra, p. 179), which apply also to this case. 

Completion of the Commutation of Carriages and Services, 

The memorandum, or where the annual money value is ascertained 
judicially, the decree of the Sheriff — in either case with warraot of 
registration — ^is recorded in the appropriate register of, sasines, vhieb 
operates as a discharge of the carriages and services. 

6. Allocation op Feu-Duty. 

When the subject of an original feu comes to be divided into 
parts, not by way of subinfeudation, but by disposition of sale, tke 
cumulo feu-duty is split and apportioned among the different paHa of 
the feu j but unless or until this apportionment is recognised by tbe 
superior, each part of the feu remains liable to him in payment of tl^ 
cumulo feu-duty, with a right of relief against the other parts for the 
over-payment. Sometimes — particularly in the case of ground fened 
for building'purposes — authority is in the feu-right given to the Yaasil 
so to apportion the feu-duty, the superior receiving a certain addi- 
tional payment in respect of the permission to apportion, sach 
addition forming part of the feu-duty. 

Previously to 1874, when, either in consequence of suchastipnb* 
tion in the feu-right or otherwise, a superior so apportioned tbe 
cumulo feu-duty and restricted the amount exigible from each pirt 
of the feu to a certain sum, the arrangement was effected by to 
granting a charter or writ by progress, with a new reddendo contain* 
ing the feu-duty and casualties to be thereafter paid. This is now 
effected by means of a memorandum in or as nearly as may be infliB 
form of Schedule (D), annexed to the Conveyancing Act, specifying 
the allocation of the original feu-duty, with or without augmentatioD, 
and indorsed on the deed in favour of the vassal either before or after 
it has been recorded ; and the allocation in such memoiandum is 



ALLOCATION OP FEU-DUTY. 183 

binding on all concerned, but does not affect the rights of heritable 
creditors who are not parties thereto. 

There is nothing said about casualties in this provision of the 
Act, bat where casualties are in the shape of increased or additional 
feu-duty, the memorandum should specify also how they are to be 
dealt with. 

The Act provides for the memorandum being written only on 
*' the deed " in favour of the proprietor obtaining the allocation, but 
as the word " deed" includes instruments, the memorandum may be 
Tfritten on the instrument in the proprietor's favour where his title 
is completed in that way. 

If preferred, the allocation may be effected by means of a charter 
of novodamuSf infra p. 184. 

MEMORANDUM of ALLOCA TION of Fea-Duty. Vo.84 

The proportion of the original feu-duty of £ allo- 

cated upon the lands (or, subjects) within disponed {or, de- 
scribed) is hereby fixed at £ {and if an augmentation 
has been stipulated for, add — with £ of augmentation, 
making a total of £ ) (a) (b). 

{To be signed by the superioi* of the lands or his commissioner^ 
who after his signature will add the character in which 
he is acting.) 

This memorandum does not require to be tested, but the use of 
the word *' commissioner " in the schedule implies that any person 
signing for the superior must have written authority to do so. 

(a) Where the original feu-duty is allocated^ it seems probahle that the Note («). 
periodical additional feu-duty also, if any, will he allocated, in which 
ease add — And the proportion of the original additional feu-duty of 
£ , payable at the end of every year, allocated upon the said 

lands, is hereby fixed at £ , with {if so stipulated) £ 

of augmentation, making a total of £ 

ip) There does not seem to he any incompetency in limiting Hie Note ((). 
aJloeaiion to the original feu-duty, and if it is so intended, insert in 
plaee of the clause in Note (a) — But declaring that this allocation does 



184 IRKEDEEMABLE BIGHTS. 

No. 84. not apply to or include the original additional feu-duty of £ , 

payable at the end of every year, for payment of which cumvio 

additional feu-duty the said lands shall remain liable as before. 

WJiere this course is followed^ and the vassal is called on to pan 
more than his own proportion of the additional feu-duty^ he is entided 
to an assignation in relief and he may desire to get from the supenar 
an obligation to grant such an assignation. The form of the memo- 
randum of allocation is not well suited for the insertion of such an 
obligation, butf if desired, it may he in the following terms : — ^Providing 
always that so often as the proprietor of the said lands (or subjecta) 
shall be called upon to pay the whole of the said cumulo additional fea- 
duty, or any part thereof, exceeding the sum of £ (or the pro- 

portion thereof corresponding to the said sum of £ , proportim 

of original feu'duty), the superior of the said lands (or subjects) shall be 
bound and obliged to grant his concurrence for uplifting the same in 
so far as due from the proprietors of the other parts of the lands (or, 
subjects) for which the said cumulo additional feu-duty is payable, 
and, if necessary, to assign his right thereto, the concurrence and 
assignation being always granted at the expense of the party or parties 
applying for the same. 

When the deed or instrument on which the memorandum of allo- 
cation is indorsed has not been previously recorded, the memorandum 
may be recorded along with it, but otherwise there is no proyiaion 
for its entering the record. 

Writs saved feom the Operation of "The Conveyancing 

(Scotland) Act 1874." 

As already mentioned, there are certain writs saved from the 
operation of the general abolition of charters and writs by progreeB. 
These, in so far as falling under irredeemable rights, are charten of 
ncvodamus and precepts or writs from chancery, or of c^arc cmM, 
Act, § 4 (1). 

Ho. 8 CHARTER of NO V0DAMU8. 

The object of this charter is generally either to give a new title 
where the old title has been lost, or to effect some alteration in regaid 
to the feu-duty or the conditions of the feu. In the former case it 
is sometimes preceded by a process of reduction and improbation. 



OHABTER OF NOVODAMUS. 185 

I, A B (designation), immediate lawful superior of the No. 86. 
lands (or subjects) underwritten (a), considering that the 
whole writs and title-deeds of the lands (or subjects) here- 
inafter disponed, belonging in property to C D (designation) 
and his predecessors and authors, holden of me in manner 
after expressed, have been accidentally lost, and (if stich 
be the case) that decreet of certification has been pronounced 
against the same in a process of reduction and improbation 
at my instance, before the Lords of Council and Session^ 
against the said C D and others ; and I, being fully satisfied 
of the said C D's right to the said lands (or subjects), and 
of the tenor of the writs and title-deeds thereof in favour of 
him and his aforesaid, have resolved to supply the said writs 
and title-deeds hg granting the following charter in manner 
afterwritten: Therefore I of new give and dispone and for ever 
confirm to the said C D, his heirs and assignees whomsoever, 
heritably and irredeemably. All and Whole (here describe the 
lands or subfects, and insert the (Jb) burdens and conditions, ij 
anyy and the tenendas and reddendo a^ in the original 
charter y clause of warrandice from fact and deed only, regis- 
tration clause, and testing clatise). 

(a) Or, considering that the subjects after disponed were vested Note (a), 
in and belonged to E F, G H, and J K (designations), as trustees 
and in trust for behoof of the (name) company incorporated by Act 
of Parliament, conform to disposition made and granted by L M, dated 
the day of , whereby the said L M sold, alienated, 

and disponed to and in favour of the said E F, G H, and J K, and 
the survivors or survivor of them, and the heir-at-law of the survivor, 
as trustees and in trust for behoof of the said company incorporated 
as aforesaid, All and Whole the said subjects, and in which subjects 
the said E F, G H, and J K, as trustees foresaid, were infeft conform 
to instrument of sasine in their favour recorded in the (specify the 
register ofsasines and the date of recording), and considering that all 
the said trustees of the said company are dead, and that the heir-at- 
law of the said G H, who was the last survivor of them, cannot be 
found (or, has declined to make up a title), and that the said com- 
pany has requested me to grant a charter of novodamus in manner 
after written, which I am willing to do : Therefore I of new give and 



186 IRKEDEEMABLE BIGHTS. 

No. 85. dispone to the said company, incorporated as aforesaid, and the assig- 
nees of the said company, heritably and irredeemably, Alland Whole, Ac 

Note (5). (ft) If the object of the charter he to make an alteration in regard 

to the feu-duty or casualties, whether as regards amount or allocaium 
or the conditions of the feu^ this will he set forth as the cause of granting, 
and the terms of the reddendo in the original charter wiU he altered m 
conformity with the new agreement, or the agreed-on alterations of rte 
conditions will he specified. Where the casualties are different fiom 
those now competent to he stipulated, the reddendo in the original charter 
should he referred to as the warrant for inserting them. 

Completion op Title. 

The title will be completed either by recording the charter or bj 
expeding and recording a notarial instrument thereon, in either case 
with warrant of registration. 

Entry op Heirs by Precept or Writ op Clare Constat. 

1. Lands held of the Crown or Prince and Steward of Scotland. 

The heir of any deceased proprietor of lands held of the Crown or 
Prince and Steward of Scotland may obtain a precept or writ of dm 
constat on production of a decree of general or special service in his 
favour as heir. The mode of proceeding is by lodging in the office 
of the Sheriff of Chancery, as coming in place of the Presenter of 
Signatures (Conveyancing Act, § 57), the decree of service and a draft 
of the proposed vn:it or precept prepared and indorsed by the agent of 
the heir, being a Writer to the Signet, in the form or as nearly as nay 
be in the form, as the case may require, of Schedule (U), annexed to 
the Consolidation Act, with a note in the form of Schedule (S), signed 
by the agent, praying for a writ or precept, and the last Ciown writ, 
and all the title-deeds subsequent thereto, which draft is revised bf 
the Sheriff of Chancery and docqueted by him, after which the writ 
or precept is engrossed in the office of the Director of Chancery, and 
signed by the Director or his depute or substitute, and after being 
recorded in Chancery is issued to the person applying for the same 
on payment of the duties and composition due. 

2. Lands held of Subjects Superior. 

A subject superior is bound (Consolidation Act, § 101) to grant 



PRECEPTS OR WRITS OF CLARE CONSTAT. 187 

precepts or writs of dare constat in favour of the heir of a deceased 
vassal, provided the heir shall, if required, produce a charter or other 
writ showing the tenendaa and reddendo of the lands in which his 
ancestor died infeft, and shall also pay or tender to the superior such 
duties or casualties as he may be entitled to demand. The Act does 
not in this case provide that the heir shall produce a decree of ser- 
vice, but the obligation on a superior to grant such precept or writ is 
in favour only of " the heir entitled to demand the same," and there- 
fore the superior may require evidence, by service or otherwise, of the 
heir's right 

The writ has almost, if not altogether, superseded the precept of 
dare constat. The only difference between them is that the precept 
forms a warrant for an instrument of sasine, which the writ does not. 

CJBOWN WRIT of CLARE CONSTAT in favour of Hcse. 

Heir-aULaw. 

Victoria, 4fec., Whereas by Decree of Special Service {or 
of General Service, as the case may he) of A B {name and 
designation of the heir*), dated the day of , 

and recorded in Chancery the day of , and 

other authentic instruments and documents, it clearly 
appears that C D {name and designation of the ancestor) died 
last vest and seised as of fee in All and Whole {here describe 
(he lands as in the ancestor's infeftment,1[ or describe them or 
refer to them as in Schedule (0) Conveyancing Act, or Sche- 
dide (6) Consolidation Act, as the case may be), and that in 
virtue of (a) (here describe the Crovm charter or Croivn 'pre- 
cept and sasine, or recorded Crovm charter or Crown precept, 
or other Crown writ or vrrits forming the last investiture by 
dateSf and dates of registration in the register of sasines and 
register of Crown torits, cw) Crown Precept in favour of the 
said C D, as heir of E F (designxition), his father, in the said 
lands and others, dated the day of , and 

^ The schedule does not require that the Sheriff before whom the deoree 
obtained shall be mentioned, but it may be done. 

t See foot-note, p. 132. 



188 IRREDEEBCABLE RIGHTS. 

Na 86. recorded in the Register of Crown Writs the day of 

, and recorded in the [specify register ofaasines) on 
the day of (if there are any real burdens^ cofh 

ditions, cfec, here [insert them or refer to them in terms of 
SchedtUe (D) Consolidation Act, as in previotis Styles) : And 
that the said A B is the eldest son (or whatever the rekUum- 
ship may be, state it), and nearest and lawful heir of the said 
C D : Therefore we hereby declare the said A B to be the 
heir entitled to succeed to the said C D in the said lands and 
others, to be holden of us and our royal successors in man- 
ner and for payment of the duties specified in the said 
Crown Precept (or if the torit of investiture before referred to 
does not contain the tenendas and reddendo, here refer to a 
Crovm charter or writ containing them, or if the reddendo fc 
different, or if the vassal should desire, specify the reddendo). 
Given at Edinburgh the day of , in the 

year 

(Signed by the Director of Chancery, or his depute or 

substitute.) 

ISitAt (a). (a) These are the directions in the Schedule (U), but as by the 
Conveyancing Act entry by charter is abolished, and a constractife 
entry is effected by means of a recorded disposition or decree of 
special service, <&c., the writ, whatever it may be, constitating tb 
infeftment will be referred to. 



Ha 87 CBO WN WRIT of CLABE CON ST A T in favour of on 

Heir of Entail, 

Victoria, Ac, Whereas by decree of General Service (or 
of Special Service, a^ the case may be) of A B (name and de- 
signation of Jieir), dated (insert date of decree) ^ and recorded 
in Chancery (insert date of registration), and other authentic 
instruments and documents, it clearly appears that G D 
(name and designation of ancestor) died last vest and seised 
as of fee in All and Whole (h^re describe the lands as in the 



.CROWN WRIT OF CLARE CONSTAT. 189 

atuiestor's infeftment, or * describe them or refer to\ them as in No. 87. 
Schedtde (0) Conveyancing Act, or Schedule (G) Gonsolida- 
tton Act), and that in virtue of f {here describe the Croum 
cTiasrter or Crown precept and sasine, or recorded Croum 
charter or Croum precept, or other Croum urrit or writs forming 
the last investiture by dates, and dates of registration in the 
register of Croum urrits and register of sasines, as) a Crown 
Charter of resignation in favour of the said D, dated the 
day of , and {if it be sealed) sealed the 

day of , and registered in the Register 

of Crown Writs on the day of , and along 

^th warrant of registration thereon on behalf of the said C 
D, recorded in the {specif y register ofsasines) on the 
d^y of {or^ and Instrument of Sasine thereon in 

Ws favour, recorded in the {specify register ofsasines) on the 
day of ) {here insert the destination, conditions, 

^., at full length, or refer to them in or as nearly cw may 
^ in the form of Schedule (C) Consolidation Act, cw) hut 
^Ways with and under the conditions, provisions, and pro- 
l^^^bitory, irritant, and resolutive clauses {or clause authoris- 
ing registration in the Register of Tailzies, as the case 
^"i^y be) contained in a Disposition and Deed of Entail 
?^nted by G H {here name and design the granter), dated 
^i^e day of , in favour of J K {designa- 

*^), and the heirs-male of his body, whom failing in favour 
^I L M {designation) y and the heirs-male of his body, whom 
fciling in favour of the said C D and the heirs-male of his body 
(We set forth the remainder ofijie destination in full, or such 
I fdrt thereof as may be necessary to shew the said A Hs right 
08 heir, and say, and the other heirs therein specified), and 
which conditions, provisions, and prohibitory, irritant, and re- 
solutive clauses {or clause autliorising registration in the 
Register of Tailzies, as the case may be), are herein referred 
to as at length set forth in the said Disposition and Deed of 
Entail, which is recorded in the Register of Tailzies, on the 

See foot-note, p. 182. t See Note (a), preceding Style. 



190 IRREDEEMABLE BIGHTS. 

No. 87. day of (or in the before mentioned recorded 

Charter of Resignation in favour of the said CD, orctaat length 
set forth in any other recorded deed or conveyance) : And that 
the said A B is the eldest son and nearest and lawful heir-male 
of the body of the said C D (or whatever relationship and chth 
racter o/Jieir the party holds ^ here state it): Therefore we hereby 
declare the said A B to be the heir of tailzie and provision 
entitled to succeed to the said G D in the said lands and 
others, to be holden of us and our royal successors in manner 
and for payment of the duties specified in the said Crown 
Charter of Resignation (or^ if necessary, here specify a Oroum 
charter or other Crovm writ containing the tenendas anid 
reddendo, or if the reddendo be different from that in <fe 
Grown charter or Crovm writ specified or referred to,oriftkt 
vassal should desire, specify the reddendo here). Given at 
Edinburgh the day of , in the year 

(Signed by the Director of Chancery, or his depute or 

substitute.) 



HO. 88. CRO WN PRECEPT. 

Victoria, &c., Whereas by Decree of General Service (^ 
of Special Service, as the case may be) of A B (name afid 
designation of the heir),^ dated {here insert the date ofth^ 
decree), and recorded in Chancery (insert date of registratiof^)^ 
and other authentic instruments and documents., it clearly 
appears that C D (insert narhe and designation of 'ancestOH 
died last vest and seised as of fee in (here describe the h^ 
as in the ancestor's infeftment), and that in virtue of (hered^ 
scribe the Crovm charter or Crown precept and sasine, Cf f^ 
corded Crown charter or Crovm precept, or other Crovm vrrii ^ 
vrrits forming tlie last investiture by date, arid dates ofregtitf^" 
tion in the register ofsamnes and register of Crown writs, fl*) 

* The Schedule does not require that the Sheriff before whom the deoi60 
was obtained shall be mentioned, but it may be done. 



GROWN PRECEPT. 191 



a Crown Charter of Eesignation in favour of the said D, ^o- 88. 
dated the day of , and sealed the day of 

, and recorded in the Register of Crown Writs on 
the day of , and Instrument of Sasine in his 

favour thereon, recorded {specify the register of sasines and 
daie of registration ; (a) if there are any real burdens, condi- 
iWM, dc.^ here insert them or refer to them in terms of Sche- 
dule (D), Consolidation Act, as in previous Styles); and that 
the said A B is the eldest son and nearest and lawful heir of 
the said C D in the said lands and others (or wJiatever rela- 
ivmUp and character of heir the party holds, here state it) ; 
and that the said lands and others are holden of us and our 
royal successors in feu-farm, fee, and lieritage {or here insert 
we tenure, whatever it may he, from the last charter or other 
*wt^), for payment of {here insert the reddendo from such 
<ihmier or tmrit) : Therefore we hereby desire any Notary- 
Public to whom these presents may be presented to give to 
fte said A B, as heir foresaid, sasine of the lands and others 
"^fore described (b) {and if there are any real burdens, &c,, add 
"^tnt always with and under the burdens, conditions, pro- 
^lons, and limitations, as the case may he), above specified 
(w* referred to, as the case may be). Given at Edinburgh tlie 
day of in the year 

W If ihe lands are held under a deed of entail, here insert the condi- Note (a). 

•"^t^w,* ijtc, at full length, or refer to them as follows : — But always 

^th and under the conditions provisions, and prohibitory, irritant, 

•'^ resolutive clauses {or, clause authorising registration in the register 

^ tailzies, as the ease may he), contained in a disposition and deed 

, ^ «ntail granted by the deceased G H {name and designation of 

9^iit»), dated the day of , in favour of the deceased 

^ K (name and designation) and his heirs- male, whom failing in 

«T(mi of the deceased L M {designation) {here set forth the destination 

^ •»di part thereof as may he deemed necessary, and say — and the 

^' heirs therein specified), and which conditions, provisions, and 

Prohibitory, irritant, and resolutive clauses {or clause authorising 

* As to ibe direotaons in this note, see Style No. 70, p. 130. 



192 IRREDEEMABLK RIGHTS. 

No. 88. registration in the register of tailzies, as the case may he)y are herein 
referred to as at length set forth in the said disposition and deed of 
entail, which is recorded in the register of tailzies on the day 

of , (or as at length set forth in the above mentioned recoided 

charter, or other writ forming the last investiture, or refer to the condi- 
tions, dec, as at length set forth in any other recorded deed or amveff* 
ance), and that the said A B is the eldest son {or as the case may he) 
and heir-male of the said C D, and therefore nearest and lawful heir 
of tailzie and provision of the said C D in the lands and othen 
foresaid under and by virtue of the said disposition and deed of 
entail. 

Note (&), (h) If the lands are held under a deed of entail, say — But alwtjs 

with and under the conditions, provisions, and prohibitory, irritant^ 
and resolutive clauses {or clause authorising registration in the 
register of tailzies) above specified {or referred to) : Given, &c. 



Ho. 89. WBIT of CLARE CONST A Thy a Subject Svperior in 

favour of an Heir-of-Line, 

I, A B (designation), immediate lawful superior of the 
lands and other8'(or subjects) hereinafter mentioned. Whereas 
by Decree of General Service (or of Special Service, ew tk 
case may be) of C D {name and designation of heir), dated 
the day of , and recorded in Chancery the 

day of , and other authentic instruments and 

documents {or, whereas by authentic instruments and docu- 
ments) it clearly appears that E F (name and designation of 
ancestor) died last vest and seised as of fee in All and Whole 
{here describe the lands or subjects as in E F's infeflmeni, ^ 
refer to them as in Schedule (0), Conveyancing Act, or Sck^ 
dule (G), Consolidation Act),* and that in virtue of (1^ 
describe the deed or deeds, or torit or writs, forming E F^ 

♦ See Foot Note, p. 132. 



WRIT OF GLARE CONSTAT BT SUBJECT SUPERIOR. 198 

*sttture, by their dateSy and dates of registration in the No. 89. 
ister of SasineSy as) a Disposition granted by L M (rfe- 
ai%on)y in favour of the said E F, and dated the 
of , and recorded along with warrant of registra- 

L thereon on his behalf in the (specify Register of Sasines 
' date of registration ; if there are any real burdens y con- 
onSy dhc.y here insert or refer to them in the form of Sche- 
5 (D) Consolidation Act, as in Styles Nos. 68 and 69) ; and 
t the said C D is eldest son (or as the case may be) and 
trest and lawful heir of the said E F : Therefore I hereby 
lare the said C D to be the heir entitled to succeed to 
I said E F in the said lands and others (or subjects) : (If 
re are any burdens, add — ^but always with and under the 
1 burdens, conditions, Ac, above specified, or referred to) : 
be holden of me and my heirs and successors in manner 
I for payment of the duties specified in (here refer to if 
viously specifedy or specify y a charter or other writ con- 
ling the tenendas and reddendo, as the said Feu- Charter 
he said lands and others or subjects), (or the Feu-Charter 
the said lands and others, or subjects, granted by G H 
ngnation)y in favour of J K (designation), dated the 
of :) (If the reddendo is different from that in 

charter or writ specified or referred to, or if the vassal 
uli desircy omit " and for payment of the duties," and in- 
! the reddendo here) : In witness whereof (testing clause). 



WRIT of CLARE CONSTAT by a Subject Superior in Ho. 90. 
favoMr of an Heir of Provision, 

I, A B (designation) y immediate lawful superior of the 
^ds and others (or subjects) hereinafter mentioned : 
bereas by decree of General Service (or of Special Service, 
the case may be), ot CD (name and designation of heir), 
ted the day of , and recorded in Chancery 

5 day of , and other authentic instruments 

d documents (or. Whereas by authentic instruments and 

13 



194 IHKEDEEMABLE RIGHTS. 

No. 90. documents), it clearly appears that E F {deaignation of 
r ancestor) died last vest and seised as of fee in All and Whole 
{insert descripttoii of lands or subjects as in EFs in/e/tmen(), 
and that in virtue of (here describe by date, and date of regis- 
tration in the Register of Sasines, the deed or vprits fommg 
E Fs investiture, as) writ of Clare Constat granted by me in 
favour of the said E F, dated the day of , and 

along with Warrant of Registration thereon on his behalf, 
recorded in the {specify Register of Sasines and daie of regis- 
tration) {if there are any real burdens, conditions, dec, hen 
insert them or refer to them in the form of Schedule (D) Cb»- 
solidation Act, as in Styles Nos. 68 and 69) ; and that the 
said C D {or, if the heir has not been named before, sag 
C D, designation) is eldest son {or as the case may be) and 
nearest and lawful heir of the body of the said deceased 
E F, and is therefore nearest and lawful heir of provision to 
the said E F in the said lands and others {or subjects) under 
and in virtue of a Disposition and Settlement executed by 
the late G H {designation), dat^d the day of . 

whereby he disponed the said lands and others {or subjects) 
to and in favour of the deceased L M {designation), and the 
heirs of his body, whom failing to the S8dd E F and the hei» 
of his body, and to the other heirs therein specified : There- 
fore I hereby declare the said C D to be the heir of pi^ 
vision entitled to succeed to the said E F in the said lande 
and others, {or subjects) {if there are any real burdens, (fc't 
add — ^but always with and under the real burdens, condi- 
tions, &c., above specified, or referred to) : To be bolden d 
me and my heirs and successors in manner and for payment 
of the duties specified in (Aere refer to if previously spee^ 
or specify a charter or other writ containing the tenendas c»» 
reddendo, as the said Writ of Clare Constat or Feu-Charter 
of the said lands and others, or subjects), {or the Charter 
of Resignation of the said lands and others, or subjectBi 
granted by J K {designation), then superior of the said lands 
{or subjects), in favour of N {designation), and dated tiie 
day of :) {If the reddendo is different f^ 



WBIT OF CLABB CONSTAT BY SUBJECT SUPERIOR. 195 

jAa< in the charter or tvrit specified or referred to, or if the No. 90. 
{XJfcSSoZ should desire, omit " and for payment of the duties," 
cu%d insert the reddendo here) : In witness whereof, &c. 



WJBIT of CJjASE constat by a Subject Superior in Ho.9L 
favour of an Heir of Tailzie and Provision. 

I, A B, immediate lawful superior of the lands and others 
hereinafter mentioned : Whereas by decree of General {or 
Special) Service of C D (designation), dated the day of 

, and recorded in Chancery the day of , 

Mid other authentic instruments and documents (or Whereas 
ty authentic instruments and documents), it clearly appears 
fliat E P (nanie and designation of ancestor) died last vest 
wxd seised as of fee in All and Whole (here describe the 
hnds (w i» E Ps infeftment), and that in virtue of (here 
^^9cribe by date, a/nd date of registration in Register ofSasines, 
^deed or torits forming E F's investiture, as) Charter of 
Agnation granted by me in favour of the said E F, dated 
^^ day of , and along with Warrant of Eegistra- 

tion thereon on his behalf recorded in the (or Instrument of 
o^fiine in favour of the said E F, recorded in the (Jiere insert 
^ Register ofSasines and date of registration). (Here insert 
^destination, conditions, dec, at full length, or refer to them 
^tras nearly as may be in the form of Schedule (C) Gon^ 
^f^Hdation Act, or refer to them as follows), but always with 
4Dd under the conditions, provisions, and prohibitory, irri- 
tant, and resolutive clauses (or clause authorising registra- 
tion in the Register of Tailzies, as the case may be), contained 
in a Disposition and Deed of Entail granted by G H (here 
name and design the granter), dated the day of , 

in favoxur of J K (designation), and the heirs-male of his 
body, whom failing in favour of L M (designation), and the 
heinhinale of his body, whom failing in favour of the said E 
F, and the heirs-male of his .body (Jiere set forth the re- 
ef the destination in full, or such part thereof as may 



196 IRREDEEMABLE RIGHTS. 

be necessary to shew the said C Us right as heir^ cmd aajf~- 
and the other heirs therein specified), and which conditioDB, 
provisions, and prohibitory, irritant, and resolutive clauBCB 
(or clause authorising registration in the Register of Tailzies, 
as the case may 6c), are herein referred to as at length set 
forth in the said Disposition and Deed of Entail, which is 
recorded in the Register of Tailzies on the day of 
(or in the before mentioned recorded Charter of Resignation 
in favour of the said 'EF (or as at length set forth in OMig 
other recorded deed or conveyance) ; and that the said C D 
is the eldest son and nearest and lawful heir-male of thebodjr 
of the said E F (or wliatever relationship the party holds here 
state it) : Thereforfe I hereby declare the said C D to be the 
heir of tailzie and provision entitled to succeed to the said 
E F in the said lands and others : To be holden of me and 
my heirs and successors in manner and for payment of the 
duties specified in (here specify, or if already specified refrr^fo 
a charter or other torit containing the tenendas and reddendo, 
or if the reddendo be different from that in the charter or wri 
specified or referred to, or if the vassal shotUd desire, otnH 
" and for payment of the duties," and insert the reddendo 
here) : In witness whereof, &c. 

Precept op Clare Constat by Subject Supsriob. 

This writ, should it be required, can easily be framed ftoo ^ 
style of the Crown Precept, No. 88. 

Completion op Heir's Title. 

1. When made up hy Writ o/ Clare Constat 

The title when made up by writ of dare constat will be coift* 
pleted by recording the writ with warrant of registration on behalf 
of the heir, and it will be kept in view that the ConsoUdatifli 
Act, § 86, provides that " all C^o^vn writs of dare constat or piecq^ 



WBIT OF OLABB CONSTAT BT SUBJECT SUPERIOR. 197 

iflsoed horn the Office of Chancery shall he null and void unless 
lecorded in the apprc^riate register of sasines hefore the first tenn 
of Whitsunday or Martinmas posterior to the date of such writ or 
precept" 

2. When proceeding on Precept of Clare Constat. 

The title when proceeding on a precept of dare constat also may 
he completed hy recording the precept with warrant of registration, 
hut as there is no ohject in taking a precept, unless as a warrant for 
sasme^ it seems prohable that when this mode of making up a title is 
adopted it will he in order that it may he completed hy instrument 
of sasine, of which therefore a Style is given : — 

IN8TBUMENT of SASINE on Crown Precept ho.92. 

At , there was by (pr^ on behalf of) A B {naTne 

and desigwUion o/theheir)^ presented to me, Notary-Public 
subscribing, a Crown Precept of Sasine, commonly called a 
Precept of Clare Constat^ of the following tenor and date. 
{Here quote verbatim theprecept, including the signature, and 
dealing ifUis sealed,) In virtue of which Precept I hereby 
give to the said A B, as heir foresaid, Sasine of the lands 
and others before described {and if there are any real burdens, 
add) but always with and under the burdens, conditions, 
provisions, and limitations before specified, or referred to, as 
the case may he) : In witness whereof {testing clause as in 
Notarial Instrument), 

The instrument of sasine, with warrant of registration thereon, 
must he recorded hefore the first term of Whitsunday or Martinmas 
posterior to the date of the Crown Precept when proceeding on such. 

Voluntary Eeukquishment and Extinction, and Judicial 
Forfeiture or Eelinquishment of Superiorities. 

1. Voluntary Relinquishment and Extinction of Superiority, 

It is provided hy the ConsoHdation Act, § 110, that it shall he 
competent to any subject superior, whether himself entered with his 



198 IRREDEEMABLE RIGHTS. 

superior or not, and whatever the annual value of the reddendo laxs 
be, to relinquish his right of superiority in favour of his iTninftdiato 
vassal by granting a deed of relinqmshnient, and on the deed of re- 
linquishment being accepted by the vassal by an acceptance irritteii 
on such deed and being followed by a writ of investiture by the o?er 
superior, also written on the - deed of relinqmshment^ and on soch 
deed with the acceptance and writ of investiture and wanant of 
registration being recorded in the appropriate register of saaines, the 
superiority so relinquished shall be held to be extinguished, and the 
vassal and his successors in the lands shall hold the same as imme- 
diate vassals of the over superior by the tenure and for the reddendo 
by and for which such relinquished superiority was held, and the 
vassal shall be entitled to apply for an entry to such over superior 
accordingly as his immediate superior. 

On the application of the vassal in the relinquished superioritji 
and on production by him of the deed of relinquishment and accept- 
ance thereof, and on payment of such duties and casualties as otfj 
be exigible by the over superior, the over superior is bound to reoeire 
the vassal as his immediate vassal by writ of investiture, to be written 
on the deed of relinquishment, and the tenendcis and reddendo con- 
tained in the title-deeds of the relinquished superiority are inseited 
therein in room of those contained in the former investiture held 
under the relinquished superiority. § 111. 

The mode of proceeding when a writ of investiture is to be ob- 
tained from the Crown is the same as that already explained in ^^^ 
ference to precepts or writs of dare constat ^ supra, p. 186. 

HO.M. DEED of RELINQUISHMENT of S UPEBIOBITY. 

(Schedule (CC) No. 1.) 

I, A B (designation), immediate lawful superior of A-t* 
and Whole {here describe the lands), do hereby absolutely aa^ 
gratuitously (or " in consideration of the sum of pounA^ 

paid to me ; " or, if the superiority is entailed, " consigned i^ 
the (specify Bank), subject to the orders of the Court o> 
Session,") relinquish and renounce my right of superiority 
of the said lands in favour of C D (designation), my imme^ 
diate vassal, and Iris successors therein, and declare that the 



aELINQUISHMENT OF SUPERIORITY. 199 

said lands shall no longer be held of me as superior, but Na93. 
shall be held of my immediate lawful superior in all time to 
come : In witness whereof (usual testing clause). 



ACCEPTANCE by VASSAL, vmtten on Deed of Rdin- ho.91 
guishment — (Schedule (CC) No. 2.) 

I, C D {designatioTi), the immediate vassal in the lands 
described in this Deed, accept the relinquishment of the 
superiority of the said lands : In witness whereof {usual 
testing cUmse). 



CBOWN WRIT of INVESTITURE, vmtten on a Deed 
of Relinquishment — (Consolidation Act, Schedule (CC) 
No. 3.) 

Victoria, by the grace of God, of the United Kingdom 
of Great Britain and Ireland Queen, Defender of the Faith, 
— ^We, lawful superior of the lands contained in this Deed, 
accept and receive C D (designation), and his heirs and 
successors whomsoever (or othertoise, according to the des- 
tination contained in the title to the lands), in place of 
A B (designation), and his heirs and successors, in virtue 
of the above Deed of Eelinquishment and Acceptance 
thereof: To be holden the said lands, by the said C 
D and his foresaids, of us, &c. (specify the tenendas and 
reddendo contained in the titles of the relinquished superiority ; 
alao insert or refer to the conditions and limitations^ if any. 
Wider which the lands are held by the vassal, in terms of 
Schedule (D) Consolidation Act, as in previous Styles). — Given 
at Edinburgh the day of , in the year 

(Signed by the Director of Chancery, or his Depute or 

Substitute.) 



Ha 96. 



200 IRREDEEMABLE BIGHTS. 

Ho. 96. WHIT of INVESTITUBE hy a Subfect Superior, wrUUn 

on Deed of Relinquishment. 

I, E F {designation)^ lawful superior of the lands contained 
in this deed, accept and receive G D {designation), bsiA, his bein 
and successors whomsoever {or othervnse, according to the des- 
tination contained in the title to the lands), in place of AB 
{designation), and his heirs and successors, in virtue of the 
above Deed of Relinquishment and Acceptance thereof: To 
be holden the said lands, by the said C D and his aforesaid, 
of me and my heirs and successors {specify the tenendas and 
reddendo contained in the titles of the relinquished superiority; 
also insert or refer to the conditions and limitations, if afij/t 
under which the lands are held by the vassal, in terms ofS^h^ 
dule (D), Consolidation Act, as in previous Styles) : In WI^ 

NESS WHEREOF, &C. 

When the provision for the evacuation of mid-superiorities by 
the form of relinquishment and extinction was first introduced (10 
and 11 Vict. cap. 48) it very much simpHfied the previous mode of 
effecting that object, but it may now be as simple and advantageous to 
adopt the Disposition and Minute of ConsoHdation {supra, pp. % 
97). 

2. Judicial Forfeiture or Relinquishment of Superiority, 

Provisions are contained in the ConsoHdation Act^ sections IM 
to 109, for obtaining by judicial procedure a forfeiture, temponiy 
or absolute, of the right of superiority, where, owing to the iefiB«l 
or delay of the heir of a former superior to complete his title, tke 
vassal or his heir was unable to procure an entry ; but the only cim 
that needs to be here noticed is that of the heir of a vassal, as there is 
now neither necessity nor opportunity for applying to the over^uperior 
for the completion of the title under the decree of forfeiture by writ 
or charter of resignation or confirmation. Even in the case of an 
heir, with the facilities now afforded by the Consolidation and Con- 



IKYESTITUBE UNDER FOfiFEITURE, ETO. 201 

Teyancing Acts for completing his title without having recooise to 
the sapeiior, it seems veiy improbable that any case should arise in 
which it would be of advantage to adopt the course now under con- 
sideration. 

The mode of proceeding, which is by petition to the Lord Ordi- 
nary on the Bills, is fully explained in the Consolidation Act. Where 
the reddendo does not exceed £5 yearly, the vassal may, in his option, 
apply for absolute or for temporary forfeiture of the right of 
superiority. Where the reddendo is above £5 yearly, the vassal can 
apply only for temporary forfeiture, which entitles him to retain the 
casualties due on entry and feu-duties, or other annual prestations, 
until he shall be fully paid and indemnified for the expenses of the 
petition and procedure thereon, and all the expenses of completing 
his title in terms of the Act. An arrangement may be made in the 
oouxseof the proceedings for a relinquishment of the superiority. After 
getting decree, the petitioner is entitled to apply to the over-superior, 
whether the Crown or a subject, for a writ of clare constat, which is 
in the following terms : — 



WBIT of CLARE CONSTAT by Subject Superior, pro- HaW. 
ceeding on a Decree of Forfeiture or Belinquishment, 

I, A B {designation), immediate lawful superior of the 
lands and others after-mentioned, in virtue of a Decree of 
Forfeiture (or Jlelinquishment, as the case may be), against 
G H (designation), heir-apparent of my immediate vassal 
last infeft in the said lands and others, pronounced by Lord 
, Ordinary on the Bills, dated the day of , 

in a petition at the instance of C D (here name and design 
the heir in whose favour the torit is to be granted) : Whereas 
by authentic instruments and documents it clearly appears 
that E F {Jure name and design the ancestor of C D) died 
last vest and seised as of fee in {here describe the lands as in 
E Fs infeftment), and that in virtue of (here describe by 
daie^ and date of registration in the register of sasines, the deed 
or writs forming E Fs investiture, and insert or refer to the 
real burdens^ if any, aU as in Style No. 68) ; and that the 



2U2 IRREDEEMABLE BIQHTS. 

No. 97. said C D is eldest son {or as the case may be) and nearest 
lawful heir of the said E F ; and that the said lands and 
others are in virtue of the said decree now holden of me and 
my successors, as superiors thereof, in free blench farm (or, 
in feu-farm, as the case may 6e, according to the tenure bg 
which the forfeited or relinquished superiority was held) for 
ever, for payment of {here specify the reddendo for which the 
forfeited or relinquished superiority was held) : Therefore I 
hereby declare the said C D to be the heir entitled to succeed 
to the said E F in the said lands to be holden of me and my 
aforesaid for payment of the said duties : In witness whebiof 
{testing clause). 

Where the lands are held imder a deed of entail, the necessary 
alterations will be made, as in Style K"©. 91. 

Where the next superior is the Crown, a writ by the Ciown wiD 
be granted in similar terms. The mode of proceeding is the same as 
in the case of other Crown writs. 



(5) BIQHTS OF LAND TTFT.T^ BY BUBGAGE OB BY 

BOOKING TENUBE. 

1. Distinction between forms of Burgage and Feu Rights cdxjluh^' 

The distinction which at one time existed between the formB of 
deeds and instruments relating to lands held by Buigage or by Book- 
ing tenure, and those relating to lands held Feu, are practically abol- 
isbed, their observance being no longer necessary, though to a certain 
extent permitted. The Conveyancing Act of 1874 contains the fol- 
lowing provisions on this subject : — 

(1) Burgage, — ^All persons having any estate in land held bar- 
gage have the same right and interest in such estate as would in any 
way belong to them if. the tenure were feu. 

1. There is to be no distinction between estates in land held 
burgage and estates in land held feu, in so far as regards the con- 
veyances relating thereto, or the completion of titles, or any of the 
matters or things to which the provisions of the Act relate. 



LANDS HELD BUBGAQE. 203 

2. The proprietors of estates in land held burgage are entitled to 
grant fens of the same in the same manner and to the like effect as 
if such estates were held feiL* 

3. The titles of all such feus previously granted are unchallenge- 
able on the grounds that such feus are of land held burgage or that 
such titles were recorded in the burgh register of sasines ; and 

4. Writs (not being feu-rights) affecting land which immediately 
prior to the commencement of the Act was held buigage, must be re- 
corded in the burgh register of sasines.f 

(2.) Booking, — ^The above provisions are applicable also to lands 
in the burgh of Paisley held by the tenure of booking, except that 
writs affecting land in said burgh so held must be recorded in the 
register of booking therein.! 

As the recording of the titles of such feus — ^prior to the commence- 
ment of the Act of 1874, in the burgh instead of the general or 
county register — ^forms no objection to them, a search against the sub- 
jects for that period must be made in that as well as in the other 
T^^ters. 

It should be kept in view that the provision as to recording ap- 
plies only to deeds registered prior to October 1874. Deeds relating 
to lands held feu, though originally held burgage, must now be re- 
corded in the General Eegister of Sasines, and deeds relating to lands 
held burgage must be recorded in the burgh register of sasines. 

2. Forms of Conveyance. 

Conveyances of land held burgage or by booking may be either 
in the forms allowed by the Consolidation Act of 1868 in regard 
tliereto, except that no procuratory or clause of resignation shall be 
inserted, % and if inserted it shall be held pro non scripto^ or in the 
forms applicable to landd held feu,§ but it is recommended that the 

* Booh fens were by many always thought competent. Per Lord Bal- 
gimy in Dtmoion^ 14 Nov. 1827, 6 S. 19 ; per Lord Deas in Magt, of Arbroath^ 
19 ICarch 1872, 10 M'P. 630. 

t Act, § 25. 

t A provision to this effect is contained in J 7 of the Oonsolidation Act 
1868. 

i Act, § 26. 



204 lEREDEEMABLB RIGHTS. 

fonns of disposition in the Consolidation Act be adopted, as tending, 
by showing the holding, to prevent mistakes as to the i^gister of 
sasines in which the writs should be recorded. 

3. Warrant of Registration now necessary. 

The provision in section 141 of '' The Titles to Land ConsolidA- 
tion (Scotland) Act 1868/' dispensing with warrants of legistntioii 
on deeds recorded in burgh registers, is repealed, and it is necesBSiy 
to have a warrant of registration on every conveyance, deed, or 
writing so recorded. 



Vo.98. 



DISPOSITION. 



I, A B (designation), heritable proprietor of the subjectB 
hereinafter disponed, in consideration of the sum of 

pounds sterling instantly paid to me by C D (tte* 

8ignation)y as the price thereof, do hereby sell, alienate, and 

dispone to the said C D, and his heirs and assignees whoin- 

(a) See soever, heritably and irredeemably (a) (here insert descrip' 

wpra^p! 53. ^^^ of subjects OS in the title-deeds or in terms of Schedule (0) 

Conveyancing Act, as) All and Whole the house Number Tt^ 

Street, in the Burgh of and 

County of , being the subjects particularly 

described in the Disposition granted by E F (designatiof^}* 
in favour of G H (designation), and dated the ^ 

and recorded in the Eegister of Sasines for the Burgh (►*- 

on the day of in the f 

, together with the pertinents of the said subjects 
and my whole right, title, and interest, present and futures 
See Note therein (b) : With entry at the term of (here specify 
(6), mfra, ^gy^ ^y. entry) : To be holden the said subjects of He: 

fc) gee Majesty in free burgage : (c) And I assign the writs, anc^ 
^^**^*^*60 ^^^^ delivered the same according to inventory: And f- 
and Style ' assigu the reuts : And I bind myself to free and relieve th^ 
said disponee and his aforesaid of all ground-annual, ces^^ 
annuity and other public burdens : And I grant warrandice 



LANDS HELD BUBGAGE— DISPOSITION. 205 

if necessary^ but excepting always from this warran- No. 98. 
;he current tacks or leases) : And I consent to the re- 
ktion hereof for preservation : (d) In witness whereof 
n^r clause in tisualform). 

I If any hurderu, restrictions, conditions^ dbc, are to he consti- Note (6). 
on the subjects^ here insert them, or if already constituted refer to 
ihuB: — ^But always with and under the burdens, conditions, 
ions, restrictions, limitations, and obligations (or such of these 
y ^*fPh ^ ^ case), specified in the said disposition granted by 
dd E F, recorded as aforesaid ; or, in an instrument of sasine 
otarial instrument) in the said subjects in favour of L M (de- 
ion^, recorded in the register of sasines for the burgh of 

on the day of in the year 

herwisey in terms of Schedule (D) Consolidation Act, and pre- 
Styles'). 

I) If the conveyance is to contain a clause of direction, it will Note (d). 
aerted here. See supra, p. 42. 

^cmpletian rfDisponee's Title, — The investiture of the disponee 
be completed either — 

. By recording the conveyance, with a warrant of registration 
m, in the register or registers of sasines for the burgh or burghs 
) the subjects lie. 

By expeding and recording an instrument of sasine, with 
nt, in the said register or registers (Consolidation Act, § 16), or 

By expeding and recording a notarial instrument with warrant 
) said register or r^^ters. 



WARRANT of REGISTRATION. 

legister on behalf of C D {insert designation) in the 
ster of the Burgh of M {or in the Registers of the Burghs 
, N, and 0, or othenoise, as the case may be). 

{Signed) D. 
orGH, 

W.S., Edinburgh, Agent, 
or J, K, & L, 

W.S., Edinburgh, Agents. 
{or as the case may be.) 



No* 99. 



206 IRREDEEMABLE RIGHTS. 

Ho.100. INSTRUMENT of SASINE in Burgage Sulu'ects.— Con- 

solidation Act, Schedule (I). 

At , there was by (or on behalf) of D (deaigtuh 

tion) presented to me, Notary-Public subscribing, a Disposi- 
tion (or other deedy or an extract of a Disposition or other deed, 
as the case may be) granted by A B (here design the granter), 
and dated the day of , (and, i/recorded^ add-^ 

and recorded in the Books of Council and Session, or as ike 
case may be, the day of )> by which Dw- 

position (or as the case may be) the said A B sold, alienated^ 
and disponed (or gave, granted, and disponed, or asthe em 
may be) to the said C D, and his heirs and assignees whom- 
soever (or as the case may be), heritably and irredeemably, 
All and Whole (here insert description of subjects as intke 
Disposition or other deed on which the instrument prooeedSf 
and if there are any real burdens, conditions, dkc,^ inserts 
refer to them as in the Disposition or deed on which the «•• 
strument proceeds) : To be holden the said subjects of Her 
Majesty in free burgage : And in terms of the said Sifl- 
position (or other deed), I hereby give sasine to the said CD 
of the foresaid subjects and others (if the deed contains w^ 
conditions, &c.j add — ^but always with and under the real 
burdens, conditions, &c., before specified, or referred to,ttf 
the case may be) : In witness whereof (testing clause).* 



Hciot NOTARIAL INSTRUMENT in Burgage Subjects.-- 

Consolidation Act, Schedule (J). 

At , there was by (or on behalf of) D (iw^ 

designation) presented to me, Notary-Public subscribing, » 
Disposition (or other deed, or extract of a Disposition or 
other deed, as the case mxxy be) granted by A B (destgryoiio^^ 
and dated the day of , (and, if -recorded, adA^ 

and recorded in the Books of Council and Session, orasA^ 

♦ See foot note, p, 77. 



LANDS HELD BURGAGE— ASSIGNATION. 207 

case may be, the day of ), by which Disposi- No. loi. 

tion {or as {he case may he) the said A B sold, alienated, and 

di8iK)ned {cr gave, granted, and disponed, or othenoise, as the 

case may be), to the said C D, and his heirs and assignees 

whomsoever, heritably and irredeemably. All and Whole 

(here insert the description of lands or stdgects as in the Dis- 

posiHon or other deed on which the instrument proceeds, and 

if there are any real burdens, conditions, dkc, insert or refer 

to them as in the Disposition or other deed on tohtch the in- 

sirumerU proceeds) : Whereupon this Instrument is taken in 

the hands of L M (insert name and designation of Notary- 

Public), Notary Public, in the terms of " The Titles to Land 

Consolidation (Scotland) Act 1868": In witness whereof 

(testing clause). 

Assignation of Unrecorded Conveyances of Burgage 

Subjects. 

Unieooided conveyances of lands or subjects held burgage may 
be assigned in the same way as explained in regard to conveyances 
of salyjects held feu. Supra, p. 80. 

ASSIGNATION by the GRANTEE of an Unrecorded Con- Hciw. 
veyance, the Granter of which was infeft, 

(As a separate deed.) 

I, A B (designation), in consideration of the sum of 

pounds instantly paid to me by C D (designation) (or 

** the case may be), hereby assign to the said C D, and his 

*^^iT8 and assignees (or as the case may be), the Disposition 

{^ other deed) granted by E F (designation), dated the 

^*y of , by which he conveyed to me, heritably 

*^d irredeemably , All and Whole * the lands of in 

^He county of (or the house No. , Street, in the 

Wgh of and county of ), as therein described: 

r .11 ^ith entry at the term of : And I assign the writs,t 

•See Foo^note, p. 82. t Sec Note (c) p. GO, and Style No. 11. 



208 IBREDEEMABLE RIGHTS. 

No. 102. &nd have delivered the same accordiDg to inventory : And 

I assign the rents : And I bind myself to free and relieve 

the said C D and his aforesaid of all ground-annaal, cess, 
annuity, and other public burdens : And I grant warrandice: 
And I consent to registration hereof for preservation: Ik 
WITNESS WHEREOF {testing clause). 

Completion of Assignee's TrrLB. 

The assignee's title may be completed by any of the three 
methods specified at p. 82, in the case of subjects held feu, it being 
kept in view that the regiBtration must be in the burgh register. 

Ho. 108. WARRANT of REGISTRATION, to be taritten m a 

Conveyance when presented with Assignation apart, 

Eegister on behalf of D (designation), in the Eegwter 
of the Burgh of M (or in the Eegisters of the Burghs of Mi 
N, and 0) (or othenoise, as the case may 6c), along with the 
Assignation docqueted with reference hereto. 

(Signed) C D. 
or GH, 

W.S., Edinburgh, Agent. 
or J, K, & L, 

W.S., Edinburgh, Agents. 
(or as the case may be). 

See observations supra, p 84, as to Warrant of RegiBtration, whew 
the deed assigned contains clause of direction. 



No. 104. DOGQUET to be xm*itten on Assignation. 

Docqueted with reference to Warrant of Eegistratioi* 
on behalf of C D, written on the said Disposition (or ott^ 
deed, as tlie case may be), 

(To be signed by the person or his agent, in tlie sam^ 

manner as the toarrant.) 



LANDS HELD BURGAGE— ASSIGNATION. 209 



lAL INSTRUMENT in favour of an Assignee to Ho. 106. 
Tnrecorded Conveyance^ to be recorded along with the 
yeyance. — See Style No. 32, p. 85. Consolidation 
Schedule (N). 

, there was by (or on behalf of) D (desig- 
presented to me, Notary-Public subscribing, a Dis- 
(pr other deed, or an extract of a Disposition or 
d^aa the case may be) granted by A B (designation), 
i the daty of (if an extract, add — and 

in the Books of Council and Session, or as the case 
he day of ) ; by which Disposition 

deed, as the case may be) the said A B conveyed to 
ignaiion), All and Whole the lands of {Jiere insert the 
on as in the Assignation, adding as therein described), 
jh Disposition (or other deed) is to be recorded along 
I Instrument : As also there was presented to me an 
iion granted by the said E F, and dated the day 
, by which Assignation the said E F assigned to 
D D, and his heirs and assignees, the foresaid Disposi- 
other deed) : Whereupon, &c. (as in Style No. 101, 



RRANT of REOISTRA TION to be ivritten on No. loe 

Disposition, 

ster on behalf of C D (designation), in the Register 
urgh of M (or in the Registers of the Burghs of M, 
0, or otherwise, as the case may be), along with the 
Instrument docqueted with reference hereto. 

(To be signed as inprevions Styles,) 



u 



210 IRREDEEMABLE RIGHTS. 



No. 107. DOCQUET to he tvrttten on Notai'tal Instrument 

Docqueted with reference to Warrant of Registration 
on behalf of C D, written on the said Disposition (or oihsr 
deed, as the case may be), 

{To be signed by the person or his agent, in the 
same manner as the taarrant) 



No. 108. NOTA RIAL INSTR UMENT in favour of an Assignee m 
an Unrecorded Conveyancej to be recorded alone, toUh a 
Warrant of Registration. 

At , there was by (or on behalf of) E F (designa- 

tion) presented to me, Notary-Public subscribing, a Disposi- 
tion (or other deed, or an extract of a Disposition, or oikr 
deed, as the case may be) granted by A B (designation), and 
dated the day of (and if an extract, add— and 

recorded in the specify register and date), by which Dispori- 
tion (or other deed, as the case may be) the said A B sold, alien- 
ated, and disponed (or gave, granted, and disponed, or (rfkr- 
taise, as the case mxiy he) to C D (designation) j and his heits 
and assignees, heritably and irredeemably. All and Whole 
(insert description of lands or subjects as in the deed, and t*- 
sert or refer to real burdens, conditions, dec, if anyj as in tf^ 
deed) : As also there was presented to me an Assignation 
granted by the said C D, and dated the day of > 

by which Assignation the said C D assigned to the said B 
F, and his heirs and assignees, the said Disposition (oroA^ 
deed) : Whereupon this instrument is taken in the hands of 
L M (insert name and designation of Notary Public), Notary 
Public, in the terms of ^' The Titles to Land Consolidation 
(Scotland) Act 1868": In witness whereof (testing douse). 

The warrant of registration on this writ will be in the terms of 
the preYious Styles. 






LANDS HELD BUEGAGE— ASSIGNATION. 211 

ASSIGNATION of an UNRECORDED CONVEYANCE Ho. 109. 
{the Granter of which was infeft) by a person having right 
to it by Diaposition and Assignation, Service, or other- 
wise. 

(As a separate deed.) 

Adopt Style No. 37, p. 88, down to the term of entry, taking the 
sapplementary clauses ^rom Style No. 102, p. 207. 

The assignee's title will be completed in manner pointed out at 
p. 89. The observations there made are referred to. 



A88I0NA TION of an UNRECORDED CONVEYANCE, No. uo. 

the Oranter 0/ which tvas infeft, 

(To be written upon the Conveyance.) 

I, A B {designation), in consideration of the sum of 
£ , instantly paid to me by C D {des^ignation) (or other- 

wise^ as the case may be), hereby assign to the said C D, and 
his heirs and assignees, the foregoing Disposition oi* the first 
or ground-flat of the tenement Number Ten Street, 

in the Burgh of and County of and others 

(a) as therein described, granted in my favour: With entry, s«eNote(a) 
&c. {complete deed as in Style No. 102, p. 207). 

(a) If the assignor has acquired right to the unrecorded convey- Note (a). 
ance by a previous assignation written on the deed,' the assignation 
will proceed thus — * * * "as therein described, granted in 
favour of E F (designcUion) : — ^To which disposition I have acquired 
light by the foregoing assignation granted by the said E F in my 
&Toar: With entry," &c. 

The assignee's title will be completed by recording the convey- 
ance, with a warrant of registration thereon, along with the assigna- 
tion or successive assignations. 

* See foot-notes, pp. 82 and 91. 



212 IRRBDBEMABLE RIGHT& 



N0.11L WARRANT of REGISTRATION. 

Register on behalf of G D (designation) ^ along with tk 
Assignation (or Assignations) hereon, in the Begister of 
the Burgh of M {or in the Registers of the burghs of M, N, 
and 0, or othertai8e, as the case may be). 

(To be signed as in previous Styles,) 



No. iia. ASSIGN A TION by the GRANTEE of an Unrecorded Ciw- 
veyance of part only of the subjects therein contained. 

m 

If desired, the Style No. 42, p. 92, or the Style No. 43, p. 93, mj 
be adopted, taking the supplementary clauses from Style No. 102, p. 
207; but reference is made to the observations on deeds of this d^ 
scription, p. 92. 

COMPLETION OF TITLES OP TRUSTEES. &o. 

The forms for completing titles of Trustees, &c., in lands hdd feOi 
supra (3), p. 97 et seq.^ may easily be adapted to the case when Am 
suDJects are held burgage, and it therefore seems unnecessaiy to giY> 
separate Styles. 

It will be kept in view that the recording for infeftment waA ^ 
in the burgh register. 



TITLE OF HEIRS IN BURGAGE SUBJECTS. 

As already mentioned by the provisions of the Consolidation k^ 
1868, the title of an heir in burgage subjects may be made tip ^ 
service, in the same way as in the case of subjects held in fen, ib'' 
therefore it is sufficient to refer to the Styles of Petitions for Serfiflt^ 
&c., already given under that branch of the subject. 

By section 1 02 of the statute it is declared that the heir of any p6^ 
son who died last vested in any lands held burgage may obtain fioi 
the magistrates of the burgh within which the lands are dtoated i 



LAin)S HELD BURQAGE— TITLE OF HEIRS. 213 

writ of clare constat in or as nearly as may be in the form of 
Schedule (W) No. 3, and such writ of clare constat may be 
signed by the provost or acting chief magistrate for the time, and 
by the town-clerk, or, where there are more than one town-clerk, by 
one of the town-clerks, and when so signed shall be as valid as if 
signed by the whole of the magistrates. The investiture is completed 
by recording the writ, with a warrant of registration thereon, in the 
buigh register of sasines. 



WRIT of CLARE CONSTAT in Burgage Subjects, Ho.U3. 

We, the Provost and Bailies {or We, the Bailies, or other^ 
wise, 08 the case may he) of the Burgh of {insert name), being 
the Magistrates of said Burgh, acting under and in terms of 
" The Titles to Land Consolidation (Scotland) Act 1868 :" 
Whereas it clearly appears that A B {insert name and desig- 
nation of the ancestor), died last vest and seised as of fee 
in All and Whole {here insert the description of the subjects^ 
as in the ancestor's infeftment), and that in virtue of {here de- 
KTxbe the deed or deeds, or torit or tvrits, forming A Ss in- 
vestiture, by dates and dates of registration, as) Disposition 
granted by C D {insert designation), in favour of the said A B, 
and dated the day of , and along with War- 

rant of Registration ^thereon on behalf of the said A B, 
recorded in the Register of Sasines for the Burgh of , 

on the day of {and if there are any real burdens, 

ike., here insert them or refer to them in terms of Schedule (D) 
Consolidaiion Acty as in previous Styles, as) but always with 
and under the real burdens, conditions, and declarations 
specified {or referred to) in the said Disposition, recorded as 
aforesaid; and that E F {designation), is the eldest son and 
nearest lawful heir of the said A B {or whatever relationship 
and character of heir the party holds, here state it) : Therefore 
we hereby declare the said E F to have right to the said 
lands ipr subjects) as heir foresaid : In witness whereof 
{testing clause). 



214 IRREDEEMABLE BIGHTS. 

COMPLETION OF TITLR 

The Consolidation Act, § 102, provides that the writ, with war- 
rant of registration thereon, may be recorded in the appropriate 
register of sasines, and when so recorded shall have the same effect in 
all respects as if at the date of such recording cognition and entry 
of such heir had taken place in due form, and an instrument of cog- 
nition and sasine in regard to such lands and in favour of such hdr 
had been expede and recorded according to the former practice. 



Ho. U4. W ABB ANT of BEGISTBA TION. 

Eegister on behalf of E F (insert designation) in the 
Eegister of the Burgh of M (or in the Registers of the 
Burghs of M, N, 0, and P (or othertvise, as the case may be). 

(To be signed as in previous Stylet*) 



For variations on this Style, reference is made to the Styles w 
writs of Clare Comtatf p. 187 et seq.^ which may be adapted to the 
case. 

Reference is likewise made to the Styles of Petitions of Service, 
p. 127 et seq,, which are equally applicable to subjects held ba^ 
gage. 



TITLE OF ADJUDGERS IN IMPLEMENT. 

The titles of Adjudgers in Implement are made up in the 
way as in the case of lands or subjects held in feu Qmpra p. 112^ 
seq,) except that the registration is in the burgh register. 



REDEEMABLB RIGHTS. 215 



2.— REDEEMABLE RIGHTS. 

Veiy important changes have been introduced by the " Titles to 
Jid Consolidation Act 1868," in regard to heritable securities. 

It is provided (§117) that from and after the commencement of the 
ct "no heritable security granted or obtained, either before or 
ber that date, shall, in whatever terms the same may be con- 
ived, except in the cases hereinafter provided, be heritable as re- 
Jds the succession of the creditor in such security, and the same, 
:cept as hereinafter provided, shall be moveable as regards the suc- 
«8ion of such creditor, and shall belong, after the death of such 
reditor, to his executors or representatives in mohilibtis, in the same 
Qwmer and to the same extent and effect as such security would, 
Uider the law and practice now in force, have belonged to the heirs 
rfsuch creditor : Provided always that where any heritable security 
*• or shall be conceived expressly in favour of such creditor, and his 
*^ or assignees or successors, excluding executors, the same shall 
^ heritable as regards the succession of such creditor, and shall, after 
^ death of such creditor, belong to his heirs in the same manner 
*^d to the same extent and effect as is the case under the existing 
*^ and practice in regard to heritable securities : And provided also 
^^ where a creditor in any existing or future security, recorded, or 
*^ which an instrument has followed recorded in the register of 
J^es, shall desire to exclude executors, it shall be competent for 
^ to do so by executing a minute in the form or as nearly as may 
^ ^ the form of "Schedule (D D) hereto annexed, and recording the 
^6 in the appropriate register of sasines, and upon such minute 
^^^ recorded the security to which it refers shall be heritable in 
^ iDanner and to the extent and effect hereinbefore provided ; and 
^er, provided that where in any existing or future security which 
* Hot been recorded or followed by an instrument recorded in the 
p*ter of sasines, or where, in the case of any conveyance or deed 
oj relating to such security not recorded in the register of sasines, 
^ <^reditor shall desire to exclude executors, it shall be competent 
^^ him to do 80 by indorsing a minute in the form or as nearly as 



2 1 G KEDEEMABLE RIGHTS. 

may be in the form of Schedule (DD) hereto annexed, on the security 
or on the deed of conveyance thereof in his favour which has not 
been recorded as aforesaid^ and recording the same, along with such 
security or with such deed or conveyance, as the case may be, in the 
appropriate register of sasines, and upon such security or deed ot 
conveyance, as the case may be, and minute,' being bo lecoided, the 
security shall be heritable in the manner and to the extent and effect 
hereinbefore provided; and where executors shall be excluded in the 
security, or by minute recorded as aforesaid, the security shall contiinie 
to be heritable as regaitis the succession of the creditor for the time 
holding such heritable security until the exclusion of executors shall 
be removed, which it shall be lawful for such creditor to do either 
by executing a minute in the form or as nearly as may be in the fom 
of Schedule (EE) hereto annexed, and recording the same in the ap- 
propriate register of sasines, whereupon the security shall beooihe 
moveable as regards the succession of such creditor, as provided bj 
this Act, or by assigning, conveying, or bequeathing such security to 
himself or to any other person without expressing or repeating eoch 
exclusion, and upon such assignation, conveyance, or bequest taking 
effect, the security shall become moveable as regards the succession of. 
such creditor or other person, as the case may be, as provided by 
this Act." 



(1) DEEDS OF CONSTITUTION. 

Ho.m. BOND and DISPOSITION in Security wliere Executors 

are excluded. 

I, A B (Aere naine and design the gra7it€r), grant me t^ 
have instantly borrowed and received from C D (here naim^ 
and design the creditor-), the sum of (insert the sum) sterling * 
which sum I bind myself, and my heirs, executors, and repre^ 
sentatives whomsoever, without the necessity of discnssin^ 
them in their order, to repay to the said C D, or his heiiBf 
excluding executors, or assignees whomsoever (here inseH 
the date and place of payment, as) at the term of WhitsnndaJ 



BOND AND DISPOSITION IN SECURITY. 217 

Eighteen hundred and , within the Head Office of the No. 116. 

Bank of Scotland in Edinburgh, with a fiftli part more of liqui- 
date penalty in case of failure, and the interest of the said 
principal sum, at the rate of five {or as the rate may be) per 
centum per annum from the date hereof to the said term of 
payment, and half-yearly, termly, and proportionally thereafter 
during the not-payment of the same, and that at two terms in 
the year, Whitsunday and Martinmas, by equal portions, 
beginning the first term's payment of the said interest at the 
term of Martinmas next, for the interest due preceding that 
date, and the next term's payment thereof at Whitsunday fol- 
lowing and so forth, half-yearly, termly, and proportionally 
thereafter, during the not-payment of the principal sum, with 
a fifth part more of the interest due at each term of liquidate 
penalty in case of failure in the punctual payment thereof (a) : see Note 
And, in security of the personal obligation (or obligations) p^^2i9'f^"' 
before-written, I dispone to and in favour of the said C D and 
his foresaids, heritably, but redeemably as aftermentioned, yet 
irredeemably in the event of a sale by virtue hereof, All and 
Whole (here describe or refer as m Schedule (0) Conveyanc- 
ing Acif or Schedule (G) Consolidation Act, to the lands or 
subjects — ^seeNote (a), supra, ^. 53 — and if tJhc lands oi* sub- 
jects are held under any real burdens^ conditionsj provisions, 
or ItmitationSy insert them here, or refer to them in or as nearly 
as circumstances may require in the form of Schedule (D) 
Consolidation Act — see Note Qj) and Styles, supra, pp, 57, 58, 
and next Style, infra), and that in real security to the said 
CD and his foresaids of the whole sums of money above-written 
— ^principal, interest, and penalties Qj) (c) : And I assign See Note 
the rents: And I assign the writs: And I grant warrandice: p. ^220. 
And I reserve power of redemption : And 1 oblige myself see Note 
for the expenses of assigning and discharging this security, p. 2^"* 
and on default in payment I grant power of sale : And I con- 
sent to registration for preservation and execution : In wit 
NESS WHEREOF, &c. {testing clause) 



218 REDEEMABLE BIGHTS. 



Ho. 116. BOND and DISPOSITION in Security where Execuim 

are not excluded. 

I, A B {here name and design the granter), grant me to 
have instantly borrowed and received from C D (here nam 
and design the creditor)^ the sum of {insert the sum) sterliDg; 
which sum I bind myself and my heirs, executors, and re- 
presentatives whomsoever, without the necessity of disciMS- 
ing them in their order, to repay to the said C D, his 
executors or assignees whomsoever {here insert the dak 
and place of payment, as) at the term of Whitsundaj 
Eighteen huudred and , within the Head Office of 

the Bank of Scotland in Edinburgh, with a fifth part moie 
of liquidate penalty in case of failure, and the interest of the 
said principal sum, at the rate of five {or as the rate may be) 
per centum per annum from the date hereof to the said tern 
of payment, and half-yearly, termly, and proportionally 
thereafter during the not-payment of the same, and that at 
two terms in the year, Whitsunday and Martinmas, by equal 
portions, beginning the first term's payment of the said in- 
terest at the term of Martinmas next for the interest due 
preceding that date, and the next term's payment thereof at 
Whitsunday following, and so forth half-yearly, termly, and 
proportionally thereafter during the not-payment of the 
principal sum, with a fifth part more of the interest due at 
each term of liquidate penalty in case of failure in the puno- 
SeeNote tual payment thereof (a): And, in security of the personal 
jK 2i3l *' obligation before written, I dispone to and in favour of the 
said C D and his foresaids, heritably, but redeemably as after 
mentioned, yet irredeemably in the event of a sale by virtue 
hereof, All and Whole {here describe or refer as in Scheddt 
(0) Conveyancing Act, or Schedule (G) Consolidaiion Actj to the 
lands or subjects — ^^ee Note (a) supra, p. 53 — and if the lands or 
subjects are held under any real burdens, conditions, provisions, 
or limitations, insert them here or refer to them in or as nearty 



BOND AND DISPOSITION IN SECURITY. 219 

18 oircunistances may require in the form of Schedule (D) No. il6. 
Jonaolidation Act — see Note (6), and Styles, supra, pp, 57, 58 — 
m) But always with and under the real burdens, conditions, 
provisions, restrictions, and obligations {prsuchof these as may 
ipply to the case), specified and contained in an Instrument 
of Sasine {if dated, add, dated the day of ,) 

{or, Notarial Instrument), in the said lands and others, 
in faYOur of Y {designation), recorded in the General 
Register of Sasines at Edinburgh {or, Particular Eegister 
of Sasines for the County of , or, the Division of the 

Greneral Register of Sasines applicable to the County of 
,) upon the day of in the year {or, 

specified and contained in a Disposition of the said lands 
and others, granted by E F {designation) to G H {designa- 
tion), and dated the and recorded in the {specify 
Register of Sasines, and date of registration) and that 
in real security to the said C D and his foresaids of the 
whole sums of money above written — principal, interest, and 
penalties (6) (c) : And I assign the rents : And I assign the ^anl^), 
writs : And I grant warrandice : And I reserve power of re- J^^Soa. 
demption : And I oblige myself for the expenses of assigning 
and discharging this security, and on default in payment I 
grant power of sale: And I consent to registration for 
preservation and execution: In witness whereof {testing 
clause). 

(a) Prevision for Insurance. — ^Where the security extends over ^^^\^^^'^^ 
house property or buildings, the following or a similar clause is 218. 
generally inserted here to provide for the insurance of them against 
fire, though section 119 of the ConsoHdation Act provides that the 
dause of assignation of rents shall be held to import power to the 
creditor to insure all buildings against loss by firo : — 

And further, as the said C D is to effect an insurance of 
the subjects after disponed in his own name against loss by 
fire to the extent of £ ,1 hereby bind myself and my 

aforesaids, so long as the said sum of £ hereby due, or 

any part or portion thereof, shall remain unpaid, to pay to 



220 REDEEMABLE RIGHTS. 

No. 116. the said C D or his aforesaid, at the term of Whitsunday 
yearly, the sum of for enabling him or his aforesaid to 

pay the premium on the said insurance of the said subjects, and 
all relative charges and expenses, with a fifth part more of 
the said yearly sum of penalty in case of failure, and the in- 
terest of the same at the rate of five per centum per annum 
from and after each term of payment during the not-payment 
of the same : Providing always and declaring that the said 
C D and his aforesaid shall be bound to hold count and 
reckoning with me or my aforesaid in reference to the said 
yearly sum of , and to repay to me or my aforesaid 

any balance of the same that shall in any year remain in his 
or their hands after satisfying and paying the premium on 
the insurance of the said subjects, and all relative charges 
and expenses, as the same shall be instructed by a statement 
under the hands of the said C D or his aforesaid, without 
the necessity of any other voucher : And in security of the 
personal obligations before written, I dispone, &c. 

Note (6), (i) Power to grant Feua, — Where the granting of feus is in con- 

Ij^ 217 and templation at the time of executing the bond, here insert the fol- 
lowing clause for the security of the feuars : — 

Declaring always, as it is hereby expressly provided and 
declared, notwithstanding the above-written conveyance, 
that, subject to the conditions and reservations hereinafter 
specified, it shall be competent to and in the power of me 
and my heirs and successors in the said lands, at any time 
hereafter to feu out and dispone in feu, to be held of om:- 
selves allenarly, such parts and portions of the said lands and 
others as we shall think proper, and that at such annual 
feu-duties, and with or without casualties in the form of per- 
manent increase of or periodical additions to the annual 
feu-duty as we shall think proper {or at such annual feu- 
duties, not being in any case less in amount than at the rate 
of pounds sterling per annum for each imperial acre, 

or, in tlie case of building ground^ at the rate of per 



BOND AND DISPOSITION IN SECURITY. 221 

annum for each foot of front, or, for each square yard, and no. lie. 
with or without casualties in the form of permanent in- 
crease of or periodical additions to the annual feu-duties as 
we shall think proper), and under such conditions and pro- 
visions as I and my aforesaid shall consider reasonable: 
But declaring, as it is hereby expressly provided and de- 
clared, that it shall not be competent to me or my aforesaid 
to take for any part or portion of the said lands and others 
which may be so feued out any price, grassum, or considera- 
tion, other than the annual feu-duties or the annual feu- 
duties and casualties, if such shall be stipulated for, or to 
make or consent to any conditions or stipulations whereby 
any right competent by law to me or my aforesaid, as supe- 
riors of any part or portion of the said lands which may be 
feued as aforesaid, for security or recovery of the said feu- 
duties or casualties, may be in any way prejudiced or injured, 
and for that purpose to grant or enter into and execute all 
necessary feu-rights or deeds and conveyances which shall 
be valid and eflFectual to the vassals or feu disponees and 
their heirs and successors, although granted without the 
special consent of the said D, his heirs or successors, ad- 
hibited to any such deed : And it is further hereby provided 
and declared, that in the event of the said lands or any parts 
or portions thereof being feued as aforesaid, the real security 
hereby created shall be restricted and limited to the rights, 
property and estate which shall remain in the persons of me 
and my aforesaid as superiors of the portions of the said 
lands and others so feued, so that the vassals therein shall 
hold their feus and their right of property therein freed, re- 
lieved, and disburdened of the real security created by these 
presents, and of the infeftment to follow thereon, in the same 
way and to the same extent as if the said C D or his afore- 
said had been parties consenting to the feu-rights to be 
granted as aforesaid, or as if these presents had been granted 
subsequent to the constitution of the said feu-rights: Be- 
serving always to the said C D and his aforesaid their security 
over the feu-duties and casualties of superiority payable from 



222 REDEEMABLE BIGHTS. 

No. 116. such parts of the said lands and others as shall be feued as 

aforesaid: And also reserving always entire to the said 

C D and his aforesaid all their rights and security over the 
dominium utile or right of property in the said lands and 
others, aye and until they shall be feued out as aforesaid: 
And it is further provided that, in the event of the said 
feu-duties, or casualties being made redeemable, the deeds 
necessary for redemption thereof shall be expede with con- 
sent of the said C D or his foresaids, and the redemption 
money shall, if desired by them, be applied in payment pro 
tanto of the sums herein contained. 

Note (e), (c) Several Bonds to he ranked pari passu. — ^Where several bonds 

^9^ ^ and dispositions in security are granted with the intention of consti- 
tuting a pari passu preference over the same subjects, each bond 
will here contain such a clause as the following : — 

Providing and declaring that the foresaid principal mim 
and interest and penalties herein contained, and the further 
sums of and , borrowed and secured, 

or about to be borrowed and secured, by me, conform to 
Bonds and Dispositions in Security granted or to be granted 
by me in favour of E F (designation), and G H {deaignatum), 
respectively, over the said lands and others before disponed, 
with the interest thereof and penalties corresponding thereto, 
shall be ranked and ipieieired pari passu on the said lands and 
others, and the rents thereof, and also on the prices and pro* 
ceeds to be realised therefrom in the event of a sale of the 
same, or of any part or portion thereof, and that irrespec^ 
live of the order of priority in which these presents and 
the said Bonds and Dispositions in Security granted or to b^ 
granted by me in favour of the said E F and G H respec- 
tively have been or shall be registered in the fiegister of 
Sasines. 

Corresponding clauses will be inserted in each of the other bonds 
and dispositions in security. 



BOND AND DISPOSITION IN SECURITY. 223 



BOND by a Husband, and DISPOSITION of his Wife's Ho.U7. 

Lands in Security, 

In this case the obligation for repayment is granted by the hus- 
band alone, although the wife is the principal party to the disposi- 
tion in security, the husband consenting and concurring therein for 
his own right and interest, and as taking burden on him for his 
wife. 

I, A B {here name and design the granter), grant me to 
have instantly borrowed and received from D (here name 
and design the creditor), the sum of sterling ; 

which sum I bind myself, and my heirs, executors, and 
representatives whomsoever, &c. (as in Style No. 115, p. 216, 
or in Style No. 116, p. 218, doton to conveyance in security, 
which may be as follows) And in security of the personal ob- 
ligation (or obligations) before written, I, E F, wife of the said 
A B, with the special advice and consent of my said husband ; 
and I, the said A B, for my own right and interest, and as 
taking burden on me for my said wife, and we both, with 
joint assent and consent, dispone to and in favour of the said 
C D and his foresaids, heritably, but redeemably as after- 
mentioned, yet irredeemably in the event of a sale by virtue 
hereof, All and Whole (insert or refer to desanption of lands 
CT subjects^ and conditions or limitationSy if any^ as in Style 
No. 116, j?. 218), and that in real security to the said C D and 
his foresaids of the whole sums of money above written — 
principal, interest, and penalties : And we, with joint assent 
and consent foresaid, assign the rents : And we, with joint 
assent and consent, assign the writs : And we, with joint 
assent and consent, grant warrandice : And we reserve power 
of redemption : And I, the said A B, oblige myself for the 
expenses of assigning and discharging this security: And 
on default in payment, we, the said A B and E F, with joint 
assent and consent foresaid, grant power of sale: And we 



224 REDEEMABLE RIGHTS. 

No. 117. consent to registration for preservation and execution: Is 
WITNESS WHEREOF, &c. {testing clause). 

See notes appended to Style No. 116, p. 218. This deed on^tto 
be judicially ratified by the wife. See form of ratification (No. 14)^ 
p. 68. 

H0.U8. BOND and DISPOSITION in Security over Lands bdtmg- 

ing to the Husband^ in which his Wife has a righi of 
Liferent^ Annuity^ dkc* 

The personal obligation will be granted by the husband alone ; 
and the disposition in security will be in the following temiB : — 

And in security of the personal obligation before written, 
I, the said A B, with consent of E F, my wife, for all right 
of liferent, conjunct fee, terce, annuity, or other right, legal 
or conventional, which she has or may have in or affecting 
the lands and others hereinafter disponed, and I, the said 
E F, for my own right and interest, with the special adrica 
and consent of the said A B, my husband, and we both, witb 
joint assent and consent, dispone, &c. 

This deed ought likewise to be judicially ratified. 



Ho. 119. BOND and DISPOSITION in Security in favour of a^ 

Married Woman, eocclusive of the jus mariti andri^ 
of administration of her Husband.^ 

I, A B {designation) y grant me to have instantly borrowrf 
and received from C D and E F {designations) ^ the TrusteeB 

* See MemneSf dc., March 0, 1875, 2 R. 507, referred to in Kota(i^ 
mpra, p. 69. 

t See, as to power of a wife in snob a case as this to convey to te bn** 
band, Napier, Nov. 18, 1864, 3 Macph. 57. 



BOND AND DISPOSITION IN SECURITY. 225 

, surviving and accepting Trustees) of G H (designation), No. 119. 
iform to Trust-Disposition and Settlement executed by 
a, dated the day of , and registered in the Books 
Council and Session on the day of , for 

loof of J K, daughter of the said G H, and now wife of L M 
*signatton), the sum of pounds sterling, being 

rt of the trust-funds of the said G H falling to the said 
K, and directed by the said G H to be invested on herit- 
le security for behoof of the said J K, now J K or M, in 
rimer after mentioned : which, sum of pounds I 

id myself, and my heirs, executors, and representatives 
omsoever, without the necessity of discussing them in 
At order, to repay to the said J Kor M, her executors (or,her 
irs, excluding executors) or assignees whomsoever, but 
dnsive always of thejtis mariti and right of administra- 
n of the said L M, her husband, and of any other husband 
lom she may hereafter marry, and that at the term of, &c. 
» in Style No. 115,^. 216, or No. 116, p. 218, dozvn to the 
nveifance in security) : And in security of the personal 
ligation before written, I dispone to and in favour of the 
id J E or M and her foresaids, but exclusive always of the 
« mariti and right of administration of the said L M, and 
any other husband whom she may hereafter marry, herit- 
>ly,&c. (as in Style No. 115, p, 216, or No. 116, p. 218; 
^ the foUotaing declaration vnll he inserted immediately 
Me the assignation of rents : — ) Providing and declaring 
^ys that this Bond and Disposition in Security, and the 
i^ of money, lands, and others therein contained, shall 
'ither be liable to the deeds nor affectable or attachable for 
^® debts or obligations of the said L M, or of any other hus- 
^i whom the said J K or M may marry, nor subject to the 
Sal diligence of their creditors ; and that the receipts and 
^harges or conveyances granted by the said J K or M alone, 
ithoat her husband's consent, shall be valid and suflBcient 
f discharging or conveying this Bond and Disposition in 
curity and the sums of money above written, principal, 
^rest and penalties : And I assign the rents, &c. (as in 
ik No. 115, p. 216).— 5ec notes to Style No. 116, p. 218. 

15 



226 REDEEMABLE BIGHTS. 



H0.UO. BOND and DISPOSITION in Security to Testamentary 

Trustees. 

I, A B (designation), grant me to have instantly borrowed 
and received from C D, E F, and G H (designations), Tnu- 
tees (or, surviving and accepting Tnistees) of the deceased 
J E (designation), conform to Trust-Disposition and Settle- 
ment executed by him, dated the day of 
and registered in the Books of Council and Session on the 
day of , the sum of pounds sterling, 
being part of the trust-funds of the said J E under the 
management of the said Trustees ; which sum I bind myself, 
and my heirs, executors, and representatives whomsoever, 
without the necessity of discussing them in their order, to 
repay to the said C D, E F, and G H, as Trustees foresaid, 
and the survivors or survivor of them, &c. (insert destinaUtm 
as in trust-deed), and to their or his assignees, 4c. (cm « 
Style No. 115, p. 216 ; hut immediately be/ore the dcaue of 
registration the follomng clause should he tiwcr^:— And 
it is hereby declared that on payment of the sums of money 
hereby due, or any part thereof, to the said Trustees or their 
foresaids, neither I nor any others paying the same shall be 
required or entitled to see to the application of the sums so 
paid, but I or they shall be fully and completely exonered 
and secured by the discharge or assignation to be granted 
by the said Trustees or their foresaids). 



H0.12L BOND and DISPOSITION in Security to a Judidd 

Factor on a Lapsed Trust. 

The deed will bear that the money is ** borrowed and lecfl^ 
from C D (designation), judicial factor appointed by the Lflris » 
Council and Session on the estate of the late L M (designaikm), ^ 
form to Act and Decree dated the , and extracted tlie 

day of ; " the money being stated to be " part of the tnrf* 



BOND AND DISPOSITION IN SECURITY. 227 

fimds of the said L M under the management of the said C D, as 
judicial factor foresaid ; " and the obligation to repay will be to ** the 
said C D, as judicial factor foresaid, or his successors in office, and 
his or their assignees ; " and the conveyance in security will be to 
*' the said C D, as judicial factor foresaid, and his foresaids." 



No. 121. 



BOND and DISPOSITION in Security for Money invested Ho. 122. 

by a Curator Bonis for a Lunatic. 

In this case the grantor will acknowledge ''to have borrowed and 
leceived &om C I) (designation), curator bonis appointed by the Lords 
of Council and Session to L M {designation), conform to Act and De- 
cree dated the , and extracted the day of , 
the sum of pounds sterling, being part of the moveable 
{or, heritable, as the case may be) estate of the said L M under the 
management of the said C D, as curator bonis foresaid ; " and the 
obligation to repay and the conveyance in security will be, not to 
the curator and his successors in office, but '' to the said L M, his 
executors {or, his heirs excluding executors, according to the nature of 
tke fund) (a) or assignees whomsoever." The deed will in other ?®??°lf 
respects be in ordinary form, excepting that it should contain a 
dause providing that the grantor shall have no concern with the ap- 
plication of the money, as in Style No. 120, p. 226. 

(a) An investment by a curator does not, as regards succession, Note {a), 
affect the previous character of the fund, and if, owing to a dubiety '"^''* 
regarding its character, or for any other reason, it is thought prefer- 
able not in any way to characterise it, it will be described simply as 
" part of the estate." The obligation to repay may be conceived in 
either of the forms in the preceding Style, and in any case the follow- 
ing dedaiation will be inserted immediately before the clause of regis- 
tration, viz., ''Declaring always that the destination herein contained 
shall not prejudice or affect the rights of the parties who would have 
been entitled to succeed to the said sum of on the death of the 

said L M if this investment had not been made ; but reserving always 
to all parties concerned all pleas and claims affecting the right to the 
ffMii sum which may hereafter arise if the present investment shall be 
hereafter validly confirmed or adopted by the said L M." 



228 REDEEBiABLE BIGHTS. 



Ho. 128. BOND and DISPOSITION in Security for Money invesUd 

by a Tutor-Nominate or a Tutor-Dative, 

In this case the granter will acknowledge '' to have bonowed aod 
received from C D {destgnation)^ tutor-nominate {or tutor-datiTe, « 
ifie case may 5e) to E F {designation^ the sum of stedingi 

being part of the moveable (or, heritable, as the case may he^ or smfbf 
part of the) estate of the said E F ;" and the obligation to leptj 
and the conveyance in security will be, *' to the said E F, his ezeco- 
tors (or, his heirs, excluding executors) or assignees whomsoever,'" 
and a declaration similar to that in I^ote (a) to the immediately pro- 
ceding Style will be inserted before the clause of registration. The 
other clauses of the deed may be in ordinary form. 



Ho. 124. BOND and DISPOSITION in SecurUy by the Partners of 

a Company over Subjects vested in some of the Part- 
ners in trust for behoof of the Company, 

We, A, B, and C {designations)^ the individual partners 
of the Company carrying on business as Merchants in Edin- 
burgh under the firm of A, B, & Company, and we, the said 
A, B, & Co., grant us to have instantly borrowed and received 
from L M {designation), the sum of pounds sterling; which 
sum we, the said A, B, and C, for ourselves and as taking 
burden on us for the said Company, bind ourselves, both as 
partners of the said company of A, B, and Company, and as 
individuals, and our respective heirs, executors, and representa- 
tives whomsoever, jointly and severally, without the necessity 
of discussing them in their order, and also the said company 
of A, B, and Company, all jointly and severally, to repay to 
the said L M, his executors {or his heirs, excluding executors) 
or assignees whomsoever, &c. (as in Style No. 116, p. 218, 
or No. 115, p. 216) : And in security of the personal obliga- 
tion before written, we, the said A and B, in whom are vested, 
as trustees for behoof of the said company, the subjects 
hereinafter disponed, with consent of ourselves and the said 



BOND AND DISPOSITION IN SECURITY. 229 

C, as individual partners foresaid, and we, the whole grantors No. 124. 
hereof, with joint assent and consent, dispone to and in 
favour of the said L M and his foresaids, heritably, but re- 
deemably as aftermentioned, yet irredeemably in the event 
of a sale by virtue hereof, All and Whole, &c. {insert or refer 
to description 0/ sulfjects, and conditions or limitcUions, if 
any^ as in Style No. 116, jp. 218), and that in real security 
to the said L M and his foresaids of the whole sums 
of money above written, principal, interest, and penalties : 
And we, the said A and B, as trustees foresaid, with consent 
foresaid, assign the rents : And we, the said A and B, as 
trustees foresaid, with consent foresaid, assign the writs: 
And we, the whole grantors hereof, grant warrandice : And 
we reserve power of redemption: And we, the whole 
granters hereof, oblige ourselves for the expenses of assigning 
and discharging this security : And on default in payment, 
we, the said A and B, as trustees foresaid, with consent 
foresaid, grant power of sale : And we, the whole granters 
hereof, consent to registration for preservation and execu- 
tion : In WITNESS whereof {testing clause). 

See notes appended to Style No. 116, p. 218. 



BOND of ANNUITY and Disposition in Security. Haisck 

I, A B {designation)^ for the love and favour which I en- 
tertain for C D {designation)^ and for other good causes and 
considerations {or in consideration of the sum of £ 
instantly paid to me by C D {designation)^ of which I hereby 
acknowledge the receipt, or as the case may &e), do here- 
by bind myself, and my heirs, executors, and representatives 
whomsoever, without the necessity of discussing them in 
their order, to pay to the said C D, or to his (a) assignees, dur- see Note 
ing all the days of the life of him the said C D, an Annuity ^}^^ 
or yearly sum of pounds sterling, free of all burdens 

and deductions whatsoever, and that within the Head Office 



230 BEDEEMABLE BIGHTS. 

No. 125. of the Bank of Scotland in Edinburgh, at two terms in tiie 
g^jj^ year, Whitsunday and Martinmas, by equal portions, (a) be- 
(o), infra, ginning the first term's payment of the said Annuity at the 
term of Whitsunday next for the half-year following, and so 
forth half-yearly and termly thereafter during the lifetime of 
the said C D ; with a fifth part more of each term's payment 
of liquidate penalty in case of failure in the punctoil 
payment thereof, and the interest of each termly payment 
at the rate ol five per centum per annum from the tenn 
at which the same shall become due during the not pay- 
ment: And, in security of the personal obligation before 
written, I dispone to and in fayour of the said G D and his 
foresaids, heritably, All and Whole {insert description of or 
reference to the lands as) the lands of M and others, in the 
County of X as particularly described {or being the lands 
particularly described) in the Notarial Instrument in favour 
of E L {designation) y recorded in the {specify register of 
sasines) on the day of in the year , and 

that in real security to the said C D and his foresaids of the 
foresaid Annuity, liquidate penalty, and interest, as above 
mentioned ; And I assign the rents : And I assign the writs, 
to the effect of maintaining the right and security hereby 
granted : And I grant warrandice : And I consent to regis- 
tration for preservation and execution : Ik witness whsbSt 
OF, &c. {testing clatise). 

Note (a). (a) In the preceding Style the annuity is made payable in 

advance, but sometimes, as where the annuity is bought^ this is 
dififerentlj arranged, and this clause may be in the following 
terms: — 

Beginning the first payment of the said Annuity at the 
term of Whitsunday next, for the proportion of the said 
Annuity which shall be due for the period from the date 
hereof to that term, and the next term's payment at Martin- 
mas following for the half-year preceding that term, and so 
forth half-yearly and termly thereafter during the lifetime 



COMPLETION OP CREDITOB'S TITLE. 231 

of the said G D, and a proportional part of the said Annuity No. 125. 
corresponding to the period which may elapse between the 
date hereof or the date of the last termly payment, as the 
case may be, and the day of the death of the said C D, which 
proportional part shall be payable to the heirs of the said C D 
at the term of Whitsunday or Martinmas which shall first 
happen after his death, with a fifth part more of each term's 
payment, &c. 

The obligation to pay will in this case be — 

To pay to the said C D or to his heirs or assignees. 

COMPLETION OF CREDITOR'S TITLE. 

The creditor's title is completed by recording the bond and dis- 
position in security, or other deed of constitution, at any time during 
his life, in the appropriate register of sasines, with a warrant of regis- 
tration. — Consohdation Act 1868, sees. 118 and 120; Conveyancing 
Act 1874, sec. 33. 

WARBANT of REGISTRATION to he loritten on Bond Ho. we. 
ixnd Disposition in Security or otliei^ Deed of Constitution. 

Begister on behalf of C D {insert designation), in the 
Begister of the County of E (or if the bond or other deed coiv- 
tains lands in more than one county, in the Registers of the 
Counties of E, F, and G, or as the case may be; or if tJie lands 
or subjects be held burgage, in the Register of the Burgh of 
M, or in the Registers of the Burghs of M, N, and 0,or as 
the case may be). 

{To be signed as in previous Styles.) 



(2) TRANSMISSION OF SECURITIES UPON LAND, AND 
RELATIVE PERSONAL OBLIGATIONS, AND EN- 
FORCEMENT THEREOF BY PERSONAL DILIGENCE 
AGAINST HEIRS AND DISPONEES. 

By section 47 of the Conveyancing Act 1874 it is provided that, 



232 BEDEEMABLE BIGHXa 

''subject to the limitation hereinbefore provided as to the liability of 
an heir for the debts of his ancestor, an heritable security for money, 
duly constituted upon an estate in land, shall, together with loy 
personal obhgation to pay principal, interest, and penalty, contained 
in the deed or instrument whereby the security is constituted, tma- 
mit against any person taking such estate by succession, gift, or htr 
quest, or by conveyance, when an agreement to that effect appem 
in gremio of the conveyance, and shall be a burden upon hia title in 
the same manner as it was upon that of his ancestor or author, with- 
out the necessity of a bond of corroboration or other deed or proce- 
dure, and the personal obligation may be enforced against such pe^ 
son by summary diligence, or otherwise, in the same manner as 
against the original debtor ; a warrant to charge may be applied fiv 
and validly granted in the Bill Chamber or in a Sheriff Couit." 

The limitation above referred to is that " an heir shall not 1)e 
liable for the debts of his ancestor beyond the value of the estate of 
such ancestor to which he succeeds." — § 12. 



H0.W7. MINUTE to be presented in the Bill Chamber of the Cowrtof 

Session, or in a Sheriff Court, for Warrant to €karge 
an Heir or Disponee upon a personal obligaiiion tn o 
Security granted hy his Ancestor or Author. — Convey- 
ancing Act, Schedule K. 

Unto the Right Honourable the Lord Ordinary oflSdat- 
ing on the Bills ; 

or. 

Unto the Honourable the Sheriff of the County of («- 
sert the county in which the lands lie) ; 

Warrant is craved, in virtue of "The Conveyancing (Scot- 
land) Act 1874," at the instance of A B {name and design 
applicant), the creditor (if he is not the original creditor^ or 
only a partial creditor^ add in virtue of, (or to the extent and 
in virtue of) the Assignation, (or the Assignation, General 
Disposition, and Notarial Instrument, or other writ or writs 



WARRANT FOR DILIOENCE AGAINST HEIR, &C. 233 

farming the tide in the creditor's person) in his favour after- ^o. 127. 
mentioned, nnder a Bond and Disposition in security over 
the lands of {specify shortly the lands), for the principal 
sum of £ , with corresponding interest and * 

penalties, granted by C D (design him), then proprietor of 
the said lands, in favour of the said A B (or of 6 H (design 
him), as the case may he), and dated {state date) {and if 
recorded say and recorded in the {state register of sasines 
and date of recording), or and Instrument of Sasine thereon, 
recorded, or dated and recorded, &c., as the case may be) : 
To charge E F {design him), the present proprietor of the 
said lands, and as such (a) the present debtor in the said see Note 
Bond and Disposition in Security, lo make payment to the 1*^2^^' 
said A B of the said principal sum of £ contained 

in and due by the said Bond and Disposition in Security {if 
A B is only a partial creditor say, of the principal sum of 
£ , being the extent to which the said A B is in 

right of the said Bond and Disposition in Security) : And 
also of the further sum of £ , being the amount of 

the interest now due thereon. Produced herewith the said 
Bond and Disposition in Security {or an extract thereof from 
ihe Books of Council and Session^ or from the register of 
sasines {if sasine has followed on tJ^e bond, add and Instru- 
ment of Sasine) ; if the applicant is not the original creditor, 
ihe title in his own person to the security vnll also be stated 
and produced, as. Produced also Assignation granted by the 
said 6 H in favour of the said A B, dated the day 

of , and recorded in the {specify register of sasines) 

on the day of , whereby he assigned and dis- 

poned to the said A B and his executors {or as the case may 
he) and assignees whomsoever, the said Bond and Disposition 
in Security, and sums of money, lands, and others therein 
contained, (6) or General Disposition granted by the said see Note 
G H, dated the day of , whereby he assigned ^^}<^* 

and disponed to the said A B, heritably and irredeemably, 
his whole property and estate, heritable and moveable, where- 
by the said A B acquired right to the said Bond and Dis- 



234 BEDEEMABLE BIGHTS. 

No. 127. position in Security, and sums of money, lands, and othere 
g^jj^ therein contained (6) and Notarial Instrument following 
(6) ii^a, thereon in favour of the said A B, recorded in the {(Bpecify 
register of sasinea) on the day of 

Dated the day of 

(Signed) J K, W.S., Edinburgh 

(pr as the case may be). 

Deliverance by the Clerk of the Bills, or Sheriff Clerk, as 
the case may be, on the Minute. 

Fiat ut petitur. 
Dated at , tb6 day of 

(Signed) C D. 

Note (a), (a) This is the statutory form, and, where the person to be chaiged 

p. 233. £g ^^ j^gjj. ^j, gratuitous disponee of the granter of the secuntj, » 
appropriate, hut in the case of a singular successor it is necessary, io 
order to warrant personal diligence against him, that there be an agree- 
ment to that effect in the conveyance in his favour (see Style No. 10, 
p. 64), and in such a case it may be desirable, though not reqnind 
by the Act, to set forth in the minute the fact, which may be done 
by adding after " and as such " the following or similar words ^-' 

and in respect of an* agreement to that effect contained 
in the disposition in his favour granted by the said C R 
dated the day of 

Note (6), (5) If A £ IB only a partial creditor, add here — 

p. 288. 

But that only to the extent of the principal sum of » 
and interest and penalties corresponding thereto. 

(3) DEEDS OF TEANSMISSION. 

Transmission by Assignation. 

Where an heritable security has been constituted by infeftmeD^ 
whether such infeftment has been taken by recording the second 
or an instrument thereon in the appropriate register of 8a8inee» iba 



DEEDS OF TRANSMISSION. 235 

jht of the cieditor therein may be transferred, either in whole or 
part, by an assignation or other conveyance, in the form or as nearly 
may be in the form of Schedule (G G) ; and on such assignation 
conveyance being recorded in the appropriate register of sasines, 
e said secturity, or part of such security as the case may be, shall 
< transferred to the assignee as effectually as if such security had 
en disponed and assigned, and the disposition and assignation or 
nveyance had been followed by sasine duly recorded : Provided 
vrays that where the assignation or conveyance of an heritable 
enrity constituted as aforesaid is contained in any other conveyance 
deed, it shall not be necessary to record the whole of such 
•nveyance or deed, but it shall be sufficient to expede and record in 
le appropriate register of sasines a notarial instrument in the form 
' as nearly as may be in the form of Schedule (H H), and upon 
ich notarial instrument being recorded, the person or persons exped- 
ig the same shall be in the same position as if the assignation or 
onveyance on which it proceeds had been itself recorded.—" The 
Htles to Land Consolidation (Scotland) Act 1868," sec. 124. 

ASSIGNATION of a Bond and Disposition in Security or Ho 1S8. 
Heritable Bond recorded in the Register of Sasines by 
the original Creditor. (Consolidation Act 1868, Sche- 
dule (G G). 

I, A B (name and designation), in consideration of the 
^ of (insert sum), now paid to me by C D (name and design 
***9nec), do hereby assign and dispone to and in favour of 
"^^ said C D, and his executors (or his heirs, excluding execu- 
^^) and assignees whomsoever, a Bond and Disposition in 
-ctirity (or Heritable Bond, or other security, as the case may 
'J% dated the (insert the date) (a) and recorded as aftermen- 
^^ed, for the sum of (insert sum), granted by E F (name 
^ design debtor), in my favour, with interest from the (in- 
^* daie) : And also All and "Whole (describe lands as in 
^•*d, or* refer to them as in Schedule (0) Conveyancing Act, 

^TbiB direction is in terms of Sohedule (G G). If this mode be adopted, 
^ tcf eranoe should be to the bond. 



236 BEDEEMABLE BIGHTS. 

No. 128. ^ Schedule (G) Consolidation Act, and if the bond uxu 

granted under any burdens, insert or refer to them as w tie 

bond, and if the assignation is made under any real burdens, 
conditions, provisions, or limitations^ here insert or refer to 
them in or as nearly as circumstances require in the form of 
Schedule (D) Consolidation Actios in No. 116, p. 218, ami 
previous Styles), (b) all as specified and described in the said 
Bond and Disposition in Security, recorded in {here spec^ 
the register of sasines in which the bond is registered) on the 
day of : And I consent to registration hereof 

for preservation : In witness whereof, 4c. (testing claust). 



Ho. 189. ASSIGN A TION of a Bond and Disposition in Security, ik 

Infeftment on which has been taken by an InstnmaA 
thereon. 

In this case the words '' and recorded as aftermentioned " at (a) 
in the preceding Style will be omitted, and in place of the clanaeai 
(6) there will be inserted : — 

All as specified and described in the said Bond and w^ 
position in Security, and Instrument of Sasine thereon '^ 
my favour {if dated, add, dated the day of , aad) 

recorded in the {here specify the register of sasines in wkic^ 
tJie sasine is registered) on the day of 



Ho. 180. ASSIGNATION by a Married Woman, with concwrrace 

of her Husband, of a Bond and Disposition in SecwrOf 
in her favour, 

I, A B, wife of C D (designation), with the special advice 
and consent of my said husband ; and I, the said G D, for 
my own right and interest, and as taking burden on me foi 
my said wife ; and we both, with joint assent and consent, 



DEEDS OF TRANSMISSION. 237 

in consideratiou of the sum of pounds sterling now i^o. 130. 

paid to us, do hereby assign and dispone, &c. (as in Style 

No. 128, p. 235). 

This deed ought to be judicially ratified. — See Style No. 14, p. 
68. 

For styles of assignations in favour of a married woman exclu- 
sive of the jiu mariti and right of adininistration of her husband, 
testamentaiy trostees, judicial factors, or persons under legal disa- 
bility, see styles of bonds in such cases, which may be easily adapted 
to assignations. 



ASSIGNATION of a Registered Bond and Disposition in N0.131. 

Security of part only of sum due. 

I, A B (designation)^ in consideration of the sum of Five 
hundred pounds sterling now paid to me by C D, (designa- 
tion), do hereby assign and dispone to and in favour of the 
said C D and his executors (or, his heirs, excluding executors) 
and assignees whomsoever, but only to the extent and effect 
after mentioned, a Bond and Disposition in Security, dated the 
day of , and recorded as after mentioned, for the 

sum of Eight hundred pounds sterling, granted by E F (c?e- 
signatfOfi), in my favour ; and also All and Whole (the deed 
wHl then proceed a^ in Style No. 128, p. 235, doivn to the clause 
of registraiiony immediately before which toill be inserted) but 
that only to the extent of the sum of Five hundred pounds 
sterling of principal, with the interest thereof from the' 
day of , and penalties corresponding thereto, (a)* and 

to the effect of giving a pari passu preference over the 
said lands and others to the said C D and his aforesaid, as 

* This danse is in the ooxresponding Style in Mr Hendry's Second Edition, 
tnxt it is nnneoessaxy, as at common law the sums wonld rank pari passu 
imleeB in so far as a preference might be got by either of the creditors by 
diligence. 



238 BEDEEMABLE BIGHTS. 

No. 131. in right of the sums hereby conveyed, with me and my heirs 
(or, executors, as the case may be) and assignees, as in right 
of the remainder of the said principal sum, interest, and 
penalties contained in said Bond and Disposition in Secarity: 
And I have herewith delivered up to the said C D the said 
Bond and Disposition in Security, but declaring that he and 
his aforesaid shall be bound to make the same furthcomiDg to 
me and my successors in or assignees "to the remaining stung 
contained in the said Bond and Disposition in Security on 
all necessary occasions, on a receipt and obligation for le- 
delivery thereof, within a reasonable time and under a snifc- 
able penalty (if the bond is not to be delivered^ but only mak 
forthcoming, the clatise supra, p. 60, can be adapted to the case) : 
And I consent to registration hereof for preservation: Lr 
WITNESS WHEREOF, &c. (testing clatise). 



Ho. 182. ASSIGN A TION of part only of Sum in a Begtsiered Bond 

and Disposition in Security^ which is to be pref^rtjik 
to the remaining Sum in the Bond, 

In this case the Deed will proceed as in the preceding Style, ex- 
cepting the clause following (a), for which there will be saW- 
tuted: — 

Providing and declaring that the sums, principal, in- 
terest, and penalties, hereby assigned, shall be ranked anl 
preferred primo hco on the said lands and others aod tb^ 
rents thereof, and also on the prices and proceeds to b^ 
realised therefrom in the event of a sale of the same, or oP 
any part or portion thereof, and that preferably to the 
mainder of the said principal sum, interest, and penalti* 
contained in the said Bond and Disposition in Security, whid^ 
shall be ranked only on the said lands and others, and oib* 
any balance of the rents and prices or proceeds thereof tha& 
may remain after the sums, principal, interest, and penalties, 
hereby assigned, shall have been paid in full. 






DEEDS OF TRANSMISSION. 239 



iSSIONATION of a Registered Bond and Disposition in H«.188. 

Security partially discharged. 

ly A B (designation)^ in consideration of the sum of Five 
mndred'poxmds sterling now paid to me by C D (designation), 
lo hereby assign and dispone to and in favour of the said 
3 D and his executors (or his heirs, excluding executors) 
md assignees, but only to the extent after mentioned, 
I Bond and Disposition in Security, dated the 
lay of , and recorded as after mentioned, for the 

jum of JSight hundred pounds sterling, granted by E F (name 
imd design debtor), in my favour : And also All and Whole 
[here describe or refer to lands and insert or refer to condi- 
iians^ c£a, if any, as in bond), but that only to the extent of 
the sum of Five hundred pounds sterling of principal, being 
the balance remaining due on the said Bond and Disposition 
in Security, with the interest thereof from the day 

of , and pensdties corresponding thereto : And I 

consent to registration hereof for preservation : Ik witness 
WHKBEOFy &c. (testing clause). 



A88I0NA TION of a Registered Bond and Disposition in ho. IM. 
Security by a person who has acquired right thereto by 
a Series of Titles. 

I, A B (designation), in consideration of the sum of 

sterling now paid to me by C D, do hereby assign 
and dispone to and in favour of the said C D (designation), 
and his executors (or his heirs, excluding executors) and assig- 
nees whomsoever, a Bond and Disposition in Security, dated 
the , and recorded as after mentioned, for the sum of 

pounds sterling, granted by E F (designation), in 
favour of G H (designation), with interest from the (insert 
date) : And also All and Whole (describe or refer to the lands, 
and insert or refer to burdens, conditions, &c., as in the 



240 REDEEMABLE BIQHT8. 

No. 134. bond), all as specified and described in the said Bond and 
Disposition in Security recorded in the {here specify regitUr 
See Note of sostnes) OH the day of (a) : To which Bond 

p! 24JL ' and Disposition in Security, sums of money, and lands and 
others therein contained, I acquired right, conform to the 
following writs: — (First), Assignation granted by the said 
G H in favour of J K {designation), dated the , and 

recorded in the {specify register ofsasines), on the 
day of ; (Second), Decree of General Service of L M 

{designation), as eldest son and nearest and lawful heir in 
general of the said J E, obtained before the Sheriff of Chan- 
cery on the day of , and recorded in Chancery on the 
day of ; (Third), Notarial Instrument expede thereon, 
and on the said Bond and Disposition in Security, and Assig- 
nation thereof, in favour of the said L M, and recorded in 
the {specify register of sasines), on the day of ; 

(Fourth), Writ of Acknowledgment granted by the said 
E F in favour of N {designation), as nearest and lawfnl 
heir of the said L M, his uncle, dated the , and recorded 

in the {specify register of sasines), on the day of 

; (Fifth), Trust-Disposition and Settlement, dated 
the , and registered in the Books of Council and 

Session on the , granted by the said N 0, by which 

he gave, granted, assigned, and disponed to P Q {des^piatMj 
now deceased, and B S and T U {designations), and the sur- 
vivors and survivor, acceptors and acceptor, &c. {insert derii- 
nation, as in settlement), the whole property and estate, 
heritable and moveable, real and personal, that should belong 
to him, the said N 0, at the time of his death, with the 
writs and securities, vouchers and instructions thereof {of 
otherwise, as in deed of settlement), but in trust always, and 
for the uses, ends, and purposes expressed in said TVtirt- 
Disposition and Settlement, whereby the said R S and T 1I> 
as surviving trustees foresaid, acquired right to the said Bond 
and Disposition in Security, and sums of money, lands, and 
others therein contained ; (Sixth) Notarial Instrument expede 
thereon, and on the said Bond and Disposition in Securityi 



DEEDS OF TRANSMISSION. 241 

and other writs before specified, in favour of the said R S and ^^' ^^- 
T U, as surviving and accepting trustees of the said N under 
the said Trust-Disposition and Settlement, recorded in the 
{specify register ofsasines), on the ; and (Seventh) 

Assignation granted by the said R S and T U, surviving and 
accepting trustees foresaid, in my favour, dated the , 

and recorded in the (specify register ofsasines) on the : 

And I consent to registration hereof for preservation : In 
WITNESS WHEREOF {testing clatise). 

(a) When the assigner has right to only part of the security, Note (a), 
adopt Style No. 131, p. 237, and in the deduction of titles say, " To S^"* ^' 
which Bond and Disposition in Security, and sums of money, and 
lands and others therein contained, to the extent and effect foresaid, 
I acquired right," &c. ; and make the necessary alterations (if any) 
in the specification of the writs. 



ASSIGNATION of a Bond of Annuity and Disposition in Ho. 188. 

Security. 

I, A 6 (designation), in consideration of the sum of 

Ponnds sterling now paid to me by D (designation), Do 

hereby assign and dispone to and in favour of the said D 

• Bond of Annuity and Disposition in Security, dated the 

, and recorded as aftermentioned, granted by E F 

^^^^^ignation) in my favour for payment to me or my assig- 

^®B8 during all the days of my life of an Annuity or yearly 

^'^^ of £ sterling, free of all burdens and deductions 

^^^tsoever, at two terms in the year, Whitsunday and Mar- 

^^^oas, by equal portions, the first term's payment of said 

•'^^liity falling to the said D in virtue hereof being that 

^Mch will be payable at the term of next, for the 

™*f-year preceding (or following, as the case may be) : And 

**^ All and Whole (describe lands cw in bond), all as speci- 

"^^ and described in the said Bond of Annuity and Disposi- 

^H in Security, recorded in the (specify register ofsasines) 

^ the day of : And I consent to registration 

^^t preservation : In witness whereof (testing clause). 



1 1* 



242 BEDEEMABLK BIGHTS. 



(4) COMPLETION OF TITLE OF ASSIGNEE. 

The assignee's title may be completed by recoiding the aoignft- 
tion along with warrant of registration in the appropriate legister of 
sasines, or, where the assignation is contained in a deed granted fo 
further purposes, by expeding and recording a notarial instnnnent 
with warrant. 

The warrant of registration may be taken from preyioos StjlflB. 

Ho. 184. NOTARIAL INSTRUMENT in favour of an Assignee to 

an Heritable Security following on a Deed granted fiff 
further purposes* — (Consolidation Act, Schedule HH.) 

At there was by (or on behalf of) A B (none 

and design the assignee) presented to me, Notary PaUie 
subscribing, a Bond and Disposition in Security {or oOff 
security or extract, as the case may be), dated the day 

of , and recorded in the (specify register of sasiMJ 

(or, where a sasine has been expede thereon, say Bond and Dis- 
position in Security, or other security or extract^ as (ke cm 
may be, dated the day of , and Sasine thereon, 

recorded in the {specify register ofsasines, on the dij 

of , granted by C D {designation) in favour of E F 

{designation), hy which Bond and Disposition in Security (or 
as the case may be) the said CD bound and obliged himself, and 
his heirs, executors, and representatives whomsoever, \rith- | 
out the necessity of discussing them in their order, to repay 
to the said E F, liis executors {or heirs, excluding executom, 
as tJie case may be) or assignees whomsoever, at the teitft 
of {Jiere insert the date and place of payment as in the b<^^ 
or other security), the sum of £ stg., with afiftk^ 

part more of liquidate penalty in case of failure, and th^s 
interest of the said principal sum at the rate of _ 

per centum per annum from the date of the said Boi 
and Disposition in Security {or otJier deed) to the 

'*'A notarial Instmment may be ased where, thoagh the deed b 
granted for further porposos, it is not desired to reoord the wb<de of it 
Consolidation Act, {17. 



COMPLETION OF ASSIONEE'S TITLE. 243 

m of payment, and half-yearly, termly, and proper- No. 184. 
Dally thereafter daring the not-payment of the same, &c. 
mpleie narrative of the personal obligation as in the bond 
other deed) : And in security of the personal obligation 
fore narrated {or contained in the said Bond and Disposi- 
n in Security, or other deed) the said C D disponed to and 
favour of the said E F and his aforesaid, heritably, but 
ieemably as thereinafter mentioned, yet irredeemably in 
9 event of a sale by virtue of the said Bond and Disposition 
Security (or other deed), All and Whole (here insert the 
9cription of the lands or subjects^ and insert or refer to real 
rdens, conditions, c£c., if any, all as in the bond and disposi* 
m in security, or other deed) : As also there was presented 
me an Assignation (or other conveyance or extract thereof), 
rted the day of , granted by the said E F^ 

r which the said E F assigned and disponed the said Bond 
id Disposition in Security (or other security, as the case 
ay he), and sums of money and lands {or subjects) therein 
mtained, to the said A B, his executors {or as the case may 
s) or assignees whomsoever : Whereupon this Instrument 
1 taken in the hands of G H {insert name and designation of 
foiary Public), Notary Public, in the terms of "The Titles 
» Land Consolidation (Scotland) Act 1868'': In witness 
rauiOF {testing clause). 

NOTARIAL INSTRUMENT in favour of Trustees in a No. 136. 
General Disposition, not the Assignees of the Original 
Creditor. — (Consolidation Act, Schedule L, and Con- 
veyancing Act, § 53.*) 

At there was by {or on behalf of) A B and C D 

*^sert designations). Trustees nominated and appointed in 

'"'Scbediile L of the Oonsolidation Act was properly intended for lands, 
^^ it 18 by this section of the Conveyancing Act provided that '^ it shall not 
* competent to challenge the validity of any notarial instrument expede 
^^ iBOorded before or after the commencement of this Act with reference 

^ny heritable seonrity, in terms of the 19th section of the Consolidation 
^^'' upon the ground *' that such notarial instrument is not in the form of 
^'^^edole L annexed to the said Act, or that the said form ia not adapted to 
^^xitableseGorities." 



244 REDEEMABLE BIQHT8. 

No. 135. the Antenuptial Contract of Marriage, dated the day 

of , entered into between E F {deaignatum) on the 

one part, and G H, now Mrs G H or F, wife of the said E F, 
and daughter of E H (designation), on the other part, pre- 
sented to me, Notary Public subscribing, a Bond and Dis- 
position in Security, granted by J K (designation), in fayoor 
of L M (designation), dated the day of , and recorded 
in the Division of the General Begister of Sasines applicable 
to the County of (or in the Register of Sasines, &c., within 
Burgh kept for the City of ), the day of , 

by which recorded Bond and Disposition in Security the 
said L M was infeft heritably, but redeemably as therein 
mentioned, yet irredeemably in the event of a sale by virtue 
of the said Bond and Disposition in Security, in All and 
Whole (Iiere describe the lands or subjects, and insert or r^ 
to real burdenSy conditions, ^c, if ant/y all as in the bcmd 
and disposition in security) ; and that in security of the re- 
payment to the said L M, his executors (or his heirs, ex- 
cluding executors) or assignees whomsoever, at the term 
of , within the Head OflSce of the Bank 

at Edinburgh, of the sum of stg., with a fifth part 

more of liquidate penalty in case of failure, and interest of 
the said principal sum at the rate of per centum per 

annum from the date of the said Bond and Disposition in 
Security to the said term of payment, &c. (complete the nanor 
tive of the personal obligation as in the bond and diqposilli» 
in security) : As also there was presented to me a Trust- 
Disposition and Settlement, dated the day of » 
granted by the said L M, by which he gave and disponed 
to and in favour of N and P Q (designations), an*- 
to such other person or persons as he should afterwards 
name, or as should be assumed in virtue of the powei^ 
thereinafter written, to act in the trust thereby created, an^ 
to the acceptors or acceptor, and survivors and survivor o: 
the persons thereby named, or to be named or assumed 
aforesaid, as trustees for executing the said trust, the miJoriV' 
of the said trustees whilst more than two accepting are aliv'^ 



COMPLETION OF ASSIGNEE'S TITLE. 245 

and acting as trustees being always a quorum, and to the No. 136. 
nearest heir-msde of the last accepting and surviving trustee 
who should be major sui juris and resident within Scotland 
at the time (the said trustees named and to be named and 
asstimed, and their aforesaid, being throughout the said Trust- 
Disposition and Settlement denominated " the Trustees'') and 
the assignees of the said trustees, heritably and irredeemably, 
the subjects therein particularly described, and all other lands 
and heritable or real estate of every description which should 
belong to him at the time of his death ; as also his whole 
moveable or" personal means and estate, of whatever kind 
or denomination, or wherever situated, which should belong 
to him at the time of his death, with the whole titles, 
writs, and evidents, vouchers and instructions, of the said 
property, estate, and effects thereby conveyed : and he 
thereby nominated and appointed his Trustees to be his sole 
executors, but always in trust for the uses and purposes 
mentioned in the said Trust-Disposition and Settlement: 
By which Trust-Disposition and Settlement the said N 
and P Q, as Trustees foresaid, acquired right to the said Bond 
and Disposition in Security, and sums of money, and lands 
{or subjects) therein contained, but that always in trust for the 
ends, uses, and purposes specified in the said Trust-Disposition 
and Settlement : As also there was presented to me a Nota- 
rial Instrument in the said Bond and Disposition in Security, 
and sums and lands (or subjects) therein contained, in 
favour of the said N and P Q, as Trustees and Executors 
foresaid, recorded with Warrant of Kegistration thereon in the 
{specify register of sasines) the day of : As also 

there was presented to me an Assignation, granted by the 
said N and P Q, as Trustees and Executors foresaid, in 
favour of the said G H or F, therein named G H, dated 
the day of , and, with Warrant of Kegistration 

thereon on behalf of the said G H, recorded in the (specify 
register of sasines) the day of , by which Assig- 

nation the said N and P Q, as Trustees foresaid, on the 
narrative and for the causes therein specified, assigned 



246 BEDEEMABLE RIGHTS. 

No. 136. and dispoDed to the said G H, now G H or F, and her 
executors {or as the case may be) or assignees whom- 
soever, the said Bond and Disposition in Security, and 
sums of money, and lands (or subjects) therein con- 
tained : As also there was presented to me the said Ante- 
nuptial Contract of Marriage, dated as aforesaid, entered 
into between the said E F and G H, whereby the said G H, 
now G H or Fy with consent of the said E F, assigned and 
disponed to and in favour of the said A B and C D, and to 
such other person or persons as should from time to time ba 
assumed in virtue of the powers thereinafter written to tcfc 
in the trust thereby created, and to the acceptors and acceptor, 
survivors and survivor, of the persons thereby named or to b^ 
assumed as aforesaid as Trustees for the purpose of executing^ 
the trust thereby created, and to the nearest heir-male of tho 
last surviving and acting Trustee who shall be major suijwris 
and resident within Great Britain at the time, the said Troa* 
tees named and to be assumed and their aforesaid being 
throughout the said Contract denominated " the Trustees,'' 
and to the assignees of the trustees absolutely and irredeem- 
ably, the whole property, means, and estate, heritable and 
moveable, real and personal, then belonging to her, the said 
G H, or to which she might in any way acquire right or 
succeed during the subsistence of the marriage, bat in 
trust always for the purposes therein specified, whereby the 
said A B and C D, as Trustees foresaid, acquired right to 
the said Bond and Disposition in Security, and sums of 
money, and lands {or subjects) therein contained : Whibi- 
UPON this Instrument is taken in the hands of B S {ntu^ 
and designation of notary public), Notary Public, in termfloC 
" The Titles to Land Consolidation (Scotland) Act 1868,"^ 
and " The Conveyancing (Scotland) Act 1874 : *" In 
WHEREOF {testing clause). 

Before the instrument is recorded a warrant of registration 
usual form will be written on it. 






i 



COMPLBTION OF ASSIGNBB'S TITLE. 247 

"LABIAL INSTRUMENT in favour of General IXs- Ho.i8«. 
ponee of the original Creditor. — Conveyancing Act, 
Schedule (N), 

U there was by {or on behalf of) A B (cfo- 

ition)y presented to me, Notary Public subscribing, a 
i and Disposition in Security, dated the day of 

, and recorded in the {specify register ofsasines) 
day of , granted by C D {designation} 

vour of E F (designation) y by which Bond and Disposi- 
in Security the said C D bound and obliged himself, and 
leirs, executors, and representatives whomsoever, with- 
'he necessity of discussing them in their order, to repay 
le said E F, his executors {or his heirs, excluding oxe- 
rs) or assignees whomsoever, at the term of , 
in the Head Office of the Bank at Edinburgh, 
mm of stg., with a fifth part more of liquidate 
Ity in case of failure, and interest of the said principal 
at the rate of per centum per annum from the date 
^e said Bond and Disposition in Security to the said term 
iyment^ &c. {complete the narrative of the personal obUgor- 
08 in the bond and disposition in security) ; and in secu- 
of the personal obligation contained in the said Bond 
Disposition in Security, the said C D did thereby dispone 
Dd in favour of the said E F and his aforesaid, heritably, 
redeemably as thereinafter mentioned, yet irredeemably 
be event of a sale by virtue of the said Bond and Dis- 
tion in Security, All and Whole {here insert the descrip- 
of the lands or subjects^ and insert or refer to real burdens, 
iitions, c£c., if any, all as in the bond and disposition in 
rity) : (a) As also there was presented to me a General 
position, granted by the said E F, and dated the 
of , by which General Disposition the said 
assigned and disponed) or otherwise, as the case may be) 
be said A B, and his heirs and assignees {or otherwise^ as 
^e may be), heritably and irredeemably, his whole herit- 
and moveable estate {or othertvise, as the case may be)i 
^hich General Disposition was included the said Bond 



248 BEDEEMABLE BIGHTS. 

No. 136. and Disposition in Security, the said E F being then veet 
"^ therein as aforesaid: Whereupon this Instrument is taken 

in the hands of L M {insert name and destgnation of naUvy 
public), Notary Public, in tenns of " The Titles to Land Con- 
solidation (Scotland) Act 1868," and "The Oonveyancmg 
(Scotland) Act 1874": In witness whereof (testing cJavse). 

H©.m. NOTARIAL INSTRUMENT in favour of General Trud 

Disponees not the Assignees of the Original Creditor.— 
Conveyancing Act, Schedule (N.) 

At there was by (or on behalf of) A B and C D 

(insert designations) ^ Trustees nominated and appointed in 
the Antenuptial Contract of Marriage, dated the day 

of , entered into between E F (designation) on the 

one part, and G H, now Mrs G H or F, wife of the said EF, 
and daughter of E H (designation), on the other part, pre- 
sented to me, Notary Public subscribing, a Bond and Dia- 
position in Security, dated the day of , and 

recorded in the Division of the General Register of Sasinei 
applicable to the County of (or in the Register of Sasines, 
&c., within Burgh, kept for the City of ), the 

day of , granted by J E (designation) ^ in favour of L H 

(designation), (if saline has been expede thereon, omit ik 
reference as to the recording of the bondy and add here, and 
Instrument of Sasine thereon in favour of the said L M, re- 
corded in the (specify register ofsasines), the day of ) 
by which Bond and Disposition in Security the said J K 
bound and obliged himself, and his heirs, executors, and 
representatives whomsoever, without the necessity of dia— 
cussing them in their order, to repay to the said L H, hi» 
executors (or his heirs, excluding executors) or assigneea^- 
whomsoever, at the term of , within the Head Officer 

of the Bank at Edinburgh, the sum of stg.^ 

with a fifth part more of liquidate penalty in case of fadlnie.^ 
and interest of the said principal sum at the rate of pos^ 
centum per annum from the date of the said Bond and Dis-^ 
position in Security to the said term of payment, &c. (oof^ 



OOMPLBTION OF ASSIGNEE'S TITLE. 249 

pleie the narrative of the personal obligation as in the bond Na 187. 
and disposition in security) : And in security of the personal 
obligation contained in said Bond and Disposition in 
Security, the said J K did thereby dispone to and in favour 
of the said L M and his aforesaid, heritably, but redeemably 
as thereinafter mentioned, yet irredeemably in the event 
of a sale by virtue of the said Bond and Disposition in 
Security, All and Whole {here insert the description of the 
lands or subjects^ and insert or refer to real burdens, condi- 
tions, etc., if ani/y aU as in the bond and disposition in 
security) : As also there was presented to me the said 
Antenuptial Contract of Marriage, dated as aforesaid, entered 
into between the said E F and G H, whereby the said G H, 
now G H or F, with consent of the said E F, assigned and 
disponed to and in favour of the said A B and C D, and to 
such other person or persons as should from time to time be 
assumed in virtue of the powers thereinafter written to act 
in the trust thereby created, and to the acceptors and acceptor, 
survivors and survivor, of the persons thereby named or to be 
assumed as aforesaid as Trustees for the purpose of executing 
the trust thereby created, and to the nearest heir-malo of the 
last surviving and acting Trustee who shall be major sui juris 
and resident within Great Britain at the time, the said Trus- 
tees named and to be assumed and their aforesaid being 
throughout the said Contract denominated " the Trustees," 
and to the assignees of the trustees absolutely and irredeem- 
ably, the whole property, means and estate, heritable and 
moveable, real and personal, then belonging to her, the said 
6 H, or to which she might in any way acquire right or 
succeed during the subsistence of the marriage, but in trust 
always for the uses and purposes specified in the said Con- 
tract of Marriage, in which general conveyance was included 
the said Bond and Disposition in Security (and infeftment 
following thereon, if infeftment was eapede), the said G H or 
F being then vest therein in virtue of the following writs, viz.. 
First, Assignation dated the day of , and recorded 

in the {specify register ofsasines) the day of , 

granted by the said L M in favour of N {designaiion) ; 



250 REDEEUABLE BIGHTS. 

No. 137. Second, General Disposition by the said N in favour of the 

said G H, of his whole heritable and moveable property and 

estate, including the said Bond and Disposition in Security 
(and infeftment thereon, ifinfeftment was eocpede) ; and Thiid, 
Notarial Instrument in favour of the said G H or F, 
therein named G H, recorded with Warrant of RegistratioB 
thereon in the {specify register o/sasines) the dayrf 

: Whereupon, &c. {as in Style No. 136). 

Before the instrument is recorded a warrant of i^istiation Id 
usual form will be written on it 

Ho.188. NOTARIAL INSTRUMENT injuvour of the AssigmV 

a General Disponee of the original Oreditor.'-C^ 
veyancing Act, Schedule (N). 

At there was by {or on behalf of) A B ((fc- 

signation)^ presented to me, Notary Public subscribing,* 
Bond and Disposition in Security {contimte as in Style Na 
136, doKm to (a), and then proceed — ) As also there wis 
presented to me a General Disposition, granted by the said 
E F, and dated the day of , by which General 

Disposition the said E F assigned and disponed {or otter- 
toisey as the case may be) to G H {designation)^ and his exe- 
cutors and assignees {or otherwise^ as the case may be) hen- 
tably and irredeemably, his whole heritable and moveable 
estate {or otherwise, as the case may 6e), in which General 
Disposition was included the said Bond and Dispositioft 
in Security, the said E F being then vested therein as afore- 
said: As also there was presented to me the following WA 
whereby the said A B acquired the said general disponees 
right to the said Bond and Disposition in Security, viii 
Assignation dated the day of , granted 

by the said G BL, by which the said G H assigned and dia- 
poned the said Bond and Disposition in Security, and fiiUBi 
of money and lands {or subjects) therein contained, to tb 
said A B, his executors {or heirs, excluding executoii) oc 
assignees whomsoever: Whsbeupok, &c. {as in StyW^o^li^*) 



EXCLUSION OF EXBCUTORS. 251 



IINUTES EXCLUDING EXECUTOKS, AND OF KE- 
MOVAL OF THE EXCLUSION OP EXECUTORS, IN 
HEBITABLE SECUBITIES. 

1. ^MlBUTSS EzCLUOINa EXEOUTORB. 

WTE excluding Executors^ to be Indorsed on the Bond^ ho. ia9. 
or other Deed of Security ^ or Assignation thereof ^ where 
the Security or Assignation has not been recorded or 
completed by infeftment. — (Consolidation Act, Sche- 
dule D D.) 

I, A B (here name and design the creditor)^ hereby exclude 
neuters from the within Bond and Disposition in Secu- 
(or other deed^ as the case mm/ be; or Assignation, or 
T deed or conveyance thereof as the case may be) : In wit- 
ftWHSBEOF (testing clause). 

mUTE excluding Executors from an Heritable Security , ho.140. 
or Assignation thereof where the Security or Assignor- 
turn has been recorded or completed by infeftment, — 
(Consolidation Act, Schedule D D.) 

(As a separate deed.) 

I, A B (here name and design tlie creditor)^ hereby exclude 
tutors from the Bond and Disposition in Security (or 
w security) y dated the day of , granted by 

^ {here name and design the debtor)^ in favour of me and 
executors or assignees whomsoever (or in favour of E F 
^^^nation)^ and his executors or assignees whomsoever), 
the sum of over All and Whole (here insert de- 

ptum of the lands or subjects as in the bond or other 
»%), which Bond and Disposition in Security (or as the 
J may be) was, with Warrant of Kegistration thereon on 
behalf (or on behalf of the said E F) recorded (or^ as the 
' may 6c, which Bond and Disposition in Security was 
)wed by an Instrument of Sasine (if the instrument is 



252 BEDBEMABLE BIGHTS. 

No- 1^' dated, «ay— dated the day of , and) or by a 

Notarial Instrument in my favour, or in favour of the said 
E F, recorded,* with Warrant of Registration thereon), in 
the {specify register ofsasines) on the day of 

(if the grant(yr is not the original creditor^ add — and also 
from the Assignation of the said Bond and Disposition in 
Security, granted by the said E F in favour of me and my 
executors or assignees whomsoever, dated the day 

of , and with Warrant of Eegistration thereon on 

my behalf recorded in the (specify register of sasines) the 
day of : In witness whereof (testing dome). 



H©.i4L MINUTE of EXCLUSION of Executors from an Assigna- 
tion in favour of Executors of a Bond and DisposiiM 
in Security, or other Deed, in which Bond or Dsd 
Executors toere not excluded. 

I, A £ (name and design the grantor) ^ hereby ezdnde 
executors from the Assignation, dated the day of t 
and with Warrant of Eegistrntion thereon on my behalf^ i^ 
corded in the (specify register of sasines) the day 

of , granted by E F (name and designation) in 

favour of me, my executors or assignees whomsoever, of tba 
Bond and Disposition in Security (or other security)^ dated 
the day of y granted by C D (de^tjjffiaite) 

in favour of the said E F and his heirs, excluding execnton 
or assignees whomsoever, for the sum of , o^wff 

All and Whole (here insert description of lands or suXfjtctsus 
in the bond or other security), which Bond and Disposition in 
Security (or as the case may be) was, with Warrant of B^s- 
tration thereon on behalf of the said E F, recorded in the 
(specify register of sasines) on the day of : In 

witness whereof (testing clause). 

* See Note (b), supra, p. 184. 



RBMOVAL OF EXOLUSION OF EXECUTORS. 253 



tINUTE of REMO VAL of the Exclusion of Executors in Ho. 148. 
an Heritable Security or Assignation thereof. 

I, A B (name and design the granter)^ hereby remove the 
exclusion of executors contained in {or indorsed on) the 
Bond and Disposition in Security {or other security)^ dated 
the day of , granted by C D {designation)^ in 

faTOur of me and my heirs, excluding executors or assignees 
whomsoever {or^ if the granter is not the original creditor , in 
&Toiir of E F {designation) and his heirs, excluding execu- 
tors or assignees whomsoever), for the sum of , over 
All and Whole {here insert description of lands or subjects as 
if^ihe hand or other security) ^ which Bond and Disposition in 
Secnrity {or as the case may 6e, was, with Warrant of Eegis- 
tration thereon on my behalf {or on behalf of the said E F), 
recorded {or as the case may be, which Bond and Disposition 
in Security was followed by an Instrument {if dated, say — 
dated the day of , and) or Notarial Instrument 
^ niy favour, or in favour of the said E F, recorded,* with 
Wanrant of Kegistration thereon, in the {specify register of 
w«wic«) on the day of {if the grantor is not the 
^^''^iginal creditory add — and also from the Assignation of the 
*id Bond and Disposition in Security, granted by the said 
B P in favour of me and my heirs, excluding executors or 
^gnees whomsoever, dated the day of , and, 
•'ith Warrant of Eegistration thereon on my behalf, recorded 
^ the {specify register ofsasines) on the day of : 
^ WiTNBSS WHEREOF, &c. {testing clause). 

^XUTE of MEMO VAL of Exclusion of Executors con- Ho.i4S. 
tained in an Assignation of a Bond and Disposition in 
Security J or other Deedy in which Bond or Deed Exe- 
cutors were not excluded. 

9 

I, A B {name and design the grantor), hereby remove the 
^elusion of executors contained in the Assignation, dated 

♦ See Note (b), tupra, p. 134. 



254 REDEEMABLE BIGHTS. 

No. 143. the day of , and recorded in the {specify regiskr 

o/aaaines) on the day of , granted by B F 

(deaignaium) in favour of me, my heirs, excluding execu- 
tors or assignees whomsoever, of Bond and Disposition in 
Security (or other security), dated the day of , 

granted by G D (designation) in favour of the said E F, 
and his executors or assignees whomsoever, for the sum d 
, over All and Whole (here insert description ofkaiit 
or subjects as in the bond or other security), which Bond and 
Disposition in Security (or as the case may be) was, with 
Warrant of Kegistration thereon on behalf of the said E F, 
recorded in the (specify register ofsasines) on the day 

of : In witness whereof, &c. (testing cIoMse). 



No. 144. MINUTE of BEMO VA L of Exclusion of Executors from « 

Heritable Security tvhere the exclusion is contained «a 
a Minute. 

I, A B (here name and design the creditor), hereby remove 
the exclusion of executors contained in the Minute of 
Exclusion of Executors executed by me, dated the 
day of , and with warrant of registration on my be- 

half thereon, recorded in the (specify register of sasirns) on 
the day of , whereby executors were ex- 

cluded from the Bond and Disposition in Security granted 
by C D (designation) in favour of me, my executors w 
assignees whomsoever, for the sum of over All and 

Whole (here insert description of lands or subjects)^ dated, 
the said Bond and Disposition in Security, the day of 

, and with Warrant of Registration thereon on my 
belialf, recorded in the (specify register of sasines) on the 
day of : In witness whereof (testing cUmse). 



TITLE OP TRUSTEE IN SEQUESTBATION, ETC. 255 



(6) COMPLETION OF TITLES OF TRUSTEE IN SEQUES- 
TBATION, LIQUIDATORS OF A JOINT-STOCK COM- 
PANY, ADJUDGERS, AND BENEFICIARIES UNDER 
LAPSED TRUSTS. 

1. — ^T&UBTEB IN Sequestration or Liquidator of a Joint-Stock 

Company. 

The Consolidation Act (§ 25) provides that it shall be competent 
to a trostee on a sequestrated estate, or to liqiddators, official or 
Tolantaiy, appointed for the purpose of winding up a joint-stock 
CQmpanj, to expede a notarial instrument setting forth the act and 
iTBiiant of confirmation in favour of such trustee, or the appointment 
of Bach liquidators, official or voluntary, respectively, and specifying 
the lands belonging to the bankrupt or company to which a title is 
to be completed, and the title by which such lands are held by the 
bankmpt or company — when the lands consist of heritable securities, 
by a notarial instrument in or as nearly as may be in the form of 
Schedule (LL), and to record such notarial instrument in the appro- 
priate register of sasines, which completes the title. 



NOTARIAL INSTRUMENT in favour of a Trustee on a no.146. 
Sequestrated Estate, or of a Liquidator of a Joint- 
Stock Company. 

At there was by {or on behalf of) A B {desig- 

nation)^ as trustee on the sequestrated estate of C D {desig- 
nation) {or as liquidator for winding up {insert name of 
company), presented to me, Notary Public subscribing, a 
Bond and Disposition in Security {or other security or extract, 
OB the case may be), dated the day of {if an 

esBbract, add — and recorded in the Books of Council and 
Session, or as the case may he, on the day of ), 

and {where aasine Jias been expede on the security, add here — 
andSasine thereon ; if dated, say — dated the day of 
and) recorded in the {specify register of sasines) on the 
day of , granted by E P {designation) in favour of 

the said C D (or in favour of tlie said Company), by which 



256 REDEEMABLE BIQHTa 

No. i4g. Bond and Disposition in Security the said E F {here narrok 
the personal obligation^ as) bound and obliged himself and 
his heirs, executors, and representatives whomsoever, with- 
out the necessity of discussing them in their order, to repay 
to the said G D, his executors (or his heirs, excluding exe- 
cutors) or assignees whomsoever {or to repay to the said 
Company or their assignees whomsoever), at the tern 
of , within the Head Office of the Bank 

of Scotland in Edinburgh, the sum of £ , 

with a fifth part more of liquidate penalty in case of faOiue, 
and the interest of the said principal sum at the rate of 
per centum per annum from the date of the said Bond asd 
Disposition in Security {or other deed) to the said term of' 
payment, and half-yearly, termly, and proportionally thae- 
after during the not-payment of the same, and that at two 
terms in the year, Whitsunday and Martinmas, by equal 
portions, beginning the first term's payment of the said 
interest at the term of Martinmas then next for the intenat 
due preceding that date, and the next term's payment 
thereof at the term of Whitsunday following, and so fortL 
half-yearly, termly, and proportionally thereafter during th^ 
not-payment of the principal sum, with a fifth part mora 
the interest due at each term of liquidate penalty in case 
failure in the punctual payment thereof: And in security (> 
the before-narrated personal obligation, the said E F 
poned to and in favour of the said G D and his 
{or to and in favour of the said company and their afoi^-' 
saids), heritably, but redeemably as thereinafter mentioneAy 
yet irredeemably in the event of a sale by virtue of the aaiiJ 
Bond and Disposition in Security {or other deed) All and 
Whole {here insert the description of the lands or S!ukj(ftifi 
and any real burdens, conditions, provisions, or lifnitaiioM, cf 
reference thereto, all as in security) (a) as also there yns 
presented to me Extract Act and Warrant of Confinnatioa 

* by the Sheriff of the county of in favour of the 
said A B, dated the day of {or here specify Ae 

* Mention of the Sheriff is not required by the terms of the Sdiadide (LL). 



TITLE OF TRUSTER IN SEQUESTRATION, ETC. 257 

decree or wanxint co7itatning tlie appointment of the liquida- No. 146. 
for), whereby the said A B as Trustee {or liquidator) has 
right to the said Bond and Disposition in Security {or other 
security) : TV hereupon, &c. {as in Style No. 134). 

There is no provision in the ConsoHdation Act (see sees. 120, 124, 
and 130) under which the statutory forms can be used for transfer- 
ring, inter vivos^ securities where the creditor's right has not been 
completed by infeftment, so that if it should happen that the Lank- 
rapt has right to a security not so completed, or to an unrecorded 
assignation of a security that has been so completed, a title must be 
completed by infeftment in the person of the bankrupt before the 
statutory forms can be used for completing one in the person of the 
trustee. This, as already pointed out {supra, p. 110), in the case of 
lands may be attended with danger, by validating prior assignations 
granted by the bankrupt; but, if desired, a title may be made up to 
the security or assignation as an unrecorded conveyance — Johnston, 
June 14, 1867, 5 Macph. 903 — though, as explained {supra, p. 109), 
it is not necessary that a trustee in a sequestration should make up a 
title in his person to enable him to deal with the bankrupt's herit- 
able estate. 

NOTARIAL INSTRUMENT in favour of a Trustee on No,i46. 
a Sequestrated Estate or Liquidator of a Joint-Stock 
Company where the Banhncpt or Company has acquired 
right to the Security, — Consolidation Act, Schedule 
(LL). 

In this case the instrument will proceed as in the preceding Style 
down to (a), where the writ or several writ« will be set forth as 
presented to the notary, as in Style No. 135, supra, p. 243. Where- 
upon, &c. {as in Style No. 134). 

2. — Completion op Title of Adjudgers in Implement. 

1.— J7m^er Decrees of Adjudication of Land for Payment of Belt. 

Beference is made to the observations on adjudications in imple- 
ment, supra, p. 112, which apply also to adjudications for payment 
of debt. 

17 



258 UEOEEMABLE BIGHTS. 



Ho.147. WABBANTofBEGISTBATION to be torUten on Extract- 
Decree of Adjudication against a person in/eft, 

Eegister on belialf of A B (designation) in the Eegister 
of tho county of C (or, if tlie decree contains lands in wn 
than one county, in the Registers of the counties of C, D,and 
E, or ow tlie case may 6e, or if the lands or subjects art hii 
burgage, in the Eegister of the burgh of M, or in the Eegifltew 
of the burghs of ]M, N, and 0, or as the case may be), 

(To he signed as in previous Stylti) 



No. 148. NOTAlilAL INSTBUMENT on a Deaee of AdjMcor 

tion obtained against a person infeft. 

At Edinburgh there Avas by (or on behalf of) A 5 
(designation) presented to me, Notary-Public subscribing, 
an Extract-Decree of Adjudication, obtained at the instance 
of the said A B in an action before the Lords of Council ant 
Session against C D (designation), and dated the day 

of {if such he the case, add, and with abbreviate 

tliereof duly registered on the day of ); bj" 

which decree the said Lords adjudged from the said C I^ 
All and Whole (insert description of lands or subjects, tpith- 
burdens or reference thereto, if any y all as in the decree), an4- 
decerned and declared the same to pertain and beloug t 
tlie said A B and his heirs and assignees, heritably, ba 
redeemably always conform to law, in payment and satis 
faction to him of the accumulated sum of £ , w/p« 

Justo calculo, and interest thereof from the date of the sai' 
decree, during the not-rcdemptiou, and that over andabor^ 
the composition to the superiors and expenses of infeftmeat i 
and ordained the said A B and his foresaids to be infeft aad 
seised in the said lands {or subjects) and others so adjudged •' 
Whereupon, &c. (as in Style No. 134, p. 242). 



TITLE OF ADJUDGBR OF LAND FOR DEBT. 259 



NOTARIAL INSTRUMENT on a Decree of Adjudica- Ho. 149 

tion against a person not infefL 

At , there was by {or on behalf of) A B (desig- 

ncUum)y presented to me, Notary-Public subscribing, a Dis- 
position (or other deed, as the case may 6e), granted by E F 
{designation) J and dated the day of , by 

which Disposition the said E F disponed to C D (designation) 
(here narrate, so far as necessary, the deed or torit as in 
previous Styles) : As also there was presented to me an 
Extract-Decree of Adjudication, &c. (as in preceding Style) : 
Whereupon, &c. 

Before the instrument is recorded, a warrant of registration must 
be written thereon. 

2. Under Decrees of Adjudication of Heritable Securities, 

The 129th section of the Consolidation Act of 1868, as altered 
and re-enacted by the 65th section of the Conveyancing Act of 
1874, provides that " in all cases of adjudication, whether for debt 
or in implement, or of constitution and adjudication whether for debt 
or in implement, in which the adjudger has obtained a decree of ad- 
judication, or of constitution and adjudication, in the manner and to 
the effect provided by this Act, or in cases of declarator and adjudi- 
cation where the subjects contained in any such decree are heritable 
securities, it shall be competent for the adjudger to complete his title 
to such securities by recording either the abbreviate of adjudication 
or an extract of such decree in the appropriate register of sasines ; 
in either of which cases he shall be in the same position as if an 
assignation of such heritable securities had been granted in his favour 
by the ancestor or person or creditor in trust, or otherwise, and 
whether in life or deceased, whose estate is adjudged, and as if such 
assignation had been duly recorded in the appropriate register of 
sasines at the date of so recording such abbreviate or such extract 
decree." This section is in its terms more comprehensive tlmn the 
repealed one, which did not include decrees of declarator and adjudi- 
cation or of adjudication against trustees. 



260 REDEEMABLE BIGHTS. 

Whether the person from whom or from whose successor the sccuntj 
18 adjudged was infeft or not, — The adjudger's title may in all caw 
be completed under this provision by recording with warrant of 
registration in the appropriate register or registers either the ablw- 
viate of adjudication or the extract of the decree of adjudication. It 
will be observed that in this respect the clause just quoted is peca- 
liar, inasmuch as it deals with heritable securities without referam 
to the position in which the person, whether original creditor or 
assignee, from whom or whose successor or estate they are adjudged 
may have stood — that is, as to whether his right had or had notl)eeo 
completed by infeftment — while in other cases in the Consolidatioii 
Act, as well as in the Conveyancing Act, this distinction is ob- 
served.* In the Heritable Securities Acts of 1845 and 1847 tiw 
samedistinction is found, f and it seems more consistent with pnn- 
ciple where the person whose right has been adjudged was not in- 
feft, not to record the abbreviate or extract-decree, but to use it ai 
an assignation of an unrecorded conveyance, and to expede and re- 
cord a notarial instrument in favour of the adjudger. The exdnoon 
of heritable securities from the operation of section 62 of the Cod- 
solidation Act, which deals with the corresponding case of lands, and 
where the distinction is observed, may seem to create some objection 
to tliis proceeding ; but there are other provisions in that Act which 
seem quite sufficient to warrant it. By section 23 it is made "com- 
petent to any person having right to an unrecorded deed or comyej- 
ance originally granted in favour of another person," " to expede »► 
notarial instrument in or as nearly as may be in the form of Schedule 
(J) hereto annexed, setting forth generally the nature of the deed oc 
conveyance, and containing those portions of the deed or convejano^ 
by which the lands in regard to which the said instrument is expede 
are conveyed, " ** and also setting forth the title or series of titles by 
which the party acquired right to the deed or conveyance." By th-^ 
interpretation clauset each of the words " deed " and " conveyance ' 
includes all "heritable securities, reversions, assignations," "decree^ 
of adjudication ; " " and all deeds, decrees, and writings by whid> 
lands or rights in lands are constituted or completed or conveyed ; 
** and the word * lands ' " " includes all heritable subjects, 8ecuriti«3* 

* Gonsolidation Act, \\ 124 to 128 and 130. Conveyancing Act, f 85. 
t 8 and 9 Vict. c. 81, § 3 ; 10 and 11 Vict. c. 60, J 6. 
X Consolidation Act, 2 3. 



ADJUDICATION OF HERITABLE SECURITIES. 261 

and rights." These meanings, when applied to a decree of adjudica- 
tion of either an heritahle security or an assignation thereof unre- 
corded, are sufficient to bring it within the provisions of section 23 
of the Consolidation Act, and to entitle the person having right 
thereto, if he so desires, to expede and record a notarial instrument, 
onless where the original creditor is alive, and the security has not 
been constituted by infeftment, in which case the provisions of sec- 
tions 120, 124, and 130, present a difficulty, to obviate wliich may 
haye been the object of the new provision in the Conveyancing Act 
It will be observed that section 129 of the Consolidation Act in its 
new fonn is only permissive, but its provisions are appropriate to all 
cases where the right adjudged is a completed one, and as they ob- 
viate the difficulty above referred to, where the title of the person 
a4jadged from is not complete, this form should in all cases be 
followed. 

If the mode of completing the title by recording the decree be 
adopted, all that is required is to put a warrant of registration in 
ordinary form thereon. 

If the form of notarial instrument be adopted, the instrument 
can be framed from Styles Kos. 149 and 148. 

3 — Completion op Title op a Benepiciary under a Lapsed Trust. 

Beference is made to the observations on this subject under irre- 
deemable rights, supra, p. 114, et seq. The only dillerence in the 
case of heritable securities is that the petition, Style No. Gl, p. 117, 
will set forth the security to which a title is to be made up, and the 
title will be completed by recording the warrant in favour of the 
beneficiary in the appropriate register of sasines. 



(7) TRANSMISSION OF HEBITABLE SECUKITIES FOKM 

THE DEAD TO THE LIVING. 

The change which, as already noticed, was made in the law in 
regard to the character of heritable securities, and the right of suc- 
ceesion thereto, rendered corresponding changes necessary in the mode 
of completing the title of heirs and successors. The law applicable 
to the several cases which may occur will now be explained. 



262 REDEEMABLE BIGHTS. 

1. Wh&re Security not registered during the lifetime of the Qrmixt 
—It is by sec. 120 of the Consolidation Act of 1868 pioyided thtt 
if an heritable security has not been re^^tered in the i^piopnalB 
register of sasines *' in the lifetime of the grantee, such heritable 
security shall be as full and sufficient warrant for completion of tbe 
title in favour of the party having right thereto as if it had been a 
bond and disposition in security, containing precept of sasme and 
other clauses in the ordinary form in use prior to the SOth day of 
September One thousand eight hundred and forty-seven, which title 
may be completed as after provided, or by service or notarial instm- 
ment, as the circumstances of the case may require." 

2. Where tlie Creditor in a Security from which executors havefn^ 
been excluded dies intestate, — It is by the Consolidation Act 1868, 
sec. 126, provided that *' upon the death of any creditor who shall die 
intestate in right of an heritable security constituted by infeftoMBt 
as aforesaid, from which executors shall not have been excluded, it 
shall be competent to the executors duly confirmed to such deceased 
creditor to complete a title to such security by expeding and reooid- 
ing an instrument under the hands of a notary-public in the fom or 
as nearly as may be in the form set forth in Schedule (JJ) hento 
annexed, and when tbe executors (being more than one), duly con- 
firmed as aforesaid, shall not be entitled to the deceased's moreaU^ 
estate wholly for their own beneficial interest, it shall be competeiL't^ 
to take such notarial instrument in favour of the said executon, aa^ft 
the survivors or survivor of them, and on such instrument being le^" 
corded in the appropriate register of sasines such executors or 
cutor shall be held to be vested with the full right of the creditor 
such security." 



3. Where the Creditor in a Security, from which Executors 
not been excluded, dies leaving a testamentary or mortis causa deei 
writing. 

(1) It is by section 63 of the Conveyancing Act of 1874, whic^ 
is to bo read as section 125 of tbe Consolidation Act, provided 
**upon the death of any creditor in right of an heritable security 
stitutod by infeftment as aforesaid, from which executors shall jl^^* 
have been excluded, who shall die leaving a testamentary or moit^^^ 
causa deed or writing naming executors, or disponing or bequeathiP^ 



TRANSMISSION FROM THE DEAD TO THE LIVING. 263 

his moveable estate, or disponiDg or bequeathing the security, it shall 
be competent for the executors duly confirmed, or for the disponees, 
or for the legatees, as the case may be, to complete a title thereto by 
a writ of acknowledgment to be granted in their favour by the debtor 
in the said security infeft in the lands comprehended therein, in or 
as nearly as may be in the form set forth in Schedule (II) hereto an- 
nexed j and when the executors or disponees (being more than one) 
shall be appointed under such deed or writing for holding the move- 
able estate of the deceased in trust for the purposes of the deed or 
writing, and not wholly for their own beneficial interest, it shall bo 
competent (when not expressly precluded by the terms of the deed 
or writing) to take the said writ in favour of the said executors or 
disponees, and the survivors or survivor of them;" and "on such 
writ being recorded in the appropriate register of sasines, the execu- 
tors, disponees, or legatees," "as the case may be, in whose favour 
such writ has been granted, shall be vested with the full right of the 
creditor in such security." 

(2) It is by section 64 of the Conveyancing Act, which is to be 
lead as section 127 of the Consolidation Act, provided that " upon 
the death of any creditor in right of an heritable security constituted 
by infeftment as aforesaid from which executors shall not have been 
excluded, and who shall die leaving a testamentary or mortis causa 
deed or writing naming executors, or disponing or bequeathing his 
moveable estate, or disponing or bequeathing the security, it shall be 
competent for the executors, duly confirmed, or for the disponees, or 
for the legatees, as the case may be, to complete a title thereto by 
expeding and recording in the appropriate register of sasines an in- 
stroment under the hand of a notary-public in the form or as nearly 
as may be in the form of Schedule (KK) hereto annexed ; and when 
such executors or disponees, or legatees, being more than one, shall 
not be entitled to such security wholly for their own beneficial in- 
terest, it shall be competent to take such notarial instrument in favour 
of such executors or disponees or legatees and the survivors and sur- 
vivor of them, unless such a destination be expressly excluded by 
the terms of the deed or writing;" and ''on such instrument being 
BO recorded, the executors, disponees, legatees, or grantees, as the case 
may be, in whose favour such instrument has been expede, shall be 
vested with the fuU right of the creditor in such security." 



264 REDEEMABLE BIGHTS. 

4. Where the Creditor in a Security, from which Execuion Iw 
been excluded, dies intestate. 

(1) It is by section 125 of the Consolidation Act, as eml)odiedin 
section 63 of the Conveyancing Act, provided that " Where any cre- 
ditor has died, or shall die before the commencement of this Act, in 
right'' of an heritable security from which executors have been a- 
eluded, " or where any creditor shall die thereafter in right of roA 
an beri table security from which executors shall have been excluded, 
it shall be competent for the heir of such creditor to complete a titla 
to the security by a writ of acknowledgment as aforesaid ; * and od 
such writ being recorded in the appropriate register of sasines," the 
heir in whose favour such writ has been granted shall be vested viA 
the full right of the creditor in such security. 

(2) It is by section 127 of the Consolidation Act, as embodied 
in section 64 of the Conveyancing Act, provided that " Where any 
creditor has died, or shall die before the commencement of this Ac^ 
in right of an heritable security " from which executors have been 
excluded, '< and leaving a mortis causa conveyance thereof, or of his 
heritable estate generally, or where any creditor shall die thereafter 
in right of such an heritable security from which executors shall have 
been excluded, and leaving such a mortis causa conveyance, or t 
testamentary deed or writing within the meaning of the twentieth 
section of this Act, it shall be competent to the grantee or legatee 
under such mortis causa conveyance or testamentary deed or writing 
to complete a title to the security by notarial instrument as aforesaid;! 
and on such instrument being so recorded the " '^disponees, legateeip 
or grantees, as the case may be, in whoso favour such instrument hs» 
been expede, shall be vested with the full right of the creditor in 
such security." 

5. Title of Grantee under General Disposition within the meaning 
of the 12th Section of the Consolidation Act of 1868, or of Per»^ 
acquiring Right from him, — After the passing of " The Titles to Land 
Consolidation (Scotland) Act 1868," in completing titles to heritable 
securities by notarial instrument in favour of general disponees nnder 
mortis causa deeds, a practice to some extent prevailed of using the fonn 
in Schedule (L) to that Act annexed. The clause of the Act which 
was specially intended to regulate the mode of completing such title* 
is the 127th, already referred to in its amended terms as in the Con- 

* Schedule (H). t Schedule (KK). 



TKANSMI8SI0N FBOM THE DEAD TO THE LIVING. 265 

atncing Act, and the form provided for the purpose is that con- 
ed in Schedule (KK), while Schedule (L) properly had reference 
Lause 19, which deals expressly only with ^* lands/' and in respect 
ibia such instruments had been objected to. It was thought 
rable to remove the ground of objection to those instruments, 

at the same time to provide a new form of instrument applic- 
^ to such cases, and this was done by section 53 of the Conveyanc- 
-Act 1874, which enacts that — 

CI) Neio form of InsirumerU. — " It shall be competent to the 
i.tee under a general disposition within the sense and meaning of 
19th section of * The Titles to Land Consolidation (Scotland) Act 
8/ or to a person acquiring or deriving right from such grantee, to 
iplete a title to an heritable security belonging to the granter of 
ii. general disposition, and in which such granter was infeft, by 
•eding and recording in the appropriate register of sasines a notarial 
^iinmient in or as nearly as may be in the form of Schedule (N) 
eto annexed, and on such notarial instrument being so expede and 
dried, the grantee, or the person acquiring or deriving right from 
h. grantee, as the case may be, in whose favour such instrument 
I been expede, shall be vested with the full right of the creditor 
Bncli security." And 

(2) Instruments already expede. — " It shall not be competent to 
lUenge the validity of any notarial instrument expede and recorded 
foie or after the commencement of this Act with reference to any 
^tal)le security, in terms of the said 19th section of the said Act, 
?^ the ground that such notarial instrument is not in the form of 
i^ule (L) annexed to the said Act, or that the said form is not 
^ted to heritable securities." 

« will be observed that, while by this provision a new form of the 
•^fument is introduced, the use of that in Schedule (L) in the Con- 
'Mation Act is expressly sanctioned, not only for the past, but also 
'^future. As already mentioned, the 127th section of that Act 
^ been repealed, and re-enacted in a slightly altered form,* and 
^ oiigmal Schedule (KE) referred to in that section remains. 
'*•'* are now, therefore, three forms of notarial instrument applic- 
«s to the case in question, any of which may be used, viz., those 
Schedules (L) and (KK) ConsoHdation Act, and Schedule (N) 
^eyancing Act. 

* GonTeyancing Act, { G4. 



266 BEDEEMABLE BIGHTS. 

6. Title by Service of Heir where ExectUara excluded. — ^It is pro- 
vided by section 128 of the Consolidation Act that wheie any 
creditor has died before the commencement of the Act " in right of 
an heritable security constituted by infeftment as aforesaid, or when 
any creditor shall die thereafter in right of such an heritable second 
from which executors shall have been excluded, it shall be competent 
for the nearest and lawful heir of such creditor who according to the 
present law and practice would be entitled to succeed to such secunty, 
on obtaining a decree of general or special service in the proper 
character, to complete his title thereto by expeding and recording an 
instrument under the hands of a notary-public, in the form or as 
nearly as may be in the form, adapted to the circumstances, of Sche- 
dule (J J) hereto annexed, and on such instrument being recorded in 
the appropriate register of sasines such heir shall be taken to he 
vested with the full right of the creditor in such security. 

7. Title to an Heritable Security, or Assignation thereof, not ooR- 
stituted by infeftment. — ^It is provided by section 130 of the Conadi- 
dation Act, that — 

(1) Where Executors are not excluded. — "In the event of an herit- 
able security from which executors shall not have been exdnded, 
dated before or after the commencement of this Act, not being con- 
stituted by infeftment during the lifetime of the grantee, or of anj I 
assignation, dated before or after the commencement of this Act, of i 
security from which executors shall not have been excluded, hot 
which has been constituted by infeftment, not being completed by 
infeftment during the lifetime of the assignee, and where such giantee 
or assignee shall be in life at or at any time subsequent to the commence- 
ment of this Act, such security or assignation shall form a warrant fot^ 
an instrument in the form or as nearly as may be in the form of Sche' 
dule (MM) hereto annexed, under the hands of a notary-public, hdn^ 
passed upon the same in favour of the executors of the creditor duly coa^ 
firmed, whether the same be executors-nominate or executors-dative, o^ 
in favour of the disponees or assignees of such security, or of the moTfr^^ 
able estate of such creditor, under any deed or conveyance inter 
or mortis causa, or in favour of any legatees of such security; 
where such executors or disponees or assignees (being more than 
shall not be entitled to such security wholly for their own benefifl^^ 
interest, it shall be competent to take such notarial instrument 
favour of such executors or disponees or assignees, and the sorviTO 



TRANSMISSION FBOM THE DEAD TO THE LIVING. 267 

iurviyoi of them^ unless snch a destination be expressly excluded 

the tenns of the conveyance or deed or writing ; " *' and on such 

itrument being recorded in the appropriate register of sasines, the 

^^utorSy or disponees, or assignees, or legatees," " as the case may 

^ in whose favour such instrument is expede, shall be vested with 

Mie fall right of the creditor in such security." And 

(2) Where ExeciUora are exdttded, — ** Where executors shall be 

deluded from such security, or the creditor has died before the com- 

^i^cement of this Act, the security or assignation, as the case may 

be, shall form a warrant for a notarial instrument as aforesaid * in 

^vour of any disponees or assignees or legatees of such security, or of 

*ue heritable estate of such creditor, under any deed or conveyance 

*^y ^um inter vivos or mortis causa, or under any testamentary deed 

®' writing by him within the meaning of the 20th section of this 

^^ oi in favour of the heirs of such creditor having right to the 

^*^^ty by decree of general or special service as heir ^to such 

^^tor ; and on such instrument being recorded in the appropriate 

^Pstei of sasines," the heirs, " in whose favour such instrument is 

^P^^ shall be vested with the full right of the creditor in such 



^^^^^BIAL INSTRUMENT in favour of the Executor- iro.UK). 
dcUive of a Creditor who has died intestate in right of 
an Heriioble Security constituted by infeftment from 
which Executors are not excltided, — Consolidation Act, 
Schedule (JJ). 



t , there was by {or on behalf of) A B (cfo- 

•V'^^^ibw), presented to me, Notary-Public subscribing, a 

^^ and Disposition in Security {or other security or extract, 

^ ^^ case may be), dated the day of , and 

^^^^ed in the {specify register ofsasines) on the day 

^ ^ , {or where sasine has been expede on the security, 

^^^ what follows after the date of the bond or other security, 

.^ My— and sasine thereon {if dated «ay— dated the 

y of , and) recorded in the {specify register of 

* Schedule (MM). 



268 REDEEMABLE RIGHTS. 






No. 160. sasines) on the day of ), granted by C D (dewj- 

nation), in favour of E F (designation), {narrate theperwd 
obligation so far as necessary, and insert the description of ik 
lands or subjects in security, and all real burdens, if any^v 
reference thereto, all as in the bond and disposition in wcim^, 
or other security, as) bound and obliged himself, his hein, 
executors, and representatives whomsoever, without the 
necessity of discussing them in their order, to repay to the 
said E F, his executors or assignees whomsoever, at the term 
of , within the Head Office of the Bank of Scotland 

in Edinburgh, the sum of £ , with a fifth part more 

of liquidate penalty in case of failure, and the interest of the 
said principal sum. at the rate of per centum per 

annum, from the date of the said Bond and Disposition in 
Security to the said term of payment, and half-yearly, termly, 
and proportionally thereafter during the not-payment of the 
same, and that at two terms in the year, Whitsunday and 
Martinmas, by equal portions, beginning the first term's pay- 
ment of the said interest at the term of then next— 
for the interest due preceding that date, and the next term'*- 
payment thereof at following, and so forth, half — 
yearly, termly, and proportionally thereafter during the not- 
payment of the said principal sum, with a fifth part more oC 
the interest due at each term of liquidate penalty in case (^ 
failure in the punctual payment thereof : And in security (^ 
the personal obligation before narrated, the said C D disponed 
to and in favour of the said E F and his aforesaids, heritably^ 
but redeemably as thereinafter mentioned, yet irredeemably 
in the event of a sale by virtue thereof. All and Whole (i^- 
sert description of lands or subjects as in the security, and ai0 
real burdens^ dtc, or if iJiere be a reference to burdens, (fo-> 
say — but always with and under the real burdens, conditions, 
provisions, restrictions, and obligations (or as the case im9 
be) specified and contained in a Notarial Instrument in th© 
said lands, or subjects, and others in favour of J K (designO' 
tion), recorded in the (specify register of sasines) on the 
day of ) : As also there was presented to me 



TITLE OF EXECUTORS-DATIVE. 269 

*estament-DatiY6 of the said deceased E F, expede before No. 150. 
he Sheriff of the County of on the (insert date of 

anfirmatton), whereby the said A B was ordained and con- 
Lrmed executor-dative of the said deceased E F, whereby 
lie said A B acquired right to the said Bond and Disposition 
n Security (or other security, as tJtt case niay he) : Where- 
upon this Instrument is taken in the hands of L M (insert 
name and designation of notary ptiblic). Notary Public, in the 
terms of " The Titles to Land Consolidation (Scotland) Act 
1868 **: In witness whereof (testing clause). 



NOTARIAL INSTRUMENT in favour of Executors- Ho. 151. 
Daiive on a Bond and Disposition in Security, or 
. other Security constituted by Infeftment, from which 
Executors are not excluded, ivhere the Executors are not 
entitled to the whole Estate fm* their ovm beneficial in- 
terest^ and the deceased had acquired right thereto. — 
Consolidation Act, Schedule (JJ). 

At there was by (or on behalf of) A B, C D, and 

^ P (designations), executors-dative of the deceased R S 
i§^9ignation), and the survivors or survivor of them, pre- 
■ciited to me, Notary Public subscribing, a Bond and Dis- 
P^^tion in Security (or other security, as the case may be), 
^ted the day of , and recorded in the (specify 

'^ywfer o/sasines) on the day of , granted by 

" K {designation) in favour of L M (designation) by which 
Bond and Disposition in Security (or as the case may be) the 
*id J K bound and obliged himself (here narrate tJie per- 
*^ obligatio7i and disposition in security, and insert the 
^^^ption of the lands, and all real burdens, if any, or re- 
f^ence to them, all as in the bond and disposition in security, 
^^tht case may 6e, as in the immediately preceding style) : 
As also there was presented to me Testament-Dative of the 
^d R S, expade before the Sheriff of the County of , 



270 REDEEMABLE RIGHTS. 

^Q'^^^' on the day of (date of confirmation)^ wherebj 

the said A B, C D, and E F were ordained and confirmed 
executors-dative of the said deceased R S, whereby the siid 
A B, C D, and E F acquired right to the said Bond and Dis- 
position in Security (or as the case may be) : As also to 
was presented to me an Assignation, dated the day 

of granted by the said L M, by which the said 

L M assigned the said Bond and Disposition in Secaritj 
(or other security, as tJie case may &e), and sums of money 
and lands therein contained, to the said B S and his exe- 
cutors and representatives whomsoever : Whereupon thia 
Instrument is taken in the hands of T XJ (insert name enf 
designation of notary public) Notary Public, in the terms oE 
"The Titles to Land Consolidation (Scotland) Act 1868"= 
In witness whereof (testing clause). 

Nai52. NOTARIAL INSTRUMENT in favour of an Execator-' 

Nominate of the Creditor in right of a Bond and 
Disposition in Security constituted by Infeftmeni from^ 
tvhich Executors are not excluded, — Consolidation Act» 
Schedule (KK). 

At there was by (or on behalf of) A B (dmgM^ 

tion) presented to me, Notary Public subscribing, a Bond and 
Disposition in Security, dated the day of , and 

recorded in the (specify register ofsasines) on the day 

of , granted by C D (designation) in favour of 

the now deceased E F (designation), by which Bond and 
Disposition in Security (here narrate tJie personal cbliffO^ 
tion and disposition in security , and insert the description of 
the lands, and the real burdens, (fee, or reference thereio,if 
any, as in the deed) : (a) As also there was presented to me » 
Testament (or other testamentary deed or toriting, or eoEtrofi 
thereof as the case may 6e), dated the day of 

, granted by the said deceased E F (*if neceS' 

* If E F died before the commencement of the Act, his testamentaiy vi^ 
ing would not carry right to the security. 



TITLE OF GENERAL DISPONEE OR LEGATEE. 271 

wry, say — ^who died after the commencement of "The Titles No. i62. 
to Land Consolidation (Scotland) Act 1868"), by which 
the said E F nominated the said A B to be his sole exe- 
cutor and universal legatory : *As also there was presented 
to me Testament-Testamentar of the said deceased E F, 
granted by the Sheriff of the county of on the 

day of , wliereby the said A B was confirmed 

executor-nominate of the said deceased E F, wliereby the 
said A B is now in right of the said Bond and Disposition in 
Security (or a« ^Ae case may be): "Whereupon this Instru- 
ment is taken in the hands of N {name and designation o/ 
notary-public), Notary-Public, in terms of ** The Titles to 
Land Consolidation (Scotland) Act 1868," and f" The Con- 
veyancing (Scotland) Act 1874:" In witness whereof 
{Usting clattse). 

NOTARIAL INSTRUMENT in favour o} the General wo.i58. 
Disponee or Legatee of a Creditor in an Heritable 
Security constituted by Infeftment from tvJiich Exe- 
cutors are not excluded. — Consolidation Act, Schedule 
(K K). 

At there was by {or on behalf of) A B {designa- 

*w»i), presented to me, Notary-Public subscribing, &c. {as in 
P^^ceding Style doum to (a), and then pvceed) As also there 
^W presented to me a General Disposition {o7* Will), dated 
^e day of , granted by the said deceased E F 

(Uf necessary^ say — who died after the commencement of 
*'The Titles to Land Consolidation (Scotland) Act 1868"), 

* This is not required by the terms of the Schedule, but as it is only the 
•^•etttor-nominate ** duly confirmed " who is by the Act authorised to expede 
* notarial instrument, it seems proper, if not necessary, that the confirma- 
^ dicmld be set forth and presented to the notary. 

t As the 64th Section of the Conveyancing Act is to be read as Section 
^27 of the Consolidation Act (jsupra, p. 263), the reference to the Oonvey- 
*^*^ Act is perhaps unnecessary, but it will do no harm. 

t See foot-note, tupra, p. 270. 



272 REDEEMABLE RIGHTS. 

No. 168. by which the said deceased E F assigned and disponed hi* 

whole moveable estate to the said A B (or gave and bequeathed 

his whole moveable estate to the said A B, or gave and be- 
queathed the said Bond and Disposition in Security, and 
sums of money and lands (or subjects) therein contained to 
the said A B), whereby the said A B is now in right of the 
said Bond and Disposition in Security : Wliereupon, Ac. (« 
in Style No. 152, p. 270). 

Ho. Mi. NOTARIAL INSTRUMENT in favour of Trusts ffs^ 

a Tmat'Diaposition and Settlement on a Bond «d 
Disposition in Security constituted by InfeftmenifnM 
tvhich Executors are not excluded, and to which m« 
Deceased acquired right by Assignation. — Consolidi- 
tion Act, Schedule (K K). 

At there was by (or on behalf of) A B, C D, and 

E F (insert de^zjfna^iow*). Trustees nominated and appointed 
by the now deceased G H (designation), conform to Trusts 
Disposition and Settlement executed by him as after-men- 
tioned, presented to me, Notary-Public subscribing, a Bond 
and Disposition in Security, dated the day of » 

and recorded in the (specify registei* of sasines) on the 
day of , granted by J K (designation) in favour » 

L M (designation) ; by which Bond and Disposition in Sectt* 
rity the said J K bound and obliged himself (here narraU^ 
personal obligation and disposition in security, and ifised 0^ 
desanption of the lands and burdens, or reference thereto, ifcoHli 
alias in the bond and disposition in security) : As also thei* 
was presented to me the said Trust-Disposition and Settb" 
ment, dated the day of , and granted by the said 

G H, whereby the said G H assigned and disponed his whol* 
moveable estate (or the said Bond and Disposition in Sectt* 
rity, and sums of money and lands therein contained) to th* 
said A B, C D, and E F, and the survivors or survivor of tbefl 
(insert destination as in the deed), but in trust always for the 



NOTARIAL INSTRUMENT IN FAVOUR OF TRUSTEES. 273 

9 and purposes specified in the said Trust-Disposition and ^' ' 
tlement, whereby the said A B, C D, and E F, as trustees 
ssaid, are now in right of the said Bond and Disposition 
Security : As also there^was presented to me an Assigna^ 
a (or other conveyance or extract tJiereof), dated the 
y of , granted by the said L M, and recorded in 

e (specify register ofsasines) on the day of 

which the said L M assigned and disponed the said Bond 
id Disposition in Security, and sums of money and lands 
erein contained, to the said G H and his executors and re- 
esentatives whomsoever : * Whereupon, &c. {as in Style 
>. 152). 

A warrant of registration in usual form will be put on the in- 
ument before it is recorded. 



VTABIAL INSTRUMENT in favour of Trustees under No.im. 
a Trust-Disposition and Settlement on a Bond and 
Disposition in Security fivm which Executors are not 
excluded. — Consolidation Act, Schedule (L), and Con- 
veyancing Act 1874, sec. 53. 

At there was by (or on behalf of) A B, C D, 

nd E F (designations) y trustees nominated and appointed 
•ythe now deceased J K (designation) ^ by his Trust-Dis- 
^ition and Settlement aftermentioned, presented to me, 
Jotary.Public subscribing, a Bond and Disposition in 
Jficurity, granted by G H (designation) in favour of the said 
[ K, dated the day of , and recorded in the 

9^/y register ofsasines) on the day of , 

^y which recorded Bond and Disposition in Security the 
*id J K was infeft in All and Whole (here insert tlie de- 
"^tion of the lands or subjects ^ and tlie real burdens^ cfec, 
^ Ttference thereto, if any, all as in the bond and disposition 
^ security) y and that in security to the said J K, his exe- 
Itors or assignees whomsoever, of the repayment of the 



♦ See foot-note, supra, p. 271. 

18 



274 REDEEMABLE BIGHTS. 

^^' ^^^' principal sum of stg., and that at the term of 

in the year , within the Head Office of 

the Bank of Scotland in Edinburgh, with a fifth part more 
of liquidate penalty in case of failure, and the interegt 
of the said principal sum, at the rate of per centnin 

per annum, from the date of the said Bond and Disposi- 
tion in Security to the said term of payment, and half- 
yearly, termly, and proportionally thereafter during the not- 
payment of the same, and that at two terms in the year, 
Martinmas and Whitsunday, by equal portions, beginning tto 
first term's payment of the said interest at the term of 
for the interest due preceding that date, and the next teim'^ 
payment thereof at following, and so forth half- 

yearly, termly, and proportionally thereafter during the not— 
payment of the principal sum, with a fifth part more oT 
the interest due at each term of liquidate penalty in case off 
failure in the punctual payment thereof : As also there was 
presented to me the said Trust-Disposition and Settlement 
{or an extract thereof), granted by the said J K, dated the 
day of (and if an extract, add — ^recorded 

in the Books of Council and Session, or as the case mayhef 
on the day of ), by which Trust-Dispositian 

and Settlement the said J K (insert destination as in imalr 
deed, as) assigned and disponed (o?* as the case may 6e) to thfl 
said A B, C D, and E F, and the survivors or survivor rf 
them, and the heirs of the last survivor, and their or his as- 
signees, absolutely and irredeemably. All and Sundry the 
whole moveable (or heritable and moveable) estate of which 
he might die possessed (or the said Bond and Disposition in 
Security, and sums of money and lands therein contained, 
as the case may 6e), but always in trust for the uses and 
purposes mentioned in the said Trust-Disposition and Settle- 
ment: Whereupon, &c. (as in Style No. 152,^. 270.) 

Before the instrument is recorded a warrant of registration wiD 
be written on it. 



INSTRUMENT IN FAVOUR OF GENERAL DISPONES. 275 

"NOTARIAL INSTRUMENT in favour of a General Die- iro.i56. 
ponee of the Creditor in a Bond and Disposition in 
Security constituted by Infeflment, and from which 
Executors are not excluded, — Conveyancing Act, Sche- 
dule (N). 

At there was by (or on behalf of) A B (de- 

signation)^ presented to me, Notary Public subscribing, a 
Bond and Disposition in Security, dated the day of 

, and recorded in the {specify registei* ofsasines) 
on the day of , granted by C D {designa- 

tion), in favour of the now deceased E F {designation) {if 
^M has been expede thereon omit the reference to the 
T^cording of the bond, and add here — and Instrument of 
Swine thereon in favour of the said E F, recorded in the 
{specify register ofsasines) on the day of ), by 

vMch Bond and Disposition in Security the said C D bound 
wd obliged himself, his heirs, executors, and representatives 
whomsoever, without the necessity of discussing them in their 
^er,to repay to the said EF,his executors or assignees wliom- 
B^ver {here complete the narrative of the personal obligation 
^ disposition in security, and insert the description of the 
*®w& or siibjects, and the real burdens, or reference thereto, if 
^) oH as in the bond and disposition in security) : (a) As 
also there was presented to me a General Disposition (cw' an 
^^5^*^ thereof), granted by the said E F, and dated the 
% of {if an extract, add — and recorded in the Books 

*^* Council and Session, or as the case may be, the day 

)> l>y which General Disposition the said E F 
■^gned and disponed {or as the case may be) to the said A B, 
^^dhis executors and assignees {or as the case may be), ab- 
solutely and irredeemably, All and Sundry his whole move- 
able estate {or othertoise, as in the deed), in which general 
Conveyance was included the said Bond and Disposition in 
'Security (and infeftment following thereon, if infeflment was 
^3pafe), the said E F being then vest therein as aforesaid: 
Wbereupon, &c. {as in Style No. 152, p, 270). 

The instrument will be recorded with warrant of registration 
li omal form. 



278 . KEDEEMABLE RIGHTS. 

No. 169. as executor nominated by the now deceased E F (designaiim) 
in bis Will (or other testamentary deed or writing)^ dated the 

day of , *and duly confirmed as executor foresaid, 

conforni to Testament-Testamentar granted by the Sheriff of 
the County of in favour of the said C D, dated 

the day of , to be in right of a Bond and 

Disposition in Security (or othefi^ security^ as the case may k), 
dated the day of {and tahere recorded in (k 

register of sasines, add — recorded as aftermentioned), for the 
sum of , granted by me in favour of the said E F (or 

where sasine Iwls been expede on the security, omit the «wtfc 
" and recorded as aftermentioned," and add here, and saaine 
thereon), recorded in the {specify register of sasines) on the 

day of , over All and Whole {insert desa'ipti^ 

of lands or subjects as in the bond and disposition in secwrUli 
or other deed) : In witness whereof {testing clause). 

The writ will be recorded with warrant of registration thereon. 



Ho. 160. WBIT of A GKNO WLEDGMENT by the Person infefi «• 

the lands, in favour of Executoi's-Nominate of ti^ 
Credito^^ in an Het^itable Security from which Eixff^ 
tors are not eoccluded^ and to which tJie Executors o^ 
not entitled wholly for their oion beneficial interest^ 
Consolidation Act, Schedule (II). 

I, A B {designation), hereby acknowledge C D, E F, aD^ 
G H {designations), {and if desired, and not precluded by iA^ 
teinns of the deed, add — and the survivors and survivor ^ 
them), as executors nominated by the now deceased J J^ 
{designation) in his Will {or other testamentary deed O^ 
toriting), dated the day of , *and dul3 

confirmed as executors foresaid by the Sheriflf of \t^^ 
County of , conform to Testament-Testament 

* This is not required by the Schedule, but as the Act makes it com] 
oiily to the executor duly confirmed to obtain the writ, it seems proper C 
the confirmation should be set forth in the writ. 



INSTRUMENT IN FAVOUR OF GENERAL DISPONES. 277 

OTA RIAL INSTRUMENT in favour of a General ko-IM. 
Disponee of the Creditor in a Bond and Disposition 
in Security constituted hy Infeftment, from which 
Executors are not excluded, and to which the creditor 
had acquired right — Conveyancing Act, Schedule (N). 

At , there was by {oi* on behalf of) A B {design 

tion), presented to me, Notary-Public subscribing, &c. (as 
Style No. 156, dotvn to (a) : As also there was presented 
me a General Disposition granted by G H {designation), 
id dated the day of , by which General 

isposition tlie said G H assigned and disponed to the said 

B and his executors and assignees (or othenoise, as the 
uetnay be), absolutely and irredeemably, All and Sundry 
18 whole moveable estate (or as the case may be), in 
'hich general conveyance was included the said Bond and 
disposition in Security (if infeftment ivas expede thereon, 
•^W— and infeftment following thereon), the said G H 
•^ing then vest therein in virtue of the following Writs, 
"^z., let. Assignation granted by the said E F in favour 
' J K (designation), dated the day of , 

^ with Warrant of Eegistration thereon on behalf of the 
•id J K, recorded in the (specify register ofsaaines) on the 
day of ; 2d, General Disposition by the said 

K in favour of the said G H of his whole heritable and 
moveable property and estate, including the said Bond and 
^^pofiition in Security; and 3d, Notarial Instrument in 
^^Ur of the said G H, recorded with Warrant of Registra- 
'^ thereon in the (specify register ofsasines) on the 
y of : Whereupon, &c. (as in Style No. 152, p. 270). 

A warrant of registration in usual form will bo written on the 
^^^tunent before it is recorded. 

-filT of ACKNOWLEDGMENT by the Person infeft in no.ia9 
the lands, in favour of the Executor-Nominate of the 
Creditor in an Heritable Security constituted by Infeft- 
ment,from which Executors are not eoccluded. — Con- 
solidation Act, Schedule (II). 

I, AB (dmgrwa^ton), hereby acknowledge C D (designation). 



278 . REDEEMABLE RIGHTS. 

^^' ^^^' as executor nominated by the now deceased E F {designoHal) 
in his Will (or other t^tamentary deed or writing)^ dated th6 

day of , *and duly confirmed as executor foreeaid* 

conform to Testament-Testamentar granted by the Sheriff o* 
the County of in favour of the said C D, dated 

the day of , to be in right of a Bond and 

Disposition in Security (o?* other security^ as the case may k), 
dated the day of {and where recorded in ik^ 

register of aasines, add — recorded as aftermentioned), fortka 
sum of , granted by me in favour of the said E F (or 

where aasine has been expede on the security, omit the toordB 
" and recorded as aftermentioned," and add here, and sasiiia 
thereon), recorded in the {specify register of sasines) on the 

day of , over All and Whole {insert description 

of lands or subjects as in the bond and disposition in securiijfi 
or other deed) : In witness whereof {testing clause). 

The writ will be recorded with warrant of registration theieon. 



Ho. 160. WBIT of A GKNO WLEDGMENT by the Person infefl « 

the lands J in favour of Executors-Nominate of ti^ 
Creditor* in an Heritable Security from which Exec^ 
tors are not excluded, and to which the Executors fl*^ 
not entitled wholly for their ovm beneficial interest.^ 
Consolidation Act, Schedule (II). 

I, A B {designation), hereby acknowledge C D, E F,aDu 
G H {designations), {and if desired, and not precluded bjO^ 
terms of the deed, add — and the survivors and survivor of 
them), as executors nominated by the now deceased J ^ 
{designation) in his Will {or other testamentary deed ^ 
vrriting), dated the day of , *and drnj 

confirmed as executors foresaid by the Sheriflf of the 
County of , conform to Testament-Testamentar 

* This is not required by the Schedule, but as the Act makes it competes^ 
only to the executor duly confirmed to obtain the writ, it seems proper i^ 
the confirmation should be set forth in the writ. 



WRIT IN FAVOUR OF EXECUTOR-NOMINATE. 279 

their favour, dated the day of , to No. leo. 

in right of a Bond and Disposition in Security {or 

JT security, as the case may be), dated the day 

(and where recorded in the register of sasines, 

! — and recorded as after mentioned), for the sum 

, granted by me in favour of the said J K (or 

Te sasine has been expede on the security, omit the loords 

id recorded as aftermentioned,'^ and add here — and sasine 

reon), recorded in the {specify register of sasines) on the 

day of , over All and Wliole {insert descrip- 

> of lands or subjects as in bond and disposition in security, 

>^ier deed, *or refer to them as in Schedule (0) Conveyanc- 

Act 1874, or Schedtile (G) Consolidation Act) : In wit- 

8 WHEREOF {testing clause), 

He writ will be recorded with warrant of registration thereon. 



ilT of A CKNO WLEDGMENT by the person infeft in the no. lei. 
hinds, who is not the original Debtor, in favour of a 
Legatee of the Creditor in an Heritable Security con- 
stituted by Infeftment, from tvhich Executoi's are not 
eaxjZwcfed.— Consolidation Act, Schedule (II). 

f, A B {designation), f now heritable proprietor of the 
8 and others {or subjects) hereinafter mentioned, ac- 
Bvledge C D {designation) as legatee of the Bond and 
>08ition in Security after mentioned, and sums thereby 
red, under or in virtue of tlie Will {or othei* testamentary 
ing) of the now deceased E F {designation), dated the 
day of , to be in right of a Bond and Disposition in 

irity, dated the day of , and recorded as after- 

itioned, for the sum of , granted by J K {designation), 
X heritable proprietor of the said lands (o7* subjects), in 
ur of the said E F, recorded in the {specify register of 



1 • 



3ee supra, p. 54. 

Ihis is not required in terms of the Schedule. 



28U REDEEMABLE BIGHTS. 

No. iw. sasines) on the day of , over All and Whole (tweri 

description of lands or subjects as in bond and dtsposiimi* 

security^ or other deed, or *refer to them as in iSWlecWe(0) 
Conveyancing Act 1874, or Schedule (G) Consolidation Ad) > 
In witness whbbeof (testing clause). 

The writ will he recorded with warrant of registration thenoi. 



Ho. 162. WBIT of A CKNO WLEDOMENT by the Person infefi « 

the lands, in favour of the General Trust-Disponm of 
the Creditor in an Heritable Security constitukd hj 
Infeftmentf from which Executors are not cjccIkcW, 
a7id to tvhich the deceased had acquired rigJU.-^^ 
Bolidation Act, Schedule (II). 

I, A B (designation), hereby acknowledge D, E F, atti 
G H (designations), and the survivors or survivor of them,i* 
disponees in trust of the moveable (or, as the case may b^ 
of the heritable and moveable) estate of the now deceased 
J K (designation), conform to General Trust-Disposition ao^ 
Settlement granted by him in their favour, dated the day oi 
J to be in right of a Bond and Disposition in Securityt 
dated the day of , and recorded as aftermentioned 

for the sum of , granted by me in favour of L M (d^ 

signation), recorded in the (specify register ofsasines) on tb< 
day of , over All and Whole (insert descrip 

tion of lands or subjects, as in bond and disposition insecwri^ 
or other deed, or * refer to them as in Schedule (0) Convey- 
ancing Act 1874, or Schedule (G) Consolidation Act)-, bfl* 
in trust always for the uses and purposes specified in the 
said Trust-Disposition and Settlement ; to which Bond 9Sii 
Disposition in Security, sums of money and lands and others 
therein contained, the said J K acquired right, conform ^ 
Assignation granted by the said L M in his favour, dated 
the day of , and recorded in the (spedfl 

* See supra, p. 64. 



WBIT IN FAVOUB OF HEIR-AT-LAW. 281 

/wfer ofaasmea) on the • day of : In wit- No.ie2. 

S8 WHEREOF {testing clavse). 

The writ will be lecoided with warrant of registration thereon. 



^B/r of ACKNOWLEDGMENT by the Person infeft in No.l6«. 
the lands, in favour of the Heir-at-Law of tlie Creditor 
in an Heritable Security constituted by Infeftment, 
from which Executors are excluded, — Consolidation 
Act, Schedule (II). 

I, A B (designation)* heritable proprietor of the lands 
md others aftermentioned, hereby acknowledge C D (desig- 
motion), as the- eldest son and uearest and lawful heir of 
the deceased E F (designation) , to be in right of a Bond and 
Disposition in Security (or other security , as the case may 6e), 
dated the day of , and recorded as after- 

iiientioned, for the sum of , granted by me in favour 

of the said E F, and his heirs, excluding executors, or assig- 
Jices whomsoever, recorded in the (specify the register of 
*•«««) on the day of , over All and Whole 

(«8crr6e the lands as in the security, or refer to them as in 
*^«rfe (0) Conveyancing Act 1874, oa- Schedule (G) Con- 
^^ation Act) : In witness whereof {testing clause). 

The writ will be recorded with warrant of registration thereon. 



^^IT of A CKNO WLEDOMENT by the Person infeft in Ho, 164. 
the lands, in favour of the Heir-at-Latv of the Creditor 
in an Heritable Security constituted by Infeftment, and 
from which Executors are excluded by Minute of Ex- 
clusion. — Consolidation Act, Schedule (II). 

I, A B (designation), acknowledge C D (designation), 
l*tofe the relationship or character of the heir, setting forth 

• See foot-note, p. 279. 



282 REDEEMABLE BIGHTS. 

No. 164. every link in the chain of connection, as the immediate younger 
brotlier and nearest and lawful heir of the deceased EF ((fc- 
signation), who died unmarried and without issue, to be in 
right of a Bond and Disposition in Security (or other secwriiji 
as the case may be), dated the day of , ^ 

recorded as aftermentioned, for the sum of , granted 

by me in favour of the said E F, from which executors veie 
excluded by Minute of Exclusion executed by tlie said E f , 
dated the day of , and recorded in the (gwcjijf 

register ofsasines) the day of , and recorded, 

the said Bond and Disposition in Security in the («p«5»^ 
the register ofsasines) the day of , over All and 

Whole {describe the lands as in the security, or refer to /k« 
as in Schedule (0) Conveyancing Act 1874, or Schedule (6) 
Consolidation Act) : In witness whereof (testing dam). 

The writ will be recorded with warrant of registration thereon. 



Ho. 165. WBIT of A CKNO WLEDGMENT by the Person infefi t» 

the lands, in favour of the Heir-ai-Lata of the OrtdSff^ 
in an Heritable Security from which Executors (ff^ 
excluded, and to which the deceased had acquired rif^ 
only in part. — Consolidation Act, Schedule (II). 

I, A B (designation), acknowledge C D (destgnatumji^^ 
the eldest lawful son of the now deceased G H (desigruUiffil} 
who was the eldest lawful son of the also deceased E F (^ 
signation), and thereby (the said C D) the grandson ai» 
nearest and lawful heir of the said deceased E F, tobefl^ 
right, but that only to the extent aftermentioned, of a Bond 
and Disposition in Security (or as the case may be), dated 
the day of , and recorded as aftermentioned, 

for the sum of £1000, granted by me in favour of J K ((fc" 
signation), and his heirs, excluding executors, or assignees 
whomsoever, and recorded in the (specify register ofsasin^) 
the day of , over All and Whole (describe ik 



INSTBDHENT IM FAVOUR OF HEIR-AT-LAW. 286 

lands as in the security, or refer to them as m Schedule (0) «o. 18B. 
Conveyancing Act 1874, or Schedule (<3) Consolidation Act), 
but that only to the extent of the Bum of £500 stg. of prin- 
cipal, with the interest and penalties corresponding thereto ; 
To which Bond and Disposition in Security, and sums of 
money and lands and others therein contained to the extent 
loresaid, the said E F acquired right by Assignation granted 
by the said J K in favour of the said E F, and his Iieirs, 
excluding executors, or assignees whomsoever, dated the 
day of , and recorded in the {specify register 

ofiosines) the day of : In witness whereof 

{ttttiag clause). 



NOTARIAL INSTRUMENT in favour oj the Heir-at-Latv Ho.lM. 
of a Creditor in an Heritable Security constituted by 
Infeftment, from which Executors are excluded. — Con- 
Bohdation Act, Schedule (JJ). 

At there was by (or on belialf of) A B {de- 

^^ItOft), presented to me, Notary-Public subscribing, a 
T^ld ftod Disposition in Socarity {or other security), dated 
'^ day of , and recorded in the (specify register 

i.^'^nes) the day of , granted by C D {designa^ 

' ^^ 'D favour of the now deceased E F {designation), by which 
I to^"*^ and X>ispo8ition in Security {or as the case nay be) the 
[^^Ct> b£>uod and oUiged himself {nair ate the personal obli- 
111 ^ "nd t:ii^sposilion in security, and insert the description of 
1 - ^'</,(^^ ■ ^^e security, and also all real bui-dens, dc, or re- 
^^* Uiet-e^-^f «/'''"*i/i «'^ «« »« 'Ae Security) : As also tliere 
tat^ii f'^ "^® ** Decree of General {or Bpecial) Ser- 
** .ffif tli& said A B {specify cltai-acter in which 
} eldest son and nearest and lawful heir 
day of , expede be- 

'he Sheriff of Cliancery), and 
' , whereby the 



281 REDEEMABLE BIGHTS. 

xo. 16Q1 said A B acquired right to the said Bond and DispofiitJon 
in Security : Whereupon, &c. [as in Style No. 151, p. 269). 

A warrant of registration in the usual form will be written (A 
the instrument before it is recorded. 

The ConsoHdation Act provides that this instrument nay pn^ 
ceed upon either a general or a special service. The petiti(m fti 
general service will be in the form given supra^ p. 127, e< #eg. K^ 
any reason a special service, which for the present puipose has no ad- 
vantage, is resorted to, the petition will be in the following fom."- 



50.167. PETITION of SPECIAL SERVICE as Heir-of-Im'^ 

an Heritable Security from which Executors art tf- 
eluded. 

Unto the Honourable the Sheriff of the County o* 
{specify the county where the lands or sulgecis «* ^ 
security lie, o?' say of Chancery), the Petition » 
A B {designation), 

Humbly sheweth, 

That the late E F {designation of the ancestor) died on ^ 
about the day of {state the month and p^ 

at full length), last vest and seised, heritably, but redeemably 
in manner mentioned in the Bond and Disposition in Security 
(or as the case may be) aftermentioned, yet irredeemably!^ 
the event of a sale by virtue thereof, in All and Wliole (in9^ 
the description of the lands or subjects in the security, and rt» 
burdens, dc, or reference thereto if any ^ all as in the «ectirt<j)i 
and that in security of the repayment to the said E F,hi8 
heirs, excluding executors, or assignees whomsoever, of the 
principal sum of , at the term of , within 

the Head Office of the Bank in Edinburgh, 

with a fifth part more of liquidate penalty in case of failure, 
and the interest of the said principal sum at the rate oi 



PETITION OP 8BBVI0E OF HEIR-AT-LAW. 285 

per centum per annum from the date of the said ^^o- ^^' 
1 and Disposition in Security (or as the case may 6e), to 
said term of payment, and half-yearly, termly and pro- 
ionally thereafter during the not payment of the same ; 
that at two terms in the year, Whitsunday and Mar- 
^^1 by equal portions, beginning tlie first term's pay- 
t of the said interest at the term of for the 

•est due preceding that date, and the next term's payment 
Bof at following, and so forth half-yearly, termly, 

proportionally thereafter during the not payment of the 
cipal sum, with a fifth part more of the interest due at 
term of liquidate penalty in case of failure in the punc- 
payment thereof, conform to Bond and Disposition in 
irity {or OS the case may be), granted by C D (designa- 
I, in favour of the said E P, dated the day of 

, and along with Warrant of Eegistration thereon, 
ehalf of the said E F, recorded in the {specify register of 
les) the day of 

Phat the Petitioner {state the relationship or character the 
'Umer bears, setting forth every link in the chain of con- 
kw, as) is the eldest son and nearest and lawful heir in 
ial of the said E F in the said lands and others in secu- 
as aforesaid : 

May it therefore please your Lordship to serve the 
Petitioner nearest and lawful heir in special of 
the said deceased E F in the lands and others 
above described in security of the re-payment of 
the sums of money, principal, interest, and penal- 
ties above written. 

According to Justice, &c., 
{Signed by the petitioner or his mandatory), 

i will be kept in view that if a special service is obtained the 
title may be completed by recording the decree, with warrant 
istration thereon, in the appropriate register of sasines instead 
>eding a notarial instrument. 



286 REDEEMABLE RIGHTS. 

No 168. NOTARIAL INSTRUMENT in favour of the GrcaUet or 
Legatee of the Creditor in an Heritable Security conrf- 
tuted by Infejimentj from which Executors are exduM.- 
Consolidation Act, Schedule (KK). 

At there was by (or on behalf of) A B (dewjfiio- 

tion)y presented to me, Notary-Public subscribing, a idd 
and Disposition in Security, dated the day of 

and recorded in the {specify register ofsasines) the daj 
of , granted by C D (designation), in favour of the now 

deceased E F (designation), by which Bond and Disposition in 
Security the said C D bound himself, his heirs, executors, aol 
representatives whomsoever, to repay to the said EF, his heiw, 
excluding executors, and assignees whomsoever (compUt 
narrative of personal obligation and disposition in seamijit 
and insert the description of the lands in the security, and oB 
real burdens, &c,, or reference thereto, if any, aU as k tk 
bond and disposition in security) : (a) As also there was pre- 
sented to me a Testament (or Disposition, or as the case maj 
be), granted by the said deceased E F (if necessary «qf*) 
who died after the commencement of ** The Titles to Land 
Consolidation (Scotland) Act 1868," by which the said EF 
assigned (or gave and bequeathed) the said Bond and Dis- 
position in Security, and sums of money, lands, and otheis 
therein contained, to the said A B, whereby the said A Bis 
now in right of the said Bond and Disposition in Security: 
Whereupon, &c. (as in Style No. 152, p. 270). 

The instrument will be recorded with warrant of registration 
thereon. 

Ho. 169. NOTARIAL INSTRUMENT in favour of the Oenerd 

Trust'Disponees of the Creditor in an Heritable Secmij 
constituted by Infeftment, from which Executors ore ex- 
cluded. — Consolidation Act, Schedule (KK). 

At there was by (or on behalf of) A B, D. 

and E F (designations), Trustees nominated and appointed 

* See foot-note, p. 270. 



INSTBUMBNT IN FAVOUR OF GENERAL DISPONEE. 287 

the now deceased G H (designation), in his Tnist-Dis- No. 169. 
lition and Settlement aftermentioned, presented to me, 
tary-Public subscribing, a Bond and Disposition in Secu- 
f {continue as in the preceding Style dotvn to (a), and then 
MmC) As also there was presented to me a Trust-Disposi- 
•n and Settlement, dated the day of , granted 

the said deceased G H, by which the said G H assigned 
d disponed his wliole heritable (or heritable and moveable) 
tate to the said A B, C D, and E F, and the survivors or 
rvivor of them and the heirs of the last survivor, but in 
Qst always for the ends, uses, and purposes specified in 
e said Trust-Disposition and Settlement, whereby the said 
B, C D, and E F, as Trustees foresaid, are now in right of 
said Bond and Disposition in Security : Whereupon, &c. 
9 in Style No. 152, p. 270). 



OTABIAL INSTRUMENT in favour of a General Dis- No.no. 
fonee of the Creditor in an Heritable Security constituted 
hy Infeftmentyfrom which Executors are excluded, — Con- 
solidation Act, Schedule (L), and Conveyancing Act 
1874, Section 53. 



For this instument the Style No. 155, p. 273, may be adopted, 
bng the necessary changes to suit the circumstances. 



)TABIAL INSTRUMENT in favour of a General Dis- Ko.m 
ponee of the Creditor in an Heritable Security constituted 
by In/eftmenty from tvhich Executors are excluded, — Con- 
veyancing Act, Schedule (N). 

For this instrument the Style No. 156, p. 275, may be adopted, 
I the necessaiy alterations. 



288 REDEEMABLE RIGHTa 



50.178. NOTARIAL INSTRUMENT in favour of Execuiar-Mit 
of the Creditor in an Heritable Security which hu fd 
been constituted by Infeftment, and from which Execrim 
are not excluded, — Consolidation Act, Schedule (MM). 

At there was hy (or on hehalf of) A B (A> 

8ignatio7i)f presented to me, Notary Puhlic subscribing,! 
Bond and Disposition in Security, granted by C D (desi^ 
tion), and dated the day of , by which Booi 

and Disposition in Security the said G D bound and obliged 
liimself, his heirs, executors, and representatives whomiD* 
ever, without the necessity of discussing them in tbeff 
order, to repay to the now deceased E F (desiffnaium) {W' 
rate the personal obligation and disposition in security^ ad 
insei't the description of the lands, and all real burdens, (fei 
or reference thereto, if any, all as in the bond and disposilkii^ 
in security) : (a) As also there was presented to me Tab- 
ment-Dative of the said deceased E F, expede before th 
Sheriff of the County of on the day of i 

whereby the said A B was ordained and confirmed execnt*** 
dative of the said deceased E F, whereby the said A Bisw^ 
in right of the said Bond and Disposition in Security: Whebi- 
UPON, &c. (as in Style, No. 151, p. 269), 



Ko.173. NOTARIAL INSTRUMENT in favour of ExecvM- 
Nominate of the Creditor in an Heritable Security irifcl 
has not been constituted by Infeftment^ and from wiW 
Executors are not excluded, where the Executors oft 
not entitled to the whole Estate for their own benejkial 
interest, — Consolidation Act, Schedule (MM). 

At there was by (or on behalf of A B, C D, 

and E F (designations), Executors nominated by the de- 
ceased G H (designation), in his Testament (or other ietbh 



INSTRUMENT IN FAVOUR OF EXEOUTOR NOMINATE. 289 

tary writing) aftermentioned, and the survivors or sur- No. 178. 
>r of them, presented to me, Notary Public subscribing, 
end and Disposition in Security {or as the case may fte), 
Dted by G H (designation) ^ and dated the day of 

, by which Bond and Disposition in Security the 
I G H bound and obliged himself, &c., to repay to J K 
9ignation)f his executors or assignees whomsoever (com-- 
te ihe narrative of the personal obligation and disposition 
Tie la/nds in security^ and insert the description ofthemy and 
real burdens, cfec, or reference thereto, if any, all as in the 
wiy) : As also there was presented to me a Testament 
other testamentary deed or writing), dated the day 

, granted by the said deceased J K, by which 
I said J E nominated the said A B, G D, and^E F to be 
executors: *As also there was presented to me Testament 
itamentar of the said deceased J E, granted by the Sheriff 
the county of on the day of , 

Breby the said A B, D, and E F were confirmed execu- 
B-nominate of the said deceased J E, whereby the said 
B, D, and E F are now in right of the said Bond and 
jpositionin Security: Whereupon, &c. {as in Style No. 151 
26&}. 

The instrament will be recorded with warrant of registration 
aeon. 



OTABIAL INSTRUMENT in favour of the Heir-at-Law Ho.174. 
of the Creditor in an Heritable Security which has 
not been constituted by Infeftment, and from which 
Executors are excluded. — Consolidation Act, Sche- 
dule (MM). 

At there was by (or on behalf of) A B (cfc- 

luUion), presented to me, Notary Public subscribing, a 

* TblB is no part of the Sohedtile, but as the Act — supra, p. 266— requires 
i the ezaontors expeding the instrament shall be *' duly confirmed," it 
na proper to set forth and present the confirmation. 

19 



290 BEDEEMABLS BIGHT& 

Ko. 174. Bond and Disposition in Security (continue as in Style Na 
172, with the necessary alterations in the narrative of & 
Bond, down to (a), and then proceed) As also there vnA pi^ . 
sen ted to me Extract-Decree of the General (or Special) 8e^ 
vice of the said A B {specify character in which served^ •) 
as eldest son and nearest and lawful heir of the said E I. 
dated the day of , expede before the Sheiiif of 

, and recorded in Chancery the day of t 

whereby the said A B is now in right of the said Bond foA 
Disposition in Security : Whereupon, Ac. {as in Sti/k Sa 
151, p. 269). 

The instrument will be recorded with warrant of rogistaiii* 
thereon. 



Ko.175. NOTARIAL INSTRUMENT in favour of a Otxffi 

Disponee or Legatee of the Creditor in right of » 
Unrecorded Assignation of an Heritahle Secwfti 
which has been constituted by Infeftment^ andfn^ 
tvhich Executors are excluded. — Consolidation Aeti 
Schedule (MM). 

At there was by {or on behalf of) A B ((to^ 

nation) presented to me, Notary Public subscribing, an Ai- 
signation of the Bond and Disposition in Security {oroMi^ 
case may be) aftermentioned, granted by C D {designaiiii^)i 
and dated the day of , by which Assignito 

the said C D assigned and disponed to and in favour of thi 
now deceased E F ((Ze^igrna^iow), his heirs, excluding w* 
cutors or assignees, a Bond and Disposition in Security (^ 
as the case may be), granted by G H {designation) in favooi 
of the said C D, dated the day of , tti I 

recorded in the {specify the register o/sasines) the daj | 

of , for the sum of ; and also All and Whole < 

{insert description of lands in the security, and real burdenSt or 
reference thereto, if any, all as contained in the assignaiioii^'- 
As also there was presented to me a General Disposition (or 
Will), dated the day of , executed by tfce 



IfENT IN FAVOUR OF GENERAL DISPONES, ETC. 291 

sed E F {^if necessary^ say — who died after the No. 175. 
jinent of " The Titles to Land Consolidation (Scot- 

1868"), by which the said E F assigned and dis- 
whole heritable estate to the said A B {or left and 
d his whole heritable estate to the said A B, or 

bequeathed the said Bond and Disposition in 
ind sums of money and lands {or subjects) therein 
, to the said A B), whereby the said A B is now in 
lie said Assignation and the said Bond and Dis- 
Q Security: Whereupon, &c. {as in Style No. 161, 



S OF EXTINCTION OF HERITABLE SECURITIES. 

ROE of a Bond and Disposition in Security. — Ho. n«. 
Consolidation Act, Schedule (NN). 

B {designation) y in consideration of the sum of 
now paid to me by C D {design<ition), do hereby 
a Bond and Disposition in Security, dated the 
r of , and recorded in the specify register of 

1 the day of , for the sum of 

Y the said C D in my favour, and all interest due 
And I declare to be redeemed and disburdened 
id of the infeftment following thereon. All and 
isert description of lands as in the security) , all as 
ind described in the said Bond and Disposition in 
dated and recorded as aforesaid (6) : In witness 
[testing clause). 

ROE of an Heritable SecuHty on which Sasine has ho. m. 
^owed, and to which the Oranter of the Discharge 
acquired rigJit. — Consolidation Act, Schedule (NN). 

B {designation), in consideration of the sum of 
now paid to me by C D {designation), do hereby 

• See foot-note, supra j p. 270. 



292 REDEEMABLE BIGHTS. 

No. 177. discharge a Bond and Disposition iu Security {cr otter 
security f as the case may be), dated the day of t 

for the sum of , granted by the said C D in faW 

of E F (designation) f and all interest due thereou: And! 
declare to be redeemed and disburdened thereof, and of Ae 
infeftment following thereon, All and Whole (insert iktk 
scription of the lands or subjects as in the seeurity)^ all ^ 
specified and described in the said Bond and Disposition a 
Security, dated as aforesaid, and Instrument of Sasine dien* 
on, as the same is recorded in the (specify register ofsasim)^^ 
the day of : To which Bond and Disposition io 

Security (or as the case may be), sums of money, laiA 
and others (or subjects) therein contained, I acquired rigH 
conform to the following series of writs, viz. : — Ist, Assigns 
tion granted by the said E P in favour of G H (desi^iatiaiji 
dated the day of , and recorded in the (sptcifl 

register of sasines) on the day of ; 2d, Deci» 

of General Service of J K (designation) as eldest son vA 
nearest and lawful heir in general of the sajd G H, obtain^ 
before the Sheriff of on the day of » 

and recorded in Chancery on the day of ; W, 

Notarial Instrument in favour of the said J K, recorded ii 
the (specify register of sasines) on the day of I 

and 4th, Assignation by the said J K in my favour, ditw 
the day of , and recorded in the (sptdfl 

register of sasines) on the day of : In wnf- 

NESS WHEREOF (testing clause). 

No. 178. DISCHAROE by a person who has acquired righi to* 

Heritable Security which was not recorded duri^^ 
lifetime of the oi^iginal Creditor^ but on iflW 
Notarial Instrument was expede, and from which i^ 
enters have not, o?' ft*om tvhich they have, been C£Pclt«W 
— Consolidation Act, Schedule (NN). 

I, A B (designation) J in consideration of the sum oi 
now paid to me by C D (designation), do herrfij 



DEEDS OF EXTINCTION AND RESTRICTION. 293 

liscliarge a Bond and Disposition in Security, dated the No. ns. 

day of , for the sum of , granted 

by the said D in favour of the deceased E F {designation)^ 
and all interest due thereon : And I declare to be redeemed 
and disburdened thereof, and of the infeftment following 
thereon, All and Whole (insert the description of the lands 
08 in ihe security)^ all as specified and described in the said 
Bond and Disposition in Security, dated as aforesaid, and 
Notarial Instrument thereon in my favour, as the same is 
recorded in the {specify register of sasines) on the day of 
, to which Bond and Disposition in Security, sums of 
Uttoney and lands and others therein contained, I acquired 
right conform to the following writs, viz. : — 1st, Testameiit- 
Dfttive of the said deceased E F, expede before the Sheriff of 
the county of on the day of , whereby 

I was ordained and confirmed executor-dative of the said de- 
ceased E F {or^ where executors are excluded^ 1st, Decree of 
General, cw* Special, Service in my favour as eldest son and 
Dearest and lawful heir of the said E F, expede before the 
Sheriff of on the day of , and recorded in 

Chancery on the day of ^oras the case may be); 

wid 2d, the said Notarial Instrument in my favour, dated and 
recorded as aforesaid; In witness whereof {testing clause), 

f^STIAL DISCHARGE of a Bond and Disposition in no.179. 
SecuHty, — Consolidation Act, Schedule (N N). 

I, A B {designation), in consideration of the sum of Five 

***<frc(i pounds sterling now paid to me by C D {designation), 

^hereby discharge, but only to the extent aftermentioned, 

* Bond and Disposition in Security, dated the day of 

, and recorded in the {specify register of sasines) on the 

day of , for the sum of Eight hundred pounds 

sterling, granted by the said C D in my favour, but that only 

^ tbe extent of the said principal sum of Five hundred 

P<)nnd8 now paid to me as aforesaid, and of the interest due 

hereon, and penalties corresponding thereto: (a) And I declare 



294 liEDEEMABLE BIGHTS. 

No. 179. to be redeemed and disburdened thereof, and of the u 
ment following thereon, but only to the extent foresaid 
and Whole {describe lands as in the secui^y)^ all as spec 
and described in the said Bond and Disposition in Seen 
dated and recorded as aforesaid : In witness whereof (to 
cUmse). 



Ho. 180. DEED of RESTRICTION of a Bond and DispositM 

Security. — Consolidation Act, Schedule (00). 

I, A B {designation), *in consideration of the sun 
now paid to me by D {or if no price is paid 
the restriction, say — considering that D {designaticm)^ 
requested me to release the lands hereinafter described (o 
ferred to) from the security hereinafter specified, but witl 
any consideration having been paid to me therefor), do he 
declare to be redeemed and disburdened of the security 
stituted by a Bond and Disposition in Security, dated the 
day of , and recorded in the {specify register ofsas^ 

on the day of , for the sum of gra 

by the said C D in my favour {or if the granter is fui 
original creditor, in favour of E P, designation), All 
Whole the following parts and portions of the foresaid I 
and others contained in the said Bond and Dispositio: 
Security, viz. : — All and Whole {describe the lands to he 
burdened) : And I restrict the security thereby constit 
to the lands and others contained in the said Bond and 
position in Security other than those hereby disburd* 
{if the granter of the deed is not the original creditar, 
specify the title o?' series of titles by which Tie acquired i 
to the security, as in Styles Nos. 177 and 178) : In wh 
WHEREOF {testing clause). 

* This is in terms of the Schedule, but where payment of any pait< 
debt forms the consideration the proper course is to take a partial diee 
and deed of restriction. — See Style No. 181. 



DEEDS OF EXTINOTION AND RESTBIOTION. 295 



iRTIAL DISCHARGE and DEED of RESTRICTION ho. isl 
of an Heritable Seourity. — Consolidation Act, Sche- 
dules (NN) and (00). 

I, A B (designation) 9 in consideration, &c. {as in Style 
X 179, doum to (a), and then proceed) And further con- 
iering that the said C D has requested me to release the 
ttds hereinafter described from the security before specified, 
erefore I do hereby declare to be redeemed and disbur- 
med of the security constituted by the said Bond and 
isposition in Security, dated and recorded as aforesaid, All 
nd Whole (describe portions of lands to be disburdened) , 
ad I restrict the security for the sum of of principal 

till remaining due to me, with interest thereon and penalties 
Jwresponding thereto, thereby constituted to the lands 
Uid others contained in the said Bond and Disposition in 
Jwurity other than those hereby disburdened : In witness 
'^HBRBop (testing ckmse). 

^ISQHAROE of a Bond of Annuity and Disposition in Vo. 188. 
Security. — Consolidation Act, Schedule (NN). 

I) A B (designation), in consideration of the sum o 
now paid to me by C D (designation), do hereby 
"•charge a Bond of Annuity and Disposition in Security, 
"*®d the day of , and recorded in the (specify 

■V^fer of sasines) on the day of , for the 

?*yi]Qent to me of a free annuity or yearly sum of 
^Undfl sterling during all the days of my life, granted by the 
•^ C D in my favour, and all annuities due and payable in 
^'^ of the said Bond of Annuity : And I declare to be le- 
^lUed and disburdened thereof, and of the infeftment foUow- 
% thereon. All and Whole (describe lands as in bond), all 
* specified and described in the said Bond of Annuity and 
^position in Security, dated and recorded as aforesaid : In 

^E88 WHEBEOF, &C. 



296 ' BBDEBMABLE BIGHIU 



COMPLETION OF DISCHARGE OB BESTBICTIOH. 

This is effected by recording the discharge or deed of restrictic^^ 
with warrant of registration in usual form thereon in the appropii 
register of sasines. 



Ho. 188. FORM of NOTARIAL CEBTIFICA TE where laandn ha^ 

been redeemed of Heritable Security^ hut Dischar^^ 
cannot be obtained. — Conveyancing Act, SchediA© 
(L), No. 2. 

It is, by section 49 of the Conveyancing Act 1874, provided ^mt 
" where the debtor in any heritable security, whether granted befoWB 
or after the commencement of this Act, shall have exercised ilie 
power or right of redemption contained therein, but where from tlie 
death or absence of the creditor or any other cause the debtor cannofc 
obtain a discharge of the incumbrance created by the security, itahiD 
be competent to him to consign the amount — ^principal and intereB^ — 
due, and thereupon it shall be competent to any notary public to ex— 
pede a certificate in or as nearly as may be in the terms of Schedule 
(L), No. 2, hereto annexed, and the recording of the said ceitifieito 
in the appropriate register of sasines shall, provided the princqul- 
debt and all interest due thereon in terms of the security shall Iuto 
been so consigned, have the effect of completely disencumbeiing ^ 
lands contained in such heritable security of the debt and of all ift-' 
terest and penalties corresponding thereto." 

I, A B (designation) y Notary Public, do hereby certify tW 
C D (designation), proprietor of the lands of X (here intert 
the description of the lands as shortly as possible) and othei8,in 
the county of , being the lands contained in the Bond 

and Disposition in Security (or other security, as the case fMXi 
be) for £ aftermentioned, has appeared before me and 

represented that he did, on the day of , consign 

in the Bank at the sum of £ , with 

£ , being the whole interest due under the said Bond 

and Disposition in Security (or other security, as the case ma^ 



NOTARIAL OBBTIFIOATB OF CONSIGNATION. * 297 

I, in name of E P (deaignation), the creditor in the said No. X88. 

)Tid and Disposition in Security (or other security, as the case 

ay be), which consignation was made in virtue of the 
ower of redemption reserved in the said Bond and Disposi- 
ion in Security {or other security , as the case may be) which 
J^w granted by the said CD (or if D was not the granter 
)/ ttc security^ by J K {designation)^ then proprietor of the 
»id lands), in favour of the said ^Y {or if E F is mt the 
^^^nal creditor ^say — L M {designati(m)^ the original creditor 
^ the said security), and is dated the day of , 

wid recorded in the {specify register of salines) the day 

^^ {ifsasine was eoopede on the security, instead of 

^ recorded, &c., say — on which Bond and Disposition in 
^^Uiity {or other security, as the cose may he) the said E F 
^ X M, CM the case may be) was infeft, conform to Instru- 
^®Ut of Sasine in his favour recorded in the {specify register 
^urines) the day of ), and the said consigna- 

^^ was rendered necessary by the refusal of the said E F 
deceive the said sum of £ , and interest tliereon 

^ by the absence of the said E F, or otherwise, as the case 
^^ be, stating the reason why a discharge could not be 06- 
''•^ed), notwithstanding that the requisite notice of redemp- 
^^ was given to him : And I make this Certificate in terms 
•* The Conveyancing (Scotland) Act 1874 " : In witness 
^^RKOF {testing clause). 



^OBM of NOTARIAL CEBTIFICA TE where lands have ho. im. 
been redeemed of part of an Heritable Security, but 
Discharge cannot be obtained, — Conveyancing Act, 
Schedule (N), No. 2. 

I, A B, {designation). Notary Public, do hereby certify 

!iat C D {designation), proprietor of the lands of X {here in- 

*rt the lands as shortly as possible), and others, in the county 

J being the lands contained in the Bond and Dis- 



298 BEDEEBiABLE BIGHTS. 

Na 184 position in Security {or other security ^ as the case mojf b^) 
for £ aftermentioned, has appeared before me and le-' 

presented that he did, on the day of , consigCB' 

in the Bank at the sum of £ , bein^ 

part of the said principal sum, with £ , being the wbdl^ 

interest due on the said sum of £ (amount ofprinc^pcul 

sum consigned) under the said Bond and Disposition icL 
Security (or other security ^ as the case may be), in name oS. 
E F {designation)^ the creditor in the said Bond and Dispoa- 
tion in Security {or other security^ as the case may 6c) to the 
extent of the said sum of £ , which consignation is 

made in virtue of the power of redemption reserved in the 
said Bond and Disposition in Security {or other security, as 
the case may be) which was granted by the said C D in faTOor 
of the said E F, the original creditor, and is dated the 
day of , and recorded in the {specify register of 

sasines) the day of , and the said consignation 

was rendered necessary by the refusal of the said E F to 
receive the said sum of £ , and the interest thereon 

(or by the absence of the said E F, or otherwise^ asihectt» 
may be, stating tlie reaso^i why a discharge could not be o^ 
tained), notwithstanding that the requisite notice of redemp- 
tion was given to him : And I make this certificate in tenns 
of "The Conveyancing (Scotland) Act 1874": Inwitn» 
WHEREOF {testing clause). 



(9) WKITS CONNECTED WITH REALISING HEKITABLE 

SECUKITIES. 

Ho. 185. SCHEDULE of Intimation, Requisition, and Protest hj^ 

oinginal Creditor' in an HeHtable Security. — ConBolid*' 
tion Act, Schedule (F F), No. 2. 

1, A B {designation). Procurator for C D {designaiic^)* 
in whose favour the Bond and Disposition in Security (of o* 



SCHEDULE OF REQUISITION UNDER SEOURITY. 299 

Cf«c may he) after mentioned was granted, do hereby No. 185. 
notice to you E P {designation) {the debtor in the secu- " 

that payment is now required of the sum of £ , 

5 the principal sum due under the Bond and Disposition 
icurity {or as the case may be), dated the day of 

, and recorded in the (specify register of sasines) 
xe day of , granted by you, the said E F, 

vour of the said D ; and of the sum of £ , be- 

;he interest due at present on the said principal sum, 

such further sum of interest as shall accrue on the said 
iipal sum till paid : And I further give you notice that 
• the expiry of the period of three months from the date 
3f, the sums, principal and interest and liquidate penalty 
rred and to be incurred, of which payment is now re- 
^, shall not be paid, in terms of the said Bond and 
osition in Security (or as the case may be) then the said 

or the person or persons who may then be in right of 
wdd Bond and Disposition in Security (or as the case may 
nay proceed to sell the lands and others (or subjects) 
>by conveyed in the manner provided by " The Titles to 
1 Consolidation (Scotland) Act 1868," and with all powers 
privileges conferred on or competent to creditors under 
is and Dispositions in Security by that Act: This I 
t on the day of , before and 

resence of L M (designation), Notary-Public, and N 
P Q (designations^), witnesses to the premises called and 
ired, and hereto with me subscribing. 

N 0, witness. ^^.^^^ ^ B 

P Q, wUness. ^ ^ ' 

he Schedule, if consisting of more pages than one, should be 
1 on each page by the notary and witnesses. 

he evidence that a demand of payment has been made consists 
certificate annexed to a copy of the Schedule of Intimation in 
Hewing terms :— 

* This is not required by the schedale. 



300 HEDEEBIABLE BIGHTS. 

Ho. 186. GERTIFIOATE by Notary-PMic of a Demand of F(^ 
ment of the Sums dtie under an Heritable Security ^io^ 
written on a Copy of the Schedule of Intimation^ (fe.- 
Consolidation Act, Schedule (F F), No. 3. 

I certify that what is above written is a true copy. 

{Signed) L M, Notary-FMk 

Ho. 187. SCHEDULE of Intimation, Requisition, and Protest vkr^ 

the Creditor' has acquired inght to the Security, and ^ 
Debtor is not the Ch^anter thereof — ^Consolidation Act, 
Schedule (F F), No. 2. 

I, A B {designation), Procurator for C D {desigmiiff^) 
now in right of the Bond and Disposition in Security {or^ 
the case may be) aftermentioned, do hereby give notice to 
you E F {designation), {the debtor in the security) that pay- 
ment is now required of the sum of £ , being the 
principal sum due under the Bond and Disposition is 
Security {or as the case may be), dated the day of 
, and recorded in the {specify register of sasinei)^ 
the day of , granted by G H (dmgrmriM*) 
{the original debtor), in favour of J K {designation) {fk 
original creditor"), to which the said C D has now right by 
various transmissions {these transmissions need net h 
particularly specified), and of the sum of £ , being 
the interest due at present on the said principal aniB, 
with such further sum of interest as shall accrue on the 
said principal sum till paid: And I further give yoo- 
notice that if, at the expiry of the period of three month* 
from the date hereof, the sums, principal and interest anl 
liquidate penalty, incurred and to be incurred, of whicl^ 
payment is now required, shall not be paid, in terms of tho 
said Bond and Disposition in Security {oi'asthecasemaijyi^ 
then the said C D, or the person or persons who ©ay 
then be in right of the said Bond and Disposition ii» 
Security {or as the case may be), may proceed to sell tli© 



NOTARIAL OBRTIPIOATB WHERE NO SURPLUS OF PRICE. 301 

lands and others {or subjects) thereby conveyed in the No. i87. 
manner provided by "The Titles to Land Consolidation 
(Scotland) Act 1868," and with all powers and privileges 
conferred on or competent to creditors under Bonds and 
Dispositions in Security by that Act : This I do at 
on the day of before and in presence of L M 

{designation*), Notary-Public, and N and P Q (designa- 
tions), witnesses to the premises called and required, and 
hereto with me subscribing. 

N 0, wUness. (Signed) A B. 

P Q, toitness. 

The certificate by the notary will be in terms of the Style No. 
185. 



NOTABIAL CERTIFICATE wJiere Lands are Sold under No. iss 
Heritable Security , and no Surpltis emerges. — Conveyan- 
cing Act, Schedule (L), No. 1. 

It is by section 48 of the Conveyancing Act 1874 provided that 
"where lands are sold by an heritable creditor imder the powers com- 
petent to creditors in heritable securities, and it shall occur that no 
BQipliis remains after deducting the debt secured, with the interest 
dae thereon, and penalties incurred, and expenses in reference to the 
poBseedon of the estate (if the creditor had been in possession), in- 
doding expenses of insurance, repairs, and management, and whole 
fizpense attending such sale, and after paying all previous incum- 
hrances and the expense of discharging the same, it shall be compe- 
tent to any notary-pubhc to execute a certificate to that effect in or 
•■ Clearly as may be in the terms of Schedule (L), No. 1, hereto 
•"^exed, and the disposition by the creditor to the purchaser shall, 
^^^^ with such certificate when recorded in the appropriate register 
^ ®^«ne8, have the effect of completely disencumbering the lands 
*^^ others sold of all securities and dihgences prior and posterior to 
^® %ocurity of such creditor, as well as of the security and dihgence 
^^ ^^oh creditor himself, save and except when the security and dili- 
8^^c^ of such creditor shall be assigned by way of further or collateral 
by to the purchaser." 

* See footnote, mipra, page 299. 



302 REDEEMABLE RIGHTS. 

No. 188. I, A B (insert designation), Notary-Public, with reference 
to the sale of All and Whole the lands of {here insert At 
description of the lands or refer to it, as in the security), 
which sale took place at upon the day 

of , at the instance of G D {designation), in virtue 

of the power of sale contained in a Bond and Disposition in 
Security {or as the case may he) for the sum of , 

with interest and penalties corresponding thereto, dated the 
day of , and recorded in the {specify 

registei' of sasines) the day of , 

granted by G H {designation) in favour of the said C D 
(or in case C T) is not the oinginal creditor', in favour of 
E P {design oi^iginal creditor), but to which the said C D has 
acquired right by progress, or by succession, as the case tnay 
be), do hereby certify that there has been submitted to me 
a statement of the intromissions of the said C D with the 
price of the said lands, subscribed as authentic by the said 
C D (or 6y M N {designation), agent of the said C D on his 
behalf), from which it appears that no surplus remains for 
consignation in Bank in terms of the 122d and 123d sections 
of "The Titles to Land Consolidation (Scotland) Act ISSSf 
And I make this Certificate in terms of " The Conveyancing 
(Scotland) Act 1874 :" In witness whereof {testing clamy 

(10) EEAL BURDENS ON LAND. 
1. Constitution of Securities bt wat of Ebal Bubdiv. 

Eeal burdens have this peculiarity attending them, that they do sot 
admit of infcftment in the person of the creditor, and though tbQ* 
constitute a security in his favour on the land, they do so thioQ^ 
the infeftment of the debtor or proprietor.* This difference between 
real burdens and other heritable securities occasioned a conespoDd' 
ing difference in the mode of their transmission, which was not \t] 
conveyance with warrant of infeftment, but by simple assignatiOD. 
Sometimes, before the passing of ''The Conveyancing (ScotUnd) 

* See Style No. 10, p. 62. 



SECURITIES BY WAY OF REAL BURDEN. 303 

^ 1874/' the assignation was recorded in the register of sasines, 
^ ^ucli recording was neither necessary nor usefuL The only 
^P^T mode then of completing the transfer was by intimation to 
^ ^«btor, and the criterion of preference in case of competition was 
lo^ty Qf intimation. On this state of the law the following 
'^ges were made by the Conveyancing Act. It is declared that — 
( 1) ''It shall be lawful to record in the appropriate register of 
>X^e8 any deed, instrument, or writing whereby any real burden 
>ll. land is assigned, conveyed, or transferred, or extinguished, 
^^Qistricted. 

(2) *' No deed, instrument, or writing executed or dated after the 
Axnencement of this Act" (1st October 1874) "whereby any real 
^en upon land shall be hereafter assigned, conveyed, or trans- 
^^ed, shall be effectual in competition with third parties unless the 
^^ is recorded in the appropriate register of sasines, and such deed, 
timment, or writing shall take effect in competition with third 
^es only from the date of such registration ; and 

(3) "Intimation according to the existing law and practice shall 
Unnecessary when such deed, instrument, or writing is recorded ; 

(4) '<Beal burdens upon land may be assigned, conveyed, or 
deferred, and extinguished or restricted, and titles thereto may be 
c^pleted as nearly as may be in the same manner as in the case of 
Stable securities constituted or requiring to be constituted by in- 
txaent in favour of the creditor as defined by * The Titles to Land 
«^aoHdation (Scotland) Act 1868,' and the whole provisions, en- 
•^xients, and forms of that Act and of this Act relative to the 
Agnation, conveyance, or transference, and extinction, or restriction 
^nds and dispositions in security, and other heritable securities 
^^stituted or requiring to be constituted by infeftmont as aforesaid, 
^d to the completing of titles thereto, and also the forms referred to, 

yreH as the provisions and enactments contained in section 117 of 
^s said Act, shall be taken to apply and shall apply as nearly as 
^y be to real burdens upon land." * 

By these provisions it will be observed that recording, although 
lade competent, and in case of competition with a recorded deed ne- 
«Huy, and the criterion of preference, is not made obligatory, and 
thongh the former practice of intimation is declared unnecessary 

♦ Act, § 80. 



804 BBDEEKABLB BIQHT8. 

where the deed has been recorded and ineffectaal in competitiai 
with a recorded deed yet it still remains competent^ and in a qw- 
tion simply with the debtor will be effectaal, and form a BoOdtd 
title to enable the assignee to discharge the burden. The ub mi 
proper course, however, in all cases is to record the deed or a noteiiil 
instrument thereon. 

It may be well here to notice the law as regards the saccceMonrf 
the creditor in real burdens. 

There was some difference of opinion as to whether seciiiitifli of 
this kind came within the operation of the 117th section of the G(B- 
solidation Act of 1868, which, as has been already mentioned^ 
rendered heritable securities generally moveable as regards the am- 
cession of the creditor therein. The terms of the inteipietitki 
clause* and of the 117th clause of that Act taken together tm 
sufficiently broad to include real burdens which are not speddllf 
excepted from the operation of the 117th clause, but the 30th. dMi 
of the Conveyancing Act puts the matter past all donbt. Itdecbm 
not only that the whole provisions of the Consolidation Act vUin 
to the assignation and extinction or restriction of bonds and diqpoB* 
tions in security and other securities constituted by infaftment IB 
favour of the creditor, but also '' the provisions and enactment! eafr 
tained in section 117 of the said Act shall be taken to i^plyttl 
shall apply, as nearly as may be, to real burdens upon land." 

It must, therefore, now be kept in view that in deeds of eouHUBt 
tion or transmission of real burdens, where it is desired to ezdodft 
the right of executors and to make the succession heritable, or iriM 
the succession has been declared to be heritable and it is dssiied to 
change it to moveable, it will be necessary to follow the diraetkai 
for these purposes contained in the 117th section of the Conscdid** 
tion Act.f 



2. Transmission of Real Bubdbns. 

The Conveyancing Act, as has been seen, provides that deeds d 
transmission of real burdens shall be in the form applicable to tb 
case of bonds and dispositions in security, and other heritable secantiv 
under the Consolidation Act and the Conveyancing Act, and aoig* 

♦ Consolidation Act, ? 3. » , f See supra, p. 216. 



SECURITIES BY WAT OF REAL BURDEN. 305 

Umfl of real burdens will therefore be framed as nearly as may be 
the style of assignations of other securities, and the whole con- 
sting links between the original creditor in the security and the 
mter of the deed will be specified. 

3. MODB OF COHFLBTING THE TiTLE OF ASSIGNEES. 

This matter requires some consideration, the terms of the pro7i- 
on of the Act in this respect being perhaps not so clear as they 
%]it haye been. The clause declares that " it shall be lawful to 
cord in the appropriate register of sasines any deed, instrument, or 
ittng whereby any real burden upon land is assigned, conveyed, or 
Qaferred ; " * and further, that titles to real burdens " may be com- 
&od as nearly as may be in the same manner as in the case of 
ttable securities constituted or requiring to be constituted by in- 
suent;"* but sometimes the person in right of an assignation of 
QXid and disposition in security may desire to use it,t or can use 
Xdy as one of the warrants for a notarial instrument.^ This is 
^ one of the modes of completing titles to real burdens, and in 
Hection with it there is a part of the clause which has a most im- 
^ftnt bearing in regard to it. In completing a title by notarial 
^tmnent to heritable securities, except in the case of an unre- 
^ed assignation, the original deed of constitution must in every 
^ be presented to the notary as one of the warrants of the 
'^tinnent, but in the case of real burdens the original deed of 
^stitution, being the disposition in favour of the debtor, may not 
''^ys be within the power of the creditor, and probably for this 
^^Qn the clause of the Conveyancing Act referred to provides '' that 
■^^^ a real burden upon land shall have been assigned, conveyed, 
' transferred by any deed, instrument, or writing which has en- 
<t^ the appropriate register of sasines, it shall not be necessary to 
^nce to the notary-public expeding any notarial instrument ap- 
*icatle to such real burden, or to set forth in such notarial instru- 
ct, as a warrant thereof, the deed, instrument, or writing constitut- 
^ the said real burden ; but it shall be sufficient to produce to 
im, and to specify shortly in such notarial instrument, the deed, 
tttrament, or writing, or the deeds, instruments, or writings where- 

* ConTeyancing Act, S 30. t Consolidation Act, § 124. 

t Consolidation Act, § 130. 

20 



306 REDEEMABLE RIGHTS. 

by the said real burden shall have been assigned, conveyed, or tians- 
ferred, and which, or one or more of wliich, if there are more thin 
one, shall have entered the appropriate register of sasines." * Now, 
in the case of an assignation by the original creditor, if for any 
reason, as in respect of the deed relating to other matters, it shoold 
be thought desirable^ instead of recording it, to expede a notanal 
instrument, it is plain that, as the real burden has not been assigDed 
by any deed which has entered the register of sasines, it will be nc-. 
cessary to produce to the notary, and to set forth in the instroment, 
not only the assignation, but the original deed constituting the red 
burden ; and the question is, what is sufficient to render nnneceesuj 
the production of the original deed of constitution ) Is it enon^ 
that a notarial instrument in favour of a prior creditor has been le- 
coi'ded ? and in the case of an assignation by a person who has salm- 
quently acquired right to it, is it sufficient to produce and set forth 
in the instrument every deed or instrument, recorded or unrecorded, 
intervening betwixt the original creditor and the grantor of the last 
assignation, or must the original deed also be produced as one of the 
warrants of the instrument 1 The answer to this question depends 
on what is the import and effect of the expression in the Act— 
*' where a real burden upon land shall have been assigned, conveyed, 
or transferred by any deed, instrument, or writing which has en- 
tered the appropriate register of sasines." In strict terms a notarial 
instrument is not a mode of conveyance or transfer, and therefore 
does not meet the condition of the provision of the Act. It is verr 
probable that the same effect was intended to be given to recorded 
instruments, and that the clause should have run— "where areJ- 
burden on land shall have been assigned, conveyed, or transfene^ 
by any deed or writing which has entered, or has been followed Iff^ 
a notarial instrument which has entered, the appropriate register oC 
sasines ; " and it is possible, if the question should arise, that th^ 
provision may be so construed ; but the safest course is to read it •** 
it stands, and, so taken, a notarial instrument does not seem to mee^ 
the condition. If the view which has now been stated be well 
founded, then it follows that until a proper assignation or deed of 
transmission of the real burden shall have entered the record, in 
every case of completing a title by notarial instrument, the oii(^ 
deed of constitution must be produced, and it is therefore recom- 
mended that this course, as at all events the safest, be adopted. 

* Conveyancing Act, J 80. 



SECURITIES BY WAY OF REAL BURDEN. 307 

On the fiist occasion of so completing a title, the instrument will 
pioceed upon the original deed of constitution as its basis, and upon 
all the subsequent deeds, if any, forming links in the progress of 
titles. 

In cases of completion of title by notarial instrument after a proper 
deed of conveyance of the real burden shall have entered the record 
the production of the original deed is unnecessary, but there mus'* 
be produced to the notary, and set forth in the instrument, everj 
deed or instrument by which the real burden has been transmitted 
from the original creditor to the person whose title is being made up. 

Where the deed of transmission or instrument thereon in favour 
of the granter of the assignation has entered the record, the assigna- 
tion may be directly recorded. 

Where the deed of transmission or instrument thereon in favour 
of the granter of the assignation has not entered the record, the 
assignee's title must be completed by instrument. 

(1) DEEDS OP TEANSMISSION. 

ASSIGNATION by the Original Creditor in a Real Burden 

constituted over Land. — Consolidation Act, Schedule J'o-lW. 
(G 6) ; Conveyancing Act, sec. 30. 

I, A B {designation) y in consideration of the sum of 

now paid to me by C D {designation) ^ do hereby 

^gn and dispone to and in favour of the said C D and his 

^^ecutors {or his heirs, excluding executors) and assignees 

^iorcisoever, a Bond, dated the day of , for 

*^« Slam of stg., granted by E F {designation) in my 

Woxix^ with interest from the {insert date), and also the real 

^^ I>referable lien and burden for payment of the sums con- 

^^d in and due by the said Bond, and for the said Bond 

Itself, declared and constituted by a Disposition of the 

Im^^b and others after described, dated the day of 

, (a) and recorded as aftermentioned, granted by 

ine in favour of the said E F, over All and Whole {here in- 

$erl descriptionof the lands as in the disposition constituting 

the Teal burden), {b) all as specified and described in the said 



I 
h 



308 REDEEMABLE BIGHTa 

No. 189. Disposition of the said lands and others, recorded in thd 
" (specify register of sasines) on the day of • 

And I consent to registration hereof for preservation: b 
WITNESS WHEREOF (testing clavse). 

Ho.190. ASSIGNATION by the Original Creditor in aredlBurim 

constituted over Land by Disposition on which Inf^ 
ment has been taken by an Instrument thereofL-^Goih 
solidation Act, Schedule (&G); CSonveyancing Act* 
sec. 30. 

In this case the words " and recorded as afteimentioned " at (c) 
in the preceding Style will be omitted, and*in place of the diofleaA 
(h) there will be inserted : — 

All as specified and described in the said Disposition (»^ 
the said lands and others, and Instrument of Sasine theieovo 
in favour of the said E F (ifdated^ add — dated the 
day of , and recorded in the {here specify ihe rejU^^ 

ofsasines in which the sasine was recorded) on the 
day of ) : And I consent, &c. 

No. 191. ASSIGN A TION by the Original Creditor in a Real Bfffi^^ 

constituted over Land of part only of the sum dUi 

Consolidation Act, Schedule (G 6) ; Conveyanciifc^ 
Act, sec. 30. 

I, A B (designation), in consideration of the sum ol539^ 
stg. now paid to me by C D (designation), do hereby aaaf^ 
and dispone to and in favour of the said G D, and his ezeety^ 
tors (or his heirs, excluding executors) and assignees iriMW 
soever, but only to the extent aftermentioned, a Bond daie^ 
the day of , for the sum of £1000, granted by 

E F (designation), in my favour ; and also the real and [HV- 
ferable lien and burden for payment of the sums contauied 
in and due by the said Bond, and for the said Bond itseli) 
declared and constituted by a Disposition of the lands and 
others after described, dated the day of , and 



ASSIGNATIONS OF REAL BURDENS. 309 

recorded as aftermentioned, granted by me in favour of the No. i9i. 
said E F, over All and Whole (insert description of the 
lands as in the disposition in favour of E F), all slq specified 
and described in the said Disposition of the said lands and 
others, recorded in the {specify register of sasines) on the 
day of , but that only to the extent of the 

sum of £300 stg., with interest thereof from the 
day of , and penalties corresponding thereto : And I 

consent to registration hereof for preservation : In witness 
WHEREOF (testing clause). 



ASSIGNATION of a Beat Burden constituted ovet* Land by 
a Person who has acquired right tJiereto by a series of 
Titles. — Consolidation Act, Schedule (G G) ; Con- 
veyancing Act, sec. 30. 

I, A B (designation)^ in consideration of the sum of 
;. now paid to me by C D (designation) , do hereby assign 
axAcl dispone to and in favour of the said C D, and his execu- 
toxTB [or his heirs, excluding executors) and assignees whom- 
Bo^Yer, a Bond dated the day of , for the sum 

f>^ stg., granted by E F (designation), in favour of G H 

(c^^s^tpiatibn), with interest from the (insert date), and also 
^*^^real and preferable lien and burden for payment of the 
^^^^118 contained in and due by the said Bond, and for the 
^^id Bond itself, declared and constituted by a Disposition 
^* the lands and others after described, dated the 
^^y of , and recorded as aftermentioned, granted by 

^^e said G H in favour of the said E F, over All and Whole 
\*>i#erf description of the lands as in the disposition in favour 
^f E F), all as specified and described in the said Disposi- 
tion of the said lands and others, recorded in the (specify 
register of sasines) on the day of : To which 

Bond, and the sums of money therein contained, and the 
real and preferable lien and burden for payment thereof, 
and for the said Bond itself, declared and constituted over 
the said lands and others as aforesaid, I acquired right con- 
form to the following writs : — (First) Assignation granted by 



Ho. 192. 



310 REDEEMABLE RIGHTS. 

No. 192. the said G H in favour of the now deceased J K (designation)^ 
dated the day of , and recorded in the («pect^ 

register ofsasines) on the day of ; (Second) 

Testament-Dative of the said deceased J K, expede beforo 
the SherifE of the County of on tlie day of 

, whereby L M (designation) was ordained and 
confirmed executor-dative of the said deceased J K; (Thiid) 
Notarial Instrument in favour of the said L M, recorded ia 
the (specify register ofsasines) on the day of ; 

(Fourth) Writ of Acknowledgment granted by the said E F 
in favour of N (designation), as nearest and lawful heir of 
the said L M, his uncle, dated the day of r 

and recorded in the (specify register ofsasines), on the 
day of ; and (Fifth) Assignation granted by thd 

said N in my favour, dated the day of » 

and recorded in the (specify register ofsasines) on the 
day of : And I consent to the registration hereof 

for preservation : In witness whereof (testing clause). 

Other deeds of transmission of real burdens can be easily fhmed 
from the Styles of assignations of heritable securities. 

(2) COMPLETION OF TITLE OF ASSIGNEES TO REAL 

BURDENS. 

1. Bt Eegistbation of the Deed. 

Where, according to the rule already explained,* this mode i^ 
competent, the completion of the title is effected by recoiding tb-^ 
assignation with warrant of registration thereon in usual foniL 

2. Bt Notarial Instrument. 

irciea. NOTARIAL INSTRUMENT in favour of an Assigned 

where the Real Burden has not been Conveyed "by 0*3^ 
Deed, Instilment, or Writing which has entered fk^ 
appropriate Register of Sasines" — Consolidation Act* 
Schedules (J) and (H H) ; Conveyancing Act, sec. 80- 

At there was by (or on behalf of) A B (dewj* 

nation) presented to me, Notary-Public subscribing, a Difi- 

• Supra, p. 807. 



NOTARIAL INSTRUMENTS IN REAL BURDENS. 311 

ition, dated the day of , and recorded in ^Q- ^^^- 

{specify register ofsasines) on the day of , 

le and granted by C D (designation) in favour of E F 
ngnation), whereby the said C D sold and disponed to and 
avour of the said E F, and his heirs and assignees whomso- 
r, heritably and irredeemably, All and Whole {hei^e inset-t 
description of the lands or subjects as in the disposition) ; but 
laring always, as it is by the said Disposition expressly pro- 
ad and declared, that the said lands and others {or subjects) 
e disponed with and under the real burden of the sum of 
sterling, being part of the price {or purchase money) of 
said lands {or subjects) remaining unpaid to the said 
\ interest thereof at the rate of five per centum per annum 
n the term of during the not-payment thereof, 

I a fifth part more of tlje said principal sum of liquidate 
alty in cape of failure in the punctual payment thereof 
the said C D, his executors {or his heirs, excluding 
cutors, cw the case may be) or assignees whomsoever, at 
term of , all conform to Bond of equal date witli 

said Disposition granted by the said E F to the said C D 
f'efor: And which sum of , interest, and penalty as 

^aid, were by the said Disposition declared a real and 
Arable burden affecting the said lands and others {or 
ects), and were appointed to be engrossed in any Notarial 
niment which might follow thereon, and also to be en- 
sed or validly referred to in terms of law in all future 
8 di transmission, writs, decrees, and instruments of or 
iing to the said lands and others {or subjects), or any 
thereof ; otherwise such deeds, writs, decrees, and instru- 
ts should be void and null : As also there was presented 
le an Assignation, dt^^ the day of , granted 

he said C D in favour of the said A B, whereby the said 
assigned and disponed to and in favour of the said A B 
his executors {or his heirs, excluding executors) and 
jnees whomsoever, the said Bond, with interest of the 
sum of from the , and also the real and prefer- 
lien and burden for payment of the sums contained in 



312 KEDEEMABLE RIGHTS. 

^0' ^^^' and due by the said Bond, and for the said Bond iteelf, de- 
clared and constituted over All and Whole the said lands 
and others (o?* subjects) by the said Disposition of the «ii 
lands and others {or subjects) : Whereupon. this InstrosMit 
is taken in the hands of L M (designation of Notary-PMk\ 
Notary-Public, in terms of " The Titles to Land Com*- 
dation (Scotland) Act 1868," and " The Conveyancing (Scot- 
land) Act 1874 : " In witness whereof, &c. 

Ho.191 NOT Alii AL INSTUUMENT in favour of an Au^ 

tvhose authors title has not been recorded^ when tk 
Heal Burden has been conveyed by a ** Deed^ Iiub^ 
ment, or Writing which has entered the appropriek 
Begister of /Sa^inc^."— Consolidation Act, Schednl* 
(J) and (H H), and Conveyancing Act, sec. 30. 

At there was by {or on behalf of ) A B ((fc^ 

signation) presented to me, Notary-Public subscribing, la 
Assignation, dated the day of , and re- 

corded in the {specify register of sasines) on the ^T 

of , granted by C D {designation) in favour of B 

F {designafiSn), by which Assignation the said C D assigned 
and disponed to and in favour of the said E F, and his 
executors {or his heirs, excluding executors) and assig&M 
whomsoever, a Bond dated the day of , ^ 

the sum of , granted by G 11 {designation) in faTOur 

of tlie said C D, as also the real and preferable lien and 
burden for payment of the sums contained in and due by 
the said Bond, and for the said Bond itself, declared and 
constituted by a Disposition of the lands and others after 
described, dated the day of , and recorded in 

the {specify register of sasines) on the day of » 

granted by the said C D in favour of the said G H over 
All and Wliole {here insert or refer to tlie description of tk 
lands as in the disposition) : As also there was presented tt> 
me an Assignation granted by the said E F in favour of J K 
{designation), dated the day of , by which Assigna- 



NOTAHIAL INSTRUMENTS IN REAL BURDENS. 313 

tion the said E F assigned and disponed the said Bond and No. 194. 
sxims of money therein contained, £is also the said real and 
preferable lien and burden for payment of the said sums 
of money contained in and due by the said Bond, and for 
the said Bond itself, declared and constituted over the said 
lands and others as aforesaid, to the said J K, and his exe- 
cutors {or his heirs, excluding executors) and assignees 
vrhomsoever (as the case may be) : As also there was pre- 
sented to me an Assignation granted by the said J K in 
favour of the said A B, dated the day of , by 

which Assignation the said J K assigned and disponed the 
said Bond and sums of money therein contained, as also the 
real and preferable lien and burden for payment of tbe said 
sums of money contained in and due by the said Bond, and 
for the said Bond itself, declared and constituted over the 
said lands and others as aforesaid, to the said A B, and his 
executors (or his heirs, excluding executors) and assignees 
whomsoever {or as the case may be) : Whereupon, &c. {as in 
Style No. 193). 

The title will be completed by recording the instrument with 
warrant of registration thereon in usual form. 

It is unnecessary to give any further Styles of instruments in real 
bozdens, as any that may be required to suit otlier circumstances may 
be easily framed from those relating to heritable securities. Eeference 
is made to the observations auprOy p. 305. 

(3) TBANSMISSION OF REAL BURDENS FROM THE 

DEAD TO THE LIVING. 

The subject of the liabiHty of Debts constituted by Real Burden 
to Inventory-duty may be here noticed. 

(1) Where Executors are not excluded. 

Where executors are not excluded, real burdens should now be 

giTen up in the inventory of the personal estate, and duty should be 

paid thereon.* 

• See supra f p. 304. 






314 REDEEMABLE RIGHTS. 



(2) Where Executors are excluded. 

In this case the question as to the liability of real buidensto 
inventory-duty will depend on the construction to be put on aectioii 
6 of 23 Vict. c. 15, and section 1 of 23 and 24 Vict. c. 80, the fink 
of which declares that " Money secured on heritable property ia 
Scotland " " shall, for the purposes of this Act, be held and intff- 
preted to be moveable property, and shall be included in any inven- 
tory to be exhibited and recorded in any Commissary Comt in 
Scotland of the estate and effects of any person deceased entitW 
thereto ; " and the second of which declares that ** All money se- 
cured on heritable property in Scotland" " shall be liable in inttt- 
tory-duty, under the recited Act," 23 Vict. c. 15. It seems imp* 
sible to construe these words except as including real burdenB aw 
making them liable to inventory- duty ; but at the same time it ■ 
believed that the Inland Kevenue did not so read the Acts, oi 
where executors are excluded there is nothing in the ConveyanciBg 
Act to subject such securities in duty if they were not previodl 
liable. 

MODE OF MAKING UP TITLES. 

The mode of making up titles is the same as in the case of hen^ 
able securities.* 

(1) Where Executors have not been excluded. 

The executors-nominate, duly confirmed, or the disponee 9 
legatee, may complete a title by either — (1) Writ of acknowledgiM>*) 
or (2) Notarial instrument. The executor-dative, duly confinned, 
may make up title by notarial instrument. 

(2) Where Executors have been excluded. 

1. The heir may make up a title either — (1) By writ of ackno^" 
ledgment ; or (2) By service and notarial instrument 

2. The executors-nominate, duly confirmed, or the dispones « 
legatee, may make up title either — (1) By writ of acknowledgnMB^i 
or (2) By notarial instrument. 

* Conveyancing Act, i 30. 



NOTARIAL INSTRUMENTS IN REAL BURDENS. 315 



^TABIAL INSTRUMENT in favour of the Executor- ho.iw. 
Dative of a Creditor wJio has died intestate in right of 
a Heal Burden from which Executors are not excluded, 
and which has not been conveyed by Deed, Instrument, 
or Writing which has entered the appropriate Register 
of Sasines. — Consolidation Act, Schedule (JJ), and 
Conveyancing Act, sec. 30. 

At there was by (or on behalf of) A B {de- 

tation), presented to me, Notary-Public subscribing, a 
'position, dated the day of , and re- 

ded in the (specify register of sasines) on the day 

, granted by the now deceased C D (designation) 
bvour of E F (designation) f by which Disposition the said 
5 sold and disponed to and in favour of the said E F, and 
heirs and assignees whomsoever, heritably and irredeem- 
fi All and Whole (here insert description of the lands ew 
the disposition) : Declaring always, as it is by the said 
position expressly provided and declared, that the said 
is and others were disponed under the real burden of 
sum of stg., being part of the purchase 

ley of the said lands remaining unpaid to the said C D, 
rest thereof at the rate of five per centum per annum 
1 the term of during the not-payment 

eofy and a fifth part more of the said principal sum 
quidate penalty in case of failure in punctual payment 
eof to the said C D, his executors or assignees whom- 
er, at the term of , all conform to Bond of 

I date with the said Disposition, granted by the said 
' to the said C D therefor ; and which sum, interest, 
penalty as aforesaid are by the said Disposition de- 
d a real and preferable burden affecting the said lands 
others, and are appointed to be engrossed in any Nota- 
Instmment which might follow thereon, and also to be 
ossed or validly referred to in terms of law in all future 
8 of transmission, writs, decrees, and instruments of or re- 



316 BEDEEMABLE BIGHTS. 

No. 196. lating to the said lands and others, or any part thereof ; otto- 
wise such deeds, writs, decrees, and instruments should be wid 
and null: As also there was presented to me Testament-Datiie 
of the said deceased C D, expede before the Sheriff of the 
Coimty of , on the (insert date of confrmaliml 

whereby the said A B was ordained and confirmed Executor 
Dative of the said deceased C D, whereby the said A B 
acquired right to the sums contained in and due by iheaii 
Bond granted by the said E F in favour of the said C D, 
and to the said Bond itself, as also to the real and prefenbk 
lien and burden for payment of the sums contained in tai 
due by the said Bond, and for the said Bond itself, dedani 
and constituted over the said lands and others by the 9iA 
Disposition as aforesaid : Whereupon, &c. (as in Styk No. 
193). 



Ho. 196. NOTARIAL INSTRUMENT in favour of an ExMlffr^ 

Nominate of the Creditor in a Real Burden from uMoJ 
Executors are not excluded, and which has bsei^ O0i^ 
veyed by a Deed, Instrument, or Writing wkick h^ 
entered the appropriate Register of Sasines. — Confld^ 
dation Act, Schedule (KK), and Conveyancing Ac^ 
sec. 30. 

At there was by (or on behalf of) A B {de^ 

nation) presented to me, Notary-Public subscribing, •" 
Assignation, dated the day of , and recoids' 

in the (specify register of sasines) on the day of 

, granted by C D (designation) in favour of the v0 
deceased E F (designation), by which Assignation the f^ 
G D assigned and disponed to and in favour of the vd 
E F, and his executors and representatives whomsoetSTi 
a Bond dated the day of , for the sun of^ 

, granted by 6 H (designation) in favour of the sap 
C D, as also the real and preferable lien and burden for pay- 
ment of the sums contained in and due by the said BoD^t 






NOTARIAL INSTBUMENTS IN REAL BURDENS. 317 

md for the said Bond itself, declared and constituted by a ^o. 196. 
Disposition granted by the said D in favour of the said 
It H, dated the day of , and recorded in the 

[(fpecify register o/saaines) on the day of , 

tmt All and Whole (here insert description of the lands as in 
ie deposition) : As also there was present.ed to me a Testa- 
nent {or other testamentary deed or writing ^ or extract there- 
/y 09 ike case may be) dated the day of , 

pnted by the said deceased E F, by which the said E F 
lominated the said A B to be his sole executor and universal 
6gatary: ^As also there was presented to me Testament- 
Festamentar of the said deceased ET, granted by the Sherifif 
'the County of upon tlie day of , 

hereby the said A B was confirmed executor-nominate of 
^^ said deceased E F, whereby the said A B is now in right 
i the sums of money contained in and due by the said Bond, 
^i of the said Bond itself, and of the said real and preferable 
isn and burden, for payment of the sums contained in and due 
7 the said Bond, and for the said Bond itself, declared and 
o&stituted over the said lands and others by the said Disposi- 
ion as aforesaid : Whereupon, &c. (as in Style No. 193). 



WT of ACKNOWLEDGMENT by the Person infeft in 
the Lands (not the original debtor) in favour of the 
Executor-Nominate of an Assignee of the Original Cre- 
ditor in a Real Burden, from which Executors are 
not excluded. — Consolidation Act, Schedule (II), and 
Conveyancing Act, sec. 30. 

I, A B (designation) hereby acknowledge C D (designation) 

executor nominated by the now deceased E F (designation) 

his Will (or other testamentary deed or writing), dated the 

day of , faiid duly confirmed as executor 

eeaid by the Sheriff of the County of , conform 

* See foot-note, p. 271. t See foot-note, p. 278. 



No. 197. 



318 ' REDEEMABLE RIGHTS. 

No. 197. to Testament-Testamentar in his favour dated the day 
of , to be in right of a Bond, dated the day 

of , for the sum of , granted by 6 H 

(designation) in favour of J K {deaignaticyii)^ and of the real 
and preferable lien and burden for payment of the sum 
contained in and due by the said Bond, and for the said 
Bond itself, declared and constituted by a Disposition of 
the lands and others after described, dated the 
day of , and recorded in the (apeci/jf 

register of sasines) on the day ©f , 

granted by the said J K in favour of the said 6 H, 
over All and Whole {insert description of lands) : To which 
Bond and the sums of money therein contained, and the 
real and preferable lien and burden for payment thereof, 
and for the said Bond itself, declared and constituted ot» 
the said lands and others as aforesaid, the said E F acquired 
right by Assignation granted by the said J E in his favour, 
dated the day of , and recorded in the 

{specify register of sasines)^ on the day of • 

In witness whereof, &c. 



Ho. 198. WRIT of A CKNO WLEDGMENT by the Person infefi « 

the Lands in favour of the Heir-at-laio of the CredHa^ 
in a Real Burden from which Executors are exclM 
— Consolidation Act, Schedule (II), and ConveyaDC" 
ing Act, sec. 30. 

I, A B {designation), hereby acknowledge C D {desifli^ 
tion) as the eldest son and nearest and lawful heir of the de- 
ceased E F (designation) y to be in right of a Bond, dated the 
day of , for the sum of , granted 

by me in favour of the said E F and his heirs, excluding exe- 
cutors or assignees whomsoever, and of the real and prefer 
able lien and burden, for payment of the sums contained fe 
and due by the said Bond, and for the said Bond itself, de- 
clared and constituted by a Disposition of the lands and 



WRITS OF ACKNOWLEDGMENT IN REAL BURDENS. 319 

rs after described, dated the day of , ^^ ^^- 

recorded in the {specify register of sasines) on the 
day of , granted by the said E F in 

favour, over All and Whole {insert description of the 
!8 as in the disposition) : In witness whereof {testing 
se). 



TABIAL IN8TB VMENT in favour of tlie Heir-at-law No. 199. 
of the Creditor in a Real Burden from which Executors 
are excluded, and tvhich has been conveyed by Deed, 
Instrument, or Writing tvhich has entei^ed the appro- 
priaie Begister of Sasines. — Consolidation Act, Sche- 
dule (JJ), and Conveyancing Act, sec. 30. 

it there was by {or on behalf of) A B {de- 

ition) presented to me, Notary-Public subscribing, an 
gnation, dated the day of , and recorded 

he {specify the register of sasines) on tlie day of 

, granted by C D {designation) in favour of the 

deceased E F {designation), hj which Assignation the 

C D assigned and disponed to and in favour of the said 

^ and his heirs, excluding executors or assignees, a 

d dated the day of , for the sum of 

, granted by G H (designation) in favour of the 
C D, as also the real and preferable lien and burden, 
)ayment of the sums contained in and due by the said 
d, and for the said Bond itself, declared and constituted 
I Disposition of the lands and others after described, 
ited by the said C D in favour of the said G H, dated the 
day of ,and recorded in the {specify register 

isines) on the day of , over All and Whole 

irt description of the lands as in the disposition) : As 
there was presented to me a Decree of General {or 
lial) Service in favour of the said A B {specify the cJia- 
r in which the heir was seized) as eldest son 6knd 
Bst and lawful heir to the said E F, dated the day 



32U BEDEEMABLB RIGHTa 

No. 199. of f expede before the Sheriff of (^ 

the Sheriff of Chancery), and recorded in. Chanceiy Ae 
day of , whereby the said A B acquired ri^ 

to the sums contained in and due by the said Bond grantal 
by the said 6 H in favour of the said G D, and to the «il 
Bond itself, and to the said real and preferable lien ui 
burden for payment of the sums contained in and due bf 
the said Bond, and for the said Bond itself, declared ml 
constituted over the said lands and others by the said Dii- 
position as aforesaid : Whereupon, <fec. {as in Style Na Itt, 
p. 310). 

A warrant of registration in the usual form will be writteD ci 
the instrument before it i3 recorded. 

The service on which the instrument proceeds in the cue cf 
real burdens, as in that of heritable securities, may be either genol 
or special. The general is the appropriate form, and will usoil^te 
adopted, but in case it should be desired to proceed by special sernec^ 
the petition wiU be in the following form. 



Ho. 900. PETITION of SPECIAL SERVICE as Heir-oflM^^ 

the Creditor in a Reed Burden from which Execi0^ 
are eoccluded, and tvhich has been conveyed by a dtd) 
Instrument^ or Writing which has entered the ajift^ 
jyriate Register ofSasines. 

Unto the Honourable the Sheriff of the County ol 
{specify the county where the lands or subjects c^ 
which the real burden is constituted lie, or say fi 
Chancery), the Petition of A B {designation), 

Humbly sheweth, 

That the late C D {designation) died on or about the 

day of {insert the month and year aifA 

length) vested in and having right to a Bond, dated tto 



BEBYIOE AS HEIB IN REAL BURDEN. 321 

day of , for the sum of , granted by E F No. 200. 

gnaiion) in favour of G H (designation), as also the real 
preferable lien and burden for payment of the sums 
lined in and due by the said Bond, and for the said 
I itself, declared and constituted over All and Whole 
rt the description of the lands or subjects as in the dis- 
ion), by a Disposition of the said lands and others, dated 
day of , and recorded in the {specify register 

nnes)^ granted by the said G H in favour of the said 
conform to Assignation granted by the said G H in 
ir of the said G D, dated the day of , and 

ded in the {specify register of sasines) on the day 

• 
hat the Petitioner is the eldest son and nearest and ' 
il heir in special to the said C D in the said Bond 
sums of money therein contained, and in the real 
preferable lien and burden for payment of the sums 
uned in and due by the said Bond, and for the said Bond 
:, declared ^nd constituted over the said lands and others 
3resaid. 

May it therefore please your Lordship to serve the 
Petitioner nearest and lawful heir in special of 
the said deceased C D in the said Bond and sums of 
money therein contained, and in the real and prefer* 
able lien and burden for payment of the sums con- 
tained in and due by the said Bond, and for the said 
Bond itself, declared and constituted over the said 
lands and others by the said Disposition as afore- 
said. 

According to Justice, &c. 
{Signed by the petitioner or his mandatoi^y,) 

Tofe, — The title may be completed by recording the decree of 
16 with warrant of registration. 



21 



322 BEDEEMABLE BIGHTS. 

I 

V0.80L NOTARIAL INSTRUMENT in favour of Oenerd mA 

causa Disponee of the Original Creditor in a Bd 
Burden. — Conveyancing Act, Schedule (N). 

At there was by (or on behalf of) A B (J^ 

signation) presented to me, Notary-Public subscribing i 
Disposition, dated the day of , and leooiM 

in the (ypecijy register of sasines) on the day i 

, granted by the now deceased D (demgnaiUji 
by which Disposition the said C D sold and disponed to ai 
in favour of E F (designation) , and his heirs and assigM 
whomsoever, heritably and irredeemably, All and WbA 
{insert description of lands as in disposition); deckriH 
always, as it is thereby expressly provided and declared, tW 
the said lands and others were disponed under the id 
burden of the sum of steriing, being part of the pifr 

chase money (or price) of the said lands remaining unpaid tD 
the said C D as therein mentioned, interest thereof at thento 
of five per centum per annum from the term of 
during the not-payment thereof, and a fifth part more of to 
said principal sum of liquidate penalty in case of failure in 
punctual payment thereof to the said G D, his execnton (^ 
his heirs excluding executors, as the case may be) or assigiMei 
whomsoever, at the term of , all conform to Bond^ 

even date with the said Disposition, granted by the saidS' 
to the said C D therefor ; and which sum of , intarf 

and penalty as aforesaid, are by the said Disposition dedan' 
a real and preferable burden affecting the said landa oi 
others thereby disponed, and are appointed to be engtotd 
in any Notarial Instrument which might follow thereon, tfi 
also to be engrossed or validly referred to in terms of Ittii 
all future deeds of transmission, writs, decrees, and inatti^ 
ments, of or relating to the said lands and others or anyp** 
thereof, otherwise such deeds, writs, decrees, and inaW" 
ments should be void and null : As also there was pieaeiW 
to me a General Disposition and Settlement, granted by d* 
said G D, and dated the day of , by iriflA 



NOTARIAL INSTRUMENTS IN REAL BURDENS. 323 

general Disposition and Settlement the said C D assigned No. 201. 

Mid disponed (or as the case may be) to the said A B, and his 

^eirs or assignees {or cw the case may be), lieritably and 

Ufiedeemably, his whole heritable and moveable estate {or as 

ttc case may be), in which general Disposition and Settle- 

flient were included the said Bond, and sums of money 

therein contained, and the said real and preferable lien and 

terden for payment of the sums contained in and due by the 

«ud Bond, and for the said Bond itself, declared and con- 

rtituted over the said lands and others by the said Disposi- 

tioa as aforesaid, the said G D being then vest therein as 

(^reeaid : Whereupon, &c. {as in Style No. 136, p. 247). 



NOX^dBIAL INSTRUMENT in favour of a General Dis- No. 202 
ponee of the Creditor in a Real Burden which has been 
Conveyed by a Deed, Instrument, or Writing which has 
entered the appropriate Register ofSasines, and to which 
the Creditor had acquired right, — Conveyancing Act, 
Schedule (N). 

A.t there was by {or on behalf of) A B {desig- 

notion) presented to me, Notary-Public subscribing, an As- 
Og&Gition, dated the day of , and recorded in 

tti6 {fipecify the register of sasines) on the day of 

, granted by C D {designation) in favour of E F 
(daijfMrtibw) , by which Assignation the said C D assigned 
and disponed to and in favour of the said E F and his heirs, 
wduding executors or assignees, a Bond, dated the 
day of , for the sum of , granted by G H 

{^^figncUion) in favour of the said C D, as also the real and 
pwferable lien and burden for payment of the sums contained 
i? and due by the said Bond, and for the said Bond itself ; 
declared and constitutod by a Disposition of tlie lands and 
Where after described, granted by the said C D in favour of 
tbe said G H, dated the day of , and re- 

corded in the {specify register of sasines) on the day 



324 REDEEMABLE RIGHTS. 

No. 202. of , over All and Whole (insert descriptim of 

lands as in the disposition) : As also there was presented to 

me a Qeneral Disposition granted by the now deceased J K 

(designation), and dated the day of , by vhidi 

General Disposition the said J K assigned and disponed to 

and in favour of the said A B and his heirs or assignees, abio- 

lutely and irredeemably, All and Sundry his whole heritabfce 

estate ; in which General Conveyance were included tbfc 

said Bond and sums of money therein contained and the 

real and preferable lien and burden for payment of the 

sums contained in and due by the said Bond, and for the 

said Bond itself, declared and constituted over the sskI 

lands and others by the said Disposition as aforesaid, the 

said J K being then vest therein in virtue of the follomog 

writs, viz., (1) Assignation granted by the said E F infayour 

of L M (designation), dated the day of , and with 

Warrant of Eegistration thereon on behalf of the said L M, 

recorded in the (specify register of sasines) on the day 

of ; and (2) Writ of Acknowledgment by the said 

G H in favour of the said J K, as eldest son and nearest and 

lawful heir of the said L M, dated the day of , 

and with Warrant of Eegistration thereon on behalf of the 

said J K, recorded in the (specify register of sasines) on the 

• day of : Whereupon, &c, (as in Style No. 

136, p 247). 



(4) Deeds of Extinction op Securities constituted by way of 

Eeal Burden. 

No. 208. DISCHARGE by the Original Creditor in a Heal Burden.-- 

Consolidation Act, Schedule (N N), and Conveyanc- 
ing Act, sec. 30. 

I, A B (designation), in consideration of the sum of 

now paid to me by C D (designaiion), do hereby 

discharge a Bond, dated the day of , for th9 



DISCHARGE OF SECURITIES BY REAL BURDEN. 325 

nun of , granted by the said C D in my favour, and all Nq- 203. 

nterest due thereon; and I declare to be redeemed and dis- 
hardened of the real and preferable lien and burden for pay- 
Qent of the sums of money contained in and due by the said 
Send; and for the said Bond itself, declared and constituted 
>ver All and Whole (insert desai^rption of lands as in the 
lisposition) by the Disposition of the said lands and others, 
Lated the day of , and recorded in tlie (specify 

'egisfer o/sasines) on the day of , granted by 

ae in favour of the said C D : In witness whereof (testing 
"ilause). 

It seems unnecessary to give further styles of Discharges. 
The extinction of the burden is completed by recording the 
Kschaige with "Warrant of Registration thereon. 






I 



327 



PABT II. 

TYLES UNDER "THE REGISTRATION OF 
LEASES (SCOTLAND) ACT 1857/' ^ 

s Act 20 and 21 Victoria, cap. 26, which provides for the regis- 
ion of certain descriptions of leases in the register of sasines, as 
univalent to possession, has put such leases, as nearly as circom- 
ices admit, in the same position with land rights. 
It is enacted by section 2 that '* Leases registerable under this Act, 
. valid and binding as in a question with the granters thereof, 
Lch shall have been duly recorded, as herein provided, at or sub- 
uent to the date of entry therein stipulated, shall, by virtue of such 
Utration, be effectual against any singular successor in the lands 
L heritages thereby let, whose infef tment is posterior in date to the 
e of such registration." Provision is made for granting, in the 
ens specified, and recording (section 3) of assignations and (section 
of assignations in security, of recorded leases for the completion of 
tight (sections 7, 8, and 9) of heirs and disponees, (section 10) of 
a^udger, and (section 1 1) of the trustee on a sequestrated estate 
such leases or assignations thereof in security ; and it is declared 
stion 16) that ''The registration of all such leases, assignations, 
igoations in security, translations, adjudications, writs of acknow- 

^ This Act was amended by "The Begistration of Leases (Scotland) 
Bikdment Act 1877," in regard to the extracts of recorded leases which 
' be used for the purpose of registration. The Act of 1857 provides 
tion 19) that ** Where any saoh lease as aforesaid, registerable under 
Act, shall, before the passing thereof, have been recorded in the Books 
Council and Session, or in the Books of any Sheriff or Burgh Court, the 
Uiotion to the keeper of the register of an extract of such lease shall be 
Qldent warrant for him to record the same, and he shall thereupon dtdy 
^ it, and the recording thereof shall be as valid and effectual as if the 
iiud lease had been presented to him." And the Amendment Act pro- 
« fseotion 1) that " Section Nineteen of the said recited Act shall be read 
t the word * Oommissary " occurred therein immediately after the word 
lerfff/" 



328 REGISTRATION OF LEASBS ACT. 

ledgment, and notarial instruments, as aforesaid, in manner Mn 
provided, shall complete the right under the same respectiydj, 
to the effect of estahlishing a preference in virtue thereof tf 
effectually as if the grantee, or party in his right, had entered 
into the actual possession of the subjects leased under such inite 
respectively at the date of registration thereof." But registnto 
of leases of the description referred to, though authorised, tad 
for some purposes required, is not made essential to their validitj 
where this would, irrespective of such registration, be effectual, 
it being provided (section 2) that, ** except for the puiposes of 
this Act, it shall not be necessary to record any such lease as afoR^ 
said, but that all such leases which would, under the existing lor 
prior to the passing of this Act, have been valid and effectual agaioi^ 
any such singular successor as aforesaid, shall, though not recoidad, 
be valid and effectual against such singular successor as well as againrf 
the granters of the said leases." Difficult questions might arise fitn 
this provision in the case of competitions between leases followed l^ 
possession and leases registered under the Act,^ but the diBcnsM 
of such questions does not fall within the object of this work* 

A lease registerable under the Act must possess the following n- 
quisites : — 

(1) The lease must be prohative (section 1). It may be d(yoM 
whether the statute would apply to a lease holograph of the lesBOi; 

^ Such qnestions as are here referred to are not likely to arise; \nAil 
they shotdd arise, their determination may depend on other rules than tlicM 
to be found in the Act. The provisions of the Act refer to singular ^ 
cessors of the lessor, against whom they protect the lessee, but they ff^ 
the lessee no right to disturb another lessee who has obtained lawful poMf* 
sion under a prior effectual lease. Such prior lease would form a bar to tba 
granting of the subsequent one, in so far as prejndioial to it. In aqixeat^ 
between two assignees, neither of whom had possession, the later assigoatidBt 
which had been recorded, was preferred to the prior one, which waa uiB^ 
corded and latent — Rodger, 6 Macph. 24. 

^ Reference may be made to a series of instmctive articles onthisaabj^ 
by Middleton Rettie, Esq., Advocate, in vol. ii. of the Journal of i^ 
prudence (JS), 

' Probably such leases, not being in themselves probative, do not cofl0 
within the provision of the Act.— /Sprotti, Hiune 920 ; Sinclair, Soot Jiff. » 
121, Scot. Law Rep. v. 601 ; Ooldston, 7 Maoph. 188 ; but see obserratkfliii 
per Lord Deas, as to the effect of a letter holograph of one of two seOezB, i& 
Dickson, 10 Macph. 41. 



BEQUIBITES OF REGISTERABLE LEASES. ' 829 

> any other lease prol>atiye against one of the parties only, 
her lessor or lessee, although valid as a contract inter se bjr rei 
ventus. 

2) The endurance of the lease must be for ihiriy-one years or 
uds (section 1), or it must contain an obligation upon the 
ter to renew the same from time to time at fixed periods, or upon 
ennination of a life or lives or otherwise, provided such lease 
Jl, by the terms of such obligation, be renewable from time to 
, 80 as to endure for a period of thirty-one years or upwards " 
ion 17). This provision does not seem to include leases granted 
be lifetime of the lessee ; and it might be doubted whether a 

containing an obligation to renew for a period less than thirty- 
^ears after a liferent, might be registered after the expiration of 
iferent, although the duration of the liferent, added to the period 
'liich the lessee is entitled to a renewal, would exceed thirty-one 

3) In leases executed after the date of the Act, the extent of the 
K^ let, unless consisting of mines, minereds, or subjects held by 
ige tenure, must be mentioned, and that must not exceed fifty 

. But no leases executed before the date of the Act are excluded ' 
registration in respect of the extent of the subjects let ; and 
3 executed after the date of the Act, in terms of an obligation 
Dew contained in a lease dated before the Act, are held to be in 
axne position as leases dated before the Act (section 18). 

4) In leases of subjects not burgage, executed after the Act, if 
renewed leases as above mentioned, the viame of the lands of 
li the subjects let consist or form a part must be set forth (sec- 
18). 

lefore giving a Style of a lease registerable under the Act, it may 
iie observed that the assignations and other writs and instru- 
8 of transmission, whether absolute or in security, must be re- 

rhis pioyision of the Act is not very clearly expressed, but its meaning 
to be that the obligation mnst be in such terms as to show, apart 
any contingency, that the lease is renewable, so that it must endure 
period of thirty-one years. As by section 2 leases may be recorded 
r sabsequent to the date of entry therein stipulated," there seems to be 
son why such renewable leases, if otherwise capable of registration, 
I not be recorded after part of the period of endurance has run. 



880 REGISTBATION OF LBA8E8 AOT. 

coided in the register in which the lease itself shall have been le- 
coided, 80 that, if the lease had been registered in the PartMiait 
Register for the district, and a bond and assignation in secniity wen 
roistered in the General Eegister, or vice veraaf snch legistiatiai 
would be inept. The purpose of this provision is obviously to aifB 
the expense of a search for encumbrances in both registers ; bol <•• 
the same rule does not apply to feudal titles, care will be neoeesaiy 
to avoid the serious mistcdke of placing the deed on the inappropriiie 
register.^ 



Ho.tML BUILDING LEASE registerahU under the Begiatratm 

of Leases Act. 

It is contracted and agreed between A (designattan)^ 
heritable proprietor of the subjects hereinafter mentioned, 
on the one part, and B (designation) , on the other part, in 
manner following — That is to say, the said A, in consideia- 
'tion of the tack-duty and other prestations and obliga- 
tions afterwritten, hereby sets, and in tack and assedation 
lets to the said B, and his heirs and assignees, under the 
conditions and reservations after specified, All and Whole 
that piece of ground, part of the lands of M, consisting of 
one rood seven poles and ttoenty yards imperial measure or 
thereby, and bounded as follows, viz. (insert boundaries), 
lying in the parish of X and county of Y, and that for the 
space of nine hundred and ninety-nine years from and after 
the term of Martinmas Eighteen hundred and , which, 

notwithstanding the date hereof, is hereby declared to have 
been the term of the said B's entry to the said subjects: 
' Reserving always to the said A, and his heirs and sucoee- 

^ There being now only one register of eashies, the deeds wiB be ir 
corded in the division of the register applioaUe to the coimtj irban ft* 
lands lie. 

' This danse would not indnde freestone. The following dause, or 
saoh part of it as is suitable, may be adopted : — *' Beeerving alwajs to ft* 
said A, and his heirs and sncoessors, the whole minesy mineralsy matah 



BUILDING LEASE. 331 

sore, all coal, limestone and ironstone, and every other Naao4. 

kind of minerals and metals which are or may be found in 

any part of the said piece of ground, with full power and 
liberty to him or his foresaids, by themselves or their tacks- 
men or servants, to search for, dig, work, win, and trans- 
fOTt the same, and to make all necessary roads to and from 
any part thereof, at any time during this lease, upon pay- 
ing or allowing to the said B or his foresaids all damages 
which may be done to the said subjects by any opera- 
tions carried on upon the surface of the ground hereby 
let, as the same shall be ascertained and determined by 
two neutral men of skill, to be mutually chosen by the 
parties, and, in C8we of their differing in opinion, by any 
oversman or umpire whom^ such two persons may appoint, 
which they are hereby empowered to do: But declaring, 
as it is hereby expressly provided and declared, that the 
said B or his foresaids shsdl have no claim for any damage 
already caused, or which may yet arise, to the said piece 
of ground hereby let, or buildings erected or to be erected 
thereon, in consequence of any workings of minerals ^ or any 
operations connected therewith, which may have taken 
place previous to the said B's entry thereto ; nor shall the 
said B or his foresaids have any claim against the said A 
or his foresaids, or against any person or persons for whom 
he or they are responsible, or who might have a claim of 
warrandice or recourse against the said A or his foresaids. 



fOBBils, ooal, blaokband and other ironstone, limestone, freestone, slate, marble 
and other stone, whether ornamental or for building or other purposes, and 
•n snbstanoes within or on the said piece of ground, with full power and 
liberty to him or his aforesaid, or any person or persons authorised by them, 
fo searoh for, work, wio, and carry away the same, and to make aqueducts, 
kffelB, dzttins, quarries, roads, and others necessary for all or any of these 
fvrpoaeB, at any time during this lease, upon paying," &c. Beferenoe is 
made to the obaerfationa on the reservation of minerals in feu-charter, 
9upra^ p. 21. 

1 Or— ^* whom they shaU choose, and whom they shall in all oases nomi- 
nate Jbjrfoie they enter on the business of the submission." 

s Add — "or other substances." 



332 REGI8TBATI0N OF LEASES AOT. 

ira204. for any damage which has arisen or may arise in conse- 
quence of any underground workings or any underground 
operations connected with the working of the minerals* 
which may have taken place or have been carried on since 
the term of the said B's entry, or which may take place or 
be carried on at anytime thereafter^ (a) : Which tack, with 
and under the conditions and reservations before and after 
mentioned, the said A binds and obliges himself and his 
foresaids to warrant to the said B and his foresaids at all 
hands : For which causes, and on the other part, the said 
B binds and obliges himself, and his heirs, executors, and 
representatives whomsoever, to pay to the said A, and lu8 
heirs, executors, and assignees, the sum of pounds ster- 

ling yearly in name of rent or tack-duty, and that at two 
terms in the year, Whitsunday and Martinmas, by eqnal 
portions, beginning the first term's payment thereof as at the 
term of Whitsunday Eighteen hundred and for th6 

half-year preceding, and the next term's payment at Marii^' 
mas thereafter, and so forth, yearly and termly, thereaftcr» 
during the currency of this lease, with a fifth part more o 
each term's payment of liquidate penalty in case of failure 
in the punctual payment thereof, and interest at the rate o^ 
five per centum per annum of the said termly payment^ 
from the time the same become due during the not-pa^-* 
ment : As also to pay to the said A and his foresaids th^ 
sum of pounds sterling of additional rent for th^ 

first year's possession at the entry or succession of ever^ 
heir to the said subjects, and one full year's rent or valu^ 
of the said subjects, including all buildings erected or to 
be erected thereon, according to the actual value thereof a* 
the time, for the first year's possession, at the entry of eveiy 
assignee or singular successor, and that within one year 
from the date of the heir, assignee, or singular successor 
succeeding or acquiring right or possession, or of the right 

^ Add ''or other substances." 

3 See observations supra, p, 21 et seq.^ as to import and e£fecl of different 
provisions in regard to working of minerals. 



BUILDING LEASE. 333 

or possession opening to or devolving on him, her, or them, No. 204. 
all over and above payment of the yearly rent before spe- 
cified, with a fifth part further of liquidate penalty in case 
of failure, and interest at the rate of five per centum per 
annuniy of the respective sum or sums aforesaid, from the 
time or times when the same shall become due till pay- 
ment thereof: ^And further, the said B binds and obliges 
himself and his foresaids to fence and enclose the said piece 
of ground, in so far as that is not already done, and to keep 
the same always sufficiently fenced and enclosed during the 
whole period of this lease ; as also to build and maintain 
during the whole period of this lease, upon the said piece 
of ground, a house or houses of stone, and slated, of the 
value of at least pounds sterling ; as also to form 

ft footpath along the front of the said piece of ground 
hereby let, of such width as the said A or his foresaids 
fliay direct, and to put in a curb-stone along the same ; 
ftad to keep and uphold at all times during the currency 
of this lease, and to leave at the expiry thereof, in good 
ftiid sufficient tenantable condition and repair, the houses 
ftttd buildings erected or to be erected on the said piece of 
ground of the value before mentioned, or other houses or 
buldings of at least equal value, and also the whole dykes, 
ditoles, drains, and fences which have been or may be built 
or inade on the premises (6) : And further, the said B binds 
^d obliges himself and his foresaids to free the said A and 
Ma foresaids of a proportional part, corresponding to the 
pi^ce of ground hereby let, of all feu and teind duties, cess, 
^Musters' stipends, * schoolmasters' salaries, and all other 
legal and public burdens imposed or to be imposed on the 
tods belonging to the said A, whereof the said piece of 
J ground forms a part, and that from and since the term of 
* his, the said B's, entry to the said subjects, and in all time 
' thereafter: And it is hereby expressly provided, agreed, and 

' Beference is made to the danses as to inclosing and building in feu- 
eluurters, tupra^ Note (d), p. 26. 

9 For " schoolmasterB* salaries," substitute ** school rates." 



334 REQISTBATION OF LEASES ACT. 

^0-204. declared, that if at any time the said B or his foiesaidf 
shall allow the rents before specified of two or more coft- 
secntive years to run on together unpaid, or shall sidfar 
the houses or buildings erected or to be erected on the said 
piece of ground to become ruinous or untenantable, thai 
and in these or either of these cases, this lease shall, in (lie 
option of the said A or his foresaids, become extinct, mi^ 
and null, without declarator or other process of law to tbafe 
effect, and the said A. or his foresaids shall be entitled ti^ 
enter to the possession of the said piece of ground and tto 
houses and other buildings erected or to be erected there* 
upon, in the same manner as if the whole years of this leaia 
had expired ; and they shall be entitled to remove the sail 
B and his foresaids summarily from the possession of the 
said subjects, and to obtain a decree of removing or other 
warrant necessary for that purpose, from any Judge com- 
petent, without any warning or premonition whatever: 
And it is further expressly provided and declared that it 
shsdl not be lawful to nor in the power of the said B or his 
foresaids, at any time during the currency of this lease, to 
sell the subjects above described, or any part thereof, ort*- 
sign these presents in whole or in part to a purchaser, ex ^ 
sublet the said subjects, or any part .thereof, to any subtenant 
or subtenants for any period beyond three years, until tta 
said B or his foresaids shall have first offered to make stui 
sale, assignation, or sublease to the said A or his foresaid 
at the same price or rent as may be offered to the said B (X 
his fore^ids by any other person or persons for such ail^ 
assignation, or sublease : Declaring always that if the fltil 
B or his foresaids shall do in the contrary, then and in tb^ 
case not only shall the right to be so granted by them to afl| 
other person or persons be void and null, without any decla* 
rator, but also the said B or his foresaids so contraventeS 
this provision and declaration shall, ipso factOj forfeit fltf*' 
right under these presents and to the whole subjects herel? 
let; and the said A or his foresaids shall be entitled imiD^ 
diately to take possession of the said piece of ground, and of 



BUILDING LEASE. 335 

whole buildings erected or to be erected thereon, and to No. 20t 

1076 the said B and his foresaids from the possession 

reof, in the same manner as if this lease had come to an 

by the expiration of the whole term thereof: Under all 

ch obligations, conditions, provisions, and declarations 

se presents are granted, and bre accepted by the said B, 

. no otherwise : And both parties bind and oblige them- 

^68 and their foresaids to implement and perform to each 

Br their respective parts of the premises, under the pen* 

f of Fifty pounds sterling, 1x) be paid by the party failing 

ihe party observing, or willing to observe, his part hereof, 

r and above performance : And both parties consent to 

istration hereof for preservation and execution,^ and also 

publication : In witness whereof, &c. (testing clause), 

(o) If it be intended that the tenant shall have right to the 
ends, the following clause may be substituted for the reservation 
he Style : — 

Declaring always, as it is hereby expressly provided and 
ded, that the said B and his foresaids shall, in virtue of 
I lease, and during the subsistence thereof, have exclu- 
» right to the whole * mines and minerals within or upon 
said piece of ground, and shall be entitled to work and 
)08e of the same for his or their own use and behoof ; and 

The words ^'and also for pablioation" should be omitted, it being 
Beo6flmry that '' all writings whatsoeyer which may be recorded in any 
iter of saaines shall, preyions to being presented for registration, have 
Quit of registration endorsed or written thereon " — OonsoUdation Act, 
1 ; and in case of burgage subjects, Gonveyancing Act, § 88. Where a 
^ assignationy or other writ is to be recorded along with a Notarial 
nuaent, the warrant will be written on the lease or other writ, and the 
"Qment will be docqueted with reference thereto. 
The expressions in this clause will be constmed in the same way as in 
086 of resenration in favoor of the landlord, and therefore care mnst be 
a to specify everything to which the tenant is to have right, as to which 
^ooUnote mipra^ p. 880. If nothing is to be reserved from the tenant, it 
be sofftcient to say that he ^* shall have exclnsive right to the whole 
% minerals, fossils, and substances of whatever kind that may be 
din or upon*' the land let. 



336 REGISTBATION OF LEASES ACT. 

No. 204. generally, .that the said B and his foresaids shall, during tie 
subsistence of this lease, have as full and exclusive rigM to 
possess and use the said subjects, with all the accemj 
rights and pertinents thereof, as if the same had been iStr 
poned to him and his foresaids in feu-farm,^ except in so 
far as ho or they are restrained, or the said rights are !»• 
stricted or affected, by the reservations, conditions, pron- 
sions, and declarations herein expressed. 

(h) See clauses of feu-charter applicable to feus for dwdliqg- 
houses (p. 2Q et seq.), which may be adopted in this Style, 



BEGISTRATION OF LEASES BY PERSONS WHO HAVB 

ACQUIRED RIGHT THERETO. 

By section 5 it is enacted, that where the party in right of an- 
gisterablo lease is not the original lessee, he shall, before presentiQI 
such lease for registration, expede a notarial instrument in the foil 
of Schedule (C), "No. 1, and the keeper of the register, on suchnoti' 
rial instrament being produced to him, but not otherwise, dd 
thereupon record such lease, together with the instrument 

The instrument. Schedule (C), as applicable to thecaseofanbeOt 
after narrating the lease, proceeds — '*To which lease E F hasxnadB 
up title by service as eldest son and heir of the said D, dilri 

, before the , and duly retouiedto 

Chancery." The service thus introduced is obviously of a declm- 
tory nature, to establish the heir's propinquity to thedec eased, as bo 
service or other judicial proceeding is necessary to transmit the li^ 
to the lease, which passes instantly on the lessee's death into As 
person of his heir, notliing being left in the hoereditas jacem of Ae 
deceased lessee.^ 

The service will of course be as heir in general ; and retoon 

1 Insert here <* without any reservatioD," and omit what foUows in Ai 
Style. 

* The object of the procedure here referred to is to show the lig^tof At 
party on whose behalf the lease is recorded, but where there has been IB 
intervening heir the service should be to him, and not to the original leMi> 
See foot-note ir^fira, p. 837. 



REGISTRATION BT HEIRS OR ASSIGNEES. 337 

Dg abolifllied, the statement in the notarial instrument that the 
dee has been " duly retoured to Chanceify" will be omitted, for 
Ich will be substituted the date of registration in Chancery of 

decree. 

If the person in right of the unrecorded lease is an assignee, the 
iarial instrument in his favour will set forth the assignation or 
ies of transmissions, if more than one ; but it is sufficient to re- 
d only the lease and the notarial instrument, registration of the 
Ignation or other writ in favour of the person expeding the in- 
iment not being required in this case. 

The procedure for completing a registered title under an unre- 
ded lease, where the person in right is the heir of the original 
•ntee, or has acquired right by an uninterrupted series of trans- 
Bsions, is sufficiently clear. But suppose- that B, the heir of the 
ginal grantee, has possessed without expeding service or making 
any title to his ancestor, and that C, the heir of B, is desirous of 
Upleting a registered title under the unrecorded lease, to whom is 
to serve, and how is the title to be deduced in the notarial instro- 
<nt1 At common law, B, by his mere survivanco of the origina^ 
ttitee, was unquestionably vested with the full right under the 
•se, and it might therefore be held that service of to B was 
Bcient, the title being thus set forth in the instrument — "To 
Uch lease C has made up a title by service as eldest son and 
ftiest and lawful heir in general of the deceased B, conform to 
iciee of Greneral Service, &c., the said B having been the eldest 
^ and heir of the said deceased A (original grantee of lease) ^ and 
ving on the said A's death succeeded to and been vested in his, 
B said A's, right under said lease, jure sanguinis y without service." 
will be observed that sectioji 5, by which the instrument is pre- 
ibed, says nothing as to service, and all that the schedule requires 
^ere the person in whose favour the instrument is expede is not the 
b of the original grantee, is a specification of those titles only by 
kA the predecessor acquired right. Accordingly, in the present 
te it might be maintained that the requirement in the schedule did 
t apply, as here there are no such titles, the predecessor having 
[nired full right without any title at all. On the other hand, it 
^t be objected that if service was unnecessary to transmit the 
it from the original grantee to B, service was equally unnecessary 
nnsmit it from B to C, and that Schedule (C) contemplates an un- 

22 



338 



REGISTRATION OP LEASES ACT. 



interrupted series of written titles from the original grantee totiie 
person in whose favour the instrument is expede. On the vhole,ti» 
safe course in this case appears to be to expede service in G's fafOD 
as heir in general both of the original grantee and of B, and to art 
forth both services in the notarial instrument.^ 

More difficulty would arise if in the transmission of the unrecoided 
lease an assignee were to intervene between two heirs. Thus, if ii 
the original grantee in the unrecorded lease, were succeeded bjlui 
heir B, who, without making up a title by service or otherwise, » 
signed to C, who again was succeeded by his heir D — hov is D to 
complete a registered title under the unrecorded lease f If the iiirt 
method stated in the preceding case were sufficient, all that would Ik 
necessary would be general service of D to C, the instrument settiBg 
forth the assignation in favour of C and the service in faToarofQi 
and likewise narrating, as above, that B had acquired rights yttrcm* 
ffuiniSf without service. But if such a title were not consideredflfc 
an alternative title might be made up as follows : — (1) by serrioe d 
B as heir in general to A, and by assignation by B to D ; and (S),ci 
the assumption that the right was vested in C, by service of D • 
heir in general to C : and the title would be completed by JOxAaii 
instrument (Sch. C), in which would be deduced, as the wiiii If 
which D acquired right, (1) the assignation by B to C ; (2) tittW* 
vice of D as heir to C; (3) the service of B as heir to A; aDd(i) 
the assignation by B to D ; and the instrument would be leeordBi 
along with the lease in the register of sasines. If B were deidtf { 
refused to interfere, an action of adjudication in implement oonU l> 
brought at the instance of D against B or his heir, proceeding oot^ 



1 In this case the proper and sufficient course is for O to proeare Us* 
self served as heir to B, and in the inBtmment to set forth B's i^' 
heir to A. The note appended to Schedule (G), No. 1, though p«rbip»*' 
very accurately expressed, plainly indicates this — The direction to **tpt^ 
shortly the series of titles " is more appropriate to the case of an •flilF' 
than to that of an heir, but the terms of the note in other respects seem tof^ 
the matter beyond doubt. They are as follows : — '* If the person is vki* 
favour the instrument is taken is not the heir'* '* of the original gnuntM^^ 
of one who has acquired right to the lease, ** "here specify shortly the MPiO 
of titles by which the predecessor acquired the right.** Now, to apply*''' 
to the case supposed, A is the original grantee, B is the prodeoefforti 
whom G serves, and whose title or right to the lease is to be specified is Oi 
instrument. 



TITLE OF HEIRS IN UNRECORDED LEASES. 339 

eyance of the right to C, and the transmission of it to his heir 
f service ; and the title would be completed by expeding a nota- 
instnunent (Sch. C), and recording it along with the lease. If 
iction were directed against B*8 heir, it would of course be com- 
d with a constitution.^ 

See Note under Transmission to Heirs, infra, p. 347. 



TARIAL INSTRUMENT on an Unrecorded Lease in No. 205. 
favour of the Heir of the Original Ch^antee. — Schedule 
(C), No. 1. 

(To be recorded along with Lease.^) 

Be it known that by Lease, dated the , 

designation) let to the now deceased B (designation) 
and Whole {shortly describe the property leased), in the 
sh of X and county of Y, ^for the space of years 

1 and after the term of ; To which Lease M 

ignation) has made up title by service as eldest son and 
•est and lawful heir in general of the said B, conform to 
ree of General Service obtained before the Sheriil of 
ncery, dated the day of , and recorded in 

neery on the day of : Wherefore this in- 

meut is taken by the said M, in the hands of L {designa- 

In this case D is, in the words of the note to Schedule (G), No. 1, 
t the heir" "of the original grantee (A), but of one (B) who has ac- 
d right to the lease," and the proper mode of completing D's title is 
Jttuig him served heir to G, and specifying in the instrument the vest- 
f the lease by operation of law in B as heir of A, and the assignation 
to 0, as " the series of titles by which the predecessor (G) acquired the 
," and then recording the lease and instrument. The principle of the 
Bems to be that, nntil recorded, a lease is to yest in and be transmis- 
by the heirs, whether of the original grantee or of an assignee, just in 
mne wfty as before the Act was passed. 
See footnote ^ mpra, p. 835. 

rhe statement of the duration of the lease forms no part of the 
lie, axid is of no adyantage, as the lease must speak for itself in this 



340 REGISTRATION OF LEASES ACT. 

No. 205. tion), Notary-Public, in terms of " Tbe Registration of LeMei 

(Scotland) Act 1857 : " I^ witness whereof, &c. (teitiij 

clafise). 

No. 206. [NOTARIAL INSTRUMENT on an Unrecorded Lmk 
favour of a Person not the Immediate Heir of the OrijW 
Grantee. — Schedule (0), No. 1.^ 

Be it known that by Lease, dated , AB 

{designation) let to C D {designation) that piece of grw»' 
{or as the case m^y be, shortly describing the property faueft 
in the parish of and county of ; To wiii 

Lease E F {designation) has made up title by senricen 
eldest son ^nd heir of G H {designation), conform to !)»• 
cree of General Service obtained before the Sheriff of tin 
county of {or of Chancery), dated the ^ 

of , and recorded in Chancery on the dijrf 

, and to which Lease the said G H acquired ii^ 
as eldest son and nearest and lawful heir of the said CD* 
Wherefore this instrument is taken by the saidEFinftt 
hands of J K {designation of Notary-Public), Notary-Pnkfc 
in terms of "The Eegistration of Leases (Scotland) A<* 
1857 : " In witness whereof, &c.] 

iro.2W. NOTARIAL INSTRUMENT on an Um^corded Lemf^ 
favour of a Person who has acquired Hght as aSif^ 
Successor' by a Series of Titles. — Schedule (C), No. *• 

[See note infra, p. 341,] 

(To be recorded along with Lease.^) 

Be it known that by Lease, &c. {as in Style No. 205)t 
[a] To -which Lease M {designation) has acquired rigbt* 
virtue of the following writs, viz.: — (First) Assignatifl^ 
thereof granted by the said B in favour of C (ck«J*** 
tion), dated the day of ; (Second) 

^ See footnote ^ supra, p. 388. 



TITLE OF ASSIGNEES IN UNRECORDED LEASES. 341 

dgnation of said Lease granted by the said in favour of no. 207. 

> now deceased D (designation), dated the day of 

; and (Third) General Disposition and Settlement 
knted by the said D in favour of the said M, dated the 

, and registered in the Books of Council and 
3sion on the day of , by which the said D 

ligned, disponed, and conveyed to the said M, and his heirs 
i assignees (or as in settlement), All and sundry lands, and 
other heritable subjects, securities, and rights, and the 
lole moveable and personal means and estate that should 
long to him, the said D, at the time of his death: Where- 
I, Ac. (as in Style No. 205). 



[Note, — ^In place of the clause at [a] in the preceding Style, the 
bwing is recommended as more in coDformity with the Schedule : — 

To which Lease M (designation) has made up title as 
neral disponee of D (designation), in virtue of General 
sposition and Settlement, granted by the said D, dated the 
day of , and registered in the Books of 

Toncil and Session on the day of , by which 

oieral Disposition and Settlement the said D assigned, dis- 
Ued, and conveyed to the said M, and his heirs and assig- 
68, his whole heritable and moveable estate (or as the case 
ly be), and to which Lease the said D acquired right by the 
lowing series of titles, viz. : — (First) Assignation thereof 
anted by the said B in favour of C (designation), dated the 
day of ; and (Second) Assignation of the 

id Lease, granted by the said C in favour of the said D, dated 
e day of (and if recorded, add, and re- 

tded in the (specify the Court books in which registered) on 
8 day of ): Wherefore, &c.] 



TEANSMISSION OF REGISTERED LEASES. 

1. — By Assignation inter vivos. 

It 18 provided by section 3 that when any registerable lease 
all have been recorded as herein provided, it shall be lawful for 



342 REGISTRATION OF LEASES ACT. 

the party in right of such lease, and whose right is recoried a 
terms of this Act, hut in accordance always with the conditioDS td 
stipulations of such lease, and not otherwise, to afisign the fluu^n 
whole or in part, by assignation in the form as nearly as may berf 
the Schedule (A) to this Act annexed; and the recoiding of tti 
assignation shall fully and effectually vest the assignee with tb 
right of the granter thereof in and to such lease to the extent •> 
signed, provided always that such assignation shall be without pn* 
judice to the right of hypothec or otl\pr rights of the landlord.* 



Ko. SOS. ASSIGN A TION of a Recorded Lease by the OrigM 

Gfrantee, — Schedule A. 

I, A {designation), in consideration of the sum of 
pounds sterling now paid to me, assign to B {desigMt^ 
(a) a Lease dated the day of , and recoiW 

in the Particular Eegister of Sasines for the county of Z i* 
X {or as the case may 6e), of date the day of » 

granted by C {designation) in my favour, of All and Whw 
{shortly mention subjects), all lying in the parish of Y •» 
county of Z, ^for the space of years from andato 

the term of (6) : With entry as at the term of • 

And {wJiere sublease) I assign the rents from the said tfiBi 
of : And I grant warrandice : And I bind wj^ 

to free and relieve the said B of all rents and burdens to 
to the landlord or others at and prior to the term of entry i^ 
respect of said lease : And I consent to registration for ^ 
servation and execution : In witness whereof, Ac. (<«W 
clause). 

(a) Insert special destination where it is not intended that tB« 
lease should be assigned to the assignee and his heirs. 

(h) It is unnecessary in assignations, or other writs of ^'•'*^ 
sion of recorded leases, to make any reference to the conditio^ ••* 

1 The statement of the duration of the lease is not required t7 ^ 
Schedule (A). 



A8SI0NATI0NS OF HEGOBDED LEASES. 343 

dpulations iinder wliich the lease is granted. The power to assign 
uch leases contained in sec. 3 of the statute may be exercised, 
^but in accordance always with the conditions and stipulations of 
nich lease, and.not otherwise ; " and the statutory form of assigna- 
aon by which that qualified power is to be carried into effect pre- 
Kribes no direction for any reference to such conditions and stipu- 
lations. The necessity arising from feudal principles of incorporat- 
ing the conditions of the grant in transmissions of land does not 
exist in the transmission of leasehold rights. Under a feu-charter 
the vassal acquires the dominium or full right of property, which, 
unless provided against in the titles, he may alienate freed of the 
conditions of the grant. But, in the language of Lord Stair (Inst., 
"• 9, 1), "a tack of itself is no more than a personal contract of 
location, whereby land, or any other tiling having profit or fruit, is 
set to the tacksman for enjoying the fruit or profit thereof for a 
bile;" and although such contracts, in virtue of the Acts of 1449 
•od 1857, possess certain of the attributes of feudal rights, the con- 
ditions and stipulations contained in them are necessarily inherent 
qualifications of the right of use which they confer. Immediately 
on the assignation of a lease being recorded, the relation between 
tbe landlord and the cedent is dissolved, and the assignee is sub- 
stituted as lessee in his place, so that, independently of the special 
enactment in the statute, all the conditions and qualifications of the 
IcMe are binding upon him on the ordinary principles of mutual 
contract, and through the mere force of the relation of the parties as 
^«"^ord and tenant. 

These observations apply of course only to conditions in the 
^^''^uial lease. The efficacy of burdens or conditions imposed by 
™ ^ignation depends on different principles, there being no such 
subsisting contract between the cedent and the singular successors 
0* the assignee as exists betiveen the parties to the lease and their 
"^^Pective successors. Some restrictions and limitations of the as- 
■jpiee's right — such as a reservation of minerals, or, where the as- 
"*P^tion is partial, a right-of-way, or servitude of light for the 
benefit of the remaining portion of the subjects — may rest, on the 
pnnciple that the cedent excepts from the transference and reserves 
M under his original right a part of the subject and some of the 
'ights and powers vested in him under the lease. Keservations and 



344 BBGISTRATION OF LEASES ACT. 

restrictions of that kind, it is thought, may under the statute lie 
yalidly imposed in the assignation, it being made lawful to assiga 
the lease '* in whole or in part,'' and would be effectual against the 
assignee's singular successors if inserted or sufficiently referred to in 
the subsequent writs of transmission.^ 

Although the clauses of reference to conditions and restnctuni 
in use in the transmission of land rights were introduced by statetai 
which do not apply to leasehold rights, such a reference in taM* 
missions of leases appears to be sufficient.^ Bestrictions and limita' 
tions of the nature adverted to may be introduced at letter (h) is 
the above Style. 

With respect to burdens by reservation for sums of money, it 
may be observed that the only method of creating money secniitM 
over leases provided by the Statute is by bond and assignation ii 
security ; and it is thought, therefore, that burdens otlierwise ooB- 
stituted would be of doubtful efficacy. 

Where the lease is to be assigned in part only, there should te 
inserted in the assignation a clause declaring the proportion of lOt 
to be payable by the assignee, as in Style No. 210, p. 346. Sock 
a declaration is the appropriate form for preserving evidence of ^ 
agreement of the parties as to their liability for rent inter st, bntft* 
apportionment of course would not be binding on the landlord iritk- 
out his express concurrence. 

^ The question as to the efficacy of such conditions in the issiffa^ 
would probably depend on the principles of common law. The only ptftiv 
assignation contemplated in the provision of the Leases Act is one of ^ 
subjects of the lease, the '* conditions and stipulations " under which it if ^ 
be granted being those ** in such lease ;" and accordingly the direction is ^ 
schedule deals expressly and solely with such assignation, its terms being' 
<*But (where the lease is assigned in part only) in so far as regards th* 
following portion of the subjects leased, viz. (specify partkulari$ ^ 
portion)** — the conditions in the assignation if in any way incoDSi^ 
with those in the lease would be straok at by the words of the Act, vfaiek 
require that the assignation shall be *'in accordance always with the cflfr 
ditions and stipulations of such lease, and not otherwise.*' 

^ The opinion here expressed is not to be relied on ; the {effect of is* 
porting conditions by reference would probably be limited to the on* 
specified in the Acts which authorised this mode of transmitting conditioo>> 



ASSIGNATIONS OF RECORDED LEASES. 345 



SIQNATION of a Becorded Lease by a Pei^son who has i^o.809 

acquired right. 

I, A {designation)^ in consideration of the sum of 
inds sterling now paid to me, assign to B (designation) 
jease dated the day of , and recorded in 

3 Register of Sasines at , of date the day 

, granted by (designation) in favour of D 
esigruition)^ of All and Whole {shortly mention subjects)^ 
' lying [in the parish of Y and county of Z, Hoi the space 
years from and after the term of ; and my 

ie to which is recorded in the said Kegister of Sasines of 
^t€ the day of (a) (6) : With entry as at the 

nn of : And {where sublease) I assign the rents 

om the said term of : ^ And I assign the pre- 

0U8 writs of transmission of said Lease, and have delivered 
w same according to inventory hereunto annexed: And 
grant warrandice : And I bind myself to free and relieve 
ie said B of all rents and burdens due to the landlord 
f others at and prior to the term of entry in respect of 
ttd lease: And I consent to registration for preservation 
id execution : In witness whereof, &c. {testing clavse), 

(o) It IB sufficient here to specify the date of registration of the 
dent's title, without setting forth the series of writs by which he 
quired light. 

(i) Here insert such reservations and restrictions as may be 
'^ on (but see Note, p. 343)^ ; and if any such have been pre- 
t>ii8ly imposed, refer to them, thus : — • 

But always with and under the reservations and restric- 
)Q8 specified and contained in an Assignation of said 
Jase granted by L to M {designations), dated the 

' This olanse does not form part of the schedule. 
' See foot-note ^ tupra^ p. 344. 
' See foot-note *, p. 844. 



346 REGISTRATION OF LEASES ACT. 

No. 209. and recorded in the said Register of Sasines on the 
day of 



Ko. 210. ASSIGN A TION of a Recorded Lease of Part only of 

Subjects. 

I, A {designation), in consideration of the sum of 
pounds sterling now paid to me, assign to B (designdiffii)^ 
Lease, dated the , and recorded in the GeM^ 

Register of Sasines at Edinburgh, of date the day of 

, granted by C (designation) in my favour, of All | 
and Whole (shortly mention subjects), all lying in the pariBh 
of X and county of Y, for the space of years from txA 

after the term of , but in so far only as regard 

the following portion of the subjects leased, viz.. All ^ 
Whole (specify particularly the portion (a) : But declannj 
always that these presents are granted with and under the 
burden of the yearly payment to the lessor in said lease 
of the sum of pounds sterling of rent, being the 

proportion allocated on the foresaid portion of the said 
subjects of the whole yearly rent payable under the said 
lease, and that at two terms in the year, TV hitsimday and 
Martinmas, by equal portions, with the interest, at the rale 
of five per cent, per annum, of the said rent from and after 
the respective terms of payment till paid : With entry as atr 
the term of : And (where sublease) I assign th^ 

rents from the said term of : And 1 oblige myself 

and my heirs and successors to make the said lease fortb-' 
coming to the said B and his heirs and successors on vm 
necessary occasions, and that upon a receipt and obhgatio^ 
to redeliver the same within a reasonable time and under • 
suitable penalty : And I grant warrandice : And 1 bind mf" 
self to free and relieve the said B of all rents and burden^ 
due to the landlord or others at and prior to the term^^ 
entry in respect of said lease : And I consent to registration 



TRANSMISSION TO HEIRS OF RECORDED LEASES. 347 

for preservation and execution: In witness whereof, &c. No. 210. 
{testing clause). 



(a) See Note, p. 343, as to reservations and restrictions.^ 



[COMPLETION OF TITLE OF ASSIGNEE. 

The title will be completed by recording the assignation with 
warrant in the appropriate register of sasines.] 



2. — Transmission to Heirs. 

The heir of the person who shall have died vested in right of a 
recorded lease may make up his title by either of two methods : — 

(1) Under section 7, by writ of acknowledgment (Schedule E) 
" from the proprietor infef t in the lands and heritages leased by such 
lease," and by registration of the writ in Hhe register of sasines in 
which the lease is recorded. It is provided that " no defect in the 
title of the proprietor or party, granter of such writ, shall affect the 
right or title of such heir; " under this provision it is immaterial 
whether the granter be ' entered with his superior or not, but it will 
be observed that it protects the grantee only against defects in the 
granter's title, not against the consequences of defective right, 

(2) The heir may complete his title by notarial instrument under 
section 8, which provides that it shall be competent to the heir who 
shall have been served, by general or special service, of the person 
who shall have died fully vested in right of the recorded lease, to 
ezpede a notarial instrument in the form of Schedule (F), Ko. 1, and 
that the recording of the instrument in ^ the register in which the 
lease is recorded shaU complete the heir's right. This section con- 
templates either a general or special service, but it is thought that in 
all cases the service should be of the former description, as a special 

* See foot-note ^ supra, p. 344. 

* See foot-note ^ supra, p. 330. 

* Under the provisions of the Conveyancing Act of 1874, every proprieto 
who is dnly infeft in the lands is constmctively entered with his superior. 
See supra f p. 51. 

* See foot-note ^ supra, p. 330. 



348 REGISTRATION OF LEASES AOT. 

service is applicable only to feudal subjects, and such a servioe mt 
lease is not provided for by the Service of Heirs Act or in the nto^ 
tive forms of procedure. * 

If the heir of the person last vested has died without makiiigTip 
a title, the next heir, passing over his immediate ancestor, wiU b© 
served as heir in general to the ancestor more remote, as the statafc© 
requires that the service shall be to the person who shall have died 
fully vested in right of the recorded lease — (section 8)^ 

Where an assignee of a recorded lease has died without recoidizis 
his assignation, his heir may make up a title by service and no tmal 
instrument (Schedule F, No. 1), and by recording, in the r^^ister in 
which the lease is recorded, the assignation together with the instnx- 
ment — (section 9). 

The provisions of section 9 apparently do not apply where thflie 
are more than ^ one unrecorded assignation, but such a case is not 
likely to occur in practice, as it would be very objectionable to tal» 
an assignation to a registered lease from a person whose own titb 
was unrecorded. Suppose, however, that A, the original grantee of 
the recorded lease, grants an assignation to B; that B, without 
recording his assignation, grants a second assignation to C ; and tint 
C dies without completing a registered title — his heir, D, could wt 
validly make up his title by expeding the notarial instnuMot 
(Schedule F), and recording it along with both assignations, becan* 
section 9, besides not providing for successive assignations, refe* 
exclusively to assignations granted in pursuance of the Act, whichf 
in terms of section 3, may bo granted only by a person having ^ 
recorded right, and must contain, as required by Schedule (A)> •* 
statement of the date of registration of the grantor's title. Noc" 

1 The reference to a special service is to be explained by this— ihit('^ 
appears from the use in Schedules (0) and (F) of the ezpresBion *' retooe^^ 
Ohancery") the framersof the Registration of Leases Act had overlooked tt^ 
provisions of the Service of Heirs Act of 1847, and had in view the pw^ 
law by which every special servioe included a general servioe in the «»• 
dharacter, not limited as now to the particular lands in the servioe, andvti* 
dealing with the case where a special servioe might have been got for M*^ 
other purpose. 

' The provisions of sec. 3, and the terms of the statutory aBBignstiflPO^* 
recorded lease in Schedule (A) preclude the possibility of more than one fi^ 
unrecorded assignation being granted, as the date of recording d ^ 
granter's title must be set forth. 



WBITS OF ACKNOWLEDGMENT IN FAVOUR OF HEIRS. 349 

could D accomplish his purpose by expeding and recording along 
with the assignations the instrument (Schedule C) under section 5, as 
that section provides only for the case of a third party acquiring 
right to a lease or assignation in security/ and not to an assignation. 
If B, the first assignee, were alive, his assignation might be recorded, 
and D, the heir of the second assignee, might then obtain from him 
and record a new assignation. Again, if B, the first assignee, were 
dead, his heir might make up a registered title under section 9, but 
that title would not avail D, nor accrcsce to the assignation in 
favour of his ancestor (Bell's Prin., sec. 882 ; Menzies' Lect., p. 630) 
even although that deed could be held to be granted in pursuance of 
the Act. It would be necessary for B's heir, after completing his 
title, to grant a new assignation to D, registration of which would 
fully vest him in right of the lease. But if B's heir refused to inter- 
fere, the proper course appears to be to bring, at the instance of D, 
an action of adjudication in implement against the person appearing 
on the register as in right of the lease, or, if he is dead, a constitu- 
tion and adjudication against his heir, proceeding on the conveyance 
of the personal right to B, the assignation granted by him to C, and 
the service in favour of his heir D ^ ; and the title would be com- 
pleted by recording the abbreviate of adjudication in the register of 
sasines in which the lease is recorded — (section 10). 



WBIT of ACKNOWLEDGMENT in favour of an Heir Ko.aiL 
in a Recorded Lease, — Schedule (E), No. 1. 

I, A {designation)^ proprietor infeft in the lands of N, by 
infeftment recorded in the {specify register of sasines) on 
the day of (a), acknowledge B {designation), 

as eldest son and nearest and lawful heir of the deceased L 

^ The provlsionB of section 5 of the Act and Schedule (G) are inapplic- 
able to the case in question, as they refer only to leases and assignations in 
Becnrity which have not been recorded. 

2 This seems to be the only mode of proceeding ; bat it will be observed 
that the assignation by B, in so far as it is dependent for effect on the pro- 
Tisions of the Act, is inoperative, not being framed in conformity therewith, 
the date of recording his own title being necessarily omitted. 



350 REGISTRATION OF LEASES ACT. 

No. 211. (designation), to be in right of a Lease granted by H 
(designation) in favour of the said L [or M (designation)]d 
All and Whole (shortly mention subjects), in the parish of B 
and county of S, being a portion of the said lands of N, ^for 
the space of years from and after the term of ; 

which Lease is dat^d the . and recorded in the 

(specify register of sasines) on the day of (i)j 

[and (where the deceased is not the original lessee) the title rf 
the said L being recorded in the said Register of Sasines,* 
on the day of ] (c) : In witness whemof, 

&c. (testing clause). 

(a) ^ Or, " I, A (designation), proprietor feudally vested in the 
lands of N by Disposition in my favour, recorded," &c., or, "by 
Decree of Special Service in my favour, recorded," &c. 

(h) Where the ancestor acquired the lease by assignation granted 
under reservations or restrictions, these may be here referred to, as in 
Note (h). Style No. 209, p. 345.* 

(c) Where the ancestor is not the grantee of the lease, it is safr 
cient to specify the date of registration of his title, without setting 
forth the series of writs by which he acquired right. 



No. 212. WEIT of ACKNOWLEDGMENT in favour of an Etir 

who has acquired right to part only of the svbjects^ 
— Schedule (E), No. 1. 

I, A (designation)^ proprietor infeft in the lands of C, by 
Notarial Instrument in my favour, recorded in the (rtgif^ 

1 The endurance of the lease is not by the Schedule (E) required to b* 
set forth. 

2 Or, ** in the division of the General Register of Sasines applicable toth* 
county of of date the day of ." 

3 Or, ** I, A (designation), proprietor infeft in the lands of N, byDiapo** 
tion granted by (designation) in my favour, recorded in the (specify rt^ 
of sannes) on the day of ." 

* See foot-notes ^ and * stfpra, p. 344. 



WRITS OF ACKNOWLEDGMENT IN FAVOUR OF HEIRS. 351 

%8ines) on the day of , acknowledge M No. 212. 

ignation), as the immediate younger brother-german and 

rest and lawful heir of the deceased N (designation) y^ to 

n right) to the extent after mentioned, of a Lease granted 

H (designation) in favour of B {designation) of All 

Whole {shortly mention subjects), in the parish of X 

. county of Y, being a portion of the said lands of C, 

the space of years from and after the term 

; which Lease is dated the , and 

Drded iu the {specify register ofsasines) on the 

r of , but in so far only as regards the following 

tion of the subjects leased, viz., All and Whole {specify 

portion as in ancestor's title) (n) ; and the title of the said 

to the said Lease, to the extent foresaid, being recorded in 

> said General Register of Sasines, of date the day 

: In witness whereof, &c. {testing clause), 

(a) Where the ancestor held his portion of the lease under reserva- 
18, restrictions, or conditions, these may he hero referred to, as in 
te (6), Style No. 209, p. 345.a 



^TARIJL INSTRUMENT on a Recorded Lease in H0.218. 
favour of the Heir of the Original G^/'aw^ee.— rSchedule 
(F), No. 1. 

Be it known that, by Lease dated the , A {desig- 

^ion) let to the now deceased B {designation) All and 
liole {shortly describe the property leased), in the parish of 
^nd county of Y, for the space of years from and 

^r the term of ; which Lease is recorded in the Par- 

^r Begister of Sasines for the county of Perth, at Perth, 

the day of ; and to which M {designation) 

8 made up title by service, as eldest son and nearest and 
vful heir in general of the said B, conform to Decree of 

' Insert, '* Who died unmarried and withont lawful issue." 
' See foot-notes ^ and * supra, p. 344. 



352 REGISTRATION OF LEASES ACT. 

No. 213. General Service obtained before the Sheriff of Chcmeeni on 
the , and recorded in Chancery on the dajof 

: Whereupon this inBtrument is taken by the sail 
M in the hands of R (designation), Notary-Public, in ten 
of "The Eegistration of Leases (Scotland) Act 1857:' If 
WITNESS WHEREOF, &c. (testing clause). 



Ho. 814. NOTARIAL INSTRUMENT on a Recorded Lemii 

favour of the Heir of an Assignee fully vM 
—Schedule (F), No. 1. 

Be it known that, by Lease dated the , A (cfe- 

signation) let to B (designation) All and Wliole («Jar% 
deset*ibe theproperty leased), in the parish of X and county 
of Y, for the space of years from and after the term i 

; which Lease is recorded in the (specify register cf 
sasines) on the ; and to which (designatum) htf 

made up title by service, dated the , before the 

Sheriff of Chancery, and recorded in Chancery on the 
day of , as eldest son and nearest and lawful heir in 

general of the deceased E (designation), in an Assignation 
of said Lease by the said B in favour of the said E, of date 
the , and recorded in the said Begister of Sasines 

(or as the case may be) on the day of (a), (ttitot 

there have been several previous transmissions, say, and to 
which (designation) has made up title by service, dated 
the , before the Sheriff of Chancery, and recorded in 

Chancery on the , as eldest son and nearest and 

lawful heir in general of the deceased E (designation), in an 
Assignation of said Lease by L (designation) in favour of tfce 
said E, of date the , and recorded in the said Blister 

of Sasines on the ) (a), ^the said L having acquired 



^ The deduction of the title through its oonrse from the original 
seems to be mmecessary — all that the Schedule (F) requires being that tki 
lease and the immediate author's or predecessor's title to it be speciflsi 
**The writs or decreets" which are direoted to be mentioned are tbo« 



NOTARIAL INSTRUMENTS IN FAVOUR OF HEIRS. 353 

; to the said Lease in virtue of the following writs, viz. : No. 214. 
Irst) Assignation of said Lease by the said B in favour 

(designation)^ of date the , and recorded in the 

Register of Sasines on the ; (Second) Writ of 

nowledgment by the said A in favour of G {designation)^ 
eir of the said F in the said Lease, of date the , 

recorded in the said Register of Sasines on the ; 

(Third) Assignation of said Lease by the said G in 
Tir of the said L, of date the , and recorded in the 

Register of Sasines on the : Whereupon this 

;rament is taken by the said C in the hands of N {deaig- 
(m), Notary-Public, in terms of ** The Registration of 
9es (Scotland) Act 1857:" In witness whereof, &c. 
ing clause). 

0) Where the ancestor's title is burdened by reservations and 
ictions, these may be here referred to thus : — " But with and 
ir the reservations and restrictions contained in the said Assig- 
m, recorded as aforesaid." ^ 

!t does not clearly appear from Schedule F what ought to be the 
. of instrument when the ancestor is not the original lessee, and 
) especially when he has acquired right after several transmis- 
1; the ambiguity arising in a great measure from the Schedule 
g prescribed as the form for completing the title, both where the 
stor was vested (section 8), and where he was not vested (section 
18 well as in a variety of other cases. The above instrument is 

tnioting the rights '* of the party who expedes the instniment The 
ind the Schedules (G and F) make a distinction between the case of 
I that have been, and that of leases which have not been, recorded. In 
oe case it is reqoired (Schedale G) that the instrument shall set forth 
rfade series of titles, becaose where a lease is to be recorded in favour of 
son not the original lessee, it is necessary to pnt on the record a state- 
of the writs by which he acquired right ; but when a lease has been 
ij recorded, though there may have been subsequent transmissions, a 
snce to the last recorded writ affords the means of getting all the 
nation necessary as to the party's right, and accordingly this is the 
iple on which assignations of recorded leases (Schedule A) are framed. 
MO fboi-note infira, p. 858. 
ae foot-notes ^ and * supra, p. 344. 

23 



354 REGISTRATION OF LEASES ACT. 

meant to be " as nearly as may be " in the form of Schedule F; kt 

it is thought that it would be sufficient in all cases where the aiuakf 

had been vested^ whether there had been previous transmisrioDicr 

not, to set forth the heir's title as follows : — '' And to whi^ C 

(designcUton) has made up title by service as eldest son and juad 

and lawful heir in general of the deceased E {de8tgruUum\ oonfal 

to Decree of General Service, obtained before the Sheriff of CkeMKi 

on the , and recorded in Chancery on the ; tti 

title of the said E to the said lease being recorded in the iM 

EegLBter of Sasines of date the day of : Wheieopaii' 

&c. Where the ancestor had been vested, a deduction of the juA" 

ous titles does not appear to be necessary in this instroment of 

more than in a writ of acknowledgment, which is used for the MW 

purpose ; and it is obvious that such a deduction, in either of tket 

writs, if the lease be of long duration, would in the coune of toi 

occasion great practical inconvenience. In a notarial i 

a lease which has not been recorded, it is quite proper that the 

of titles by which the ancestor acquired right should be set M] 

and accordingly, in a note to the instrument Schedule C, oi 

unrecorded lease, there is a direction to that effect. Bat np mi 

note is appended to the instrument Schedule F, on a recorded kiR 

In the latter form of instrument, after a specification of the diffflvt 

cases in which it may be used, there is no doubt a direction tl 

** mention the writs or decreets instructing the rights, with the dais 

thereof, and if recorded^ the register and date of recording f hut thii 

appears to refer only to the writs subsequent to the title of thepeiHB 

last vested, and the reference to registration may be held to appljtt 

registration in registers other than the register of sasines. A amiltf 

direction, in addition to the requirement to specify the series of titl* 

by which the predecessor acquired right, occurs in Schedtde C •b' 

in that case none of the writs upon which the instrument pioceeA 

could have been recorded in the register of sasines. HoweTer,it 

may be the safer course, until the question is authoritatively eettlA 

to specify the series of transmissions from the grantee of the lei«i* 

is done in the above Style, No. 214.* 

^ See foot-note *, p. 352. 



NOTARIAL INSTRUMENTS IN FAVOUR OF HEIRS. 356 

WTABIAL INSTRUMENT on a liecoi^ded Lease in ho.21«. 
favour of the Heir of an Assignee who tvas vested in 
only part of the stibjects. 

Be it known, &c. (as in Style No. 214, p. 352, doion to 
(mdincltisive of date of registration of lease) ^ and to which, 
but in so far only as regards the portion of the subjects 
leased, hereinafter described, {designation) has made up 
title by service, dated the , before the Sheriff of 

CJoncery, and recorded in Chancery on the , as 

ddest son and nearest and lawful heir in general of the 
deceased E {designation), in an Assignation by the said B 
in favour of the said E, of date the , and recorded 

in the said Kegister of Sasines on the , by which 

the said B assigned to the said E the foresaid lease, but 
only in so far as regards the following portion of the subjects 
leased, viz.. All and Whole {describe portion as in assigna- 
*m (a) (6) ) : Whereupon, &c. {as in Style No. 214, p. 352). 

(o) Where the ancestor's title was burdened with reservations or 
wrtrictions, here refer to them, as in Note (6), Style No. 209, p. 345.* 

(h) Where there have been several previous transmissions, adopt 
*»m in Style No. 214, p. 352 ; but see Note, p. 353.* 

NOTARIAL INSTRUMENT on a Recorded Lease in »o.2i6. 
favour of the Heir of an Assignee who has died with- 
out recording his Assignation. — Sch. F, No. 1. 

• This instrument will be precisely similar to the instrument 
%le No. 214, p. 352, omitting of course the reference to the re- 
C^tion of the assignation in favour of the ancestor, which occurs 
^ that Style. 

The title is completed by recording both the assignation in the 
•^cestor's favour and the notarial instrument (section 9).* 

^ See foot-notes * and ^ p. 844. 
* See foot-note \ p. 852. 

' A warrant of Begistration wUl be written on the Assignation, and the 
Hutnunent wiU be docqneted with reference thereto. 



356 REGISTRATION OF LEASES ACT. 

(3) Transmission to Gbneral Disponibb. 

The general disponee of a person who has died fuJl}i void it 
the right of a recorded lease, or the general disponee of an aaogiM 
to a recorded lease who has died without recording the assigitttiii, 
may make up his title hy expeding a notarial instniinent(8clLf| 
No. 1) ; and by recording, in the former case, the instrument akw; 
and, in the latter, the assignation in fayoor of the granter of Ai 
general conveyance together with the instrument — (sees. 8 asd 9^ 
The provisions of these sections apparently do not apply, at M 
during the life of the granter, to general conveyances ifUer 90i 
such as a general trust-disposition for behoof of creditors. If is ni 
cases a special assignation cannot be obtained, a registered title k 
the person of the general disponee may be made up by an adjudioi^ 
tion in implement of the general conveyance, and by recording Ai 
abbreviate in the register of sasines in which the lease is leooidedr' * 
(sec. 10). If the title of the granter of the general conveyance iri^ 
vivos is an unrecorded assignation, the deed ought to be pot 19* 
record before raising the adjudication. 

Where there are two unrecorded assignations, the latter bdog ib 
flavour of the granter of the general conveyance, it is donbttf 
whether the general disponee could validily complete his title asdff 
section 9 by expeding a notarial instrument and recording it 1^ 
with both assignations.^ The proper mode of completing the title <> 
an heir in such a case is stated supra, p. 347, and the procedure thfl« 
adverted to applies equally to the case of a general disponee. 



Ho. 217. NOTARIAL INSTRUMENT on a Recorded Leased 

favour of the Trustees and General Disponees of w* 
Original Grantee. — (Sch. F, No. 1.) 

Be it known, &c. {as in Style No. 214, p. 352), and to 
which 0, D, and E (designations), *have acquired right •• 

1 This mode of completing the title wonld not be competent, ai ^ 
second Assignation conld not, as required by the Act, section 8 andScM^ 
(A), set forth the date of recording the grantor's title. 

> The words of the Schedule which are *' have made up title," oo^ ^ 
be used. — See foot-note ir^a, p. 858. 



INBTBUMBNTS IN FAYOUB OF GENERAL DISPONEES. 357 

Qstees and Greneral Deponees of the said B, under and in ^o. 217. 
tue of a Trust-Disposition and Settlement executed by 
3 8aid B, dated the , and registered in the books 

CSouncil and Session on the , whereby the said B 

ngned, disponed, and conveyed to the said C, D, and E, 
d the acceptors or acceptor, &c. (as in settlement), All and 
adry lands, and all other heritable subjects, securities and 
;ht8, and the whole moveable and personal means and 
iate, that should belong to him, the said B, at the time of 
\ death (or otherwise^ as in settlement) , but in trust always, 
d for the uses, ends and purposes expressed in the said 
Oflt-Disposition and Settlement: Whereupon this instru- 
ct is taken by the said G, D, and E, as Trustees and 
>neral Disponees foresaid, in the hands of E (designation), 
>taiy-Public, in terms of "The Registration of Leases 
Gotland) Act 1867": In witness whereof, <fec. (testing 
m). 



^TABIAL INSTRUMENT on a Recorded Lease in Vo.818. 
favour of the General Disponees of an Assignee 
fully vested. — Sch. F, No. 1. 

•ee another form of this Instrument, Style No. 219, infra p. 359.] 

Be it known, &o. (as in Style No. 214, p. 352), ^and to 
ch (a) C, D, and E (designations), have acquired right 
Vustees and General Disponees of the now deceased L 
ignation), under and in virtue of a Trust-Disposition and 
lement granted by the said L, dated the , and 

this style would be in stricter conformity with the Schedule if framed 
Qowb: — '* And to which G D and E (daaignaiiona) have made np title as 
666 and general disponees of the now deceased L in an Assignation by G 
maiion), of date the day of , and recorded in the (specify 

er ofmumes) on the day of , in Tirtue of a Trost-Dis- 

km and Settlement granted by the said L, dated " Ao,, '* whereby 

ud L assigned,*' &o. — and omitting the deduction of titles at the sabse- 
t part. See foot-note \ infra, p. 858, and Style, No. 219, p. 859. 



358 BEGISTRATION OF LEASES AOT. 

No. 218. registered in the books of Council and Session on the » 
whereby the said L assigned, disponed and conveyed to the 
said C, D, and E, and the acceptors or acceptor, &c. (««• 
settlement), AH and sundry lands, and all other heritable 
subjects, securities, and rights, and the whole moveable and 
personal means and estate that should belong to him, the 
said L, at the time of his death (or otherwise, as in wttto- 
ment), but in trust always, and for the uses, ends, and pur- 
poses expressed in the said Trust-Disposition and Settle- 
ment; and to which lease the said L acquired right io 
virtue of the following writs, viz.: — (specify transmimoi^ 
from grantee of lease to truster j as in Style No. 214, p. 352): 
Whereupon, &c. (as in Style No. 214, p. 352). 

(a) Where the title of the granter of the general conveyance ww 
burdened with reservations or restrictions, these, may be here refened 
to, as in Note (6), Style No. 209, p. 346.i 

A similar difficulty to that adverted to in the Note on Instal- 
ment No. 214, p. 353, occurs in adapting Schedule F to an instru- 
ment in favour of a general disponee of an assignee vrbo was vested 
in right of the lease. After setting forth the lease, and directing 
how the title of the heir of the original grantee should be described, 
the schedule proceeds : — " [or, as the case may be, as general dis- 
ponee of the said C D (the original grantee) ; or, as heir (or, Genfiol 
Disponee) of L M in an Assignation by the said C D, of date 
; or, as trustee confirmed on the sequestrated estate of the 
said C D, in virtue of (here mention the writs or decreets instructing A^ 
rights, with the dates thereof, and, if recorded, the register and daUrf 
recording)]: Whereupon," &c. To state that the person in whose 
favour the instrument is expede acquired right " as general disponee 
of L M (^^e granter of the general conveyance), in an assignation hy 
the said C D {t?ie original grantee of the leasey would apparently he 
bsurd ;' and it is thought that the style of instrument supra is n 

^ Soe foot-notes ^ and ', p. 344. 

1 The difficulty here adverted to seems to have arisen from a misaiidflf- 
standing of the terms of the Schedule (F, No. 1) in which the meaniiig of 
the expression referred to is not what is here supposed, but that £ F» the 
person in whose favour the instrument is expede, is the '* heir," or '* genenl 



INSTRUMENTS IN FAVOUR OF GENERAL DISPONEES. 359 

learly in the form of Schedule E as the circumstances of the case 
nil allow. As stated in the Note p. 353, it is thought that a de- 
luction of the titles previous to that of the granter of the general 
wnreyance is unnecessary in this instrument, and that it would be 
nfficient merely to specify, after the narrative of the general con- 
ireyance, the date of registration of the granter's title "to the lease 
thtjs:— "The said L's title to the said lease being recorded in the 
Hud i^istei of sasines of date the day of ." ^ 



[NOTARIAL INSTRUMENT on a Receded Lease in ho.219 
favour of the General Trust'Disponees of an Assignee 
fvUy vested, — Schedule F, No. 1. 

Be it known that by Lease, dated the day of , 

^ B {designation) let to C D (designation) that piece of 
pound (or, as the case may 6e, shortly describing thepiH>perty 
kwed) in the parish of and county of ; 

^ch Lease is recorded in the (specify register of sasines) on 
the day of , and to which £ F (designation), 

^ H (designation), and J K (designation) have made up 
title as (a) trustees and general disponees of the now de- 
^^eased L M (designation), in an Assignation by N (desig- 
^Hon), of date the day of , and recorded 

^^ the (specijy register of sasines) on the day of 

, in virtue of a General Trust-Disposition and 
Settlement executed by the said L M, dated the day 

^f , and recorded in the Books of Council and 

Session on the day of , whereby the said L M 

usigned and disponed to the said E F, G H, and J K, and 
She acceptors and acceptor, &c. (destination as in trust-dis- 

isponee of L M (the grantee) in an Assignation by G D," and the words in 
lis part of the Schedule are not *' that E F has acquired right'* as in the 
jle, bntthat he ''has made ap title." The Style No. 219 infra, is sng- 
sted as more in conformity with the Schedule than that in the former 
ition, being No. 21S, supra, p. 357. 
1 See foot-note, p. 352, and Style infra, No. 219. 



360 BEGI8TRATI0N OF LEASES ACT. 

No. 219. position), the whole property, means, and estate, heritable 
and moveable (or as the case may 6e), then beloDging or 
which should belong to him at the time of his death, but n 
trust always, and for the ends, uses, and purposes speciM 
in the said Trust-Disposition and Settlement (6) : Whbii- 
UPON, &c. (as in Style No. 217, p. 356). 

(a) If thought more distinct, the following may be sabstitotod 
for this part of the Style : — " Trustees and Greneral Disponeesof^ 
now deceased L M (designation), the grantee in an Assignation bf 
N (designation) (or by N (designation) in his favour) of dito,' 
&c. 

{h) The deduction of the title, if thought necessary (as to vhich 
see foot-note \ p. 352), may be introduced here, as follows: — 

To which Lease the said L M acquired right in virtue a( 
the following series of writs, viz., (1) Assignation by thesaid 
C D in favour of P E (designation), of date the day of 

, and recorded in the (specify register ofsamxi) 
on the day of ; (2) Writ of Acknowledgment 

by the said A JB in favour of the said N 0, as the eldest son 
and nearest and lawful heir of the said P B, of date the 
, and recorded in the (specify register ofsasines) on 
the ; and (3) the said Assignation by the said NO 

in favour of the said L M, dated and recorded as aforesaid.] 



Ho. MO. NOTARIAL INSTRUMENT on a Recorded Lem t» 

favour of the Oeneral Disponee of an Assignee ^ 
has died vnthout recording his Assignation. 

[See other form of this Style, No. 221 Hnfra, p. 361.] 
(To be recorded along with Assignation.) 

Be it known, &c. (as in Style, No. 214, p. 352*, doim to 
end of narrative of general conveyance), and to which Lease th« 

^ See foot-note ' sfwpra, p. d5S. 

' The reference in the former edition is wrongs bat the reference b«t 
given is believed to be what was intended. 



1 



fSTBUMENTS IN FAYOUB OF GENERAL DISPONEES. 361 

acquired right in virtue of an Assignation thereof by No. m 
d B (grantee of lease) in his favour, of date the 

[where there have been several completed 
issions, say, to which Lease the said L acquired right 
ae of an Assignation thereof by M {designation) in his 
, of date the day of , the said M 

; acquired right to the said Lease by virtue of the 
ng writs, viz., {specify series of recorded transmissions 
rantee of lease to M, the granter of the unrecorded assig- 
] : Whereupon, <Src. (as in Style No. 217, p. 356). 

(See Note appended to Style No. 218, p. 357.) 



miAL INSTRUMENT on a Recorded Lease in Ho.«sj. 
kLvour of the General Disponee of an Assignee who has 
died toUhout recording his Assignation. — Schedule 
(F), No. 1. 

known that by Lease, dated the day of , 

A B (designation) let to C D (designation) that piece 
id (or as the case may be, shortly describing the property 
in the parish of and county of , 

[icase is recorded in the (specify register ofsasines) on 
day of , and to which E F (designation), 

ie up title as general disponee of L M (designation)^ 
.ssignation by the said C D (or, as the case may be, 
jBsignation by G H, designation), of date the 

, in virtue of a General Disposition and 
ent (or other conveyance) by the said L M, dated the 
lay of and recorded in the Books of Council 

sion (or other court books) on the day of 

whereby the said L M assigned and disponed to the 
F the whole property, means, and estate, heritable 
veable (or as the case may be), then belonging or 
should belong to him at the time of his death : 
[JPON, &c. (as in Style No. 213, p. 351).] 



362 JREQISTRATION OF LBA8B8 AOT. 



Ho. 222. NOTARIAL INSTRUMENT on a Recorded Im» ^^ 

favour of a Trustee on a Sequestrated EaUxte.—^ ?i 
No . 

Be it known that by Lease, dated the day of i 
A {designation) let to B {designation) All and vhok 
{sJiortly describe the pi^operty leased) in the parish of X ani 
county of Y, for the space of years from and after the 

term of , which Lease is recorded in the GeticroJBe- 

gister of Sasines at Edinburgh, on the day of i 

and to which C {designation) has made up title as Trustee 
confirmed on the sequestrated estate of the said B, in virtoe 
of an Act and Warrant of Confirmation by the Sheriff of tie 
county of Y in favour of the said C as Trustee foresaid, dated 
the day of : Whereupon this Instrument ii 

taken by the said C, as Trustee foresaid, in the hands of M 
{designation), Notary-Public, in terms of "The BegiBtn- 
tion of Leases (Scotland) Act 1857": In witness whbbk^i 
&c. {testing clause). 

[Completion of General Disponbb's Title. 

The General Disponee's title is completed by recording, a« ** 
case may require, either the Notarial Instrument alone with ynno^^ 
registration thereon, or the Assignation with warrant of registott* 
thereon and the Notarial Instrument docqueted with reference therefc^J 



H0.W8. RENUNCIATION of a Recorded Lease. 

I, A {designation), renounce, as from the term <* 

, in favour of B {designation), a Lease granted bj 

the said B{orastJie case may be), of All and whole («fcw 

set forth subjects), in the parish of X and county of Y^, i^ 

the , and recorded in the Generai Eegister ^ 

^ Insert '* which lease is." 



BBNUNOIATION OF A BECORDED LEASE. 363 

Sasines at Edinburgh on the ; [and {tohere person no. 223. 

renouncing is not original leasee) my title to which is recorded " 

in the said Begister of Sasines on the ] : In witness 

WHEREOF, &o. {testing clause). 

[COMPLBTION OF EXTINCTION. 

The extinction of the security is completed by recoFding the 
Rennnciation with warrant of registration thereon.] 

SECURITIES OVER LEASES. 

One of the chief objects accojnplished by the Registration of 
Leases Act is the removal of the difficulties which formerly existed 
in rendering leases available as securities for debt. By section 4th 
it IB enacted that it shall be lawful for the person in right of a 
lease recorded under the Act, and whose title thereto is likewise 
lecoided, but in accordance with the conditions and stipulations of 
the lease, and not otherwise, " to assign the same, in whole or in 
part, in security for the payment of borrowed money, or of annui- 
ties, or of provisions to wives or children, or in security of cash- 
credits, or other legal debt or obligation," in the form, as nearly as 
may be, of Schedule B ; and it is declared that " the recording of 
BQch assignation in security shall complete the right thereunder ; 
ttid such assignation in security, so recorded, shall constitute a real 
•wurity over such lease to the extent assigned." 

The Statute enacts (section 20), that the several clauses in the 

•chedules of the Act, including Schedule B, shall be held to import 

"*® like meaning, and to have the like effect, as is declared by the 

-veritable Securities Act 1847 to belong to the corresponding 

^uaee in the statutory form of the Bond and Disposition in Secu- 

'^v^ and that the procedure prescribed by the last mentioned Act 

^^ a Bale under a Bond and Disposition in Security shall be appli- 

<^We to a sale of a lease under an assignation in security. And 

*^oti 6th provides for the creditor an additional remedy, it being 

declared that the creditor, or person in right of such assignation in 

*^'^ty, without prejudice to the exercise of any power of sale 

™^in contained, shall be entitled, in default of payment of the 

^P^tal sum for which the assignation in security has been granted, 

^ of a term's interest thereof, or of a term's annuity, for six 



364 REGISTRATION OF LEASES ACT. 

months after such capital sum or term's interest or annuity thiU 
have fallen due, to apply to the Sheriff for a warrant to enter on 
possession of the lands and heritages leased ; and it is enacted thii 
the Sheriff, after intimation to the lessee for the time being, and to 
the landlord, shall, if he see cause, grant such warrant, which shiU 
be a sufficient title for the creditor to enter into possession of the 
lands, and to uplift the rents from any subtenants therein, and to 
sublet the same as freely and to the like effect as the lessee mi^ 
have done ; and it is provided that the creditor, until he enter infa^ 
possession, shall not be personally liable to the landlord in anj oT 
the obligations and prestations of the lease. 

The Style prescribed by the Act (No. 224 infra) contains a bcm, 
for the personal obligation, as well as a form for the assignatioii m 
security ; but the former portion of the style is in several nqpec^ 
objectionable. The narrative or inductive clause (the statement oC 
the money being borrowed by the grantor from the grantee), it wD. 
be observed, is somewhat awkwardly introduced into the middle oC 
the clause of obligation — a form which would be inconvenient wli** 
a lengthy narrative is required. The money is taken payable to tt^ 
creditor or his heirs, executors, or assignees, which ib not the wow 
form in heritable securities; but, as the destination is at the disoo* 
tion of the creditor, the money in the ordinary case will be made pty* 
able to the creditor or his heirs or assignees.^ The Style does no* 
contain an obligation for the usual penalties in the event of faikue is^ 
payment of the principal sum or interest. As such penalties, hoW' 
ever, may be made by agreement of the parties as much a matfetf 
of *' legal debt or obligation " as the principal sum, it is thought th^ 
these may be lawfully inserted in the bond. In these le^eeK 
therefore, it is thought that the clause of personal obligation tsmJ 
be framed in closer accordance with the usual form of bonds b^ 
money, the assignation in security being kept strictly in teimi ^ 
the schedule of the Act. The statutory Style is first given belo^t 
and then a form with the introductory clauses modified as abotv 
suggested. 

^ As the proYision of seotion 117 of the Ck>n8oHdation Act of 1868 ^ffi** 
to all heritable seourities, the saooession, unless otherwise provided in tht 
deed, will be moveable, and therefore the destination ahonld, as in the oisev 
Bonds and Dispositions in Security, be framed so as to give effect to tk0 
intention of the party. 



SSOUBITIES OVER LEASES. 365 



OND and ASSIGNATION in Security over a Recorded ko.884. 

Lease. — Schedule (B). 

I, A B {designation) bind myself, my heirs and execu- 
re, without the necessity of discussing them in their order, 

make payment, at the term of {date and place of 'pay- 
^nt\ ^to C D {designation), or his heirs, executors, or assig- 
ees, of the sum of , being money borrowed by 

^^ from him {or, as a provision to the said CD; or, of the 
^early annuity of during his lifetime, {as the case 

^y be), with the interest of the said capital sum, at the 
*te of per cent, per annum, payable by equal por- 

ions half-yearly, at Whitsunday and Martinmas, beginning 
^^ first payment at : And in security of the 

Bwonal obligation before written, 1 assign to the said C D, 
^i his foresaids, heritably, but redeemably as aitermen- 
oned, yet irredeemably in the event of a sale by virtue 
sr^of, a Lease of {shortly mention subjects leased), in the 
^sh of and county of , which Lease 

^ granted by E F {designation), of date and re- 

>rded {insert register, with date of recording), and {where 
'^^n.t not the original lessee) my title to which is registered 
i^X'ein {date of recording) ; [but {where only a portion of 
^ subjects are assigned) in so far only as regards the fol- ' 
*^tig portion of the subjects leased, viz. {specify particti- 
**'^3/ the portion)] : And I assign the rents : And I assign 
^^ Vnita : And I grant warrandice : And I reserve power 
' Redemption : And I oblige myself and my foresaids for 
^^ expenses of assigning and discharging *this security : 
^i^d on default of payment 1 grant power of sale : And I 
^^isent to registration for preservation and execution: 
i^ing clause). 

1 This should be to G D (drngnatum), his ezeontors (or, his heirs, ex- . 
<!hdi]ig execators) or assignees whomsoever. 



366 BEGISTRATION OF LEASES AOT. 



Ho. 886. BOND and ASSIGNATION in Secuinty over a BecoM 

Lease. 

I, A (designation), grant me to have instantly bonoifeJ 
and received from B (designation) the sum of ponnto 

sterling ; which sum I bind myself, and my heirs, executors 
and representatives whomsoever, without the necessity (^ 
discussing them in their order, ^to repay to the said B,orhi^ 
heirs and assignees whomsoever, at the term of ^ 

within the office of the Bank of Scotland in Edinbur^^ 
with a fifth part more of h'quidate penalty in case of failiiie^ 
and the interest of the said capital sum, at the rate of firo 
per centum per annum, from the date hereof to the wM 
term of payment, and half-yearly, termly, and proportionally 
thereafter, during the not-payment of the same, payable by 
equal portions half-yearly, at Whitsunday and MartinmaB. 
beginning the first payment of said interest at fc>T 

the interest due preceding that date, and the next term's 
payment thereof at following, and so forth, half- 

yearly, termly and proportionally thereafter, during tie 
not-payment of the capital sum ; with a fifth part more 0/ 
the interest due at each term of liquidate penalty, in ca» 
of failure in the punctual payment thereof: And, in secu- 
rity of the personal obligation beforewritten, I assign to tie 
said B and his foresaids, heritably, but redeemably as after- 
mentioned, yet irredeemably in the event of a sale by virtue 
hereof, a Lease of All and Whole (shortly mention subfi^ 
leased), in the parish of X and county of Y, for the space of 
year^ from and after the term of , which 

Lease was granted by C (designation) in my favour [<^. 
to D (designation)]y of date the , and recorded in 

the (specify register ofsasines) at , on the » 

[ (where cedent not original lessee) and my title to which iB 
registered therein on the ] (a) (6), (c): And I 

1 *' To repay to the said B, his exeontors (or, his heirs, ezdnding 6X«eQ' 
tors) or assignees whomsoever. 



K-Vji-*'^-' 






"^1. 






rw. 



^67 

nt No. 225. 
I I 



pfy- 

L ration 
:oF, &c. 

so is to be 

■g portion of 
"-c^/y parttcu- 



i:urity are granted 

1' reference over the 

making such a pro- 

iisposition in security 

Ite adapted to the case. 

house property, a clause 

insurance of the houses 

;ll be found in note (a), p. 

> ranter or grantee on the form 

,v, wliich are exemplified supra 

i-lor the Consolidation Act, may 

assignation in security; and it is 

: \'o separate Styles. 

Creditor's Title. 

: ed by recording the bond and assig- 
■•■ during his life, in the register of 
: rorded.* 

^nation in security has not been recorded 
se, the heir or general disponee of the 

j.. 830. 



368 REGISTRATION OF LEASES ACT. 

creditor may make up his title by expeding a notarial instniment^ 
Schedule (F), No. 2 ; and by recording in the register of sasinesiB 
which the lease is recorded the bond and assignation in aecuiityi to- 
gether with the instrument^ (sec. 9). 

Ho. 826. NOTARIAL INSTRUMENT on a Bond and AsaignaHo 

in Security which has not been recorded in the lifdiM 
of the Grantee. — Schedule (F), No. 2. 

(To be recorded along with Bond.) 

Be it known that by Bond and Assignation in Secnritj, 
of date the , A (designation) assigned to 6 (ib* 

signation), in security of a sum of pounds steriingi 

and of the interest and liquidate penalties therein mentioned, 
a lease granted by M (designation), of All and Whole (shcrll 
describe subjects leased)^ in the parish of X and county of f 
[for the space of years from and after the termed 

f] which lease is dated the , tji 

recorded in the (register ofsasines) at , on tie 

: To which Bond and Assignation in Secoritf 
B (designation) has acquired right, as eldest son and nesieit 
and lawful heir in general of the said B, conform to Decree 
of General Service obtained before the Sheriff of Chancerj 
on the , and recorded in Chancery on the 

[or To which Bond and Assignation in Security B (design 
tion has acquired right as general disponee of the said B^ 
under and in virtue of a Greneral Disposition and Settlement 
executed by him, dated the , and registered in the 

books of Council and Session on the , by wbick 

the said B assigned, disponed, and conveyed to the saidB, 
and his heirs and assignees. All and sundry lands, and aD 
other heritable subjects, securities, and rights, 4c. (<w ** 
Style No. 217, p. 356)] : Whereupon this instrument is take" 
by the said B in the hands of L (designaiion), Notary-Pubfc 
in terms of " The Begistration of Leases (Scotland) Act 1857: 
In witness whereof, &c. (testing clause). 

^ See foot-note ^ supra, p. 335. 

' The words within brackets are not in the Schedule. 



TRANSLATION OF SECURITIES. 369 



TRANSLA TION oj a Bond and Assignation in SecuHty. — No. 227. 
Eegistration of Leases Act, Schedule (D). 

I, A {designation), in consideration of the sum of 
ponnds sterling now paid to me, assign and transfer to B 
(des'ignation^) (a) a Bond and Assignation in Security for 
the principal sum of pounds sterling, granted by L 

{designation) in my favour, dated the , and re- 

corded in the {specify register of sasines) on the day of 

, of and over a Lease granted by M {designation), 
of All and Whole {shortly describe subjects leased), in the 
parish of X and county of Y [for the space of years 

from and after the term of ^] ; which Lease is dated 

the , and is recorded in the said Kegister of 

Sasines of date the day of ; with the interest 

from the day of : In witness whereof 

{testing clause). 

(a) Insert a special destination where it is not intended that the 
l>ond shall be transmitted to the assignee and his heirs whomsoever. 

TRANSLATION by a Person who has acquired right. No. 228. 

I, A (designation), in consideration of the sum of 
[ pomids sterling now paid to me, assign and transfer to B 
I {d^signatum}) a Bond and Assignation in Security for the 
principal sum of pounds sterling, granted by L {de- 

signation) in favour of E (designation), dated the , 

•Jid recorded in the {register* of sasines) at , on the 

, of and over a Lease granted by M {designation) 
0^ AU and Whole {shortly describe subjects leased), in the 
Pwish of X and county of Y (for the space of years 

^rom and after the term of ^) ; which Lease is dated 

fte , and recorded in the said Begister of Sasines 

^ A deBiination to exeoators, or to heirs excluding executors, as may be 
iniended, should be here inserted. 
' See foot-note ^ mpra, p. 368. 

24 



370 REGISTBATION OF LEASES ACT. 

No. 228. of date the ; and my title to which Bond and Aaag- 

nation in Secnrity is recorded in the said Eegister ol 

Sasines of date the (a) ; with the interest from the 

day of : In witness whereof {testing dimt), 

(a) Although there has been a series of traosmissions, thezeisM 
necessity for enumerating the writs, this clause being sufficient 

Ho. 229. PARTIAL TRANSLATION of a Bond and Assijfu^ 

in Security. 

I, A, &c. (as in Style No. 227 or No. 228, ix) tet^ 
dausCj omitting t?ie last clause, "with the interest," 4c): 
But only to the extent of the sum of pounds Bteriing 

of principal (a), with the interest thereof from the i»I 
of , and penalties corresponding thereto ; and to tke 

effect of giving ^pari passu preference to the [said B, hii 
his heirs and assignees, over the said Lease, with me, iBf 
heirs and assignees, as regards the remainder of the 9ii 
principal sum and corresponding interest and penalties coft* 
tained in said Bond and Assignation in Security : In fI^ 
NESS WHEREOF (testing dame). 

(a) In a translation of a bond which has been partially fr 
charged this clause will proceed thus : — 

But only to the extent of the sum of powA 

sterling of principal, being the balance remaining due flo 
the said Bond and Assignation in Security, as aftemeo- 
tioned, with the interest thereof from the and a cor- 

responding proportion of the penalties contained io the sail 

^ If the part assigned is to be preferable to the remainder of the ffS^ 
the security, this clause may be framed as foUows, viz. : — ** And to fSbb^ 
of giving a preference to the said B over the said Lease to the exteolof ^ 
said sums, principal, interest, and penalties, in competition with bMi ^ 
heirs and assignees, as regards the remainder of the said principal nntfi 
correq)onding interest and penalties." 

* Either the destination over should be omitted here, or it should betf* 
pressed by the words ** and his aforesaid." 



WRITS IN FAVOUR OF HEIRS IN SECURITIES. 371 

id and Assignation in Security,^ and to the effect of No. 229. 

ng the said B, %nd his heirs and assignees, a real security 

r the said Lease to the extent of the said sum of 

nds of principal and interest and penalties, as afore- 

, the remainder of said principal sum of 

ods, and interest and penalties contained in said Bond 

Assignation in Security having been paid, and the said 

d and Assignation in Security to that extent discharged, 

'orm to Discharge granted by me to the said L, dated 

, and recorded in the said register of Sasines on 

: In witness whereof {testing clause). 

Completion of Titles of Heibs and General Disponees. 

lie title of an heir to a recorded bond and assignation in security , 

ade np by writ of acknowledgment or notarial instrument; 
)f a general disponee by the latter of these forms. The pro- 
"e is precisely the same as that prescribed for completing the 
of such parties to recorded leases, provision being made for both 
in the same section of the Act. The obser\''ations on pp. 347 
9 as to the completion of titles of heirs and general disponees 
pstered leases are, therefore, equally apphcable in the case of 
s and assignations in security, and to tbese observations reference 
e made. It will be kept in view, however, that a writ of acknow- 
lent in favour of an heir in a bond and assignation in security is 
sd, not by the proprietor infeft in the lands leased, but by " the 
appearing on the register as in absolute right of such lease of 
» which such assignation in security has been granted " (sec. 7). 

T of ACKNOWLEDGMENT in favour of the Heir K0.230. 
7/ the Creditor in a Bond and Assignation in Security, — 
Schedule (E), No. 2. 

A (deaignation)y heing in right of a Lease granted by 
estgnation) 'in my favour, of All and Whole {shortly 

8 the object of the sabseqaeut part of the Schedule is to regulate the 

of the assignee and the assignor inter ae, and as in this case nothing 

in the aSbigner, what follows this in the stylo seems unnecessary, and 

I omitted. 

36 foot-note s supra, p. 370. 

he words ''in my favour " are not required by the Schedule, and 

be omitted. 



372 BEGISTRATION OF LEASES AOT. 

No. 230. specify subjects)^ in the parisli of X and county of Ypforthe 
space of years from and after the term of ]; 

which Lease is dated the , and recorded in tie 

(specify reyister ofsasines), on the (a), acknowledp 

C (desiynation)y as eldest son and nearest and lawful heir of 
the deceased D (designation) ^ to be in right of a Bond and 
Assignation in Security for the sum of pounds ster- 

ling, granted by me ^in favour of the said D, OYer sail 
Lease, which Bond and Assignation in Security is dated 
the , and recorded in the said Eegister of Sasinesflo 

the (b) : In witness whereof (testing clause), 

(a) If the lease is not in the granter's favour, ^insert the rm 
and designation of the person in whose favour it is granted in tii 
preceding clause, and here add : — ** and my title to which is recarW 
in the said Eegister of Sasines on the day of 

(5) Where the ancestor is not the original creditor, insert saM 
and designation of the latter in the previous portion of this claa^ 
and here add: — **and the title of the said D to which Bondul 
Assignation in Security is recorded in the said Eegister of SasineK* 
the day of 



No. 281. WBIT of A CKNO WLEDGMENT in favour of the Si 

of a Creditor who Jiad acquired right to ordy paH of 
the debt. 

I, A, &c. (as in immediately preceding style), to be ii* 
right, to the extent aftermentioned, of a Bond and Affig* 
nation in Security for the sum of pounds steifinft 

gi anted by me ^in favour of M (designation), oyeitd 
Lease; wliich Bond and Assignation in Security is ditrf 
the , and recorded in tlie said Register of SasiM* 

on the ; but that only to the extent of the snmol 

^ The words within brackets are not in the Sohedole. 
^ The name of the original lessee is not in any case required in tb0t 
writs, and should not be inserted. 



INSTRUMENTS IN FAVOUR OF HEIRS IN SECURITIES. 373 

pounds sterling of principal, with the interest there- No. 231. 
and penalties corresponding thereto ; and the title of the 
id D to which Bond and Assignation in Security, to tlie 
^tent foresaid, is recorded in the said Begister of Sasines 
Q the day of : In witness whereof {test- 

ng clauae). 

NOTARIAL INSTRUMENT in favour of ilte Heir oj No. 282. 
the Creditor in a Bond and Assignation in Security, 
-Schedule (F), No. 2. 

Be IT KNOWN that, hy Bond and Assignation in Security, 
of date the , and ^recorded in the {register of sasines), 

^t on the , A (designation) assigned to 

tte now deceased B {designation)^ in security of a sum 
^'^ pounds sterling ^of principal, with a fifth part more 
of liquidate penalty in case of failure in payment, and of 
wie interest of the said principal sum, at the rate of five 
per centum per annum, during the not-payment, with a 
fifth part more of the said interest of liquidate penalty in 
^^ of failure in payment thereof], a Lease granted by C 
K^ignation) in favour of the said A [0?% in favour of M 
(awtgwo/tow)], of All and Whole {shortly describe the sub- 
1^ka8ed)y in the parish of X and county of Y [^for the space 
^' years from and after the term of ], dated 

^^^ , and recorded in the said Register of Sasines on 

^^^ ; [*the said A's title to the said Lease being 

'^corded in the said Register of Sasines on tlie ] : 

To which Bond and Assignation in Security D {designation) 
«W acquired right as eldest son and nearest and lawful 

' The reference to the recording of the Bond and Assignation in Security 
'HB, probably unintentionally, been omitted in the Schedule, but its insertion 
the Instrument, though not required, is convenient. 

' All that the Schedule requires to bo specified is the principal sum, and 
e words within brackets seem to be unnecessary. 

' See foot-note p. 372. 

^ The Schedule does not require that the title to the lease of the granter 
the security over it shall be set forth. 



374 REGISTRATION OF LEASES ACT. 

No. 282. heir in general of the said B, ^conform to Decree of Genen 
Service obtained before the Sheriff of Chancery on tbe 
, and recorded in Chancery on the • 

Whereupon this Instrument is taken by the said D in tie 
hands of L (designation), Notary-Public, in terms of "Tie 
Kegistration of Leases (Scotland) Act 1857": In wiMi 
WHEREOF (testing clause). 



Ncsss. NOTARIAL IN8TRVMENT in favour of the Heir oj^ 

Creditor who liad acquired right to a Bond and Awf 
nation in Security. 

[See other Style of this Instrument, infra, No. 234, p. 375.) 

Be it known that, by Bond and Assignation in Seciiritji 
of date the , and ^recorded in the (register of sa^i 

at on the , A (designation) assigned to B 

(designation), in security of a sum of pounds ster- 

ling (^of principal, with a fifth part more of liquidate penil? 
in case of failure in payment, and of the interest of tbe ^ 
principal sum, at the rate of five per centum per anD«» 
during the not-pay men t, with a fifth part more of the 8ii* 
interest of liquidate penalty in case of failure in pay©*"* 
thereof), a Lease granted by C (designation) in favour of tW 
said A, of All and Whole (shortly desoinhe the subjects feaW» 
in tlie parish of X and county of Y [*for the space of 
years from and after the term of ], dated the • 

and recorded in tlie said Kegister of Sasines on the 
'^To which Bond and Assignation in Security D (desigfioi^^) 
has acquired right by sei-vice, dated the , before the 

Sherifi* of Chancery, and recorded in Chancery on the » 

^ The expression in the Schedule, "in virtue of decree," Ac, iiW**i 
and should be adopted. 

* See foot-note ^ supra, p. 373. 
' See foot-note 2 supra, p. 373. 

* See foot-note i p. 372. 

* The form of this clause in the precedinjr Style is more in (enns of ^ 
Schedule. 



BENUNOIATION OF A BECORDED LEASE. 363 

Sasines at Edinburgh on the ; [and {tohere person no. 223. 

renouncing is not original lessee) my title to which is recorded " 

in the said Begister of Sasines on the ] : In witness 

WHEBEOF, &c. (testing clause). 

[CoMPLEnoN OP Extinction. 

The extinction of the security is completed by recording the 
Eennnciation with warrant of registration thereon.] 

SECUKITIES OVEE LEASES. 

One of the chief objects accomplished by the Registration of 
Act is the removal of the difficulties which formerly existed 
in rendering leases available as securities for debt. By section 4th 
it is enacted that it shall be lawful for the person in right of a 
lease recorded under the Act, and whose title thereto is likewise 
recorded, but in accordance with the conditions and stipulations of 
the lease, and not otherwise, '* to assign the same, in whole or in 
part, in security for the payment of borrowed money, or of annui- 
ties, or of provisions to wives or children, or in security of cash- 
credits, or other legal debt or obligation," in the form, as nearly as 
may be, of Schedule B ; and it is declared that " the recording of 
such assignation in security shall complete the right thereunder; 
and such assignation in security, so recorded, shall constitute a real 
security over such lease to the extent assigned.'' 

The Statute enacts (section 20), that the several clauses in the 
schedules of the Act, including Schedule B, shall bo held to import 
the like meaning, and to have the like effect, as is declared by the 
Heritable Securities Act 1847 to belong to the corresponding 
clauses in the statutory form of the Bond and Disposition in Secu- 
rity, and that the procedure prescribed by the last mentioned Act 
for a sale under a Bond and Disposition in Security shall be appli- 
cable to a sale of a lease under an assignation in security. And 
section 6th provides for the creditor an additional remedy, it being 
declared that the creditor, or person in right of such assignation in 
security, without prejudice to the exercise of any power of sale 
therein contained, shall be entitled, in default of payment of the 
capital sum for which the assignation in security has been granted, 
or of a term's interest thereof, or of a term's annuity, for six 



376 BEGISTBATION OF LEABE8 ACT. 

No. 234. Be it known that by Bond and Assignation in Security, 
of date , C D {designation) assigned to J K ((fc- 

stgnation), in security of a sum of {or as the cm 

may be), a Lease granted by A B {designation) of {shorHf 
describe the svbjects leased), in the parish of and 

county of , dated , and recorded in the 

{specify register ofsasines) on the day of ; 

to which Bond and Assignation in Security E F {designdii^ 
has acquired right as eldest son and nearest lawful heir of 
L M {designation), in an Assignation by the said JK,of 
date , and recorded in the {specify register ofMStM) 

on the day of , in virtue of Decree of Genenl 

Service of the said E F, as nearest and lawful heir foresaid, 
obtained before the Sheriff of Chancery {or as the case maj 
be), dated the , and recorded in Chancery on the 

day of : Whereupon, &c. {as in Stj^ 

No. 232.) 

Where the ancestor had right to only part of the debt, the Style 
in Note (6), supra, p. 375, will be altered in confonnity with the 
preceding.] 

NO. 886. NOTARIAL INSTRUMENT in favour of the Gemd 

Disponees of the Creditor in a Bond and Assignatioi^ 
in Security. 

Be it KNOWN, &c. {as in Style No. 217 or No. 218^): To 
which Bond and Assignation in Security E, F, and G {^ 
signations) have acquired right as trustees and general dis- 
ponees of the said B under and in virtue of a Trust-Disposi- 
tion and Settlement executed by him, &c. {as in Style No. 
217) : Whereupon, &c. {as in Style No. 217). 

See note (a) on Style No. 233, supra, p. 874, and observation«oa 
Notarial Instrument No. 218, p. 357, which are equally applicabte 
to this Style.« 

^ The Style here referred to is in favour of the general disponees, not of 
the original grantee, bat of an assignee — as to which see foot-note A|pf<i 
p. 85S. 

' See foot-notes ^ p. 357, and ' p. 358. 



D180HABGB OF SECURITIES. 377 

Where the grantee of a translation of a bond and assignation in 
security has died without recording the deed in the register of 
saaines, the title of his heir or general disponee may be completed by 
expeding a notarial instrument (Schedule F, No. 2), and recording it, 
together with the translation. Adopt Style No. 232, p. 373, and 
the instrument, after setting forth the bond, will proceed : — ^ ** To 
which Bond and Assignation in Security D {designation) has ac- 
quired right by Decree of General Service obtained before the Sheriff 
of Chancery^ dated the , and recorded in Chancery on 

the , as eldest son and nearest and lawful heir in general 

of the said B, in a Translation thereof by the said M in his favour, 
of date the ," &c. ; or, in the case of a general disponee, 

•• To which Bond and Assignation in Security E {designatioji) has 
acquired right as general disponee of the said B, under and in virtue 
of a General Disposition and Settlement executed by him, &c. (as 
in Style No. 217, p. 356), the said B having acquired right to said 
Bond and Assignation in Security under and in virtue of a Transla- 
tion thereof granted by N in his favour, of date the day of 
: Whereupon," &c. 



DISOHABOE of a Bond and Assignation in Security. — ko.286. 

Schedule (H). 

I, A {designation), in consideration of the sum of 
pounds sterling now paid to me by B {designation), dis- 
charge a Bond and Assignation in Security for tlie sum of 

^ "^th reference to the observations prefixed to Style No. 234, supra, 
P- 875, the following danse is suggested : — * * To which Bond and Assignation 
; '^ Becaritj D (desigruUicm) has acquired right as eldest son and nearest and 
'A^^ol heir in general of the said B, in a Translation by the said M, of date 
^^ day of , in virtue of Decree of General Service of the said 

^ aa heir foresaid, obtained before the Sheriff of Chancery, dated the 
^y of , and recorded in Chancery the day of 

^^^BMUPON," Ac., or, in the case ofageneral disponee — "To which Bond and 
^^Biignation in Security E (designation) has acquired right as general dis- 
P^^viee of the said B in a Translation by N (designation), of date the 
^^ of , in virtue of a G^eral Disposition and Settlement executed 

^ the said B, whereby he assigned and disponed to the said E his whole 
^^''operty, zoeaiiB, and estate, heritable and moveable," &o. 



378 



REGISTRATION OF LEASES ACT. 



No. 286. 



pounds sterling, granted by the said B in my favonr, 
and which is dated the , and recorded in the {register 

ofaasines) at on the (a): And I declare 

to be disburdened thereof a Lease granted by M (designatum) 
of All and Whole {shortly mention subjects leased), in the 
parish of X and county of Y, for the space of yeare 

from and after the term of ; which Lease is dated 

the , and recorded in the said Register of Sasines 

on the : In witness whereof (testing clause), 

(a) If the bond and assignation in security is not in the gnnter'f 
favour, insert name and designation of the person in whose faTonrit 
is granted, and here add : — " and my title to which is recorded ffl 
the said Register of Sasines on the ." The diiectioo 

in the schedule is — " If granter not original creditor, here state Hi 
tithy and date of recording the same," which might be read as re- 
quiring a description of the granter's title ; but, from the analogy ^ 
the other schedules, the above reference is evidently what is hfiW 
meant.1 

Where the discharge is partial, adapt Style No. 179, p. 293. 

^ The oonstraction here pat on the direotion annexed to the schedaie i 
probably in conformity with what was contemplated by the fnmen d v* 
Act, but it barely represents the natural meaning of the words **hsnf^ 
his title." If it be thought necessary to set forth the granter's title, itB^ 
be done thus — *' to which Bond and Assignation in Securitj I aoqnii^^* 
by translation by N (designatioh) in my favour, dated the ^'*' 

corded in the (specify f^ffister of sasines) on the day of 



1 b 



379 



PAET III. 



SUPPLEMENTARY WRITS. 



TICLES and CONDITIONS of ROUP of HeHtdble Ho, 287 

Stihjects. 



RTicLEs and Conditions of Roup and Sale of All and 
Whole (describe lands or subjectSj and refer to burdens 
and conditionSy if any) ; {a){d) which lands and others SeeNotw 



{or subjects) above described are to be exposed to Sale J^y^.^ pp. 



by Public Voluntary Roup by A {designation) upon ^^^^ 
the Articles and Conditions underwritten, within {in- 
sert place of sale) y on the day of 
, at {insert hour), or on such other day or 
days, or at such other place or places, or upon such 
other Articles and Conditions as shall be appointed 
by any Minutes to be annexed hereto. 

Pnwo, — (6) The said lands and others {or subjects) are See Note 
>e exposed to sale by public voluntary roup during the p^si^' 
fiure of the Judge of the Roup afternamed {or during the 
aing of a half-hour sandglass), in one lot, at the upset 
e of pounds sterling, or at such upset price as 

J be specified in any Minute to be annexed hereto ; and 
person offering for the said lands and others {or sub- 
s) the upset price thereof, or (in case of more offerers 
1 one) the highest offerer, at the expiry of the time 
wred by the Judge of the Roup for bidding ((»• at the out- 
ling of the sand in the said glass), shall be preferred to 
purchase of the said lands and others {or subjects). See Note 

Secundo^ — (6) In case more offers than one shall be made p. sfiK*"' 



380 SUPPLEMENTARY WRITS. 

No. 237. for the. said lands and others (or subjects), each offer after the 
first sliall exceed the immediately preceding offer in at 
least the sum of pounds, or such other sum u 

shall be specified in any Minutes to be annexed hereto, and 
each offerer shall subscribe his off'er and thereby become 
bound and obliged for the sum therein offered, upon the 
conditions expressed in these Articles or in any Minutes to 
be annexed hereto. 

Tertio, — The term of entry of the purchaser to the said 
lands and others shall be at Martinmas 1877, and the pin^ 
chaser shall have right to the rents to become due for the 
possession from and after that term — that is, to the rent for 
crop and year 1878,^ and of all subsequent crops and years- 
the exposer having right to the rents of the lands for the 
possession thereof up to the said term of entry, and for all 
previous crops and years, whether payable prior or subse- 
quent to the said term of entry (or The purchaser^of the said 
subjects shall have right to the rents thereof) (or right to 
possession thereof) from and after the term of Whitsunda/ 
, which is hereby declared to be the term of entry to 
the said subjects) : And the price offered shall be payable to 
the exposer, or his heirs or assignees, at the said term of 
Martinmas 1877 (or at the said term of Whitsunday )» 
and shall bear interest, at the rate of per centum per 

annum, from and after that term during the not-payment 

K"" ^*^ Quarto,— (b) The said purchaser shall, if required, ^ 
bound, within ten days after the day of the roup, to deposit 
one-fifth part of the price offered by him in an Incorporated ^^ 
Chartered Bank, to be named by the exposer, in the joii^ 
names of the exposer and purchaser, and to be made forth* 
coming to the exposer at the term before specified, and 
which sum shall be forfeited to the exposer in the event oi 
the purchaser failing to implement and perform these 
Articles, or any other Articles and conditions which shall w 
appointed by any Minutes to be annexed hereto, in so i9X^ 

^ See note {g), p. 39, as to rents. 



ARTICLES OP ROUP OF HERITABLE SUBJECTS. 381 

icumbent on the purchaser ; or, in the option of the pur- No. 237. 
baser, and at his expense, he shall be bound within the like 
eriod of ten days to grant bond for the said price, with a 
ufficient cautioner or cautioners, or other security to the 
itisf action of the exposer, payable to the exposer or his 
>resaids at the said term of Martinmas 1877 {or at the said 
3rm of Whitsunday ), with one-fifth part more thereof 

f liquidate penalty in case of failure, and interest as before 
pecified during the not-payment. 

Quinto, — (6) In case said purchaser shall fail after being seeNote (6) 
equired so to deposit one-fifth part of the price, or to grant 
security for the price as aforesaid, it shall be in the power 
oi the exposer to declare that the person so failing shall not 
only forfeit the purchase, but shall be liable to the exposer 
in one-fifth part of the price ofi'ered by him, in name of 
damages ; and in case the exposer shall declare the person 
80 failing to have forfeited the purchase — which the exposer 
fliay do by letter put into the post-oflice and addressed to 
fiQch person — it shall be optional to the exposer either to 
fiold the said lands and others (or subjects) himself, or of 
^©W- to expose the same to sale, or to declare the same to 
•cIoDg to the immediately preceding ofi'erer; and in case 
^Wmation of failure to deposit one-fifth part of the price of 
^^ Baid lands and others (or subjects), or to grant security 
' aforesaid, and of the forfeiture of such purchase, shall be 
wi^ by the exposer to the immediately preceding offerer, 
itli a requisition for the fulfilment of his offer, within ten 
^ys after such failure — which the exposer may do by letter 
^^ into the post-office and addressed to him — then such 
tttttiediately preceding offerer shall be deemed the purchaser 
i t\xe said lands (cw subjects), and shall be obliged, within 
^ days after such intimation and requisition, to deposit one- 
fifth part of the price ofi'ered by him, or to grant sufficient 
8®curity for payment of the price offered by him, in like 
^■Ji^tier and under the like penalty and optional forfeiture 
w are hereinbefore provided with reference to the original 
purchase ; and so forth, through the whole course of ofi'erers 
^til these Articles be fulfilled. 



382 SUPPLEMENTARY WRITS. 

No. 237. SextOy^ — («)(&) Upon payment of the price, the expoeer 



Bee Notes (a) obliges himself to exhibit certificates of Searches for incraB- 

mt£^m.' hrances affecting the said lands and others (or subjectg) fcr 
forty years prior to the term of entry, and to purge the saii 
lands and others (or subjects) of all incumbrances appearingoi 

BeeNote(6) the Said Scarchcs as affecting the same (6), and to grant and 
deliver a formal and valid Disposition of the said lands nd 
others (or subjects) to the purchaser and his heirs or assig* 
nees, under the burdens, conditions, provisions, restrictioDi, 
reservations, and declarations specified and contained or re- 
ferred to herein, or in the title-deeds thereof, and contaiiriDg 
a clause of entry as at the term of (insert term of entrfVi 

8«« Note^ ifi Article Third, supra) (d), and shall contain a clause d 
absolute warrandice, but excepting from such warrandice the 
current tacks and rights of possession of the present tenanti 
and possessors of the said lands and others (or subjects), sod 
under the declaration that the purchaser shall be bound to 
relieve the exposer of all claims in any way competent to 
tenants in virtue of their respective tacks for ameliorations^or 

See Note^)i on any other account, and all feudal and other usual claufies(c). 

Septimo, — The exposer obliges himself and his foresaidi 
to relieve the purchaser of all feu, blench and teind dutiei, 
and all public, parochial, and local burdens and assessmeste 
due and payable from or for the said lands and others (c 
subjects) at and preceding the said term of entry ; the pff* 
chaser being bound to relieve the exposer and his foresaidi 
of the said duties, burdens, and assessments in all tine 
thereafter. 

see Notes Octavo, — (b)(d) Along with the Disposition of the said 

Wra,fp. lands and others (or subjects), there shall be delivered to the 
purchaser these presents, and also the writs and title-deeds 
of the said lands and others (or subjects), conform to 
Inventory annexed and signed by the exposer as relatif* 
hereto, declaring that the purchaser shall be understood to 
be satisfied as to the validity and sufficiency of the said 
writs and title-deeds, and shall not be entitled to object to 
the said writs and title-deeds after the sale upon any ground 



ARTICLES OF BOUP OF HERITABLE SUBJECTS. 383 

whatever, or to require that the exposer shall pay any com- No. 237. 
position or casualty to the superiors, or that any other titles 
shall be made up at the expense of the exposer. 

NonOy — Offerers are understood to have satisfied them- 
selves before the roup as to the rental, value, and extent of 
the said lands and others (or subjects), and as to the amount 
of feu, blench, and teind duties, and public, parochial, and 
local burdens affecting the same, and as to all other par- 
ticulars, and they shall not be entitled to demand any 
deduction from the price offered on account of any misunder- 
standing, error, or alleged deficiency in rental, value, or 
extent, or understatement of the said duties or burdens, or 
any defect of the titles (ci), or on any other account wliatever.^ see Not« (d) 
Decimo, — One-half of the expense of the Disposition to tionai article 
be granted in terms hereof (including the stamp-duty and 
revising fee) shall be paid by the purchaser, and the other 

^ The following is the form of the oorresponding Article in Mr Hendry's 

2d edition : — '* Quarto, — The said lands and others are to be exposed as 

iforesaid, without reference to any statement or understanding as to the 

tttent or boundaries or condition of the said lands and others, or as to the 

''^til, or deductions from the rental, or the terms or conditions of the 

'^Mm, or any other particulars which may be supposed to affect the value 

^^^flVBof ; 88 to all which every offerer is understood to have satisfied himself 

"^^oire offering : And the exposer is not to be liable to uphold the accuracy 

^>ny statement of the extent or boundaries of the said lands, or of the 

^taX or deductions therefrom, nor to be responsible for the correctness of 

^'Tldanor plans furnished or exhibited, or information given, either in public 

^^v^^irtisements or otherwise, regarding the said lands and others, or any 

P**^ or parts thereof, previous to the sale : And therefore it shall not be 

^i^petent to the purchaser to give up his purchase, or to claim any deduo- 

tio& or abatement from the price, or to retain the same, or any part 

^^^^I'^of, or to refuse to grant bond for the price as aftermentioned, on 

"^Q^'ont of any alleged deficiency in the extent, rental, or value of the said 

l>oda and others, or understatement of the public or parochial burdens, or 

"^^^Bonderstanding in reference to the rights and privileges belonging to, or 

Mrvitodes and burdens affecting, the said lands and others, or any error or 

<*Btt8ion in regard to these or any other particulars, or on account of any 

^^l^ged defect, insufficiency, or incompleteness of title in the person of the 

exposer, or of any error in the inventory of writs and title-deeds sub- 

*6tibed or to be subscribed by the exposer as relative hereto, or in any 

^V^Brence to such inventory in these articles, or on any other account what- 



384 SUPPLEMENTARY WRITS. 

No. 237. half by the exposer, ^but no inventory of titles shall be 
granted except at the sole expense of the purchaser. 

Undecimo, — Questions between the exposer andanypio^ 
chaser or offerer concerning the import of these Articles « 
the implement tliereof are hereby submitted to the amicaHe 
decision of E F (designation), whom failing of G H {desijMr 
tion), whom all failing, of an arbiter to be named by the 
Sheriff of the county of on an application to to 

for that purpose by any party interested, and that as »le 
arbiter; and whatever the said arbiter shall determioe 
in the premises between and the , or between 

and any other day to which this submission shall be pro- 
rogated — power of prorogation being hereby given to the 
said arbiters in their order from time to time as thej 
shall see cause — the exposer and every such purchaser and 
offerer shall be bound and obliged respectively to implemfflt 
to each other under the penalty of , to be paidbf 

the party failing to the party observing or willing to imple- 
ment, over and above performance. 

Dtiodecimo, — jointly and seveiaDj, 

shall be judges of the roup, with power to them, or any of 
them, to determine whatever questions and differences nuj 
occur at the roup betwixt the exposer and offerers, or among 
the offerers themselves, in regard to the foresaid roup, and 
also to adjourn the said roup from time to time, and to prefer 
the highest offerer in manner before specified. 
^ra,Tm. Lastly,— (a) The exposer by subscribing these presente, 
and the offerers by subscribing their respective offers, obKge 
themselves mutually to implement the foresaid Artides to 
each other under the penalty of sterling, to be paid 

by the party failing to the party performing or willing to 
implement over and above performance : And the ex- 
poser for himself and the offerers, for themselves, consent 
to registration hereof and of the minutes of roup enad^ 

^ See article Eight. If an inventory is to be granted, this put of tki 
article will be omitted, and after the word '* disposition" there will be 9r 
serted '* and of the inventory of titles. '^ 



ARTICLES OF IIOUP OF HERITABLE SUBJECTS. 385 

ints, prorogations of tlie before-\vritten submission, de- No. 237. 
*et or decreets-arbitral, and other proceedings to follow 
reon for preservation and execution : In witness whereof 
ftmg clauae). 

(a) Articles of Bonp are sometimes signed by tlio agent of the j^^q^ /^\ 
•prietor instead of by the proprietor himself, in which case this SL^^^i 
t of the Articles will be expressed as follows : — 384! 

Which lands and others {or subjects) are to be exposed 
sale by public voluntary roup by D {designation)^ on 
balf of A B (designation of proprietor)^ who, the said A B, 
bereinafter throughout these presents named the exposer. 

Article Sixth will commence as follows : — 

Upon payment of the price the said C D binds the ex- 
ser to exhibit, &c. 

The last article will commence as follows : — 

The said C D by subscribing these presents binds the 
poser, and the offerers by subscribing their respective 
srs, &c. 

(i) If the lands or subjects, if not sold in whole, are to be exposed ^°ilJi^^' 
lots, Article First will be altered as follows : — r 

The aforesaid lands and others {or subjects) are to be ex- 
Jed to sale by public voluntary roup, during the pleasure 
the judge of the roup afternamed, in one lot, at the up- 
price of £ stg., or at such other upset price as 

U be specified in any minutes to be annexed hereto, or if 
' sold in one lot, then in separate lots as follows, viz. : — 
t One, consisting of {here describe sliortly the lands or sub- 
'«), and that at the upset price of £ stg. ; and 

t Two, consisting of {here describe shoiHy tJie lands or sub- 
«), and that at the upset price of £ stg., or the 

I lands and others {or subjects) shall be exposed in such 
er lots or at such other upset prices as shall be specified 
iny minutes to be annexed hereto, and the person ofi'ering 
the said whole lands (or subjects), or for any lot thereof 

25 



t 



386 SUPPLEMENTARY WKITS. 

No. 237. which shall be exposed in virtue hereof, the upset price of 
the said whole lands and others {or subjects) or of any 



Note (6). lot thereof, or in case of more offerers than one the highest 
offerer at the expiry of the time allowed by the Judge of the 
roup for bidding, shall be preferred to the purchase of 4e 
said whole lands and others {or subjects) or of the lot thereof 
for which the said offer shall have been made. 

Article Second will be altered as follows : — 
p. 879. Secundo, In case more offers than one shall be made for 

the said whole lands and others (or subjects) in one lot, or 
fox any such lot thereof, each offer after the first for the saw 
whole lands and others {or subjects) in one lot shall exceed the 
immediately preceding offer in at least the sum of , orsnch 
other sum as shall be fixed in the minutes to be annexed 
hereto ; and each off'er after the first for any lot of the said 
lands and others {or subjects) shall exceed the immedistelj 
preceding offer in at least the sum of , or such other 

sum as shall be fixed in the said minute, and each offerer shall 
subscribe his offer and become bound and obliged for the 
sum therein off'ercd, upon the conditions expressed in these 
articles or in any minutes to be annexed hereto. 

Article Fourth will be altered as follows : — 

p. 880. QtuzHo^ The said purchaser or several purchasers shall,^ 

required, be bound within ten days after the day of the roup 
to deposit one-fifth part of the price or prices offered by hiiB 
or them respectively in an Incorporated or Chartered Ban* 
to be named by the exposer, in the joint names of tha 
exposer and purchaser or respective purchasers, and to ^ 
made forthcoming to the exposer at the term before f!f^ 
fied, and which sum or sums shall be forfeited to the 
exposer in tlie event of the purchaser or respective ^' 
chasers failing to implement and perform these artides ^ 
so far as incumbent on the purchaser or respective p^' 
chasers, or, in the option of the purchaser or respecti^ 
purchasers, and at his or their expense, he or they shall h* 



AUTIOLBS OF ROUP OF HERITABLE SUBJECTS. 387 

id within the like period of ten days to grant hond or No. 237. 
Ib for the said price or respective prices, with a sufficient 



ioner or sufficient cautioners or other security, to the ^'<>*«(H 
faction of the said exposer, payable to him or his afore- 
at the term of , with one-fifth part more thereof 

quidate penalty in case of failure, and interest as before 
ified during the not-payment. 

Lrticle Fifth will be altered as follows : — 

}uinto, In case the said purchaser or respective pur- p. S8i. 
ers or any of them shall fail after being required so to 
mi one-fifth part of the price or respective prices, or to 
it security for the price or respective prices as aforesaid, 
lall be in the power of the exposer to declare that the 
on or persons so failing, or any of them, shall not only 
dt the purchase or purchases made by him or them re- 
tively, but shall be liable to the exposer in one-fifth part 
le price or prices off'ered by him or them respectively as 
ages ; and in case the exposer shall declare the person or 
CDS so failing, or any of them, to have forfeited his or 
r purchase or purchases, it shall be optional to the 
)8er either himself to hold the said lands and others (or 
ects) or any lot or lots thereof, or of new to expose the 
9 or any lot or lots thereof to sale, or to declare the 
3 or any lot or lots thereof to belong to the immediately 
eding offerers therefor respectively ; and in case intima- 
of failure to deposit one-fifth part of the price or prices 
he said lands and others (o?' subjects) or of any lot 
ots thereof, or to grant security for the price or prices 
eof as aforesaid, and of the forfeiture of any such pur- 
le shall be made by the exposer to the immediately pre- 
Qg offerer therefor, with a requisition for the fulfilment 
is offer within ten days after such failure, then such 
ediately preceding offerer shall be deemed the purchaser 
Bof, and shall be obliged within ten days after such 
aation and requisition to deposit one-fifth part of the 
) offered by him, or to grant sufficient security for the 
)j in like manner and under the like penalty and optional 



388 SUPPLEMENTARY WRITS. 

No. 237. forfeiture as in reference to the original purchase, and so 
forth through the whole course of offerers until these articles 



^"**<^>' be fulfilled. 

Article Sixth will be altered at (5) as follows : — It will commeooe 
p. 382. Upon payment of the price or respective prices, &c 

And will thereafter proceed : — 

And to grant and deliver a formal and valid disposition 
or dispositions of the said lands and others (or subjects), 
or of the several lots thereof, to the purchaser or respective 
purchasers thereof, &c. 

Article Eighth will be altered as follows : — 
p. 382. OctavOf Along with the Disposition of the said lands and 

others (or subjects), if sold in one lot, there shall be deliTered 
to the purchaser these presents, and also the-title deeds d 
said lands and others (or subjects), conform to inventoiy an- 
nexed, and signed as relative hereto, or if the said lands and 
others (or subjects) shall be sold in two or more lots, these 
presents, and also the said title-deeds conform to the said 
inventory, subject to the declaration hereinafter written, . 
shall be delivered to the purchaser of the lot for which the ^ 
largest price shall be paid (two or more separate lots pur- 
chased by the same person being regarded, in reference to^ 
this condition, as one lot), he being bound to make the samet 
forthcoming to the purchaser of any other lot or lots con^ 
tained therein, and all others concerned, on all necessaif 
occasions, on a receipt and obligation for redelivery thereof 
within a reasonable time, and under a suitable penaltj; 
and there shall be delivered to the other purchaser or pur- 
chasers an inventory of tlie said titles; and, in case only a 
part of the said lands (oi^ subjects) shall be sold, the said 
titles shall be retained by the exposer under a similar obli- 
gation to make the same forthcoming to the purchaser or 
purchasers of any lot contained tlierein, on all necessary 
occasions, on receipt and obligation to the effect foresaid. 

Corresponding alterations will, where necessary, be made on the 
other Articles. 



ABTICLES OF ROUP OF HERITABLE SUBJECTS. 389 

(c) If searches of incumbrances are not to be furnished, the clause No. 237. 
in Article Sixth in reference thereto will be omitted, and the following '~_ ' 
addition will be made at the end of that article : — p. 882. ' 

And in respect the exposer is not aware of any incum- 
brances affecting the said lands and others (or subjects) {or 
is not aware of any incumbrances affecting the said lands 
and others (or subjects) except a Bond and Disposition in 
Security for the sum of £ stg., in favour of J K (desig- 

nation) and another Bond and Disposition in Security for the 
sum of £ in favour of L M (designation), and which 

incumbrances the exposer obliges himself to purge), he, the 
exposer, • shall not be bound to furnish any certificate of 
searches for incumbrances except those now in his own 
possession ; but in the event of any (or any other) incum- 
brances being found to exist, and if such (or such other) 
incumbrances shall be intimated to the exposer within three 
calendar months after the said term of entry, the exposer 
shall be bound to purge the said lands and others (or sub- 
jects) of such {or such other) incumbrances, and to pay the 
expense of the additional searches, declaring, however, that 
if no such intimation shall be made to the exposer within 
the said period of three months, ho shall not be bound to 
purge any incumbrances that may be found to exist (if there 
are incumbrances^ add — other than those before specified). 

(d) Where the subjects are to be exposed to sale under a Bond and ^°5^i^^' 
Disposition in Security, the following variations will be made on 

the above Style of the Articles and Conditions of Koup : — 

(1) In the introduction the clause at (a) will commence as 
follows : — 

Which lands and others are to be exposed to sale by pub- 
lic voluntary roup by K L, in virtue of the powers contained 
in a Bond and Disposition in Security, dated the , 

and recorded in the (specify register of sasines) on the 
day of , for the sum of pounds sterling, granted 

by M N {designation) in favour of the said KJj (if K L is 



390 SUPPLEMENTAUT WRITS. 

No. 237. Tiot (he original creditor, say — To wbicli Bond and Disposition 
jy ,^ in Security the said K L by various transmissions or bj 
transmission^ has now right.) 

p 882 (^) -^i^^® ^'j *^^r (^> ''^ proceed thus : — 

And shall contain a clause binding the granteroftbe 
said Bond and Disposition in Security, and his heirs, in 
absolute warrandice of such Disposition, and obliging him 
and them to corroborate and confirm the same ; and a clause 
of warrandice on the part of the exposer from fact and deed 
only, and likewise all other necessary clauses ; and the ex- 
poser shall further grant and deliver to the purchaser a dis- 
charge of the foresaid Bond and Disposition in Security, in 
so far as the same affects or burdens the said lands and 
others (but reserving to the exposer the personal obligations 
contained in the said Bond and Disposition in Security for 
payment of tlie sums of money thereby due, to the extent 
of the balance of the said sums, if any, which may remain 
due to the exposer after he shall have received payment of 
the price of the said lands and others), or, in the option of 
the purchaser, the exposer shall grant and deliver to him 
an Assignation in favour of him and his foresaids of Die 
said Bond and Disposition in Security to the extent of the 
price paid by him (reserving to the exposer the personal 
obligations therein contained to the extent of the balance 
which may remain due to him as aforesaid), and under the 
declaration that the assignation to be granted shall be ac- 
cepted and held by the purchaser and his foresaids only as a 
collateral security of his purchase ; and that the personal 
obligations contained in the said Bond and Disposition in 
Security (so far as the same shall be assigned to the pnr- 
chaser), shall nowise be used by the purchaser or his fore- 
saids against the granter of the said Bond and Disposition 
in Security, or his representatives, unless the said lands and 

^ Looking to the terms of the Ck>nBoIidation Act, Schedule (F F), Ko % 
this reference to E L's title seems sufficient, but, if preferred, his title tosJ 
be set forth aa in the Styles of assignations of heritable aecnrities. 



AllTICLES OF ROUP OF HERITABLK SUBJECTS. 391 

lers shall be evicted from the purchaser or his foresaids on No. 237. 



jount of any act or deed of the granter of the said Bond ^^ 
i Disposition in Security, or his foresaids, or of any defect 
their title to the said lands and others, and which As- 
nation shall contain a clause of warrandice on the part 
he exposer, from his own proper facts and deeds only ; and 
! exposer shall also deliver to the purchaser Searches of In- 
nbrances affecting the said lands and others, for forty 
ITS prior to the date of the sale ; and if any incumbrance 
acting the said subjects, preferable to the said Bond and 
^position in Security, shall appear thereon, the exposer 
ill be bound to apply the price of the said subjects in 
'^inction, jprimo loco, of such preferable incumbrance. 

The clauses within brackets need not be inserted unless the upset 
^ be less than the amount of the debt. 

(3) Article VIII. will commence thus: — 

Along with the Disposition there shall be delivered to p. 382. 
i purchaser the said Bond and Disposition in Security and 
> several writs and instruments of transmission thereof 
•cified in the Inventory annexed and signed as relative 
'«to {or, if tliey have been already set foHh, say, before 
'cified), and the Schedule of Intimation, Kequisition, and 
>te8t following upon the said Bond and Disposition in 
-nrity, dated the , and also the writs and title- 

-ds of the said lands and others specified in said in- 
itory : Declaring that the purchaser shall be understood 
le satisfied as to the validity and sufiicicncy of the said 
Xii and Disposition in Security (and if there Jiave 
^ transmissions, say — the several writs and instruments 
transmission thereof before specified), and of the said 
-imatipn, requisition, and protest, and also of the exposer's 
le to sell, and of the said writs and title-deeds ; and the 
rchaser shall be bound to accept the same as sufficient, 
d shall not be entitled to object to the same, &c. {as in 
Hide 8). 



392 SUPPLEMENTARY WRITS. 

No. 237. W Article IX., after (d\ will proceed thus : — 

Note {d). Or of any error or defect in the said Bond and Disposition 
gg3 in Security, or in any of the writs and instruments of tnns- 
mission thereof (if suck thei*e he), or in the Schedule of 
intimation, requisition, and protest executed by the exposer 
against {or served by the exposer upon) the said H S 
under the said Bond and Disposition in Security, or on 
account of any error in the Inventory of Writs and Title- 
deeds subscribed or to be subscribed by the exposer as relir 
tive thereto, or in any reference to such Inventory in these 
Articles, or in the advertising of said lands and others for 
sale, or in any of the other forms prescribed by statute or 
required to be observed with reference to the sale of the said 
lands and others, or on any other account whatever. 

(5) The following additional Article will be introduced after 
Article IX. 

p. 883. DecimOj — The exposer, upon receipt of the price of the 

said lands and others, shall apply the same in payment, 
primo loco, of all incumbrances affecting the same, preferable 
to the said Bond and Disposition in Security, if any, ai 
aforesaid, and the expense of discharging the same; «ecwMb 
loco, of the foresaid principal sum, interest, and penalties 
contained in and due by tlie said Bond and Disposition in 
Security, and whole expenses attending the sale of the 
said lands and others; tertio loco, of any postponed securi- 
ties, if such there be, over tlie said lands and others, if or in 
so far as the price is sufficient to meet the same, and shall 
thereafter hold count and reckoning for the balance, if any, 
of the said price with the said M N and any other person 
or persons having interest; and shall consign the surplus, 
if any, in {here inseH Bank where the sum in the bond it 
payable) in the joint names of the exposer and purchaser, 
for behoof of the party or parties having best right thereto. 

Sec Consolidation Act 1868, sec 122. 



ABTI0LE8 OF BOUP OF HERITABLE SUBJECTS. 393 

If thought desiiahle, an obligation may be inserted binding the No. 887. 
Kposer, in the event of there being no surplus of the price, to 
Kpede and record a notarial certificate in terms of the Conveyancing 
Let 1874, section 48, and Schedule L, No. 1, to be recorded along 
rith the disposition to the purchaser. 

MINUTE OP ADJOURNMENT. 

At , and within (insert place of eocpoaure)^ the 

day of , between the hours of and 

he lands and others before described being exposed to 

E*uMic Eoup and Sale, at the upset price of pounds, 

n presence of P R {desi^ation)^ Judge of the Roup, in 

-erms of the foregoing Articles, and no person appearing to 

^ffer for the same, the said Judge hereby adjourns the Sale 

O the day of 

{Signed) P R, J. 

MINUTE OF PREFERENCE AND SALE. 

At , the day of , and within {insert place 

y exposure), the lands and others before described being 
exposed to Public Roup and Sale at the price of 
pounds, in presence of P R, Judge of the Roup, in terms ot 
ihe foregoing Articles, compeared X Y {designation), and 
)ffered for the said lands and others the sum of pounds. 

{Signed) X Y. 

P R, J. 

Thereafter appeared W S (designation) who offered pounds. 

(Signed) W S. 

P R, J. 

Thereafter appeared G H (designation) who offered pounds. 

(Signed) G H. 

P R, J. 

Lnd the said G H, being the last and highest offerer for 
be said lands and others (a), the Judge of the Roup hereby 



394 SUPPLEMENTARY WRITS. 

Na 237. prefers him to the purchase : Therefore the said G H enacts 
himself accordingly, and binds and obliges himself, \m 
heirs and successors, to implement the whole of the fofe* 
going Articles and Conditions so far as incumbent on tb 
purchaser, in every respect, under the penalty therein speci- 
fied : And he consents to the registration of this enactment 
and obligation along with the said Articles and Conditions d 
Sale, conform to the clause of registration therein contained: 
In witness whereof these presents, written by C D, OA 
to F G of Edinburgh, Writer to the Signet, are subscribed 
by the said G H and by the said P B, Judge of th 
Eoup, at (complete testing clause). 

(a) If the lands are purchased by an agent, here add : — " Andk 
having declared that he had made the said purchase for D B (Ut 
nation)^ the Judge of the Eoup hereby prefers the said D BtoAi 
purchase ; and the said D B being present, ratifies the said paidM^ 
and enacts himself as purchaser accordingly, and binds and oUig> 
himself," &c. (or, if D B is not present, Therefore the said G Hemdi 
the said D B, and binds and obHges him, &c. 

INTIMATION BY CREDITOR IN SECURITY WITH A 

VIEW TO A SALE. 

The form of proceeding with a view to a sale of lands under i 
Bond and Disposition in Security, introduced by ** The Titlei to 
I^nd ConsoHdation (Scotland) Act 1868," sec. 119, and Schedih 
(FF), No. 2, supersedes the form previously in use, but as the pw* 
vision in the Act is only permissive, the old Styles of the SchedA 
and Instrument of Intimation, &c,, are printed below from Mr 
Hendry's 2d edition.* 

iSCnEDULE of INTIMATION, REQUISITION, and PROTEST d 
Vie instance of a Creditor in a Band and Dispontion iu SeeurHnto^ 
Debtor, preparatory to a Sale, (Old Style,) 

I, A {designation), as procurator for and in name and behalf of B (NAM 
and designation of creditor), do hereby intimate and repreBent to 70Q,C 
{name and designation of debtor), that you, the said 0, by Bond and Vmfoir 
tion in Security, dated the , and recorded in the General B«giiUf 

of Sasincs at Edinburgh on the day of , granted yon ioha^ 

borrowed and received from the said B the sum of poonds stediBft 



ABTICLB8 OF ROUP OF HEUITADLE SUBJECTS. 395 

MANDATE for expeding a General Service, Ho. 888. 

I, A B {designation), eldest son of the deceased C D 
(designation), authorise and direct E F, Writer to the 

vldeh sum you thereby bound yonnelf , Ac {narrate band dotcn to davse oj 

regitiraiian) (where the band has been aseigned, here say^To vhich Bond and 

Dispoeition in Security, and Boms of money thereby due, and lands and 

oChen thereby disponed as aforesaid, the said B acquired right by virtue of 

tho foDoving writs, yiz. : — (First) Assignation, &o, (as in Style No. 134, p. 

S89) ; which Bond and Disposition in Security (and the several writs above 

BMntiosied) I, the said A, as procurator foresaid, now hold in my hands and 

exhibit to you, the said : And further, I, the said A, as procurator f ore- 

tdd, intimate and represent to you, the said C, that although the term of 

payment flpedfied in the said Bond and Disposition in Security is bypast, 

yet the said principal sum of pounds, with the interest thereon from and 

rinoe the term of , remains due and unpaid to the said B : Therefore I, 

flie said A, as procurator foresaid, do hereby require you, the said 0, to 

Make payment to the said B, within three months after the date hereof, of 

flie aaid principal sum of pounds, and of the interest due thereon from 

and ainoe the said term of , and to become due during the not-payment : 

Audi, the said procurator, do hereby intimate, certify, and represent to you 

the said O, that if you fail to make payment of the said principal sum and 

hktereet thereof as aforesaid in terms hereof, not only shall you, the said C, 

ttffongh sndi faflure incur and be liable to pay the penalty of one-fifth part 

Bore thereof stipulated by the said Bond and Disposition in Security to be 

piid in oaae of failure, but also the power to redeem the said lands and others 

contained in the said Bond and Disposition in Security shall, on the expiry for 

M qwoe oease and determine ; and the said B shall, immediately thereafter, 

*Bd without any other intimation or process at law, sell and dispose of the 

iiid lands and others by public roup, by virtue and in terms of the foresaid 

fiond and Disposition in Security, and of the Act of Parliament,^ Tenth and 

™*»«iih Yictoria, chapter fifty, entituled, ''An Act to facilitate the consti- 

«ttton and transmission of Heritable Securities for Debt in Scotland, and to 

"1^ the same more effectual for the recovery of Debts : " And I, the said 

^ *■ procurator foresaid, protest that you the said G, shall not pretend 

>8Doranoe hereof : — Whereupon, and upon all and sundry the premises, I 

f ^ uiBtruments in the hands of L, Notary-Public : This I do at 

I ^ day of , between the hours of and , before 

^ in presence of G and H (designations), witnesses to the premises 

^^MiaDy called and required, and hereto with me subscribing on this and 

^ preceding pages. 

(Signed) A. 
Gy witness. 

H, witness. 
> TIm referenee sIiouM be to "The Titles to T.and Consolidation (Scotland) Act 1868." 



896 SUPPLEMENTART WRITS. 

No. 238. Signet, to procure rae duly served nearest and lawful heir in 
general of the said C D, and for that purpose to sign and 
present, as mandatory for me, the necessary petition or 
petitions to the Sheriff of Chancery (or as the case may 6e), 
and to do everything requisite in the premises on my behalf 
(when not holograph, add a testing clatue). 

For a Special Service. 

I, A B (cw above)y * * *• to procure me served 
nearest and lawful heir in special of the said C D in the 
lands of X and others, in the county of Y, and for that par- 
pose to sign, Ac. (as above). 

For Service oj an Heir of Entail. 

I, A B (designation), eldest son of the deceased C D ((fo- 
signation), authorise and direct E F, Writer to the Signet, tf 
my mandatory, to take all necessary steps for making up 
and completing my title to the entailed lands of H and 

INSTRUMENT of INTIMATION, REQUISITION, and PROTEST. 

At Edinburgh, the day of , in the year , in prt- 

sence of me, Notary-Public subscribing, and of the witnesses aftenuuscd 

and designed, Compeared A {designation), as procurator for and in oasM 

and behalf of B (de»ignaiian), and passed with us to the personal presenoeof 

G {designation), and in our presence the said procurator did intimate ■sd 

represent to him, the said G, that by Bond and Disposition in Secazj^t 

dated, &o. (narrate schedule dotcn to last clause), and thereupon, and opA 

all and sundry the premises, the said procurator took instnunents in fti 

hands of me, Notary-Public : These things were so done, and a schedule of 

intimation, requisition, and protest to the effect foresaid, addressed toIlM 

said G, was delivered into his hands by the said procurator, at * ^> 

month, and year, respectively first above written, between the hours of 

and , all in presence of G and H {designations), witnesses to the pl^ 

mises specially called and required, and hereto with me subscribing on this 

and the preceding pages. 

^Signed) {moUo), 

L, Kotai7.Pahli& 
G, witness. 

H, witness. 

To be signed by Notary and Witnesses on each page. 



MANDATE FOR A PROOF IN SERVICE. 397 

others, in the county of P ; and for that purpose to subscribe l^^. 288. 
and present, in my name and on my behalf, the necessary 
petition or petitions to the SheriiEE of Chancery {or as the case 
may be) for serving me heir of tailzie and provision in special, 
and also in general, to the said deceased C D, my father (or 
in such other character or characters as may be required by 
the investiture of the said lands and others), and to carry 
through and complete the proceedings in such service or 
services. {To be holograph or tested,) 

PROOF in Services, No. 239. 

Proof in the Petition of A B {designation) for service as 
Heir in Greneral {or in Special, or as Heir of Tailzie and 
Provision in General, or in Special) to the deceased C D {de- 
sigTiation). 

At , the day of Eighteen 

hundred and , in presence of G 11, one 

of the Bailies of the City {or Burgh) of M, autho- 
rised to act as Commissioner for the Honourable 
the Sheriff of Chancery {or of the County of X), 
under the Act 31 and 32 Victoria, cap. 101, in- 
tituled "The Titles to Land Consolidation Act 
1848,'' 
Compeared R S {designation) ^ Avho being solemnly sworn 
and interrogated, depones {prove the facts stated in the peti- 
Han^ every link in the chain of connection being correctly set 
forth). All which is truth, as the Deponent shall answer to 

God. 

{Signed) R S. 

T W, Bailie. 

Compeared also V W {designation), who being solemnly 

sworn, and interrogated, depones and concurs in omnibzcs with 

the preceding witness. All which is truth, as the Deponent 

shall answer to God. 

{Signed) V W. 

T U, Bailie. 



398 SUPPLEMENTARY WRITS. 

Va840. DEED of DECLARATION of Reservations} Conditiont, 

Pi^ovisions, cfec, under which Lands are to be Feud or 

Sold, and which are to be imported by Reference as Bd 

Burdens into the Feu Rights, or other Deeds of Cbipqf- 

ance of the Lands. — Conveyancing Act 1874, Sectia 

32. 

(See Note (d), supra, p. 36.) 

I, A B (designation) y heritable proprietor of the hndBiri 
others after described, viz., All and Whole (here inKrt A- 
scription as in the granters title)^ considering that I haw 
determined to feu out or sell the said lands and otheis ift 
different lots or portions, subject to the reservations, condi- 
tions, provisions, limitations, stipulations, and obligatiooi 
afterwritten, and that it is by the ** Conveyancing (Scodand) 
Act 1874," section 32, provided that "reservations, real bar- 
dens, conditions, provisions, limitations, obligations, aal 
stipulations affecting land may be validly and eSectnaO; 
imported into any deed, instrument, or writing, relating to 
such lands by reference to a deed, instrument, or vritiog 
applicable to such lands, or to the estate of which sod 
lands form a part, recorded in the appropriate Register i 
Sasines, and in which such reservations, real burdens, cob- 
ditions, provisions, limitations, obligations, and stipulatioas 
are set forth at full length, and a reference in the form set forft 
in Schedule (H) hereto annexed, or in a similar form, shall 
be sufficient: And it shall be lawful for any proprietor (rf 
lands to execute a deed, instrument, or writing setting fortk 
the reservations, real burdens, conditions, provisions, lioi* 
tations, obligations, and stipulations under which he is to 
feu or otherwise deal with or affect his lands or any par* 
thereof, and to record the same in the appropriate Registerof 
Sasines, and the same being so recorded, such reservations,real 
burdens, conditions, provisions, limitations, obligations, and 
stipulations may be effectually imported in whole or in part by 
reference into any deed or conveyance relating to such lands 

1 See foot-note, supra, p. 36. 



DECLARATION OF CONDITIONS OP FEUS, ETC. 399 

sequently granted by such proprietor, or by his heir or suc- 
jor,orby any person whatsoever, provided it is expressly 
;ed in such deed or conveyance that it is granted under 
reservations, real burdens, conditions, provisions, limita- 
18, obligations, and stipulations set forth in such deed, in- 
iment, or writing," do therefore hereby, in virtue of the said 
vision of the said Act, and for the purpose and to the effect 
rein specified, declare that the following reservations, 
iditions, provisions, limitations, stipulations, and obliga- 
08, or such of them as shall be referred to in the clause of 
Brence to these presents to be inserted in the said feu- 
hts or other deeds of conveyance respectively, shall be 
ported into such feu-rights or deeds, and shall form real 
rdens affecting the lots or portions of the said lands respec- 
ely therein contained, viz. {here insei^t the conditions^ of 
ich the following may he taken as an example) : Primo, 
6 said lands and others are to be laid out for building 
rposes, conform to a plan and elevation made out by C D, 
chitect in , of which a copy is annexed and signed 

me as relative hereto, to which plan and elevation the 
ATS or purchasers of any part or lot of the said lands and 
lers, and their successors therein in all time coming, shall 
bound and obliged to conform. 

And I consent to the registration hereof for preservation : 
WITNESS WHEREOF {testing clause). 

It IB to be regretted that the above Deed of Declaration had not, 
> the clause of reference to it in the feu rights, &c., been sche- 
^ in the Act, so as to fix how far it is necessary to set forth the 
mion on which it proceeds, but in the absence of such direction 
safest course is to follow the general rule, that where the power 
Terred by a particular provision of an Act is to bo exercised, the 
ise containing the power should be quoted. 

MPLETION OF THE DECLAEATION OF CONDITIONS. 

This will be effected by recording the deed with warrant of regis- 
en on behalf of the granter in the appropriate register of sasines. 



No. 240. 



400 NOTES. 



NOTES. 



NOTAEIAL INSTRUMENTS. 

In the Notarial Instraments, No. 23, p. 76 ; No. 26, p. 78;Sa 
26, p. 79 ; No. 32, p. 85 ; No. 35, p. 86 ; No. 49, p. 100 ; Na 54^ 
p. 106 ; No. 55, p. 107 ; No. 75, p. 145 ; and in any otiheBik« 
they may have been omitted, the words ** Notary Public " Bhodd, tJ 
prevent risk of mistake, be inserted before, ''in terms of 'TheHfti 
to Land Consolidation (Scotland) Act 1868,' " though they do vA 
occur in Schedule (J), on which those instruments proceed. 



INSTRUMENT OF SASINE IN BURGAGE SUBJECTS.- 

{Supra, p. 206.) 

This instrument is now incompetent ; its use, as well as the R* 
cording of the disposition for the purpose of infeftment, was tfiliO' 
used by the Consolidation Act, and, as already mentioned, ooirnj' 
ances (which include all instruments) of burgage subjects tie tf 
the Conveyancing Act allowed to be either in the forms anthonid 
by the Consolidation Act in regard thereto, or in the forms applicilfc 
to lands held feu ; but where an instrument of sasine is to be adoplA 
the disposition on which it proceeds must contain a procoiatoiyt' 
clause of resignation as its warrant, and accordingly the Gonsolidatui 
Act while it declared that clause to be unnecessary, did not abolidii^ 
and in the schedule of the instrument the disposition is set foithii 
containing such clause ; but under the provision of the ConveyancBg 
Act, sec. 26, the clause cannot now be inserted in the dispositioB, 
and therefore infeftment by sasine cannot be effected. 



ASSIGNATIONS IN SECURITY OF REGISTERED LEASE. 

The opinion expressed {supra p. 364, foot-note 1) that tl* 
provision of section 117 of the Consolidation Act of 1868 ap- 
plies to Bonds and Assignations in Security of Leases, and rendeo 



NOTES. 401 

I moveable as regards , the succession of the creditor, thereby 
isitating the insertion of a destination excluding executors 
•e such is intended, may perhaps admit of doubt. The terms 
he section referred to declare that ^' no heritable security 
bed or obtained eiUier before or after" the commencement of 
ict '' shall, in whatever terms the same may be conceived, ex- 
in the cases hereinafter provided, be heritable as regards the 
)8sion of the creditor in such security, and the same, except as 
inafter provided, shall be moveable as regards the succession of 
creditor.'' In the interpretation clause it is declared that 
5 words 'heritable security,' and * security/ shall each extend to 
include all Heritable Bonds, Bonds and Dispositions in Security, 
is of Annualrent, Bonds of Annuity and all deeds and con- 
nces whatsoever, legal as well as voluntary, which are or may 
Bed for the purpose of constituting or completing, or transmitting 
2urity over lands, or over the rents and profits thereof as well 
ach lands themselves, and the rents and profits thereof and 
nuns, principal, interest, and penalties secured by such securities." 
16 tenns seem to be sufficient to include Bonds and Assignations 
3curity of registered leases as securities " over the rents and- pro- 
' of lands, and it has been held that leases come within the 
isions of the Consolidation Act in regard to settlements of heri- 
—Morrison and Others [Hardy's Trs.), 9 Macph. 736, though (as 
d ntpra^ p. 98) in some other respects they do not come within 
operation of the Consolidation and Conveyancing Acts. If the 
ion above expressed be correct, a difficulty may arise in complet- 
I title to such securities where executors are not excluded and 
nreditor dies intestate. In all the provisions of the Consolidation 
for completing titles to Heritable Securities it is assumed that 
securities have been or are capable of being completed by infeft- 
t, but this does not apply to securities over leases, and therefore 
e provisions are not available. As already said, there may 
i difference of opinion on the question now referred to, but, 
tever view may be taken of it, the safest course is to frame 
destination in the securities according as the succession is 
ided to be. In this way, where executors are excluded, 
.her the creditor dies testate or intestate no difficulty as to 
ing up the heir's or successor's title will arise. Where executors 

2G 



402 



NOTES. 



are nofc excluded and the creditor makes a settlement, the deed can 
be framed so as to obviate any difficulty in regard to his succeasor's 
title, but where he dies intestate, if the succession be moveable, 
it does not appear how his executor-dative is to make ap a title. 



ERRA T A. 



p. 126, line 9, before " Lands " imeH " Titles to.'* 

P. 261, line 28, for " fonn " read " from." 

I\ 336, foot-note *, last line, /or " 337 " read " 338." 

P. 340, line 26, after ** lease," /or " \" read " «;' and add foot- 
-note ** See foot-note ^ p. 351." 



APPENDIX. 



INDEX TO 

THE TITLES TO LAND CONSOLIDATION (SCOT- 

.LAND) ACT 1868. 

31 AND 32 VICT., c 101. 



ARRM6EMENT OF CUUSES. 

Sbotiov 

1. Short Title, 

2. Commencement of Act, 

3. Interpretration Clause, 

4. Acts Specified in Schedule (A) repealed, . 



I 

I 
, 1 

4 



4 



I. IRREDEEMABLE RIGHTS. 
I. Forms op Titles employed in constitutino asd 
transmitting such rlqhts, and in cx)mpleting d^** 
ponee's Title by Infeftment or its Equivale^ 

6. In Conveyances of Land, &c, not held Biugage, ceitaii^ 
Clauses may be inserted in the short Forms given in Sche- 
dule (B) No. 1, . . . . • ] 

6. Import of Clause expressing Manner of holding, 

7. In Conveyances of Burgage Property certain Clauses may ^ 

inserted in the Forms given in Schedule (B), No. 2, • ^ 

8. Import of Clauses in Schedule (B), Nos. 1 and 2, . 

9. Conditions of Entail may, in Conveyances of Entailed Ltn^ 

be inserted by Reference merely, Schedule (C), . 

10. Real Burdens may be referred to as already in the B^[iiter0^ 

Sasines, Schedule (D), 

11. Description of Lands contained in recorded Deeds mtf^ 

inserted in subsequent Writs by Reference merely, Sch^ 
dule (E), . . . . • 

12. Clause directing Part of Conveyance to be recorded, Schedule 

(F), Nos. 1 and 2, . 

13. Several Lands conveyed by the same Deed may be compi^ 

hended under One general Name, Schedule (G), * . 

14. Certain Clauses in Entails no longer necessary, 

15. Instrument of Sasine no longer necessary, but Conveyance 

may be recorded instead, Schedule (H), Nos. 1 and i, « 



ARRANGEMENT OF GLAUSES. iii 

Fige 

r expeding Sasine in Lands holden Burgage^ Scbe- 
(I), . . . . .11 

pessary to record the whole Conveyance or Discharge, 
dule(J), . . . . .12 

lent of Resignation ctd remanentiam imnecessaiy^ but 
ace thereof Conveyance in favour of Superior may be 
ded, Schedule (K), . . . .13 

i Instruments in fkvour of G^eral Disponees, Sch. (L) 14 
ienti Words, or Words of Style, unnecessary in mortis 
» Deeds, . . . . .15 

or Executor to apply Lands for Purposes of Trust or 

I . . . • . • ^o 

tions to unrecorded Conveyances, Schedule (M), Nos. 
12,. . . . . .16 

1 Intruments in favour of Parties acquiring Rights to 
corded Conveyances, Schedules (J) and (N), . 17 

f completing Title by a Judicial Factor on a Trust- 
je, &c, . . . . .18 

: completing Title by a Trustee in a Sequestration, and 
iquidators of Joint Stock Companies, . .18 

>le Property conveyed for Religious or Educational 
K>8e8 to vest in Disponees or their Successors, . 19 

If. Services of Heibs. 

3 to proceed by Petition to the Sheriff, . . 20 

i to be presented to the Sheriff of the County or to the 
iff of Chancery, . . . .20 

and Form of Petition, Schedules (P) and (Q), . 21 

} not to proceed till Publication be made, . .21 

to be received, . . . .22 

i of Service to be equivalent to a Brieve and Claim, . 22 
ire before the Sheriff, and the Effect of his Judgment, 22 
lere Domicile of Party is imknown, . . 23 

ing Petition may be presented, and Sheriff, after re- 
Dg Evidence, give Judgment, . . .24 

ng and Extract of Judgment, . . .24 

tract Decree to be equivaleut to an Extract Retour, . 25 
ission of Records, • . . .25 

>f Chancery to be remunerated for keeping Register, 
by Act of Sedenmt, . . . .26 

on entitled to oppose a Service who could not appear 
ist a Brieve of Inquest, . . . .26 

for Jury Trial, . . .26 

Sheriff refuses to serve Petitioner, &c, Judgment may 
viewed, .... 27 



iv TITLES TO LAND CONSOLIDATION (SCOTLAND) ACT 186&, 



SsoTioir 

43. Procedure when a Decree of Service is brought under Redu^ 

tion. Effect of the Decree of Reduction, 

44. Forms and Effect of Procedure in the Court of Session, "S 

45. " Court of Session Act, 1868," to apply to Appeals and Re- 

ductions, &c., under this Act, . . . i 

46. A Decree of Special Service, besides operating as a Retoar, 

shall have the Operation and Effect of a Disposition from 
the Deceased to his Heirs and Assignees [Le., to the Eeif 
80 served and his Assignees'], . . . • 21 

47. it Special Service not to infer a general Representation, either 

active or passive, . . . . . 3i 

48. Petitioner for Special Service may petition for Greneral Service^ 3i 

49. A General Service may be applied for and obtained to ^ 

limited Effect by annexing a Specification ; and it sliall 
infer only a limited passive Representation, Schedule (R), 
Nos. 1 and 2, , . . . . 3? 

50. Jurisdiction of the Sheriff of Chancery, . . -38 

51. Power to the Court of Session to pass Acts of Sederunt, • 33 

52. Appointment of Sheriff of Chancery, . . -33 

53. Agents may practise before Sheriff-Courts, . • ^ 

54. Salaries of Sheriff of Chancery and Sheriff-clerk of Clianceryi 31 

55. Salary to be regulated by the Commissioners of the Treasuiy 

on Vacancy, , . . . • ^ 

56. Compensation already awarded not to be affected, . • ^ 

57. Compensation to be paid, . . . • 

58. Provisions as to depending Petition for Service, . • 



35 



III. Completion of Title op Adjudger. 

59. Unnecessary to libel and conclude for Decree of Special Ad- 

judication, . . . . • 

60. General, and Special, and General Special Charges to be n<^ 

longer necessary, . . . . • 

61. Actions of Constitution and Adjudication against Apparent 

Heir may be insisted in after the Lapse of Six Months, • "' 

62. Effect of a Decree of Adjudication or Sale, 



fi 



IV. Completion of Title with Superior. 
Entry with the Crovm. 

63. Signatures for Crown Writs abolished, . 

64. Crown Writs to be obtained by lodging a Draft thereof and 

Note along with the Title-Deeds, Schedule (S), . 

65. Draft Crown Writ to be revised, . . • 

66. Rectification of Mistakes in former Titles, . • ^ 

67. Intimation of proposed Rectification to be made to Solicitor 

for Commissioners of Woods and Forests, . . ^ 

68. Presenter of Signatures, &c., may refer to Copy of Writ when 

withheld, . . . . • "^ 



3» 



AKBANQEMENT OF CLAUSES. V 

Sbotiox Page 

69. Amount of Crown Duties to be fixed, . .40 

70. Clerk's Fees, . . . . .41 

71. Copy of revised Draft to be furnished to the Party, . 41 

72. If no Objections, the revised Draft to be attested, and the 

Crown Writ prepared, . . . .41 

73. Crown Writs may be applied for at any Time, . .41 

74. Objections, if any, to Draft Crown Writ to be by a Note, . 41 

75. Objections, how to be disposed of, . . . 42 

76. Procedure if Objections repelled, . . .42 

77. Refusal to revise, how to be complained of, . . 42 

78. Crown Writ as revised to be engrossed and delivered, . 43 

79. Crown Writ to be valid, . . . .43 

80. Ceremony of Resignation abolished, , .44 

81. Investiture by Resignation from the Crown, . . 44 

82. Investiture by Confirmation from the Crown, . , 44 

83. Crown Writs and Crown Charters may be in the Forms given 

in Schedule (T), . . . . .45 

84. Crown Writs or Precepts to Heirs specially served, how to 

be obtained. Schedule (U), . . . .45 

85. Crown Writs or Precepts of Clare Constat may also be granted 

to Heirs holding only a General Service, . . 46 

86. Crown Writs or Precepts of Clare Constat to be null unless 

recorded before First Term after being issued. Fees to be 
paid to Sheriffs and Sheriff Clerks for a limited Perioil, . 47 

87. Register of Crown Writs to be kept, . . .47 

88. Crown Charters or Writs of Novodamus, how to be obtained, , 48 

89. Lodging Draft Crown Writ with Note, and recording Note, 

to be equivalent, in competition, to presenting a Signa- 
ture and recording Abstract, . . .48 

90. Crown Writs to be in the English Language, . . 48 

91. Court of Session to frame I^egulations, . . .48 

92. Salary to be regulated by Commissioners of the Treasury, 

when Vacancy, . . . . .49 

93. Power to Prince and Steward of Scotland to appoint his own 

Presenter of Signatures, &c., . . .49 

94. Compensation already awanled not to be afi'ected, . . 49 
96. Compensation, how to be paid, . . .50 
96. Substitute to be appointed to Sheriff of Chancery or Presen- 
ter of Signatures in event of Absence or Disability, . 50 

Entry with Subjects Superior, 

97. Subject Superior may be compelled to grant Entries by Con- 

firmation, . . . • .50 

98. Confirmation by Subject Superior to be by Writ or Charter 

in Form of Schedule (V), Nos. I and 2, . .51 

99. Investiture by Resignation from Subject Superior, Schedule 

(V), Nos. 3 and 4, . . . .51 



vi TITLES TO LAND CONSOLIDATION (SC50TLAND) ACT 1868 

8S0TI0V Figl 

100. All Writs and Charters from Subject Superior may refer 

to Tenendas and Reddendo, . . . . 5i 

101. Precepts and Writs of Clare Constat from Subject Superior, 

Schedule (W), Nos. 1 and 2, . . .53 

102. Heir in Burgage Subjects may make up Title by Writ of 

Clare Constat, Schedule (W), No. 3, . . . « 

103. Writs of Clare Constat from Subject Superiors^ &c.^ not to M 

by Death of the Grantor, . . . . W 

104. Where Subject Superior's Title incomplete, Owner may in 

certain Cases apply to Lord Ordinary on the Bills to or- 
dain Superior to complete his Title and grant an Entij 
imder pain of Forfeiture, Schedule (X), ^os. 1, 2, and 3, 
and Schedule (AA), • . . . W 

106. Owner may in such Case apply to Lord Ordinary on Bills 
to authorise Application for an Entry by the Crown or 
mediate Over-Superior as in vice of the recusant Supe- 
rior, Schedule (Y), Nos. 1, 2, 3, and 4, and Schedule (Z), 55 

106. Lands to be held temporarily of the Crown or mediateSuperior, W 

107. 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 hi* 
Authority, Schedules (AA) and (BB), . . - ^'^ 

108. Over-Superior's Rights not to be extended or affected, • ^ 

109. Vassal obtaining or accepting Forfeiture or Relinquishment 

of Superiority to be liable for its Value, but Forfeiture or 
Relinquishment not to infer Representation, . • 

llO.^Mode of rebnquishing Superiorities, Sch. (CC), Nos 1. and 2, W 

111. Investiture by Over-Superior, Schedule (CC), No. 3, • 

112. Applications of Price of Entailed Superiorities. Price of 

Superiorities of Entailed Lands may be charged on the 
Entailed Estate, . . . . • 

113. Providing for Payment in lieu of Casualties of Superiority!^ 

case of Lands conveyed for Religious Purposes, . • 

114. Writs of Confirmation, &c, by Subject Superiors, to be tested, 

115. Charters and Writs to operate as Confirmation of aU prior 

Conveyances, &c., . . • ' ga 

116. Stamp Duty on Writs of Confirmation, &c., 

11. REDEEMABLE RIGHTS. 
I. Constitution of Redeemable Rights. 

117. Heritable Securities to form Moveable Estate, except where 

conceived in favour of Heirs, excluding Executors, and 
quoad fiscum. Not to belong to Husband jure mar%ti,not 
to Wife jure relictoe. Not to be computed in Legiixf^ 
Schedules (DD) and (EE), . . . • ^ 

118. Bonds and Dispositions in Security may be granted in the 

Form No. 1 of Schedule (FF), . . . ^ 



ARRANGEMENT OF GLAUSES. vi 

TIOV P«g« 

J. Explanation of Clauses in Schedule (FF), No. 1. Clauses 
reserving Right of Redemption, and of Obligation to pay 
Expense of Assignation or Discharge and Power of Sale, 
valid, &c. Schedule (FF), Nos. 2 and 3, . .64 

«0. Securities may be registered during Lifetime of Grantee, or 

Title completed after his Death, . . .67 

21. Sale carried through in Terms of this Act to be valid to the 

Purchaser, . . . . .68 

1% Creditors selling to count and reckon for the Surplus of the 

Price, and to consign the same in the Bank, . . 68 

3. On Sale and Consignation of Surplus, Lands to be disencum- 
bered of the Security, . . , .68 

II. Transmission of Redeemable Rights. 

- Securities to be transferred in the Form prescribed. When 
Conveyance of Heritable Security is contained in a general 
Deed of Conveyance, the whole such Deed need not be 
recorded. Schedules (GG) and (HH), . . .68 

Completion of Title of Executors or Executor nominate, or 
Disponee or Legatee of an Heritable Security, or of Heir 
where Executors excluded. Schedule (II), . . 69 

Completion of Title of Executors, &c., of Creditor dying in- 
testate. Schedule (JJ), . . . .70 
Executor nominate or Disponee mortis causa may complete 
Title by Notarial Instrument, Schedide (KK), . . 70 

» Form of completing Title of Heir where Executors are ex- 
cluded. Schedule (JJ), . . . .71 

► Adjudgers may complete their Title by recording Abbreviate 

of Adjudication [or Decree of Adjudication], . ,71 

• Unregistered Security or Assignation to be available to Exe- 
cutors, &c., of Grantee, Schedule (MM), . . 72 

^ This Act not to affect Liability of Debtors or their Lands, . 73 

III. Discharge and Restriction of Redeemable Rights. 

^ How any Heritable Security may be renounced or discharged, 

Schedule (NN;, . . . . .73 

*-* Heritable Security, how restricted. Schedule (00), . 73 

'■^ Act to apply to all Heritable Securities, . . .73 

^* Parties may use the present Forms if they see fit, . , 73 

^« Fees to be taken by Town Clerks of Royal Burghs and 
Keepers of Registers in Office at 1st October 1845, during 
their respective Rights of Office, &c., . . .73 

III. GENERAL ENACTMENTS. 

*T, This Act to apply to Lands held by any Description of Tenure, 74 
>B. Short Clauses of Consent to Registration may be used in any 

Deed, Schedule (B) and (Q), . . .74 

19. Females may act as instrumentary Witnesses, . . 75 



viii TITLES TO LAND CONSOLIDATION (SCOTLAND) ACTM 

Skotioh N« 

140. Additional Sheets may be added to Writs, . . T5 

141. All Deeds, &c, recorded in Register of Sasines to have W»r- 

rantsof Registration endorsed, exceptcertain Burgage Deeds, '5 

142. Recording of Conveyances in the Register of Sasines authorised, 76 

143. Conveyances and Instruments may be recorded of new, . 76 

144. Recorded Instruments not to be challenged on the groond of 

Erasures, . . . . . 77 

145. Not competent to challenge existing Warrants of Registration 

on certain Grounds, . . . . 77 

146. Obligations appointed to be inserted in Instruments of Sasines 

shall be inserted in Notarial Instruments, . • <^ 

147. Prohibition against Subinfeudation not to be affected, . 78 

148. In all Questions under the Bankrupt Acts in Scotland, the 

Dates of Registration of Assignations, &c, to be held to be 
the Dates of the Instruments, . . • "^ 

149. Deeds and Instruments may be partly written and partly 

printed or engraved, . . . • '^ 

150. Debts affecting Lands ei^changed for other Lands to affect inch 

other Lands in lieu thereof, , . . • '* 

151. Provision for Lands held Burgage where no Burgh Register 

of Sasines is kept, . . . . • ** 

152. Provision for Lands in the Burgh of Paisley held by Bookiiig 

Tenure, . . . , . • * 

153. Fees of Town Clerks appointed prior to 8th March 1860 re- 

served, but no Town Clerks appointed after that Date to 
have Claims for Compensation for Loss of Fees, &c, • *' 

154. Official Acts of Town Clerks and Keepers of Registers of 

Sasines not to be affected by their personal Interests in 
recorded Writs, , , . . • " 

155. Inhibitions to take effect from Date of Registration of Notice, 

&c., Schedule (PP), . . , • ^^ 

156. Short Form of Letters of Inhibition, Schedule (QQ), • ^^ 

157. No Inhibition to have Effect against Acquirenda, unless in 

case of Heir under Entail or other indefeasible Title, • " 

158. Inhibitions on Depending Summons to be recalled on Petition 

to Lord Ordinary, . . . . • °^ 

159. Litigiosity not to begin before Date of Registration of Notice 

of Summons, Schedule (RR), . . • ^ 

160. Right to Heirship Moveables abolished, . . > ^ 

161. Judgment of Loid Ordinary on the Bills subject to Review of 

Inner House, and Judgments in certain Cases to be final • ^ 

162. Court of Session may fix and regulate Fees, . • " 

163. Old Forms of Conveyances maybe used, . . • ^ 

IV. SCHEDULES, . . pp. 84 to 132 



INDEX TO 



BE LAITD SEaiST£BS (SCOTLAND) ACT 1868. 

31 AND 32 VICT., c. 64. 



ABBAN6EMENT OF CUUSES. 

» Page 

bort Title, . . .133 

^terpietation Clause, .... 133 

^ General Register of Sasines, Writs to each Coimtj to be 

kept separate, ..... 133 
Jl Writs to have Warrant specifying County or Counties, 

Schedule (A), . . . . 134 

ompetent to record Writs in other Counties by New 

Warrant, .134 

"xorision for Writs transmitted by post, . . .135 

t^gistration, how to be made, .... 135 
'articular Registers of Sasines abolished, . 135 

^linted Abridgments and Indices to be prepared, . . 136 

Printed Abridgments and Indices to be sent to Counties, . 136 
(xirplus Copies of former Abridgments to be sent to do., . 137 

Registration in Sasine Register equivalent in certain cases to 
Registration in Books of Council and Session, Schedules (A) 
No. 3, and (B), . . . 137 

^0 higher Fees diaigeable for Writs so registered — Salaries 

of Keeper and Assistant Keepers of the Register of Deeds, 138 
Authentication of Registered Writs, . 139 

"^ister of Interruptions of Prescriptions discontinued, . 139 

'articular Registers of Inhibitions abolished, . . 139 

(eneral Register of do., and Register of Adjudications to be 

treated as one Register, .... 139 
^iticular Register of Homings continued, . . 140 

ower to Commissioners to regulate number and remunera- 
tion of Official Searchers, .... 140 
Regulation of Establishment of ^ Sasines and Inhibition 

Registers, ..... 140 

Remuneration to Sheriff Clerks, . . 141 

^ower to Keepers of discontinued Registers to apply for com- 
pensation, ... .141 



X TH£ LAND REGISTERS (SOOTLAND) AOT 1868. 

Saorioir Fige 

23. Responsibilities of Keepen of discontinued Particular Rdga- 

ters to apply to Keeper of General Register, . . 141 

24. Directions and Forms may be given by Lord Clerk Register, 141 

25. Power to Treasury to prepared amended table of R^pstration 

Fees, . . . .141 

26. Salary and Duties of Lord Clerk Register to be regulated bgr 

Treasury, . .148 

27. Act not to extend to Burgh Registers, . . . 14S 

28. Commencement of Act, . . . . 14S 

SCHEDULES, . 142 to 144 



THE CONVEYANCING (SCOTLAND) ACT 1874. 

37 AND 38 VICT. 0. 94. 

1. Short Title, . . 146 

2. Commencement of Act, . .145 

3. Interpretation Clause, . .145 

4. (1) Renewal of Investiture abolished, reserving Charters of 

Novodamus, &a, . . . .14^ 

(2) Infeftment to imply entry with Superior (Form of Notice, 

Schedule A), . . . . .147 

(3) Implied entry not to affect Superior's right to fea-duties, d^, 148 

(4) Action in place of Declarator of Non-entry (Schedule B), 148 

5. Compositions payable by Corporations, Trustees, &c., . 1^ 

6. Consolidation of Superiority and Property, Schedule (C) • 1^^ 

7. Consolidation not to affect Superior's rights, . • 150 

8. Allocation of Feu-duty, Schedule (D), . . . IW 

9. Personal right to Estate in Land to vest in Heir without 

Service, . . . . . • 150 

10. Completion of Title when deceased Heir not served (Form of 

Petition, Schedule E), . . . .1^1 

11. Error in Character in which Heir served not to be an objection, 1^1 

12. Liabilities of Heir for his Ancestor's debts, . . 1*^ 

1 3. Right of Succession'os Heir may be challenged within 20 years, 1^8 

14. Legal remedies to prevent possession preserved, . . 15^ 

15. Redemption of Casualties, . . . .1^ 

16. Casualties redeemed to be discharged. Schedule (F), . 15' 

17. Superior may elect to take annual sum. Schedule (Q), . 531 

19. Redemption of Casualties by a Mid-Superior, . • 15* 

20. Commutation of Carriages, &c., by Agreement or by Sheriff, . 1^ 

21. Commuted Value to be Feu-duty. 

22. Monopolies of Superiors' Agents, and future Prohibitions ol 

Subinfeudation, &c, annulled. 



164 
I 



ABBAKGBMENT OF OLAUSBS. xi 

\monow Page 

13. BegolationofCasiialtiesinfataieFeiis, . .165 

14. B^ulationof do. in Feus already Contracted for, . 156 
S6. Distinction between Burgage and Feu abolished, but Bnigh 

Registers to be Retained, .... 156 
id. Forms of Burgage Conveyances, . 157 

J7. Word "Dispone "unnecessary, .... 157 

28. Implied date of Entry, .157 

29. Two or more General Dispositions may form links in Title, . 157 
V). Conveyance and Discharge of Real Burdens, . 158 
U. General Service to be equivalent to a General Disposition, . 159 
J2. Reservations may be imported by Reference, Schedule (H), . 159 

13. ALL Writs recorded in any Sasine Register must have Warrant, 160 
H. Period of Prescription, . , .160 
)5. Reduction of Decree of Division of Commonty, . 160 

16. Effect of Decree of Sale of Glebe, . .161 

17. Distinction between Heritage and Conquest abolished, .161 
)8* Rules as to probative character of Deeds, . .161 
0. Deeds not Invalid because Improbative . .162 
U). Dates of Holograph Testamentary Writings, . 162 
11. Where party cannot Write one Notary sufficient, Schedule (I), 162 

15. Prescription of Inhibitions, .... 162 
i3. Completion of Title of heir of last Trustee, . 163 

14. Completion of Title of Judicial Factor, &c., . . 163 

16. Completion of Title of successor of ex officio Trustee, . 164 

16. Completion of Trustees' Title where no direct Conveyance, . 164 

17. Personal Obligations in Heritable Securities to transmit against 

Heirs and Disponees, Schedule (K), . . 164 

18. Provisions for disencumberiug Lands sold under Heritable 

Securities when no Surplus, Schedule (L), No. 1, .165 

19. Provisions for dlBencimibering Lands sold under Heritable 

Securities when Discharge not obtained. Schedule (L), No. 2, 165 

50. Assignation of Rights of Relief, &c, Schedule (M), . . 166 

51. Probate equivalent to Will in completing Title, .166 
9SL Decrees of Service unchallengeable on certain Grounds, . 166 
^ Completion of Title to Heritable Securities under General Dis- 
position, Schedule (N), .... 167 

"^ Recorded Documents unchallengeable on certain grounds, . 167 

'- Bepeal of Section 118 of Bankruptcy Act, . . 167 

^ ^Execution of Deeds by Limited Companies, . 167 

Offices abolished, ..... 168 

frovisions as to Chancery Office, .168 

-Act to apply to Lands held of Crown and Prince, . . 168 

X^viBO as to private Estates of Her Majesty, . . 169 

Section 11 of Consolidation Act repealed, description of lands 

by reference, Schedule (0), .... 169 
Section 62 of Do. repealed (Adjudications), . 170 



xii THE OONVETANOING (SOOTLAND) AOT 1874. 

Siorioi P^ 

63. Section 125 of Consolidation Act repealed (Title to Heritable 

Securities), 

64. Section 127 of Do. repealed Po), 

65. Section 129 of Do. repealed (A^judger's Title), 

66. Schedules to be part of Act, 

67. Repeal of Acts, &c., . 

68. Saying Clause, 

SCHEDULES, . . . 174 to 185 



171 
172 
173 
174 
174 
174 



BEGISTBATION OF LEASES (SCOTLAND) ACT 1857. 

1. Long Leases registerable in Sasine Register, . 185 

2. Recorded Leases effectual against Singular Successors, . 186 

3. Assignations, Schedule (A), . . . .186 

4. Assignations, Schedule (B), . . . .186 

5. Do., where party not original Lessee or Assignee, Schedule (Q, 186 

6. Tnuislations, Sdiedule (C), • . . .187 

7. Writs of Acknowledgment, Schedule (E), . . .187 

8. Notarial Instruments, Schedule (F), . . .187 

9. Where Assignee has died without recording. Schedule (F), . 188 

10. Adjudger's Title, . . . .188 

11. Bankruptcy Trustee's Title, Schedule (F), . .188 

12. Preferences, . . . . . .188 

13. Renunciations and Discharges, Schedules (G) and (H), . 188 

14. Entiy of Decree of Reduction, . . . .189 

15. Mode of Registering — Extracts to make faith, . 189 

16. Registration eqiiivalent to possession, . . .189 

17. Renewable Leases Registerable, .189 

18. No Lease dated after Act registerable unless name and boundazy 

of Lands given, &c., . . . . .189 

19. Extracts of Leases registerable, . . .190 

20. Clauses of Schedules to have meaning of similar Clauses in 

Schedules of 10 and 11 Vict c 50, . . .190 

21. Short Title, . . . . . . 190 

SCHEDULES, . . 190 to 195. 



THE REGISTRATION OF LEASES (SCOTLAND) 

AMENDMENT (ACT) 1877, . 196 



An ACT to Amend the Form of Warrant of Execution on 
certain Writs registered in the Books of Council and 
Session and Sheriff Court Books in Scotland, and to 
provide for the Authentication of certain Extracts of 
Writs (40 and 41 Vict. cap. 40), . 197 



APPENDIX. 



Sr & 32° VICTORIiB. 

Cap. CI. 

An Act to Consolidate the Statutes relating to the Constitt^ 
tion and Completion of Titles to Heritable Property 
in Scotland, and to make certain Changes in the Law 
o/* Scotland relating to Heritable Bights, 

[3l8t July 1868.] 

NoTS. — Thefiquret en the margin refer to the eorrespanding SeeUons and Schedules of 
the Repealed Acts, re-enacted in or euperteded by the present Act. 

WHEEEAS it is expedient to consolidate the Statutes which have 
been passed during recent years relating to the forms of consti- 
tuting and completing titles to land and to heritable securities in 
Scotland, and to make certain changes upon the law of Scotland 
in regard to heritable rights, and to the succession to heritable 
securities, in Scotland : Be it therefore enacted by the Queen's 
Most Excellent Majesty, by and with the advice and consent of 
the Lords Spiritual and Temporal, and Commons, in this present 
Parliament assembled, and by the authority of the same, as fol- 
lows: 

1. This Act may be cited for all purposes as " The Titles to short title. 
Land Consolidation (Scotland) Act 1868.'' 

2. This Act shall take effect from and after the thirty-first Commence- 
day of December One thousand eight hundred and sixty-eight, ment of Act 
nnless in so far as it is herein appointed to take effect at an ear- 
lier date. 

3. The following words and expressions in this Act, and in interpreta- 
tbe Schedules annexed to this Act, shall have the several mean- ^^^ ^^ 
ings hereby assigned to them, unless there be something in the ^"^' 
subject or context repugnant to such construction ; that is to say. 



31° AND 32° VICT., CAP. 101. 

The words "raperior," "vassal," "grantor," " grantee" " dis- 
poner," "disponee," "legatee," "adjudger," and "par- 
chaser," shall extend to and include tl^e heirs, successon, 
and representatives of such superior, vassal, grantor, 
grantee, disponer, disponee, legatee, adjudger, or purchaser 
respectively ; and the word " successors " shall extend io 
and include heirs, disponees, assignees legal as weU as 
voluntary, executors, and representatives : 

The word " month " shall mean calendar month : 

The words " Sheriff of Chancery " shall extend to and include 
the Sheriff of Chancery and his Substitute under this Act, 
or under the Act of the Tenth and Eleventh Victoria^ chap- 
ter forty-seven ; and the word " Sheriff " shall extend to 
and include the Sheriff and Steward of any county or 
stewartry and his Substitute, and the Sheriff of Chaoceiy 
and his Substitute : 

The words " Sheriff-clerk of Chancery " shall extend to and 
include the Sheriff-clerk of Chancery acting under this 
Act, or who acted under the Act of the TiBnth and EleTenth 
Victoria^ chapter forty-seven, and the Depute of sncb 
Sheriff-clerk ; and the words " Sheriff-clerk " shall extend 
to and include the Sheriff-clerk of Chancery and the Sb^ 
riff-clerk and Steward-clerk of any county or stewaitiyt 
and their respective Deputes : 

The words " Crown-writ " shall extend to and include all char- 
ters, precepts, and writs from Her Majesty, and from ^ 
Prince ; and the word ** Crown " shall extend to and in- 
clude Her Majesty and the Prince ; the words " Her Ma- 
jesty " shall extend to and include Her Majesty and Her 
royal successors ; and the word " Prince " shall extend to 
and include the Prince and Steward of Scotland ezmI his 
successors : 

The word " charter " and the word " writ " shall each exta»d 
to and include all Crown-writs, and all charteis, precepts, 
and writs from subject-superiors : 

The word " deed " and the word " conveyance " shall each ex- 
tend to and include all charters, writs, dispositions, whe- 
ther containing a warrant or precept of sasine or not, and 
whether inter vivos or mortis catisa, and whether abeolota 
or in trust, feu-contracts, contracts of ground-annual, 
heritable securities, reversions, assignations, instniments, 
decrees of constitution relating to land to be afterwards 
adjudged, decrees of adjudication for debt, and of adjudi- 
cation in implement, and of constitution and adjudicatioB 
combined, whether for debt or implement, decrees of de- 
' clarator and adjudication, decrees of sale, and decreea of 
general and of special service, whether such decrees oon- 



SV AND 32° VICT., CAP. 101. 3 

tain warrant to infeft or precept of sasine or not, and the 
sammonses, petitions, or warrants on which any such de- 
crees proceed, warrants to judicial factors, trustees, or bene- 
ficiaries of a lapsed trust, to make up titles to lands, and 
the petitions on which such warrants proceed, writs of ac- 
knowledgment, contracts of excambion, deeds of entail, 
procuratories of resignation ad remanentiam, and all deeds, 
decrees, and writings by which lands, or rights in lands, 
are constituted or completed or conveyed or discharged, 
whether dated, granted, or obtained before or after the 
passing of this Act, and official extracts of all deeds and 
conveyances; and all codicils, deeds of nomination, and 
other writings annexed to or indorsed on deeds or convey- 
ances, or bearing reference to deeds or conveyances sepa- 
rately granted, and decrees of declarator naming or ap- 
pointing persons to exercise or enjoy the rights or powers 
conferred by such deeds or conveyances, shall be deemed 
and taken for the purposes of this Act to be parts of the 
deeds or conveyances to which they severally relate, and 
shall have the same effect in all respects as to the persons 
80 named and appointed as if they had been named and 
appointed in the deeds or conveyances themselves : 

The words ^* deed of entail '' shall extend to and include all 
deeds and conveyances of lands under the fetters of a strict 
entail, and all procuratories, bonds, and contracts by which 
lands are settled under such fetters : 

The word " instrument " shall extend to and include all nota- 
rial instruments authorised by this Act, or by any of the 
Acts hereby repealed, and also all instruments of sasine, 
instruments of resignation ad reman^ntiam, instruments of 
resignation and sasine, and instruments of cognition and 
sasine, and instruments of cognition : 

The words " heritable security " and " security " shall each ex- 
tend to and include all heritable bonds, bonds and disposi- 
tions in security, bonds of annualrent, bonds of annuity, 
and all securities authorised to be granted by the seventh 
section of the Act of the Nineteenth and Twentieth Vic- 
toria, chapter ninety-one, intituled An Act to Amend and 
re'Cnact certain Provisions of an Act of the Fifty-fourth 
Year of King Greorge the Third relating to Judicial Pro- 
cedure and Securities for Debts in Scotland, and all deeds 
and conveyances whatsoever, legal as well as voluntary, 
which are or may be used for the purpose of constituting 
or completing or transmitting a security over lands or over 
the rents and profits thereof, as well as such lands themselves 
and the rents and profits thereof, and the sums, principal, 
interest, and penalties secured by such securities, but shall 

a2 



31° AND 32° VICT., CAP. 101. 



not include securities by way of gronnd-anonai. woeuu. 
redeemable or irredeemable, or absolute disponciaDB aoau- 
fied by back-bonds or letters : 

The word ^' creditor " shall extend to and include the party m 
whose favour an heritable security is granted, and nis nc- 
cessors in right thereof : 

The word ^^ debtor " shall include the debtor and his snccesson: 

The word ^^ lands" shall extend to and include all heritable 
subjects, securities, and rights : 

The words " notary-public *' shall be held to mean a notaiy- 
public duly admitted to practise in Scotland : 

The word ^' petitioner " shall extend to and include any penoD 
who may have presented or may present a petition within 
the meaning of this Act, or of any Act hereby repealed: 

The words '* judicial factor " shall extend to and include judi- 
cial factors or curators bonis to persons under incapacity, 
factors loco tutoris, factors loco absentis^ and all judicial 
managers : 

The words <<infeft" and <4nfeftment" shall extend to and 
include the due registration, in the appropriate Begister 
of Sasines, of any deed or conveyance, whether before or 
after the commencement of this Act, by which registratioii 
a real right to lands has been or shaJl be constituted. 

Acts speci- 4. From and after the commencement of this Act the aerenl 
dSfe'(A?re.' Acts and part of Act set forth in Schedule (A, No. 1) to this Act 
pealed. annexed, to the extent to which such Acts or part of Act are by 
such Schedule expressed to be repealed, and every other Act or 
Acts, and such parts of every other Act or Acts, as shall be incon- 
sistent with this Act, shall be and the same are hereby repealed: 
Provided always that such repeal shall not be construed to lesKD 
or affect any right to which any person may at the time of saob 
repeal be entitled under the said Acts or part of Act, or to len^ 
or affect any liability then existing thereunder, or to invalidate 
or affect anything done prior to the passing hereof in puiBnaooe 
of the said Acts or part of Act, or to revive or render neoesarj 
any deed, form, procedure, or practice by said Acts or part of Act 
repealed, abolished, or rendered unnecessary ; and provided also 
that any right to lands constituted or acquired under said Acts 
or part of Act may be completed, transferred, or extingoidied 
either under the same or under this Act. 

In convey- 5. It shall not be necessary to insert in any conveyance of 
ratuT^c. ^^^^^ ^^ Scotland not held by burgage tenure a clause of obliga- 
not bold' tion to infeft, or a precept of sasine, or warrant of infeftmeDt; 
burgage, and in any conveyance of such lands in which all or any of the 
ciaiis^ may following clauses are necessarily or usually inserted, (viddicU) a 



31° AND 32° VICT., CAP. 101. 



clause declaring the term of entiy, a clause expressing the man- be inserted 
ner of holding, a procuratory or clause of resignation, a clause of [** *^® *^J^ 
assignation of writs and evidents, a clause of assignation of rents, in SchSuie 
a clause of ohligation to free and relieve of feu-duties and casual- (B), No. i. 
ties due to the superior, and of public burdens, a clause of war- lo and ii 
randice, a procuratory or clause of registration for preservation, Vict,, c 48, 
or for preservation and execution, it shall be lawful and competent .?^- 
to insert all or any of such clauses in the form, or as nearly as yi^ c.76 
may be in the form No. 1. of Schedule (B) hereunto annexed ; and § 6. ' 
all or any of such clauses, if so inserted in any such conveyance, 
or in any conveyance dated after the thirtieth day of September 
One thousand eight hundred and forty-seven, shall have the mean- 
ing and effect assigned to them in the sixth and eighth sections of 
this Act, and shall be as valid, effectual, and operative, to all in- 
tents, effects, and purposes, as if the same had been expressed in 
the fuller mode or form generally in use prior to the said thirtieth 
day of September One thousand eight hundred and forty-seven. 

6. If the lands have been or shall be conveyed to be holden import of 
a me only, the clause so expressing the manner of holding shall <^^"** ®*" 
imply that the lands are to be holden from the grantor of and mim^r^of 
under his immediate lawful superiors, in the same manner as the holding. 
grantor or his predecessors or authors held, hold, or might have -^ , -- 
holden the same, and that the title of the disponee may be com- vict., c.48, 
pleted either by resignation or confirmation, or both, the one 1 2. 
without prejudice of the other; and if the lands shall be dis- yj^.^^^3 
poned to be holden a me vel de me, the clause so expressing the § 36.' 
manner of holding shall imply that the lands are either to be 
holden of the grantor in free blench, for payment of a penny 
Scots in name of blench farm, at Whitsunday yearly, upon the 
g^round of the lands, if asked only, and freeing and relieving the 
grantor of all feu-duties and other duties and services exigible 
out of the said lands by his immediate lawful superiors thereof, 
or to be holden from the grantor of and under his immediate 
lawful superiors, in the same manner as the grantor or his prede- 
cessors or authors held, hold, or might have holden the same, and 
that the title of the disponee may be completed either by resig- 
nation, or confirmation, or both, the one without prejudice of the 
other ; and where no manner of holding is expressed, the convey- 
ance shall be held to imply that the lands are to be holden in the 
same manner as if the conveyance contained a clause expressing 
the manner of holding to be a me vel de me, where the titles of 
the lands contain no prohibition against subinfeudation, or against 
an alternative holding, and as if the conveyance contained a 
clause expressing the manner of holding to be a ma, where the 
titles contain such prohibitions, or either of them : Provided 
always that where the said titles contain such prohibitions, or 



: , CAP. 101. 7 

jimtiun to such writs and evi- 

.^. «?l!inso8, and precepts, if any, 

'iitaiiied, and to all unrecorded 

;;ir has right; and the clause of 

- shall, unless specially qualified, 

■u to the rents to become due for 

: :ii of entry, according to the legal 

lis, unless in the case of forehand 

II" held to import an assignation to 

ii\>'ntional terms subsequent to the 

■ iif warrandice in these forms shall, 

:■ held to imply absolute warrandice 

! writs and e\'idents, and warrandice 

/mis the rents ; and the clause of obli- 

,.• from feu-duties, casualties, and public 

I if Schedule (B) hereto annexed, shall, 

■I, ho held to import an obligation to re- 

nr other duties and services or casualties 

I lie superior, and of all public, parochial, 

iii^ from or on account of the lands conveyed 

' 1 11 try ; and the clause of obligation to free 

'iind-annuals, cess, annuity, and other public 

\u. 2 of Schedule (B) hereto annexed, shall, 

irilified, be held to import an obligation to re- 

.1 annuals, cess, annuity, and other public, paro- 

:»iirdens, due from or on account of the lands 

to the date of entry; and the clause of consent 

:i these two forms shall, unless specially qualified, 

ling and import and eflect assigned to them in the 

uid thirty-eighth section of this Act. 

11 not be necessary, in any conveyance or deed of or Conditions 
I Jiids held under a deed of entail, or of or relating tu of entail 
utd by excambion in exchange for lands held under ?i3?anct*sot 
t-l" entail, or of or relating to lauds purchased or ac- entailed 
: the purpose of being added to any estate held under l^g^'eJ^bv 
; of entail, or entailed on the heirs and under the condi- reference 
. cified in any deed of entail, to insert the destination of merely, 
i the conditions, provisions, and prohibitory, irritant and lOandli 
.vo clauses, or clause authorising registration in the Re- Vict., c. 47. 
"f Tailzies, contained in any such deed of entail ; provided Iq'^^^ ^ 
:nie shall in such conveyance or deed be specially referred vict., c. 4S, 
• set forth at full length in such deed of entail recorded in ? **. 
i;<gi8ter of Tailzies, if the mme shall have been so recorded, vi(J|*c."9 
s set forth at full length in any conveyance or deed recorded |j 3. ' 
he appropriate Register of Sasines, and forming part of the ^Jl*°** ^L 
fress of title-deeds of the said lands held under such deed of v 25/ ^' "^ ' 



8 31° AND 32^ VICT., GAP, lOL 

21 and 22 entail, such reference being made as nearly as may be in the 
Vi<^, c. 76, iQYm^ get forth in Schedule (G) hereto annexed ; and tiie reference 
23 and 24 to 8uch destination, or to such conditions, provisions, and prohi- 
Vict., c. 143, bitory, irritant, and resolutive clauses or clause, authorising le* 
92 ii> 27. gigtration in the Begister of Tailzies, if so made in any soch 
conveyance or deed, whether dated prior or subsequent to tiie 
commencement of this Act, shall be equivalent to the full inBer- 
tion thereof, and shall, to all intents and in all questions what- 
ever, whether inter hasredes or with third parties, have the same 
legal effect as if the same had been inserted exactly as they an 
expressed in the recorded deed of entail, conveyance, or deed re- 
ferred to, notwithstanding any law or practice to the contnu7) or 
any injunction to the contrary contained in such deed of entail, 
or any enactments or provisions to the contrary contained in an 
Act of the Parliament of Scotland made in the year One thonfland 
six hundred and eighty-five, intituled An Act concerning Taibaa^ 
or in any other Act or Acts of the Parliament of Scotland or (^ 
Cheat Britain^ or of the United Kingdom of Oreat Britain ad 
Ireland, now in force. 

Bealbor- 10. Where lands are or shall hereafter be held under any 

?ferred to** real burdens or conditions or provisions or limitations whataoeYer 
u already appointed to be fully inserted in the investitures of such lands, 
in the Re- it shall, notwithstanding such appointment, and notwithstanding 
^^'g^ any law or practice to the contrary, not be necessary in any 
conveyance or deed of or relating to such lands to insert aoch 
VicTVl? ^®*^ burdens or conditions or provisions or limitations, provided 
^ 6. ' ' the same shall, in such conveyance or deed, be specially re- 
10 and 11 ferred to as set forth at full lenjrth in the conveyance or deed 
vwi., c. «j, ^£ ^j. j-eiating to such lands recorded in the appropriate Register 
10 and 11 of Sasines, wherein the same were first inserted, or in any eoA 
Vwt., c. 49, conveyance or deed of subsequent date recorded as aforesaid, and 
10 and 11 forming part of the progress of titles of the said lands, eo^ 
Vict., c. 50, reference being made in the terms, or as nearly as may be in the 
fo^and 11 *®"^^ ^®* forth in Schedule (D) hereto annexed; and the reference 
Vict., c. 51, to such real burdens, or conditions, or provisions, or limitations, 
1 27. if so made in any such conveyance or deed, whether dated prior 

^rt? C.143 ^^ subsequent to the commencement of this Act, shall be hdd to 
g 3i!' ' be equivalent to the full insertion thereof, and shall, to all in- 
tents 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 are expressed in the recorded 
conveyance or deed referred to, notwithstanding any law or prac- 
tice, or Act or Acts of Parliament to the contrary. 

Description 11. In all cases where any lands have been particularly de- 
contSned ^^^^^ ^^ ^^7 prior conveyance or deed of or relating thereto re- 



3r AND 32° VIOT., CAP. 101. 



corded in the appropriate Begister of Sasines, it shall not be in recorded 
necessary in any subsequent conveyance or deed conveying or ^^g^JJ^ 
referring to the whole or any part of such lands to repeat the in gnbse- 
particular description of thclands at length, but it shall be suf- q^ent writs 
ficient to specify some leading name or names, or some distinctive ^etdy!^^ 
description of the lands, as contained in the titles thereto, and to 
specify the name of the county, and, where the lands are held by virt*1;^6 
burgage-tenure, or by any similar tenure, the name of the burgh a is!' ' 
and county in which they are situated, and to refer to the par- ^ Mid 24 
ticular description of such lands, as contained in such prior convey- 1^^'^' * 
ance or deed so recorded in or as nearly as may be in the form 
set forth in Schedule (E) hereto annexed ; and the specification 
and reference so made in any such subsequent conveyance or deed, 
whether dated prior or subsequent to the commencement of this 
Act, shall be held to be equivalent to the full insertion of the 
particular description contained in such prior conveyance or deed, 
and shall have the same effect as if the particular description had 
been inserted in such subsequent conveyance or deed exactly as it 
is set forth in such prior conveyance or deed. 

12. Immediately before the testing clause of any conveyance Clanse di- 
of lands, it shall be competent to insert a clause of direction, in "^^trng P*^ 
or as nearly as may be in the form No. 1 of Schedule (F) hereto ^m to be 
annexed, specifying the part or parts of the conveyance which the recorded. 
grantor thereof desires to be recorded in the Register of Sasines ; 21 and 22 
and when such clause is so inserted in any conveyance, whether Vict, c. 76, 
dated before or after the commencement of this Act, and with a i^- , ^ 
warrant of registration thereon, in which express reference is vict,c. 143, 
made to such clause of direction (such warrant being in the form ii 6, 26. 
as nearly as may be of No. 2 of Schedule (F) hereto annexed), is 
j^resented to the Keeper of the appropriate Begister of Sasines for 
registration, such Keeper shall record such part or parts only, 
together with the clause of direction and the testing clause and 
warrant of registration ; and in the absence of such express 
reference in the warrant of registration as aforesaid, such convey- 
ance shall be engrossed in the register as if it had contained no 
clause of direction ; and the recording of such part or parts of the 
conveyance, together with the clause of direction and the testing 
clause, and the warrant of registration as before provided, shall 
have the same legal effect as if, at the date of such recording, a 
notarial instrument containing such part or parts of the convey- 
ance had been duly expede and recorded in the appropriate Register 
of Sasines in favour of the person on whose behalf the conveyance 
is presented : Provided that, notwithstanding such clause of direc- 
tion, it shall be competent for the person entitled to present the 
conveyance for registration to record the whole conveyance, or to 
expede and record a notarial instrument thereon, as after provided, 



10 31° AND 32° VICT., CAP. 101. 

in the same manner as if the conveyance had contained no such 
clause of direction ; and where such notarial instrument shall be 
expede no part or parts of the conveyante directed to be recorded 
shall be omitted from such instrument. 

Seveni 18. Where several lands are comprehended in one conveyanoe 

Jj^^^' in favour of the same person or persons, it tshall be competent to 
the same insert a clause in the conveyance, declaring that the whole lands 
deed may conveyed and therein particularly described shall be deeigned aod 
^^j^P*^ known in future by one general name to be therein specified; aod 
under one on the conveyance containing such clause, whether dated befoie 
general or after the commencement of this Act, or on an inBtrament fol- 
lowing thereon, whether dated before or after the commencemeot 
21 and 22 of this Act, and containing such particular description and daaae, 
Jie/ ^ being duly recorded in the appropriate Register of StsineB^ it 
shall be competent in all subsequent conveyances and deeds and 
discharges, of or relating to such several lands, to uee the genenl 
name specified in such clause as the name of the several landi 
declared by such clause to be comprehended under it ; and sadi 
subsequent conveyances and deeds and discharges of or leiatiiig 
to such several lands under the general name so specified shall be 
as effectual in all respects as if the same contained a partiGdir 
description of each of such several lands, exactly as the same ii 
set forth in such recorded conveyance or instrument : Provided 
always that reference be made in such subsequent conveyanoei 
and deeds and discharges to a prior conveyance or instnimatt 
recorded as aforesaid, in which such particular description and 
clause are contained : Provided also that it shall not be necesBiiJ 
in such clause to comprehend under one general name the whole 
lands contained in the conveyance in which such clause is in- 
serted, but that it shall be competent to comprehend certais 
lands under one general name, and certain other lands under an- 
other general name, it being clearly specified what lands are com- 
prehended under each general name : and such reference shall be 
in or as nearly as may be in the terms set forth in Schedule (6) 
hereunto annexed. 

Certain 14. Where a deed of entail contains an express clause antiio- 

enteiU no ^^^ing registration of the deed in the Register of Tailzies, it shall 
longer ne- not be necessary to insert clauses of prohibition against alienation, 
^^essary. contracting debt, and altering the onier of succession, and irritant 
11 and 12 and resolutive clauses, or any of them ; and such clause of regis* 
Vict., c. 36, tration contained in any deed of entail of lands not held by hitf- 
ii^and 22 S^S^ tenure, dated on or after the first day of October One thon- 
Vict., c. 76, sand eight hundred and fifty-eight, or of lands held by burgage 
1 18- tenure, dated on or after the tenth day of October One thousand 

Virt!!c.i43, eight hundred and sixty, shall have in every respect the same 

§12." * 



SI** AND 32° VICT., CAP. 101. 11 

opeiatlon and effect as if such clanses of prohibition, and such 
Irritant and resolutive clauses, had been inserted in such deed of 
entai], any law or practice to the contrary notwithstanding. 

15. It shall not be necessary towards obtaining infeftment in Instnunent 
land to expede and record in the case of lands not held by burgage ^^ ^^^^^ 
tenure an instrument of Sasine, or, in the case of lands held by ^^l^hm 
burgage tenure, an instrument of resignation and sasine, on any conveyance 
conveyance or deed of or relating to such lands, but it shall be ^J^j^' 
competent and sufficient for the person or persons in whose favour stead. 
the conveyance or deed has been or shall be granted or conceived, ^i ^^ 22 
instead of expeding and recording such instrument of sasine or of vict., c. 76, 
resignation and sasine, to record the conveyance or deed itself in 1 1- 

the appropriate Register of Sasines; and the conveyance or deed vict?c.l48 
being presented for registration in such register, with a warrant of a 3. ' 
registration thereon, in or as nearly as may be in the form No. 1 ^f^^ ^ 
of Schedule (H) hereto annexed, and being so recorded along with ^ *i^ *' ^' * 
such warrant, shall have the same legal force and effect in all 10 and 11 
respects as if the conveyance or deed so recorded had been ^oI-J^^-'^q^' 
lowed by an instrument of sasine in the case of lands not held by 
burgage tenure, or, in the case of lands held by burgage tenure, 
by an instrument of resignation and sasine expede in favour of 
the person on whose behalf the conveyance or deed is presented 
for registration, and recorded in the appropriate Begister of Sasines, 
at the date of recording the said conveyance or deed ; and where 
it is desired to give investiture proprm manibusy it shall be com- 
petent for the person in whose favour the conveyance or deed has 
been or shall be granted or conceived to record the conveyance or 
deed itself in the Begister of Sasines applicable to the lauds 
therein contained, with a warrant of registration thereon in or as 
nearly as may be in the form of No. 3 of Schedule (H) hereto 
annexed, signed by such person, and such conveyance or deed 
being so recorded along with such warrant shall have the same 
legal force and effect in all respects as if the conveyance or deed 
so recorded had been followed by an instrument of sasine, or of 
resignation and sasine propriis manibus expede in favour of the 
wife of such person, and signed by such person, ^nd recorded at 
the date of recording the said conveyance or deed according to the 
law and practice heretofore in force. 

16. It shall not be necessary towards obtaining infeftment in Mode of 
lands holden by burgage tenure upon any conveyance or deed of ^2ne?n 
or relating to such lands that the person or a procurator for the lands holden 
person obtaining infeftment shall appear before the provost or burgage. 
some one of the bailies of the burgh in which such lands are situ- 10 and 11 
atedy and resign the same into his hands as into the hands of Her Vict., c 49, 
Majesty, and for such provost or bailie to give sasine to such per- ^^ ^' ^* 



12 



31* AND 32** VIOT., CAP. 101. 



Not neces- 
sary to 
record the 
whole con- 
veyance or 
discharge. 

8 and 9 
Vict., c. 31, 
§1. 



8on or procnrator, nor shall it be necessaiy to proceed to the 
ground of the lands, or to the council chamber of the baigh,orto 
use any symbol of resignation or sasine ; and, notwithstanding the 
provisions of the immediately preceding section of this Act, it 
shall be lawful and competent to resign and obtain infeftment in 
such lands by presenting to any notaiy public such conTeyance or 
deed and other necessary warrants, and by such notaiy pahlie 
giving sasine therein by subscribing and recording an instrumeDt 
in the form and manner hereinafter mentioned ; and the iiutn- 
ment of sasine, or of resignation and sasine following on snch 
conveyance or deed may be expressed in the form or as neidj 
as may be in the form of Schedule (I) hereto annexed, and ahill 
be authenticated in the manner shown in such Schedule; andsoch 
sasine, or resignation and sasine, and snch instrument followiDg 
thereon, shall be as valid and effectual as if the same had beeo 
made and received and given and expressed in the mode and form 
in use prior to the thirtieth day of September One thousand eigbt 
hundred and forty-seven, and that notwithstanding of an Act of 
the Scottish Parliament passed in the year One thousand five hun- 
dred and sixty -seven, or any other Act of Parliament now in foioe 
to the contrary ; and every such instrument of sasine, or of reag- 
nation and sasine, and every similar instrument of sasine, or (t 
resignation and sasine expede in virtue of the provisions of the 
Act Tenth and Eleventh of the reign of her present Majesty, 
chapter forty-nine, shall be recorded ib manner in use prior to 
the said thirtieth day of September One thousand eight hondnd 
and forty-seven, with regeird to instruments of resignation and 
sasine in burgage property, and the town clerks of cities vA 
burghs are hereby required to register the same accordingly; iod 
such instruments of sasine, or of resignation and sasine, being i> 
recorded, shall in all respects have the same effect at the date of 
such recording as if resignation had been made and accepted and 
sasine had been given, and an instrument of sasine, or of Mg* 
nation and sasine, had been expede in favour of the person so ob* 
taining infeftment, and had been recorded in the appropriite 
Register of Sasines, according to the law and practice in use pri(v 
to the thirtieth day of September One thousand eight hundred sod 
forty-seven. 

17. Where it is not desired to record in the Eegister of SusaaeA 
the whole of a conveyance or deed, or the whole of a dischtige, 
of or relating to lands, it shall be competent and sufficient to ex- 
pede and record in the appropriate Eegister of Sasines a notariil 
instrument setting forth generally the nature of the conveyance 
or deed or discharge, and containing those portions of the same 
by which the lands are conveyed or discharged, and by which real 
burdens, conditions, provisions, or limitations are imposed or dia- 



3P AND 32° VICT., CAP. 101. 13 

changed ; and where hy any conveyance, or deed, or discharge, 21 and 22 
separate lands or separate interests in the same lands are conveyed 7!^ ^ '^^* 
[>r discharged in favour of the same or different persons, it shall 23 and 24 
[lot be necessary to record the whole of such conveyance, or deed, Vict, c 143, 
3r discharge, but it shall be competent and sufficient to expede ^ ^ 
smd record as aforesaid a notarial instrument, setting forth gene- 
rally the nature of the conveyance or deed or discharge and con- 
Uumng the part or parts of the conveyance or deed or discharge, 
by which particular lands are conveyed or discharged in favour of 
the person or persons in whose favour the notarial instrument is 
dxpede, and the part of the conveyance or deed or discharge, 
wluch specifies the nature and extent of the right and interest of 
mch person or persons, with the real burdens, conditions, provi- 
nons, and limitations, if any ; and such notarial instrument shall 
be in or as nearly as may be in the form of Schedule (J) hereto 
annexed ; and upon such notarial instrument or any similar nota- 
rial instrument expede in virtue of any of the Acts of Parliament 
bereby repealed being so recorded, the person or persons in whose 
favour the same has been or shall be expede and so recorded, shall 
be in the same position as if, at the date of such recording, the 
x>nveyance or deed or discharge on which it proceeds, along 
irith a warrant of registration thereon, had been recorded in the 
ippropriate Begister of Sasines in favour of such person or per- 

lODS. 

18. It shall not be necessary to expede and record an instru- Instrument 
nent of resignation cui remanentiam on any procuratory of resigna- ^^n^Ifr*- 
ion ad remanentiam^ or on any conveyance containing an express manentiam 
ilanse of resignation ad remanentiam^ but it shall be competent unneces- 
nd Imfficient for the superior in whose favour the resignation ^^Siereof 
inder such procuratory or conveyance is authorised to be made, to conveyance 
ecord in the appropriate Eegister of Sasines such procuratory or *° ^^^9^^ ^^ 
onveyance, with a warrant of registration thereon in the form or ^^ be^e- 
s nearly as may be in the form No. 1 of Schedule (H) hereto an- corded. 
lexed, or to expede and record a notarial instrument as nearly as 21 ^^^ 22 
aay be in the form of Schedule (J) hereto annexed ; and such Vict., c 76, 
procuratory or conveyance and warrant, or such notarial instru- S ^ 
aenty being so recorded, shall have the same effect as if, at the 
late of such recording, an instrument of resignation ad remanen- 
iam in favour of the party on whose behalf the same is so recorded 
lad been expede on such procuratory or conveyance, and had been 
eoorded in the appropriate Eegister of Sasines : Provided always 
hat nothing herein contained shall prevent an instrument of re- 
ignation ad remanentiam being expede and recorded on a convey- 
nce granted prior to the first day of October One thousand eight 
Qodred and fifty-eight, and containing a clause of resignation in 
le form authorised by the Act of the Tenth and Eleventh Victoria, 



4 SI"" AND 32° VICT., CAP. 101. 

not include securities by way of ground-anonai. waeta^. 

redeemable or irredeemable, or absolute dispoACiaDS ouau- 

fied by back-bonds or letters : 
The word " creditor " shall extend to and include the party in 

whose favour an heritable security is granted, and ais sac- 

cessors in right thereof : 
The word " debtor " shall include the debtor and his sucoesson: 
The word "lands'' shall extend to and include all heritable 

subjects, securities, and rights : 
The words " notary-public " shall be held to mean a Dotaiy* 

public duly admitted to practise in Scotland : 
The word " petitioner " shall extend to and include any person 

who may have presented or may present a petition within 

the meaning of this Act, or of any Act hereby repealed: 
The words " judicial factor " shall extend to and include jiidi- 

cial factors or curators bonis to persons under incapacity, 

factors hco tutorisy factors loco cLbsenHs^ and all judicial 

managers : 
The words << infeft '* and '' infeftment " shall extend to and 

include the due registration, in the appropriate Begister 

of Sasines, of any deed or conveyance, whether before or 

after the commencement of this Act, by which registration 

a real right to lands has been or shall be constituted. 

Acts sped- 4. From and after the commencement of this Act the serenl 

dufe'(A) re!" ^^*^ *^^ P*^ ^^ ^^^ ^®* ^^^^ ^ Schedule (A, No. 1) to this Act 
pealed. ' annexed, to the extent to which such Acts or part of Act are by 
such Schedule expressed to be repealed, and every other Act or 
Acts, and such parts of every other Act or Acts, as shall be incon- 
sistent with this Act, shall be and the same are hereby repealed: 
Provided always that such repeal shall not be constru^ to le6sen 
or affect any right to which any person may at the time of such 
repeal be entitled under the said Acts or part of Act, or to lessen 
or affect any liability then existing thereunder, or to invalidate 
or affect anything done prior to the passing hereof in parsnanoe 
of the said Acts or part of Act, or to revive or render neoessaiy 
any deed, form, procedure, or practice by said Acts or part of Act 
repealed, abolished, or rendered unnecessary ; and provided also 
that any right to lands constituted or acquired under said Acts 
or part of Act may be completed, transferred, or extinguished 
either under the same or under this Act. 

In convej- 5. It shall not be necessary to insert in any conveyance d 
faiiT^c. ^^^^^ i^ Scotland not held by burgage tenure a clause of obliga- 
notheid' tion to infeft, or a precept of sasine, or warrant of infeftment; 
burgage, and in any conveyance of such lands in which all or any of the 
cUus^ may following clauses are necessarily or usually inserted, (videlicet) a 



31° AND 32° VICT., CAP. 101. 



clause declaring the term of entiy, a clause expressing the man- be inserted 
ner of holding, a procuratory or clause of resignation, a clause of JP ^^ ^^^^ 
assignation of writs and evidents, a clause of assignation of rents, in SchSufe' 
a clause of obligation to free and relieve of feu-duties and casual- (B), No. i. 
ties due to the superior, and of public burdens, a clause of war- jq ^^ jj 
randice, a procuratoiy or clause of registration for preservation, Vict, c 48, 
or for preservation and execution, it shall be lawful and competent ?^- 
to insert all or any of such clauses in the form, or as nearly as yj^ ^75 
may be in the form No. 1. of Schedule (B) hereunto annexed ; and § 6. ' 
all or any of such clauses, if so inserted in any such conveyance, 
or in any conveyance dated after the thirtieth day of September 
One thousand eight hundred and forty-seven, shall have the mean- 
ing and effect assigned to them in the sixth and eighth sections of 
this Act, and shall be as valid, effectual, and operative, to all in- 
tents, effects, and purposes, as if the same had been expressed in 
the fuller mode or form generally in use prior to the said thirtieth 
day of September One thousand eight hundred and forty -seven. 

6. If the lands have been or shall be conveyed to be holden import of 
a me only, the clause so expressing the manner of holding shall <^^*^ *** 
imply that the lands are to be holden from the grantor of and mmne?of 
under his immediate lawful superiors, in the same manner as the holding. 
grantor or his predecessors or authors held, hold, or might have -^ , -- 
holden the same, and that the title of the disponee may be com- vict., c.48, 
pleted either by resignation or confirmation, or both, the one | 2. 
without prejudice of the other; and if the lands shall be dis- yj^^^ ^43 
poned to be holden a me vel de me, the clause so expressing the g 36.' 
manner of holding shall imply that the lands are either to be 
holden of the grantor in free blench, for payment of a penny 
8coU in name of blench farm, at Whitsunday yearly, upon the 
ground of the lands, if asked only, and freeing and relieving the 
grantor of all feu-duties and other duties and services exigible 
out of the said lands by his immediate lawful superiors thereof, 
or to be holden from the grantor of and under his immediate 
lawful superiors, in the same manner as the grantor or his prede- 
cessors or authors held, hold, or might have holden the same, and 
that the title of the disponee may be completed either by resig- 
nation, or confirmation, or both, the one without prejudice of the 
other ; and where no manner of holding is expressed, the convey- 
ance shall be held to imply that the lands are to be holden in the 
same manner as if the conveyance contained a clause expressing 
the manner of holding to be a me vel de me, where the titles of 
the lands contain no prohibition against subinfeudation, or against 
an alternative holding, and as if the conveyance contained a 
clause expressing the manner of holding to be a me, where the 
titles contain such prohibitions, or either of them : Provided 
always that where the said titles contain such prohibitions, or 



6 31° AND 32° VICT., CAP. 101. 

either of them, the conveyance shall, if an entry in the landB 
therein specified or thereby conveyed be expede with the superior 
within twelve months from the date of such conveyance, hafe 
the same preference in all respects from the date of recording the 
conveyance or any instrument thereon in the appropriate Register 
of Sasines as if such conveyance contained a clause expressing 
the manner of holding to he a me vel de me^ and the titles did 
not contain any prohibition against subinfeudation or against an 
alternative holding : And provided always that nothing contained 
in this Act shall be construed to take away or impair any of the 
rights and remedies competent to a superior against his vaasai 
lying out unentered. 

In convey- 7. It shall not be necessary to insert in any conveyance of 
ances of lands in Scotland held by burgage tenure a clause of obligation 
pr^e^ to infeft, or a procuratory or clause of resignation ; and evwy 
certain conveyance of such lands shall imply that the lands thereby oon- 
f *^^,Sy ^®y^^ *^ ^° ^® holden of Her Majesty in free burgage, for service 
in thTforms ^^ burgh used and wont ; and in any conveyance of such lands, in 
given in which all or any of the following clauses are necessarily or nsoally 
f^^**> ^^^^^) (videlicet) a clause declaring the term of entry, a daiw 
j, 0. -. ^^ obligation to free and relieve of ground-annual, cess, annuity, 
10 and 11 and other public burdens, a clause of assignation of rents, a clantt 
\h\*2 ^^' of .assignation of writs and evidents, a clause of warrandice, and a 
23 and 1^ clause of registration for preservation and execution, it shall be 
Vict., c. 143, lawful and competent to insert all or any of such clauses in tbe 
^ ' form or as nearly as may be in the form No. 2 of Schedule (B) here- 

to annexed ; and all or any of such clauses, if so inserted in any 
such conveyance, or in any similar conveyance dated after the 
thirtieth day of September One thousand eight hundred and forty- 
seven, shall have the meaning and efifect assigned to them in the 
eighth section of this Act, and shall be as valid, effectual, and 
operative to all intents and purposes as if they had been expressed 
in the .fuller mode or form generally in use prior to the said 
thirtieth day of September One thousand eight hundred and forty- 
seven. 

. 

Import of 8. The clause for resigning the lands in form No. 1 of Sche- 

^"ses in ^x\\q (B) hereto annexed shall be held and taken to be equivalent 

(B), Nos. 1 to a procuratoiy of resignation in favorem only in the terna in 

and 2. use prior to the thirtieth day of September One thousand eight 

. hundred and forty-seven, unless specially expressed to be a re- 

Vict., c. 76. signation ad remanentiam^ in which case it shall be equivalent to 

§ 5. a procuratory of resignation ad remanentiam according to flw 

VicTVls ^°^™ ^° ^^^ P^^°^ *^ ^^® ^*^^ ^^^^ > ^^^ *^® clause of assignation 
§3.' 'of writs and evidents in forms Nos. 1 and 2 of Schedule (B) 
io and 11 hereto annexed shall, unless specially qualified, be held to import 

Vict., C. 4", 

S2. 



3r AND 32° VICT., CAP. 101. 7 

an absolute and unconditional assignation to such writs and evi- 
dents, and to all open procuratories, clauses, and precepts, if any, 
and as the case may be therein contained, and to all unrecorded 
conveyances to which the disponer has right ; and the clause of 
assignation of rents in these forms shall, unless specially qualified, 
be held to import an 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 
dat« of entry ; and the clause of warrandice in these forms shall, 
unless specially qualified, be held to imply absolute warrandice 
as regaids the lands and writs and evidents, and warrandice 
from fact and deed as regards the rents ; and the clause of obli- 
gation to free and relieve from feu-duties, casualties, and public 
burdens, in form No. 1 of Schedule (B) hereto annexed, shall, 
unless specially qualified, be held to import an obligation to re- 
lieve of all feu-duties or other duties and services or casualties 
payable or prestable to the superior, and of all public, parochial, 
and all local burdens due from or on account of the lands conveyed 
prior to the date of entry ; and the clause of obligation to free 
and relieve from ground-annuals, cess, annuity, and other public 
burdens, in form No. 2 of Schedule (B) hereto annexed, shall, 
unless specially qualified, be held to import an obligation to re- 
lieve of all ground-annuals, cess, annuity, and other public, paro- 
chial, and local burdens, due from or on account of the lands 
conveyed prior to the date of entry ; and the clause of consent 
to registration in these two forms shall, unless specially qualified, 
have the meaning and import and effect assigned to them in the 
one hundred and thirty-eighth section of this Act. 

9. It shall not be necessary, in any conveyance or deed of or Conditions 
relating to lands held under a deed of entail, or of or relating to ®^ ^^^ 
lands obtained by excambion in exchange for lands held under ^^^(^ of 
any deed of entail, or of or relating to lands purchased or ac- entailed 
quired for the purpose of being added to any estate held under |^^rted^)v 
any deed of entail, or entailed on the heirs and under the condi- reference 
tions specified in any deed of entail, to insert the destination of merely. 
heirs, or the conditions, provisions, and prohibitory, irritant and lo and li 
resolutive clauses, or clause authorising registration in the Re- Vict, c 47, 
gister of Tailzies, contained in any such deed of entail ; provided Iq'^^ j^ 
the same shall in such conveyance or deed be specially referred vict, c. 48, 
to as set forth at full length in such deed of entail recorded in H- 
the Register of Tailzies, if the same shall have been so recorded, vicT c 49 
or as set forth at full length in any conveyance or deed recorded g 8. ' 
in the appropriate Register of Sasines, and forming part of the Ji!jJ"^ ^L 
progress of title-deeds of the said lands held under such deed of % 26/ ^ ' 



8 31° AND 32*" VIOT., CAP. 101. 

21 and 22 entail, such reference being made as nearly as may be in fJie 
Vict., c. 76, iQYms set forth in Schedule (C) hereto annex^ ; and tiie refeience 
23 and 24 to Buch destination, or to such conditions, proyisions, and prohi- 
Vict., c. 143, bitory, irritant, and resolutive clauses or clause, authorisiDg re- 
^i 111 27. gigtration in the Begister of Tailzies, if so made in any soeii 
conveyance or deed, whether dated prior or subsequent to the 
commencement of this Act, shall be equivalent to the full inser- 
tion thereof, and shall, to all intents and in edl questions whtt- 
ever, whether inter hceredes or with third parties, have the etne 
legal effect as if the same had been inserted exactly as thej aie 
expressed in the recorded deed of entail, conveyance, or deed re- 
ferred to, notwithstanding any law or practice to the contraiy, or 
any injunction to the contrary contained in such deed of ^taiL, 
or any enactments or provisions to the contrary contained in ib 
Act of the Parliament of Scotland made in the year One thooflUiA 
six hundred and eighty -five, intituled An Act concerning Taikiemy 
or in any other Act or Acts of the Parliament of Scotkund or o^ 
Oreat Britain^ or of the United Kingdom of Cheat Britain a^^ 
Ireland^ now in force. 

Beil bar- 10. Where lands are or shall hereafter be held under tt^Z 

^ oi^ '®*^ burdens or conditiotis or provisions or limitations wbateoev^^ 
as already appointed to be fully inserted in the investitures of such Und^ 
in the Re- it shall, notwithstanding such appointment, and notwithsUndiOl^ 
^^gj^ any law or practice to the contrary, not be necessary in •f'J 
conveyance or deed of or relating to such lands to insert w^5 
Trt*^ ^47 ^^^ burdens or conditions or provisions or limitations, provide** 
1 6. ' ' the same shall, in such conveyance or deed, be speciaUy r^' 
10 and 11 f erred to as set forth at full length in the conveyance or dee^ 
vK5t., c. «j, q£ qj. relating to such lands recorded in the appropriate Begiat^^ 
io and 11 of Sasines, wherein the same were first inserted, or in any sac^ 
Vwt., c. 49, conveyance or deed of subsequent date recorded as aforesaid, ta^ 
10 and 11 forming part of the progress of titles of the said lands, soc^ 
V 

Virt!i"c.'5i, to such real burdens, or conditions, or provisions, or limitatioEA 
1 27. if so made in any such conveyance or deed, whether dated ^n^^ 

^cTc U3 ^^ subsequent to the commencement of this Act, shall be held *<> 
1 3l!' ' be equivalent to the full insertion thereof, and shall, to all in* 
tents and in all questions whatever, whether with the disponer, or 
superior, or third parties, have the same legal effect as if the uJOfi 
had been inserted exactly as they are expressed in the recorded 
conveyance or deed referred to, notwithstanding any law or pnc* 
tice, or Act or Acts of Parliament to the contrary. 



Vict., c. 50, reference being made in the terms, or as nearly as may be in tb^ 
0* d 11 *®^™^ ^®* forth in Schedule (D) hereto annexed; and the reference 



Description 11. In all cases where any lands have been particularly^ 
^ ^tSned scribed in any prior conveyance or deed of or relating thereto re 



31° AND 32° VIOT., CAP. 101. 



corded in the appropriate Begister of Sasines, it shall not be in recorded 
necesBaiy in any subsequent conveyance or deed convejring or ^^j^JJ^ 
referring to the whole or any part of such lands to repeat the in soiise- 
particular description of the-lands at length, but it shall be suf- qnent writs 
ficient to specify some leading name or names, or some distinctive ^^vT"^ 
description of the lands, as contained in the titles thereto, and to 
specify the name of the county, and, where the lands are held by yi^^^^e 
bnrgage-tenure, or by any similar tenure, the name of the burgh a 15/ ' ' 
and county in which they are situated, and to refer to the par- 23 and 24 
ticular description of such lands, as contained in such prior convey- J^^^' * 
ance or deed so recorded in or as nearly as may be in the form 
set forth in Schedule (E) hereto annexed ; and the specification 
and reference so made in any such subsequent conveyance or deed, 
whether dated prior or subsequent to the commencement of this 
Act, shall be held to be equivalent to the full insertion of the 
particular description contained in such prior conveyance or deed, 
and shall have the same effect as if the particular description had 
been inserted in such subsequent conveyance or deed exactly as it 
is set forth in such prior conveyance or deed. 

12. Immediately before the testing clause of any conveyance Clanse di- 
of lands, it shall be competent to insert a clause of direction, in Jrecting part 
OT as nearly as may be in the form No. 1 of Schedule (F) hereto ^m to^^ 
annexed, specifying the part or parts of the conveyance which the recorded. 
grantor thereof desires to be recorded in the Register of Sasines ; 21 and 22 
and when such clause is so inserted in any conveyance, whether Viet., c. 76, 
dated before or after the commencement of this Act, and with a t,^* . ^^ 
warrant of registration thereon, in which express reference is vict.,c. 143, 
made to such clause of direction (such warrant being in the form §} 6, 25. 
as nearly as may be of No. 2 of Schedule (F) hereto annexed), is 
presented to the Keeper of the appropriate Eegister of Sasines for 
registration, such Keeper shall record such part or parts only, 
together with the clause of direction and the testing clause and 
warrant of registration ; and in the absence of such express 
reference in the warrant of registration as aforesaid, such convey- 
ance shall be engrossed in the register as if it had contained no 
clause of direction ; and the recording of such part or parts of the 
conveyance, together with the clause of direction and the testing 
clause, and the warrant of registration as before provided, shall 
have the same legal effect as if, at the date of such recording, a 
notarial instniment containing such part or parts of the convey- 
ance had been duly expede and recorded in the appropriate Eegister 
of Sasines in favour of the person on whose behalf the conveyance 
is presented : Provided that, notwithstanding such clause of direc- 
tion, it shall be competent for the person entitled to present the 
conveyance for registration to record the whole conveyance, or to 
expede and record a notarial instrument thereon, as after provided, 



10 



31° AND 32° VICT., CAP. 101. 



Seyenl 
lands ooo- 
▼eyed by 
the same 
deedmmy 
be compre- 
hended 
under one 
general 
name. 

21 and 22 
Vict, c 76, 
11^, 



Certain 
clauses in 
entails no 
longer ne- 
cessary. 

11 and 12 
Vict., c. 86, 

21 and 22 
Vict., c. 76, 
a 18. 

23 and 24 
Vict., c. 143, 
§12. 



in the same manner as if the conveyance had contained no lofik 
clause of direction ; and where such notarial instrument shall be 
expede no part or parts of the conyeyante directed to be recorded 
shall be omitted from such instrument. 

18. Where several lands are comprehended in one conveyuoe 
in favour of the same person or persons, it shall be competent to 
insert a clause in the conveyance, declaring that the wh(de landi 
conveyed and therein particularly described shall be designed lod 
known in future by one general name to be therein specified; and 
on the conveyance containing such clause, whether dated befon 
or after the commencement of this Act, or on an instrument fol* 
lowing thereon, whether dated before or after the conunenoenieiit 
of this Act, and containing such particular description and dame, 
being duly recorded in the appropriate Register of Sisinei^ it 
shall be competent in all subsequent conveyances and deeds and 
discharges, of or relating to such several lands, to use the geneiil 
name specified in such clause as the name of the seyeial landi 
declared by such clause to be comprehended under it ; and nek 
subsequent conveyances and deeds and discharges of or idatizig 
to such several lands under the general name so specified shall be 
as effectual in all respects as if the same contained a ptiticobr 
description of eeich of such several lands, exactly as the same ii 
set forth in such recorded conveyance or instrument : Provided 
always that reference be made in such subsequent oonvejineei 
and deeds and discharges to a prior conveyance or instrameot 
recorded as aforesaid, in which such particular description aod 
clause are contained : Provided also that it shall not be neceesuy 
in such clause to comprehend under one general name the wbok 
lands contained in the conveyance in which such clause ie ^ 
sorted, but that it shall be competent to comprehend oeitia 
lands under one general name, and certain other lands under u* 
other general name, it being clearly specified what lands aie cos* 
prehended under each general name : and such reference shall ^ 
in or as nearly as may be in the terms set forth in Schedule (&) 
hereunto annexed. 

14. Where a deed of entail contains an express clause antko- 
rizing registration of the deed in the Begister of Tailzies, it 4*^ 
not be necessary to insert clauses of prohibition against aliena^ 
contracting debt, and altering the oider of succession, and inittot 
and resolutive clauses, or any of them ; and such clause of r^ 
tration contained in any deed of entail of lands not held by \ff^ 
gage tenure, dated on or after the first day of October One thoa* 
sand eight hundred and fifty-eight, or of lands held by burglp 
tenure, dated on or after the tenth day of October One tho^tt^ 
eight hundred and sixty, shall have in every respect the 93» 



SI** AND 32° VICT., CAP. 101. 11 

opeiatlon and effect as if such clauses of prohibition, and such 
irritant and resolutive clauses, had been inserted in such deed of 
entail, any law or practice to the contrary notwithstanding. 

15. It shall not be necessary towards obtaining infeftment in Instnunent 
land to expede and record in the case of lands not held by burgage °on**^°** 
tenure an instrument of Sasine, or, in the case of lands held by (^Ju-y, bat 
burgage tenure, an instrument of resignation and sasine, on any conveyance 
conveyance or deed of or relating to such lands, but it shall be ^^^i^' 
competent and sufficient for the person or persons in whose favour atead. 
the conveyance or deed has been or shall be granted or conceived, gj ^^ 22 
instead of expeding and recording such instrument of sasine or of vict., c. 76, 
resignation and sasine, to record the conveyance or deed itself in 1 1- 

the appropriate Register of Saeines ; and the conveyance or deed ^ct? c.^43 
being presented for registration in such register, with a warrant of a 3. ' 
registration thereon, in or as nearly as may be in the form No. 1 °^^^ ^ 
of Schedule (H) hereto annexed, and being so recorded along with g ^i *' ^' * 
such warrant, shall have the same legal force and effect in all 10 and 11 
respects as if the conveyance or deed so recorded had been fol- 1*q"iq^' 
lowed by an instrument of sasine in the case of lands not held by 
burgage tenure, or, in the case of lands held by burgage tenure, 
by an instrument of resignation and sasine expede in favour of 
the person on whose behalf the conveyance or deed is presented 
for registration, and recorded in the appropriate Register of Sasines, 
at the date of recording the said conveyance or deed ; and where 
it is desired to give investiture proprm manibus^ it shall be com- 
petent for the person in whose favour the conveyance or deed has 
been or shall be granted or conceived to record the conveyance or 
deed itself in the Register of Sasincs applicable to the lands 
therein contained, with a warrant of registration thereon in or as 
nearly as may be in the form of No. 3 of Schedule (H) hereto 
annexed, signed by such person, and such conveyance or deed 
being so recorded along with such warrant shall have the same 
legal force and effect in all respects as if the conveyance or deed 
so recorded had been followed by an instrument of sasine, or of 
resignation and sasine propriis manibus expede in favour of the 
wife of such person, and signed by such person, ^nd recorded at 
the date of recording the said conveyance or deed according to the 
law and practice heretofore in force. 

16. It shall not be necessary towards obtaining infeftment in Mode of 
lands holden by burgage tenure upon any conveyance or deed of ^j^^f 
or relating to such lands that the person or a procurator for the lands holden 
person obtaining infeftment shall appear before the provost or burgage. 
some one of the bailies of the burgh in which such lands are situ- 10 and 11 
ated, and resign the same into his hands as into the hands of Her Vict., c 49, 
Majesty, and for such provost or bailie to give sasine to such per- ^^ ^' 



12 



31° AND 32° VIOT., CAP. 101. 



Not neces- 
sary to 
record the 
whole con- 
veyance or 
discharge. 

8 and 9 
Vict., c. 31, 
81. 



Bon or procurator, Dor shall it be necessary to proceed to the 
ground of the lands, or to the council chamber of the 1raigli,orto 
use any symbol of resignation or sasine ; and, notwithstanding the 
provisions of the immediately preceding section of this Ad, it 
shall be lawful and competent to resign and obtain infeftment in 
such lands by presenting to any notaiy public such conveyanoe or 
deed and other necessary warrants, and by such notaiy poUie 
giving saisine therein by subscribing and recording an instnoKit 
in the form and manner hereinafter mentioned ; and the iofltn- 
ment of sasine, or of resignation and sasine following od neb 
conveyance or deed may be expressed in the form or as neiiiy 
as may be in the form of Schedule (I) hereto annexed, and ihd 
be authenticated in the manner shown in such Schedule ; aDdnd 
sasine, or resignation and sasine, and such instrument foUowiDi 
thereon, shall be as valid and effectual as if the same had beet 
made and received and given and expressed in the mode and font 
in use prior to the thirtieth day of September One thousand eigbk 
hundred and forty-seven, and that notwithstanding of an Aet of 
the Scottish Parliament passed in the year One thousand five hun* 
dred and sixty -seven, or any other Act of Parliament now in force 
to the contrary ; and every such instrument of sasine, or of reoig^ 
nation and sasine, and every similar instrument of sasine, or of 
resignation and sasine expede in virtue of the provisions of tie 
Act Tenth and Eleventh of the reign of her present Majesllf, 
chapter forty-nine, shall be recorded ih manner in use prior t(» 
the said thirtieth day of September One thousand eight hxaiffi 
and forty-seven, with regaid to instruments of resignation md 
sasine in burgage property, and the town clerks of cities id^ 
burghs are hereby required to register the same accordingly ;iD^ 
such instruments of sasine, or of resignation and sasine, being v 
recorded, shall in all respects have the same effect at the date rf 
such recording as if resignation had been made and accepted tfd 
sasine had been given, and an instrument of sasine, or of Rflg* 
nation and sasine, had been expede in favour of the person flo ob* 
taining infeftment, and had been recorded in the vppffp^ 
Register of Sasines, according to the law and practice in use pflO' 
to the thirtieth day of September One thousand eight hundred tt^ 
forty-seven. 

17. Where it is not desired to record in the Begister of Smb** 
the whole of a conveyance or deed, or the whole of a dischaipi 
of or relating to lands, it shall be competent and sufficient to^* 
pede and record in the appropriate Begister of Sasines a notm* 
instrument setting forth generally the nature of the conveyiof* 
or deed or discharge, and containing those portions of the «tf* 
by which the lands are conveyed or discharged, and by which r» 
burdens, conditions, provisions, or limitations are imposed or dii^ 



SI"" AND 32° VICT., CAP. 101. 13 

rged ; and where by any conveyance, or deed, or discharge, 2i and 22 
irate lands or separate interests in the same lands are conveyed Jj^'' ^* '^^* 
iischarged in favour of the same or different persons, it shall 23 and 24 
be necessary to record the whole of such conveyance, or deed, Vict, c 143, 
iiacharge, but it shall be competent and sufficient to ezpede ^ ^' 
1 record as aforesaid a notarial instrument, setting forth gene- 
ly the nature of the conveyance or deed or discharge and con- 
ning the part or parts of the conveyance or deed or discharge, 
which particular lands are conveyed or discharged in favour of 
3 person or persons in whose favour the notarial instrument is 
pede, and the part of the conveyance or deed or discharge, 
ich specifies the nature and extent of the right and interest of 
h person or persons, with the real burdens, conditions, provi- 
18, and limitations, if any ; and such notarial instrument shall 
iii or as nearly as may be in the form of Schedule (J) hereto 
exed ; and upon such notarial instrument or any similar nota- 
instrument expede in virtue of any of the Acts of Parliament 
^ly repealed being so recorded, the person or persons in whose 
^iir the same has been or shall be expede and so recorded, shall 
Cft the same position as if, at the date of such recording, the 
^eyance or deed or discharge on which it proceeds, along 
1 a warrant of registration thereon, had been recorded in the 
r>opriate Begister of Sasines in favour of such person or per- 

1.8. It shall not be necessary to expede and record an instru- Instrument 
tt of resignation ad remanenttam on any procuratory of resigna- ^Jj^^^, 

ad remanentiamy or on any conveyance containing an express manentiam 
•ce of resignation ad remanentiam^ but it shall be competent unneces- 

Sufficient for the superior in whose favour the resignation Jj^^^^j 
er such procuratory or conveyance is authorised to be made, to conveyance 
»id in the appropriate Register of Sasines such procuratory or *° ^*^P^' °^ 
^eyance, with a warrant of registration thereon in the form or S^ b^'re- 
L early as may be in the form No. 1 of Schedule (H) hereto an- corded. 
«d, or to expede and record a notarial instrument as nearly as 21 aod 22 
r be in the form of Schedule (J) hereto annexed ; and such Vict., c. 76, 
curatory or conveyance and warrant, or such notarial instru- S ^* 
It, being so recorded, shall have the same effect as if, at the 
B of such recording, an iu.strument of resignation ad remanen- 
1 in favour of the party on wiiose behalf the same is so recorded 
been expede on such procuratory or conveyance, and had been 
>rded in the appropriate Begister of Sasines : Provided always 
t nothing herein contained shall prevent an instrument of re- 
lation ad remanenttam being expede and recorded on a convey- 
9 granted prior to the first day of October One thousand eight 
dred and nfty-eight, and containing a clause of resignation in 
Form authorised by the Act of the Tenth and Eleventh Victoria, 



14 3r AND 32^ VICT., CAP. 101. 

chapter forty-eight ; and that all instnunentB of lesignation md n- 
manentiam may he in or as nearly as may he in the form of Schedule 
(K) hereto annexed; and when in such form, whether expede 
before or after the commencement of this Act, the same maj,witfc 
warrant of registration thereon, he recorded in the appn^iriate 
Begister of Sasines at any time dnring the life of the ptitjia 
whose favour the resignation is made, and the date of preseDtmenl 
and entry set forth on any instrament of resignation in socfa fon 
by the Keeper of the Begister shall he the date of the resignatki 
and of the instrument. 

Notarial 19. Where a person shall have granted or shall grant a geneai 

U^J^^ disposition of his lands, whether hy conveyance fnortii emucr 
eenenl inter vivos^ or hy a testamentary deed or writing within tbe Beoff 
disponees. and meaning of the twentieth and twenty-first section! of thi 
21 and 22 Act, and whether such general disposition shall extend to tks 
Vict, c. 76, whole lands belonging to the granter, or be limited to partkniir 
island 24 ^^^^^ belonging to him, with or without full description of nd 
Vict, c. 143, lands, and whether such general disposition shall contain or Ad 
S 3- not contain a procuratory or clause of resignation, or a {neceptflf 

Vi^ c 81 8^1^69 Of AQ obligation to infeft, or a clause expressing the mii- 
2 4. ' ' ner of holding, it shall be competent to the grantee under fad 
general disposition to expede and record in the appropriate Bep' 
ter of Sasines a notarial instrument in or as nearly as majbeii 
the form of Schedule (L) hereto annexed ; and on such notarial ii- 
strument or any similar notarial instrument expede in tiitae 
of any Act of Parliament hereby repealed being so recoiM 
such grantee shall be in all respects in the same positioo tf 
if a conveyance of the Icmds contained in such notaiial 0" 
etrument had been executed in his favour by the granter of 
the general disposition, to be holden, in the case of lands DOt 
held by burgage tenure, by such manner of holding, if any, aiii 
expressed in the general disposition, and if no particular maimff 
of holding is therein expressed, then to be holden in the maniMr 
and to the effect, and subject to the provisions enacted and pio* 
vided in the sixth section of this Act in the case of convejanoei 
in which no manner of holding is expressed, and in the caie d 
lands held by burgage tenure to be holden of Her Majesty in frM 
burgage, and as if such conveyance had been followed, where flOck 
lands are not held by burgage tenure, by an instrument of auiiw 
of the said lands in favour of such grantee, or, where they v» 
held by burgage tenure, by an instrument of resignation uA 
sasine thereof in his favour expede and recorded in the appro- 
priate Begister of Sasines, at the date of reoording such ootansl 
instrument : Provided always that where such notarial inttnu^t 
shall be expede by a person other than the origina\ grantee tfiM^ 
such general disposition, it shall set forth the title or series d 



15 

I oi.le acquired 
■ r Ill's right. 

; i )S Act it shall be De prcumU 
.succession to the'^®'^'? 

J words of 

ijviyaiices ih iwa-- g^yie, unce- 

i' (.^, but likewise bycessarym 

:::.i;s, and no testamen- '^^'^'^^^ 
•rtiiig to convey or be- 
lli 'd by any person alive [^^ 
'.\\ch shall be granted by 
; this Act, shall be held to 
iids to which such deed or 
t ho grantor has not used, with 
: ''dispone," or other word oi 
/'rcesenti ; and where such deed 
■ i in the terms required by the ex- 
•nveyance of lauds, but shall con- 
iids any word or words which would, 
■at with reference to moveables, be 
. executor of the grantor, or upon the 
moveables, a right to claim and receive 
riting, if duly executed in the mannei 

I the case of any testamentary writing by 

II be deemed and taken to be equivalent 
II of such lands within the meaning of the 

reof by the grantor of such deed or writing 

utee thereof, or of the legatee of such lands, 

'o create and shall create in favour of such 

an obligation upon the successors of the grantor 

A riting to make up titles in their own persons to 

[0 convey the same to such grantee or legatee; 

competent to such grantee or legatee to complete 

ch lands in the same manner and to the same effect 

■'d or writing had been such a general disposition of 

.u favour of such grantee or legatee, and that either 

t instrument or in any other manner competent to a 

sponee: Provided always that nothing heroin contained 

:ield to confer any right to such lands on the successors 

iich grantee or legatee who shall predecease the grantor, 

the deed or writing shall be so expressed as to give them 

right in the event of the predecease of such grantee or 

21. Where such testamentary or mortis causa deed or writing Trustee -» 
Jl be conceived in favour of a grantee as trustee or executor ^p^y^JJnJ^ 
the granter, and shall not be expressed to be wholly in favour for purposci 



16 31° AND 32° VICT., CAP. 101. 

of trost or of 8uch tnistee or executor for his own benefit, sach tnutee f 
^*'- executor shall apply such whole lands for the purposes specifiea 

[New,] in such deed or writing; and where such purposes cannot, id 
whole or in part, be carried into effect, or where no purposes vith 
reference to such lands have been or shall be specified in socb 
deed or writing, such trustee or executor shall convey such liodi; 
or so much thereof, or shall apply so much of the proceeds theno^ 
if such lands shall have been sold and realised by him, is oiif 
not be required for the purposes of such deed or writing, to orftf 
behoof of the person or the successors of the person who, but kt 
the passing of this Act and the granting of such deed or wiitii^ 
would have been entitled to succeed to such lands on the dei&of 
such grantor. 

Assignations 22. It shall be competent to any person having right to tt 
^°J®' unrecorded deed or conveyance, whether granted in favour of his* 
veyances. ^^ 01 originally granted in favour of another person, to aoigB 
the deed or conveyance, in or as nearly as may be in the foca 
Viot., c. 76 ^0. 1 of Schedule (M) to this Act annexed, setting forth tba deed 
1 18.' ' or conveyance, and the title or series of titles, if any, by whiA 
vIcT^ Ud ^^ acqtiired right to the same, and the nature of the right H' 
h9,'* ' * signed ; and the assignation, or in the event of there being noR 
10 and 11 than one, the successive assignations, may be recorded in tiie ip- 
Vict., c. 50, propriate Register of Sasines along with the deed or conveyUM 
itself, and a warrant of registration thereon, in or as nearijii 
may be in the form No. 2 of Schedule (H) hereto annexed; fsi 
it shall be competent to write the assignation or assignations oi 
the deed or conveyance itself, in or as nearly as may be in tte 
form No. 2 of Schedule (M) hereto annexed, setting forth fts 
deed or conveyance and the title or series of titles, if anjiliy 
which such person acquired right to the same^and the natueof 
the right assigned ; in which case the assignation or assignatiooi 
and the deed or conveyance may be so recorded along with the 
warrant of registration thereon, which warrant shall be in or i> 
nearly as may be in the form No. 1 of Schedule (H) hereto an- 
nexed ; and the deed or conveyance, with the warrant of regustv- 
tion, and the assignation or assignations, separate from the deed 
or conveyance, and those written upon the deed or conveyawe. 
if any, and all similar assignations granted before the com- 
mencement of this Act, being so recorded, shall operate io 
favour of the assignee on whose behalf they are presented if 
registration, as fully and effectually as if the lands contained ir 
the assignation, or, if there be more than one, in the last assigna' 
tion, had been disponed by the original deed or conveyance in 
favour of such assignee, and the deed or conveyance, with Ae 
warrant of registration, had been recorded, in the manner herein' 
before provided, of the date of recording such deed or conTeytfOB 



3F AND 32° VICT., CAP. 101. 17 

and assignatiou or assignations; and all deeds or conveyances 
with a warrant of registration and assignation or assignations 
written thereon, or with an assignation or assignations separate 
therefrom, that may have been so recorded before the commence- 
ment of this Act, shall operate in favour of the assignees on 
whose behalf the same shall have been so recorded, as effectually 
as is hereinbefore provided in regard to a recorded deed or 
conveyance with a warrant of registration and assignation or as- 
signations written thereon, notwithstanding that such assignation 
or assignations may not have been docqueted with reference to 
sach warrant, or referred to therein as being so docqueted. 

23. It shall be competent to any person having right to an Notarial 
unrecorded deed or conveyance originally granted in favour of an- psjroniento 
other person to expede a notanal instrument in or as nearly as parties ac- 
may be in the form of Schedule (N) hereto annexed, setting forth quiring 
the deed or conveyance and the title or series of titles by which he JJ^^^JJed 
acquired right to the same, and the nature of his right, and to re- convey- 
cord the deed or conveyance, with warrant of registration thereon, *°ce»- 
in the form or as nearly as may be in the form of No. 2 of Sche- 21 and 22 
dale (H) hereto annexed, and also the notarial instrument, in the Vict., c. 7C, 
Impropriate Register of Sasines; or, where it is not desired to re- Iq^^'jo^ 
cord the whole of the deed or conveyance, it shall be competent Vict.,c.i43, 
to expede a notarial instrument in or as nearly as may be in the § 10. 
form of Schedule (J) hereto annexed, setting forth generally the vic^V 60 
nature of the deed or conveyance, and containing those portions a 6. ' ' 
of the deed or conveyance by which the lands in regard to which ^^^ 9 
the said instrument is expede are conveyed, and by which real » ^**' ^ ' 
burdens, conditions, provisions, or limitations, if any, are imposed, 
and also setting forth the title or series of titles by which the 
party acquired right to the deed or conveyance, and to record such 
notarial instrument in the appropriate Begister of Sasines ; and 
on the deed or conveyance, with such warrant of registration 
thereon, and such notarial instrument in the form of the said 
Schedule (N), or any similar deed or conveyance with warrant of 
registration and notarial instrument expede in virtue of any Act 
of Parliament hereby repealed, being so recorded, or on such no- 
.tarial instrument in the form of the said Schedule (J), or any 
similar notarial instrument expede in virtue of any Act of Parlia- 
ment hereby repealed, being so recorded, the person in whose 
fayour the deed or conveyance and instrument, or the instrument, 
baye or has been or shall be expede and so recorded, shall be in 
the same position as if the original deed or conveyance had been 
granted to himself, and, along with a warrant of registration 
thereon, had been recorded in the manner hereinbefore provided, 
of the date of recording the deed or conveyance and notarial in- 
strument or the notarial instrument. 



18 31° AND 32° VICT., CAP. 101. 

Mode of ^ Where, in a petition to the Court of Session for the n>pointiiiat 

completing of a jadicial lactor, authority has been or shall be asked for the eon- 
title by a pletion of a title by such factor to any lands forming the whole or put 
jadidal iac- ^f i]j^q estate to be managed by such judicial fiictor, or where a jndidil 
l^^^^^^j^ factor has applied or shall apply, by petition or note to said Coait^ £r 
^ ' authority to complete a title to such lands, either in his own petm m 

judicial factor, or in the person of any pupil, minor, or lunatic to wIiob 
21 and 22 \q jj^j i^^q been appointed judicial factor, and where anj petition or 
Yict. c. 76, ^^^ Yiss specified ana described or shall specify and deacnbe the kadi 
23 uid 24 to which such title is to be completed, or has reCened or shall refer tP 
Vict. c. 143, the desciiption of the same, in the form, or as nearly as may be ii the 
§ 38. form of Schedule (£) hereto annexed, or of Schedule (G) hereto n- 

nexed, as the case ma^ be, the warrant granted for completiiig nch 
title shall also so speo^r and describe the lands to which soch titieii 
to be completed, or shall so refer to the description thereof; and nek 
warrant shall be held to be a conveyance in due and common famd 
the lands therein specified in favour of such judicial fiustor grutedlf 
the person, whether in life or deceased, whose estate is under jvdied 
management, or, where the estate is that of a pupiL minor, or faoits 
in whose person a title has not been made up, such warrant ihill be 
held to be such a conveyance in favour of the pupil, miuOT, or hauA^ 
or of the judicial factor appointed to such pupil, minor, orliinatk^* 
the case may be, granted by a predecessor or author having sodi wk 
or, where such judicial fiurtor has been or shall be appointed oa a 
estate which shall have been vested in a trustee or former jndkiil 
factor, such warrant shall be held to be such a conveyance giuted ^ 
such trustee or former factor, whether in life or deceased, for the po- 
poses of such estate, or lifust, or factory, to be holden in the ciK (f 
unds not held by burgage tenure in the manner and to the eisetiid 
subject to the provisions enacted and provided in the sixth sectkaef 
this Act in the case of conveyances in which no manner of hbUitf i 
expressed, and in the case of lands held by burgage tenure to be bolda 
of Her Majesty in free burgage ; and such warrant may, with win^ 
of registration thereon, be recorded in the appropriate Begiiter d 
Sasines as a conveyance in favour of such ju(uciid £su:tor, or poA 
minor, or lunatic, or of the factor on his estate, and being so nam 
shall nave the same force and effect as if at the date of such xeooid^ 
such conveyance had been ^nted to the judicial factor, or pq^ 
minor, or lunatic, or the judicial factor appointed to such piqnL dum; 
or lunatic, as the case may be, and recorded in the appropnate B^giits 
of Sasines : Provided always, that for enabling the person in iv^ 
such lands were last vested, or his representatives, or other pfftitf 
interested, to bring forward competent objections against such mstad 
being granted, or claims uDon toe estate, tiie Court shall oidei la^ 
intimation and service of tne petition or note as to them eJian M < 

g roper : Declaring always, that the whole enactments and inoviM* ^ 
erein contained ^all extend and apply to all petitions to and wmtf^ * ;* 
by the Court of Session under ^^The Trusts (Scotkmd) AA, ISff; _ 
unless in so far as such provisions and enactments may be in^ppliw^ 
to the form or objects or such petitions or warrants. 

Mode of 25. It shall be competent to a trustee on a sequestrated 

cwnpleting Qp |^ liquidators, official or voluntary, appointed for tiie 
^!^^j^ of winding-up a joint-stock company, to expede a notarial 



31° AND 32° VICT., CAP. 101. 19 

ment, setting forth the act and warrant of confirmation in favour sequestra- 
of such trustee, or the appointment of such liquidators, official or jj^"-,^ !*^ 
voluntary, respectively, and specifying the lands belonging to the of joint- 
bankrupt or company to which a title is to be completed, and the stock corn- 
title by which such lands are held by the bankrupt or company, P*°*^- 
in or as nearly as may be in the form of Schedule (0) hereto an- 21 and 22 
nexed, and when the lands consist of heritable securities by a no- J*5j» *^- '^^f 
tarial instrument in or nearly as may be the form of Schedule I3 ^^^^ 24 
(LL) hereto annexed, and to record such notarial instrument in Vict., c 143, 
the appropriate Register of Sasines ; and on such notarial instru- ^ ^^* 
ment or any similar notarial instrument expede in virtue of any 
Act of Parliament hereby repealed being so recorded, the trustee 
01 liquidators in whose favour the same shall have been or shall 
be so recorded shall be held to be in all respects in the same posi- 
tion as if the bankrupt or company, or any previous trustee or 
liquidator had granted a conveyance of the lands contained in the 
notarial instrument in favour of such trustee or such liquidators, 
to be holden in the case of lands not held by burgage tenure in 
the manner and to the effect, and subject to the provisions enacted 
and provided in section sixth hereof in the case of conveyances 
where no manner of holding is expressed, and in the case of lands 
held by burgage tenure to be holden of Her Majesty in free bur- 
gage, and as if such conveyance had been recorded or followed by 
an instrument of sasine, or of resignation and sasine, or notarial 
instrument, in favour of such trustee or of such liquidators, duly 
expede and recorded in the appropriate Register of Sasines at the 
date of recording such notarial instrument. 

26. Wherever lands have been or may hereafter be acquired Heritable 
by any congregation, society, or body of men associated for reli- property 
gioQS purposes, or for the promotion of education, including the fo" re^gious 
general assemblies, synods, and presbyteries of the Established or educa- 
Ghurch of Scotland^ and of all other Presbyterian Churches in ^^^^'^ 
Scotlandy as a chapel, meeting-house, or other place of worship, or mi^ponecs 
as a manse or dwelling-house for the minister of such congrega- or their suc- 
tion or society or body of men, or offices, garden, or glebe for his *^*^'**"* 
use, or as a schoolhouse or schoolmaster's house, garden, or play- 13 Vict, 
ground, or as a college, academy, or seminary, or as a hall or ^^*}h 
loomfi for meeting for the transaction of business, or as part of the yj^ ^ 143^ 
picperty belonging to such congregation, society, or body of men, § 32. 
ana wherever the conveyance or lease of such lands has been or 
may be taken in favour of the moderator, minister, kirk-session, 
vestrymen, deacons, managers, or other office-bearers or office- 
bearer of such congregation or society or body of men, or any of 
them, or of trustees appointed or to be from time to time ap- 
pointed, or of any party or parties named in such conveyance, or 
lease in trust for behoof of the congregation or society nr body of 



20 Sr AND 32° VICT., CAP. lOL 

men, or of the individuals comprising the same, such convejince, 
when recorded with warrant of registration thereon in terms of 
this Act, or when followed by notarial instrament expede, and 
with warrant of registration thereon recorded in terms of this Act, 
or such lease, shall not only vest the party or parties named 
therein in the lands, thereby feued, conveyed, or leased, but sfaiU 
also, after the death or resignation or removal from office of sock 
party or parties, or any of them, effectually vest their suooesoii 
in office for the time-being chosen and appointed in the maimer 
provided or referred to in such conveyance or lease, or if no mode 
of appointment be therein set forth or prescribed, then in terns 
of the rules or regulations of such congregation or society or bodj 
of men, in such lands, subject to such and the like trosts and vitk 
and under the same powers and provisions as are contained or re- 
ferred to in the conveyance or lease given and granted to tke 
parties disponees or lessees therein, and that without any true- 
mission or renewal of the investiture whatsoever, anything in 
such conveyance or lease contained to the contrary notwithsteod- 
ing : And the provisions of this section shall apply abo to eD 
trusts for the maintenance, support, or endowment of miniitencf 
religion, missionaries, or schoolmasters, or for the maintemnoecf 
the fabric of churches, chapels, meeting-houses, or other plioeiof 
worship, or of manses or dwelling-houses or offices for miniiteii 
of the Gospel, or of schoolhouses or schoolmasters' boDsei^ v 
other like buildings. 

Sorrioos to 27. From and after the commencement of this Act it diaO 
^'Sr** to^ °®* ^® competent to issue brieves from Chancery for the wfice 
the Sheriff. ^^ heirs, or for any person to obtain himself served heir by Tirtoe 

of any such brieve, or otherwise than according to the prorawi 
Vict! c. 47 ^^ ^^^ ^^^ 9 ^^^ eveiy person desirous of being served heir to • 
u 1/2. ' person deceased, whether in general or in special, and in iriiats^ 
viet^ ^43 ^^^^ character, and whether the lands which belonged to ffch 
2 7.'* ' ' person deceased were held by burgage tenure or were not heU^ 

burgage tenure, shall present a petition of service to the Sheiif 

in manner hereinafter set forth. 

Petition to 28. In eveiy case in which a general service only is intended, 
to SioShe^ to be carried through, such petition shall be presented to tb^ 
riff of the Sheriff of the county within which the deceased nad at the tip^ 
«wj^» 0' of his death his ordinary or principal domicile, or, in the qptio^- 
riffof ^u- ^^ ^^® petitioner, to the Sheriff of Chancery, and if the decene^- 
eery. had at the time of his death no domicile within ScoUami^ tbea p^^ 

10 tod 11 ®v®^ such case to the Sheriff of Chancery ; and in every ciee b^ 
Vict., c. 47, which a special service is intended to be carried throuj^, flp"^ 
i 3* petition shall be presented to the Sheriff within whose jarudictio^ 

the lands or the burgh containing the lands in which the deoee*'' 



31° AND 32° VICT., CAP. 101. 21 

person died last vest and seised are situated, or, in the option of 
the petitioner, to the Sherifif of Chancery, and in the event of the 
lands heing situated in more counties than one, or in more hurghs 
than one if such hurghs are in dififerent counties, then in every 
such case to the Sheriff of Chancery. 

29. Every petition for service shall he suhscribed by the peti- Xatord and 
tioner, or by a mandatory specially authorised for the purpose, J^°^ 
and shall be in the form or as nearly as may be in the form of °°* 
one or other of the Schedules (P) and (Q) hereunto annexed, and i^ *°d 11 
shall, under the exceptions after- mentioned, set forth the particu- g ^*' ^ ' 
lars which, according to the law and practice existing prior to the 
fifteenth day of November One thousand eight hundred and forty- 
seven had been in use to be set forth with reference to a service 
Bought to be carried through in any claim presented to a jury 
summoned under a brieve of inquest, and shall pray the Sheriff 
to serve the petitioner accordingly ; Provided always, that it shall 
not be necessary in such petition to set forth in any case the 
value of the lands either according to new or old extent, or the 
valued rent thereof, or of whom the lands are held, or by what 
service or tenure they are held, or in whose hands the same have 
been since the death of the ancestor, or whether or how long the 
same have been in non-entry, or that the petitioner is of lawful age, 
or that the ancestor died at the faith and peace of the Sovereign, 
but that in setting forth the death of the ancestor, there shall also 
be set forth the date at or about which the said death took place, 
and in cases of general service, except as hereinafter provided, the 
county or place in which the deceased at the time of his death 
had his ordinary or principal domicile, and that in every case in 
which the petitioner. claims to be served heir of provision, or of 
taillie and provision, whether in general or special, the deed or 
deeds under which he so claims shall be distinctly specified. 

80. When any petition of service shall be presented to the Services not 
Sheriff of any county, the service shall not proceed until publi- ^^'"^ 
cation shall be made in such county, nor until the Sheriff-clerk of tionbe 
the county shall have received from the Sheriff-clerk of Chancery made, 
official notice that publication has been made edictally in Edin- iq g^^ n 
burgh; and when such petition shall be presented to the Sheriff Vict, c 47, 
of Chancery, the service shall not proceed until publication shall i '^* 
have been made edictally in Edinburgh, nor until the Sheriff- 
derk of Chancery shall have received of&cial notice that publica- 
tion has been made in the county of the domicile of the party 
deceased, when such domicile was within Scotland, or the county 
or counties in which the lands are situated, as the case may be ; 
and the edictal publication in Edinburgh shall be at the office of 
the Keeper of Edictal Citations in the General Eegister Office, 



22 31° AND 32° VICT., CAP. 101. 

and in the same mode and form as in edictal citations; and ^^ 
the county of the domicile, and in the county or coontieB ifhe^ 
the lands are situated, by affixing on the doors of the Gonrt-hon^^^ 
or in some conspicuous place of the Court, or of the office of to* 
Sheriff-clerk of the county, as the Sheriff may direct, a shoit 
stract of the petition, and there shall be no farther publicatiom. 
and the form of such abstract, and the mode or form of tk 
official notice of such publications, shall be those fixed and d&— 
clared by the Court of Session, by Act of Sederunt, in Tirtue 
the powers hereinafter mentioned. 



Caveats to 31. The Sheriff^clerk shall be bound to receive any 

be received, againgt any petition of service to be presented to him, and on tli.e 
10 and 11 receipt of the petition of service referred to in the caveat, of of 
Vict., c 47, any official notice of any such petition which may be commmii- 
^ ' cated to such Sheriff-clerk, such Sheriff-clerk shall within twenty- 

four hours thereafter write and put into the post office a notice oi 
such petition, addressed either to the agent by whom or to tiw 
person on whose behalf the caveat is entered, as may be deani 
in such caveat, and according to the name and address iriiid 
shall be stated in such caveat, the Sheriff-clerk receiving therefor 
a fee for his own use of such amount as shall be fixed by Act of 
Sederunt as aforesaid. 

Petition of 82. A petition of service so presented shall, after expLntioB 
^Iqdva- ^^ *^® period hereinafter mentioned, be equivalent to and hiie 
lent to a the full legal effect of a brieve of service duly executed, and of t 
brieve and claim duly presented to the inquest, according to the law ari 
^ '™* practice existing prior to the fifteenth day of November Ow 
10 and 11 thousand eight hundred and forty -seven; and every petition rf 
Vurt., c. 47 gei^ice^ without further publication than is herein provided ind 
has been or may be directed by Act of Sederunt, shall be held li 
duly published to all parties interested, and the decree to foUot 
upon such petition shall not be questionable or reducible upon the 
ground of omission or inaccuracy in the observance by any oSo« 
or official person of any of the forms or proceedings herein f^ 
scribed, or which have been or shall be prescribed by Act of Se- 
derunt made in relation to petitions of service. 

Procedure 33. In regard to all petitions of service presented to the Sb^ 

before the riff of Chancery, or to the Sheriff of a county respectively, whew 
Ae'^effwTof ^^® deceased died in Scotland, no evidence shall be led and nj 
his judg- decree pronounced thereon by such Sheriff until after the U^new 
mcnt. fifteen days from the date of the latest publication, or where pn^ 

10 and 11 lication is to l>e made in Orkney ot Shetland, or the petition u 
Vict., c. 47, presented to the Sheriff of Orkney or Shetland, until after 4« 
' ^^' lapse of twenty days from such date ; and in regard to all petition* 



3r AND 32° VICT., CAP. 101. 23 

of service to be presented to the Sheriff of Chanceiy where the 
deceased died abroad, no evidence shall be taken and no decree 
pronounced thereon by him until after the lapse of thirty days 
from such date ; and it shall be lawful, after the lapse of the 
times respectively above-mentioned, to the Sheriff to whom such 
petition of service shall have been presented, by himself, or by the 
provost or any of the baUies of any city or royal or parliamentary 
burgh, or by any justice of the peace for any part of the United 
Elingdom, wherever such justice of the peace may happen to be 
for tiie tune, whether within the United Kingdom or abroad, or 
by any notary-public, all of whom are hereby authorised to act as 
commissioners of such Sheriff without special appointment, or by 
any commissioner whom such Sheriff may appoint, to receive all 
competent evidence, documentary and parole, and any parole evi- 
dence so received shall be taken down in writing according to 
the practice in the Sheriff-courts of Scotland existing prior to the 
first day of November One thousand eight hundred and fifty-three, 
and a full and complete inventory of the documents produced 
shall be made out, and shall be certified by the Sheriff or his 
Commissioner aforesaid; and on considering the said evidence 
the Sheriff shall, without the aid of a jury, pronounce decree, 
serving the petitioner in terms of the petition, in whole or in part, 
or refusing to serve the said petitioner, and dismissing the peti- 
tion,* in whole or in peurt, as shall be just ; and the said decree 
shall be equivalent to and have the full legal effect of the verdict 
of the jury under the brieve of inquest, according to the law and 
practice existing prior to the said fifteenth day of November One 
thousand eight hundred and forty-seven. 

84. Where a general service only is intended to be carried Case where 
through by an heir, it shall not be necessary, if the deceased p^^j/,^. 
died upwards of ten years prior to the date of presenting the peti- tmown. 
tion for general service as heir to him, to state or prove the 21 ^^^ 22 
county within which the deceased had his ordinary or principal Vict., c. 76^ 
domicile at the time of his death; or that such domicile was furth i 3^* 
of Scotland; but in such cases it shall be sufficient (so far as re- 
gards the domicile of the deceased) for the heir to state in his 
petition, and if required in the court of service to make oath, 
that he is unable to prove at what place the deceased had his 
ordinary or principal domicile at the time of his death : Provided 
always, that in every such case, and in every case of general ser- 
vice where it is doubtful in what county the deceased had his 
ordinary or principal domicile, the petition for general service as 
heir to the deceased shall be dealt with, and all relative procedure 
shall be regulated in or as nearly as may be in the same manner 
as if it had been proved that the deceased had at the time of his 
death his ordinary or principal domicile furth of Scotland. 



24 31° AND 32° VICT., CAP. lOL 

Competing 35. It shall be lawful to any person who may conceive tlut 
Eclwwmt^ he has a right to be served preferable to that of the person pcti- 
ed, and tioning the Sheriff as aforesaid, also to present a petition of service 
^eriff, to the Sheriff in manner and to the effect aforesaid, and the same 
j^^^Jjf"^* shall be proceeded with in manner hereinbefore directed ; and ii 
dence, give shall be lawful to the Sheriff, if he shall see cause, at any tine 
jndgment before pronouncing decree in the first petition, to east prooedore 
10 and 11 on the first petition in the meantime, or to conjoin the said peti- 
Virt., c 47, tions, and thereafter to proceed to receive evidence in manner 
^ hereinbefore directed, allowing each of the parties not only a pod 

in chief with reference to his own claim, but a conjunct probatko 
with reference to the claims of such other parties ; and the Shciif 
shall, after receiving the evidence, pronounce decree on the sud 
petitions, serving or refusing to serve as may be just, and duO 
at the same time dispose of the matter of expenses ; and when tbe 
accounts thereof shall be audited and taxed in manner after pro- 
vided, such Sheriff shall decern for the same. 

Becording 86. On the application of the petitioner in whose favour a de* 

of fo^olt. ^^®® ®^*^ h&ye been pronounced by the Sheriff, the Sheriff-deik 
shall forthwith transmit to the office of the Director of Chasoeij 
Vi«^^ ^47 *^® petition on which such decree was pronounced, together with 
2 127 ' such decree, the proof taken down in writing as aforesaid, and t)ie 
inventories of written documents made up and certified as af(»^ 
said, and also all other parts or steps of the process, excepting 
any original documents or extracts of recorded writs prodoeed 
therewith, which, after decree is pronounced, shall be returned, oo 
demand, to the parties producing the same ; and on the proceed- 
ings being so transmitted to Chancery, such decree shall be re- 
corded by the Director of Chancery, or his depute, in the manner 
and form directed or approved of, or to be directed or appio«d 
of from time to time by the Lord Clerk Register ; and on snch 
decree being so recorded, the Director of Chancery, or his Depute, 
shall prepare an authenticated extract thereof, and where soeb 
decree shall have been pronounced by the Sheriff of Cbanoeiji 
shall deliver such extract to the i)arty or his agent, and in all 
other cases shall transmit such extract without delay, and without 
charge or expense against the party in respect of the transmisaon 
and re-transmission to the Sheriff-clerk of the county to be by 
him delivered to the party or his agent in the Sheriff-court; and 
such proceedings and decree shall, both prior and subsequent to 
the said transmission, be at all times patent and open to infec- 
tion in the office of the Sheriff-clerk and of the Director of Chan- 
cery respectively ; and certified copies shall be given to any party 
demanding the same on payment of such fees as shall be fixed 
by Act of Sederunt as aforesaid; and in cases where an heir i> 
((erved to an ancestor in seveml separate lands or estates under 



3r AND 32° VICT., CAP. 101. 15 

titles by which the person in whose favour it is expede acquired 
right to such general disposition, and the nature of his right. 

20. From and after the commencement of this Act it shall be De mtmU 
competent to any owner of lands to settle the succession to the ^^^' ^ 
same in the event of his death, not only by conveyances <h prce- Jylg^ ^^j^, 
miH according to the existing law and practice, but likewise by cessary m 
testamentary or mortis catua deeds or writings, and no testamen- JJ^JJ****""" 
t«y or mort« causa deed or writing purporting to convey or be- ^ 
jueath lands which shall have been granted by any person alive l^^^i 
%t the commencement of this Act, or which shall be granted by 
my person after the commencement of this Act, shall be held to 
be invalid as a settlement of the lands to which such deed or 
tniting applies, on the ground that the grantor has not used, with 
reference to such lands, the word " dispone,'* or other word oi 
woids importing a conveyance de proesenti ; and where such deed 
3r writing shall not be expressed in the terms required by the ex- 
isting law or prskctice for the conveyance of lands, but shall con- 
tain with reference to such lands any word or words which would, 
if used in a will or testament with reference to moveables, be 
sofficient to confer upon the executor of the grantor, or upon the 
grantee or legatee of such moveables, a right to claim and receive 
&e same, such deed or writing, if duly executed in the mannei 
required or permitted in the case of any testamentary writing by 
the law of Scotland, shall be deemed and taken to be equivalent 
to a general disposition of such lands within the meaning of the 
nineteenth section hereof by the grantor of such deed or writing 
in favour of the grantee thereof, or of the legatee of such lands, 
and shall be held to create and shall create in favour of such 
g^rantee or legatee an obligation upon the successors of the grantor 
of SQch deed or wsiting to make up titles in their own persons to 
BQcb lands and to convey the same to such grantee or legatee ; 
and it shall be competent to such grantee or legatee to complete 
his title to such lands in the same manner and to the same effect 
as if such deed or writing had been such a general disposition of 
sacb lands in favour of such grantee or legatee, and that either 
by notarial instrument or in any other manner competent to a 
general disponee : Provided always that nothing herein contained 
shall be held to confer any right to such lands on the successors 
of any such grantee or legatee who shall predecease the grantor, 
unless the deed or writing shall be so expressed as to give them 
sacb right in the event of the predecease of such grantee or 
legatee. 

21. Where such testamentary or mortis causa deed or writing Trasteo « 
shall be conceived in favour of a grantee as trustee or executor "S"*^^ 
of the granter, and shall not be expressed to be wholly in favour for parposci 



26 31° AND 32° VICT., CAP. 101. 

sums to be received shall be exhibited by the Director of Chanceiy, 
and be exaDiined and audited along with his other accounts ; aod 
such index or abridgment shall be so prepared, printed, and dis- 
tributed at latest by the first day of Jvly in each year, beginniog 
with the year One thousand eight hundred and sixty-nine, sod 
the said record of services and other proceedings shall be at aO 
times patent, and open to inspection in the office of Chanoeiy, ob 
payment of such a fee as shdl be regulated by Act of Sederonft 
as aforesaid, and extrsu^ts from the said record, or certified copiei 
of the said proceedings, shall be given to any one demanding tb 
same, on payment of such fees as shall be fixed by Act of Sede- 
runt, as aforesaid ; and the Director of Chancery shall have the 
power, and is hereby required to direct and regulate the Sheiiff- 
clerks in the several counties and the Sherifi'-clerk of Chanoeiy n 
regard to the manner of arranging and transmitting the petitiaoi 
of service and procedure thereon, and also to prepare and fonah 
to the Sheriff-clerks of the several counties the requisite pdnted 
forms of the intimations to be sent by them through the poit 
office to the Sheriff-clerk of Chancery when petitions of serfioa 
shall be presented in their respective Courts, or when they duU 
have received notice to publish petitions that have been pieseoted 
to the Sheriff of Chancery. 

Cleria of 89. The amount of the remuneration to the clerks of Chioeeiy 

^anoery to for keeping the records of services, and arranging the wamnii) 
med for ^^^ preparing the indexes and abridgments, shall be fixed bjAot 
keeping Re- of Sederunt as aforesaid ; and such remuneration, together with 
ly*Act^' *^® expense of printing the index or abridgment aforesaid, shell 
l^enrnt. be paid from the fees collected in the office of Chancery, and eo 
10 and 11 account thereof shall be exhibited by the Director of ChaDCfity, 
Vict, c 47, and be examined and audited along with his other accounts. 
? 16. 

No person 40. No persou shall be entitled to appear and oppose a ee^ 

entitled to yfce proceeding before the Sheriff in terms of this Act who cooM 
sen^ who ^^^ competently appear and oppose such service if the same wse 
coold not proceeding under the brieve of inquest according to the law end 
JPP^ practice existing prior to the fifteenth day of ^ovem^er One thoo- 
brieve of s^nd eight hundred and forty -seven ; and all objections shall he 
inqaest. presented in writing, and shall forthwith be disposed of inaeoo- 
10 and 11 mary manner by the Sheriff, but without prejudice to the Sheof^ 
Virt., c. 47, if \^Q QQQ cause, allowing parties to be heard vivd voce thereon* 

Appeal for 41. In all cases in which competing petitions presented to th» 
jury trial, g^eriff in terms of the last-recited Act or of this Act have beea 
Vkt^Vi? ' ^^ ^^^ be conjoined as aforesaid, or in which any penoD he^ 
I n! ' competently appeared or shall competently appear to oppose enf 
petition of service presented to the Sheriff in terms of the eeid 



3F AND 32° VICT., CAP. 101. 17 

and assignatiou or assignations; and all deeds or conveyances 
with a warrant of registration and assignation or assignations 
written thereon, or with an assignation or assignations separate 
therefrom, that may have been so recorded before the commence- 
ment of this Act, shall operate in favour of the assignees on 
whose behalf the same shall have been so recorded, as effectually 
as is hereinbefore provided in regard to a recorded deed or 
conveyance with a warrant of registration and assignation or as- 
sig^nations written thereon, notwithstanding that such assignation 
or assignations may not have been docqueted with reference to 
sach warrant, or referred to therein as being so docqueted. 

28. It shall be competent to any person having right to an Notarial 
unrecorded deed or conveyance originally granted in favour of an- jn^nimente 
other person to expede a notarial instrument in or as nearly as parties ac- 
may be in the form of Schedule (N) hereto annexed, setting forth qairing 
the deed or conveyance and the title or series of titles by which he Jjf^