R7335ae 1848 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY N? This book is not to be retained for more than 14 days without beinE THE LAW OF ENTAIL IN SCOTLAND AS ALTERED BY THE ACT 1848. BY GEORGE ROSS, ESQ., ADVOCATE. " ' TE TENEAM MOKIENS,' IS THE DYING LORD'S APOSTROPHE TO HIS MANOR, FOR WHICH HE IS FORGING THOSE FETTERS THAT SEEM, BY RESTRICTING THE DOMINION OF OTHERS, TO EXTEND HIS OWN." Jdrmail On Willis, EDINBURGH: SUTHERLAND AND KNOX, GEORGE STREET. MDCCCXLVIII. -T The following Pages contain an Analysis of all the Statutes that have been passed relative to Entails from the year 1685 to the year 1848. f : r. , . CONTENTS. CHAPTER I. Page Terms Defined, .... 1 CHAPTER II. Law of Entail under the Act 1685, . . 4 CHAPTER III. Power to Disentail, ..... 7 CHAPTER IV. Consents to Disentail, . . ... . 10 CHAPTER V. Instrument of Disentail, . . . 13 CHAPTER VI. Powers competent only to Heirs under Existing Entails, SECTION I. Family Provisions, . . . 15 SECTION II. Improvements, ... 22 SECTION III. Leases and Excambions under the Montgomery Act, . . . .35 CHAPTER VII. Powers competent to Heirs under all Entails, SECTION I. Leases and Feus, ... 39 SECTION II. Excambions, . . . . 44 SECTION III. Sales for Payment of Entailers' Debts under the Rosebery Act, ... 49 IV CONTENTS. Page SECTION IV. Sale of Superiorities; also Sales and Burdens for Redemption of the Land-Tax, . 53 SECTION V. Burdens for certain Public Improvements, also under the Drainage Act, . . . 57 CHAPTER VHI. Additional Powers conferred by the Act 1848, . 60 CHAPTER LX. Rights of Creditors, . ... .62 CHAPTER X. Perpetuities, ... .65 CHAPTER XL General Provisions of the Act 1848, . . . 71 CHAPTER XH. Judicial Procedure under the Act 1848, . . 76 THE LAW OF ENTAIL CHAPTER I. Terms Defined. 1. A FEE SIMPLE is opposed to a Fee Limited. It imports a full and absolute right of property, and may be defined to be an estate held free of all limita- tion and restraint. 2. A Tailzie or Entail is a Deed of Destination, by which an estate is provided to a certain series of heirs. 3. The term Tailzie or Entail is derived from the French TAILLER, to cut, and properly means a Desti- nation in which the legal course of succession is cut off. A Fee or estate, destined to heirs-male is a Taillied or Entailed Fee, because heirs-female are excluded. 4. Entails are of three kinds : First, Simple Desti- nations ; second, Entails with Prohibitory clauses ; third, Entails with Prohibitory, Irritant, and Resolu- tive clauses. These last are termed Strict Entails. 5. A Simple Destination confers on the heirs called an absolute right of property in the estate conveyed. The heir in possession is under no re- straint. He may sell the estate, or contract debt over it, or convey it gratuitously to a new series of heirs. A Simple Destination, until altered, regulates the succession to the estate. 2 TERMS DEFINED. 6. An Entail with Prohibitory clauses, prior to the Act 1848, prevented the heir in possession from granting gratuitous deeds to the prejudice of the other Heirs of Entail. His onerous deeds, however, af- fected the estate. 7. A Strict Entail contains both Prohibitory, Irri- tant, and Resolutive clauses, and bars all purchasers, creditors, or gratuitous disponees from carrying off or in any way affecting the estate, except in so far as concerns the liferent of the heir in possession, who granted the deeds constituting their rights. EXISTING AND g. The term "Existing Entail" is used in the TAILS DE- present work to denote an Entail made prior to the FINED. 1st of August, 1848 ; and the term "Future Entail" is used to denote an Entail made after that date. 9. An Institute in an Entail is the party on whom the estate is first settled. If the maker of the Entail settle the Entail first upon himself, he is the In- stitute. The other Heirs of Entail are termed Sub- stitutes. 10. The terms "Heir" and "Heir of Entail" are held in the Act 1848, and are used in the pre- sent work to include the Institute. At common law the term " Heir of Entail" does not include the Institute, for the Institute does not take the estate as heir to any one, but as the disponee of the en- tailer. 11. An Apparent Heir, or Heir in Apparency, is an heir who has succeeded to his ancestor, but who has not made up titles to the estate by entering with his superior. 12. The term "Heir- Apparent" is held in the Act 1848, and is used in the present work to mean the heir who is next in succession to the heir in possession, and whose right of succession, if he sur- vive, must take effect. It may be a question whether TERMS DEFINED. 3 under this definition there can be an Heir- Apparent under an Entail, by which the Heir in possession is liable to forfeit the estate, both for himself and the Heirs of his body, on his succeeding to a Peerage. 13. The words "Land" and "Lands" are held in the Act 1848, and are used in the present work to extend to and comprehend all Heritages. 14. The words "Entailed Estate" are held in the Act 1848, and are used in the present work to ex- tend to and comprehend all Heritages which, by the law of Scotland, may be made the subject of Entail. 15. The words " Creditor" and " Creditors" are held in the Act 1848, and are used in the present work to comprehend the Heirs and Assignees of such creditor or creditors. 16. The words " Court of Session," or " the Court," are held in the Act 1848, and are used in the present work to mean either Division of the Court of Session. 17. By " The Act 1685" is meant the Act passed The Act 1685. in that year, and entitled "Act concerning Tailzies," in virtue of which Strict Entails were authorized by the Legislature. 18. By " The Montgomery Act" is meant the Act The Montgo- 10 Geo. III. cap. 51, passed in 1770, and entitled mer y Act "Act to encourage the Improvement of Lands, Tenements, and Hereditaments in that part of Great Britain called Scotland, held under Settlements of Strict Entail." 19. By " The Aberdeen Act" is meant the Act The Aberdeen 5 Geo. IV. cap. 87, passed in 1824, and entitled Act< "An Act to authorise the Proprietors of Entailed Estates in Scotland to grant Provisions to the Wives or Husbands, and Children of such Proprietors." 20. By " The Rosebery Act" is meant the Act The Rosebery passed in 1836, and entitled "An Act to grant cer- Act - 4 LAW OF ENTAIL UNDER THE ACT 1685. tain Powers to Heirs of Entail in Scotland, and to authorise the Sale of Entailed Lands for the Pay- ment of certain debts affecting the same." TheThelusson 21. By "The Thelusson Act" is meant the Act 4 I tf passed in 1800, and intituled " An Act to restrain all trusts and directions in Deeds or Wills, whereby the profits or produce of real or personal Estate shall be accumulated, and the beneficial enjoyment thereof postponed beyond the time therein limited." CHAPTER II. Law of Entail under the Act 1685. 1. The power at Common Law to make Entails was considered doubtful among the lawyers of the seventeenth century. The Act 1685 was accord- ingly passed by the Legislature, authorizing proprie- tors to entail their lands with such provisions and conditions as they should think fit. 2. To constitute a Strict Entail under the Act 1685, three clauses are essential, the nature and object of each of which is different. These clauses are termed the Prohibitory, Irritant, and Resolutive clauses of the Entail. 3. The Prohibitory clause prohibits the heirs of entail, 1st, to alter the order of succession contained in the Entail ; 2d, to contract debt so as to burden and affect the entailed estate ; and 3d, to sell or alienate the estate. LAW OF ENTAIL UNDER THE ACT 1685. 4. The Prohibition against altering the order of succession is valid by itself without the addition of the Irritant and Resolutive clauses ; but the prohibitions against selling and against contracting debt, in order to be valid, require to be Fenced or guarded by both these clauses. 5. The Irritant clause irritates or annuls the acts enumerated in the Prohibitory clause in so far as these might affect the entailed estate. This clause is directed against the acquirer of the right. 6. The Resolutive clause resolves or forfeits the right of the Heir of Entail who does any of the acts enumerated in the Prohibitory clause. This clause is directed against the granter of the right ; and the heir who does any of the acts prohibited is said to Contravene the entail. 7. The Original Entail requires to be recorded in the Register of Tailzies, and the Prohibitory, Irritant, and Resolutive clauses require to be in- serted in the Charter and Sasine following upon the Entail, these deeds being necessary to constitute a proper Feudal Investiture of the estate. These clauses require to be inserted also in the subse- quent titles of each Heir of Entail, a feudal title being necessary to be made up by each Substitute Heir on the death of his predecessor. 8. An Entail executed and recorded in terms of the Act 1685 is effectual not only against the heir who does any of the acts prohibited, but also^X against the party in whose favour the act is done. 9- A partially defective Entail was, under the Act 1685, one in which any of the three Prohibitions formerly mentioned was altogether omitted, or in which the Prohibition against selling or contract- ing debt was not fenced by an Irritant and Resolutive clause. An Entail thus partially defective was held 6 LAW OF ENTAIL UNDER THE ACT 1685. to be valid so far as it went. An heir possessing under an Entail in which the Prohibition against sales was valid, but in which the Prohibition against contracting debt was defective, was prevented from selling, but he was able to contract debt, and in this way he might indirectly defeat the Entail. 10. The old law in regard to defective Entails is altered by the Act 1848 ; and an Entail invalid as regards one prohibition, is held to be invalid as re- gards all. See Chapter XI. Stair, 2, 3, 58. 11. Lord Stair characterized Entails as " most unfavourable and inconvenient." The reasons he gives for this opinion are these : " First, Com- merce is thereby hindered, which is the common interest of mankind. Secondly, The natural obli- gations of providing wives and children are thereby hindered, which cannot be lawfully omitted. Third- ly^ It is unreasonable so to clog estates descending from predecessors, and not to leave our successors in the same freedom that our predecessors left us." Stair, 4, 18, 6. J2. In another passage Lord Stair observes " Clauses irritant in tailzies do not well quadrate with the right of property, for thereby these heirs have not the power of disposal of these tailzied rights : and therefore such clauses use not to be put upon heirs of line, nor heirs-male, nor heirs of provision, by contracts of marriage ; for all these are heirs of blood : and if in such cases heirs were so bound up that they could neither sell nor effectually contract debts that might affect these estates, commerce of lands would thereby be taken away, and proprietors would frequently be rendered miserable, because, though the fee of their estates could not be affected for their debts, yet no tailzie could hinder their rents to be arrested and made forthcoming." Mackenzie, 3, 13. Sir George Mackenzie in his Institute ob- 8,17. POWER TO DISENTAIL. serves, " And because such clauses prejudge Cre- ditors and Commerce very much, and seem to be inconsistent with the nature of Property and Domi- nion, therefore an Act of Parliament was necessary for securing them." 14. The preamble of the Act 1848 declares that the Law of Entail in Scotland had been found to be attended with serious evils, both to Heirs of En- tail and to the community at large, and that it was expedient it should be amended. 15. The Act 1685 is accordingly repealed by the Act 1848 to the effect of making the provisions of that Act operative, but no further. CHAPTEK III. Power to Disentail. 1. The Act 1848 empowers Heirs of Entail in possession and of full age to disentail their lands in whole or in part. The power varies according to the date of the Entail, and also according to the date of the birth of the heir in possession who wishes to disentail. 2. An estate, held under an Existing Entail, may Existing en- be disentailed, in whole or in part, under the autho- * ails> Case . . . first. rity of the Court by such heir in possession, provided he is the only Heir of Entail in existence for the time, and provided also he is unmarried. 3. If there are less than three Heirs of Entail in Existing en- existence, the consents of the whole heirs are required, w and the consent of the nearest heir will not be effec- POWER TO DISENTAIL. Existing en- tails. Case Existing en- tual unless he shall have completed his twenty-fifth year, and is not subject to any legal incapacity. 4. If there are more than two Heirs of Entail in existence, the consents of the three heirs next in succession are required, and the consent of the nearest of the three will not he effectual unless he shall have completed his twenty-fifth year, and is not subject to any legal incapacity. 5. It may be a question whether by the expression " if there be less than three Heirs of Entail in being," the Act intends that there should be less than three heirs OTHER than the heir in possession, or less than three heirs INCLUDING the heir in possession. In the preceding clause of the section, the words used are, " Provided always, that such Heir of Entail in pos- session shall be the only Heir of Entail in existence for the time." The natural construction of the succeeding clause, therefore, would be, that the heir in possession was included in the number specified as being in existence. Against this construction, however, the word " CONSENTS," used in the plural, operates. For, if in the expression, " less than three," the heir in possession is included, then one consent only is required, for the heir in possession does not consent to the application, but makes it. In the case also of there being three heirs in exist- ence, the consents of the three nearest heirs are re- quired. But if the heir in possession is included in the case of three heirs being in existence, the con- sents of three heirs could not be obtained. It may, therefore, be presumed, that the expression applies to heirs other than the Heir in possession. 6. An estate, held under an Existing Entail, may fourth. Case also be disentailed, in whole or in part, by such heir in possession, if he obtain the consents of the Heir- Apparent under the Entail, and also of the Heir or POWER TO DISENTAIL. 9 Heirs who in order successively would be Heir- Appa- rent, provided the number of such heirs, including the Heir- Apparent, is not less than two, and pro- vided also that the Heir- Apparent has completed his twenty-fifth year, and is not subject to any legal in- capacity. 7. An estate, held under an Existing Entail, may Existing en- also be disentailed, in whole or in part, by such heir **^ - Case in possession, without obtaining the consent of any other Heir of Entail, provided he himself shall have been born on or after the first of August 1848. 8. An estate, held under an Existing Entail, may Existing en- also be disentailed, in whole or in part, by such heir JJJJJ* Oase in possession, although he shall have been born be- fore the first of August 1848, if he shall obtain the consent of the Heir next in succession, provided that heir is the Heir- Apparent, under the Entail of the heir in possession, and was born on or after the first of August 1848, and has completed his twenty -fifth year, and is not subject to any legal incapacity. 9. An estate, held under a Future Entail, may Future en- be disentailed, in whole or in part, by such heir in j? 1 ^' Case possession, without obtaining the consent of any other Heir of Entail, provided he himself shall have been born after the date of the Entail. 10. An estate, held under a Future Entail, may Future en- also be disentailed, in whole or in part, by such heir tails- Case in possession, although born before the date of the Entail, if he shall obtain the consent of the next Heir of Entail, provided the next heir is the Heir-Apparent under the Entail, and was born after the date of the Entail, and has completed his twenty-fifth year, and is not subject to any legal incapacity. 11. An Heir possessing an estate under an Exist- ing Entail, cannot apply for the disentail of the estate, if he or the Heir-Apparent to the estate have 10 CONSENTS TO DISENTAIL. either separately or together secured by obligation in any Marriage-Contract the descent of the estate upon the issue of the marriage in reference to which the Contract was entered into, until there shall be born a child of the marriage capable of taking the estate in terms of the Contract, and who by himself or his guardian shall consent to the disentail, or until the marriage shall be dissolved without such child having been born, unless the trustees named in the Contract, or the parties at whose sight the Contract is directed to be carried into execution, shall concur in the application to disentail. CHAPTEE IV. Consents to Disentail. 1. Where the consent of one or more Heirs of Entail is required for disentailing an estate, the consent of the nearest heir will not be effectual un- less he has completed his twenty-fifth year, and is not subject to any legal incapacity. 2. Where the consent of an Heir of Entail, not being the Heir next in succession, is required, but who is a pupil or minor, or subject to any legal incapacity, a Tutor ad litem, or Curator ad litem, or Curator Bonis, must be appointed by the Court. Such per- son so appointed is held to be charged with the in- terest of the party for whose behoof he is appointed, and he is entitled to give consent on his behalf, with or without any consideration being stipulated for in return for the consent. CONSENTS TO DISENTAIL. 3. The consent of a Guardian so appointed by the Court, is held to be in all respects as effectual as if it had been given by the party for whose be- hoof he was appointed, and as if that party had been of full age and of legal capacity to act in his own affairs. 4. A Guardian so appointed incurs no responsi- bility on account of the consent given by him in re- spect of any alleged error in judgment, or the want of any consideration being obtained, or the inade- quacy of the consideration obtained for the consent given, unless it shall also be alleged and proved that he acted corruptly in the matter. 5. No Heir of Entail who shall apply to disen- tail, or whose own consent shall be required in an application to disentail an estate, can give his con- sent on behalf of any other party in reference to such application. 6. An Heir- Apparent under an Existing Entail cannot consent to the disentail of the estate, if he or the heir in possession have, either separately or to- gether, secured by obligation, in any Marriage- Con- tract, the descent of the estate upon the issue of the marriage in reference to which the Contract was entered into, until there shall be born a child capable of taking the estate in terms of the Con- tract, and who by himself or his guardian shall con- sent to the disentail, or until the marriage shall be dissolved without such child being born, unless the trustees named in the Contract, or the parties at whose sight the Contract is directed to be carried into execution, shall concur in the application. 7. If an Heir- Substitute under an existing Entail shall have borrowed money prior to the passing of the Act 1848, on the security or credit of his right of succession to the estate held under the Entail, he 11 12 CONSENTS TO DISENTAIL. is not entitled to consent to any Application under that Act which shall be opposed by any creditor to whom he is indebted in respect of a debt con- tracted prior to that date, and who sliall either hold infeftment in the Entailed estate, duly recorded in security of his debt, or who shall enter appearance and prove his debt, in the course of the proceedings under the Application. 8. If, however, the Court of Session, with refer- ence to any offer of adequate security, or otherwise in the circumstances, shall deem the opposition on the part of such creditor to be unreasonable, it may disallow the opposition, and give effect to the con- sent of the Heir. 9. The same rule is applicable to an Heir- Appa- rent under an Existing Entail, who shall, after the passing of the Act 1848, borrow money on the security or credit of his right of succession to the Entailed estate. 10. The consent, however, of the other Heirs- Substitute, under an Existing Entail, who shall bor- row money after the passing of the said Act, on the security or credit of their right of succession to the Entailed estate, shall be given and allowed independently of the rights of their creditors. 11. The rubric of section 10 of the Act is incor- rect. It is " Heir- Apparent under future Tailzie not to give consent in opposition to his Creditors." The Act, however, contains no provision in favour of the creditors of an Heir- Apparent under future Entails. The provision is confined to the creditors of an Heir- Apparent under existing Entails. The rubric ought to be Heir- Apparent under Existing Tailzie not to give consent in opposition to creditors in future debts. The "future" should have been made applicable to the debt and not to the Entail. INSTRUMENT OF DISENTAIL. 12. All consents of Heirs of Entail, or of their Legal Guardians, must be in the form of writings duly tested according to the law of Scotland, or other- wise in such form as may be fixed by the Court, and a consent duly given is irrevocable by the granter. 13 CHAPTER V. Instrument of Disentail. 1. The Instrument of Disentail must be executed by the Heir in possession, in presence of a Notary Public and two witnesses. It describes the lands intended to be disentailed, specifies the Deed of En- tail under which they are held, and sets forth that the Heir in possession took instruments in the hands of the Notary Public, that, by virtue of the Act 1848, the lands were now held by him free from the con- ditions, provisions, and clauses, prohibitory, irritant, and resolutive of the Entail. The Instrument also bears that the heir consented to its registration in the Register of Tailzies, and also in the Books of Council and Session, and others competent, therein to remain for preservation. The Instrument closes with a testing clause in the ordinary form, and must be signed by the Notary Public, as well as by the Heir of Entail. 2. The Instrument must be recorded in the Re- gister of Tailzies, and when it is presented for that purpose, it is the duty of the Keeper of the Register of Tailzies to record it along with the Decree of the 14 INSTRUMENT OF DISENTAIL. Court on which it proceeds, upon payment of such fees as may be fixed by the Court. 3. The Instrument, when duly executed and re- corded in the Register of Tailzies, has the effect of absolutely freeing the Entailed estate to which the Instrument applies, and the Heir of Entail in possession, and his successors, of all the prohi- bitions and limitations in the Entail under which the estate was formerly held, and of entitling him to alter the course of succession prescribed by the Entail, and to alienate the estate onerously or gra- tuitously, and to burden it with debt, and to do every other act or deed in relation to it which is competent by law to any absolute proprietor in Fee Simple. 4. The Instrument of Disentail, however, cannot defeat, or affect injuriously, any Rights held by Third parties, and lawfully affecting the fee or rents of the estate. Neither does it supersede the destination of Heirs prescribed by the Entail. The Entail con- tinues to operate as the Feudal Title by which the Estate is held until extinguished by a new convey- ance. 5. If the judgment of the Court allowing an In- strument of Disentail is not appealed to the House of Lords, or if it is not sought to be reduced upon any relevant ground during the period within which it might have been appealed from, the Instrument duly recorded in the Register of Tailzies, in so far as regards Third parties acting bonafide on the faith of it, is no longer reducible on any ground of irregu- larity or non-compliance with the provisions of the Act, but in respect of any such ground of challenge, it will be held to be final and conclusive. 6. The Keepers of the Register of Sasines of every County in which the lands contained in any Instru- ment of Disentail are situated, and the Keepers of POWERS COMPETENT ONLY TO HEIRS. 15 ;he General Register of Sasines, are bound to record my such Instrument, and also any decree of the Court pronounced under the Act 1848, when presented to them for that purpose, on payment of such fees as may be fixed by the Court by Act of Sederunt. CHAPTER VI. POWERS COMPETENT ONLY TO HEIRS UNDER EXISTING ENTAILS. Section I. Family Provisions. 1. In order to bar a widow's claim of Terce, or a FAMILY PRO- husband's claim of Courtesy, an Entail must spe- VI ^< 8 - cially exclude these claims. A prohibition to alienate, or to contract debt, is not sufficient for that purpose. Rights of courtesy and terce are not rights granted by an Heir of Entail. They are legal provisions, independent of any act of his, and if not specially excluded will be effectual. 2. An Heir in possession under an Existing En- Provision to tail may, under the Aberdeen Act, provide his wife a in a liferent provision out of the Entailed estate, not exceeding ONE-THIRD of the free yearly rent or value of the estate. 3. An Heir-Eemale in possession of an estate held Provision to under an existing Entail, may, under the same Act, a provide her husband in a liferent provision out of the estate, not exceeding ONE-HALF of its free yearly rent or value. If the estate is already burdened with 16 POWERS COMPETENT ONLY TO HEIRS FAMILY PRO- a prior existing provision, granted to a wife or hus- band under the authority of the Aberdeen Act, the provision to a husband must not exceed ONE-THIRD of the free yearly rent or value. 4. In estimating the free yearly rent of the estate, there must be deducted the Public Burdens, Liferent provisions, the yearly interest of debts and provi- sions, including the interest of provisions to children, authorized by the Aberdeen Act, and the yearly amount of all other Burdens affecting the estate, or its yearly rents or proceeds, by which its clear yearly rent or value is diminished to the Heir of Entail in possession, as the same may happen to be at the death of the granter of the liferent. 5. If two liferents to wives or husbands, granted under the authority of the Aberdeen Act, are sub- sisting at one time upon an entailed estate, a third liferent cannot, if granted, take effect till one of the former subsisting liferents shall cease. 6. The power, however, of granting a liferent, may be exercised so as to increase a former liferent, or so as to constitute a new liferent, to take effect upon the ceasing of a subsisting liferent, although such prospective or increased liferent may not take effect in the lifetime of the person granting it. Provisions to 7. Younger children have no claim at Common "^ aw * an y P rov i s i n out f their father's Heritable estate. If, therefore, an Heir of Entail is prohibited from alienating the estate and contracting debt, he cannot grant provisions, however moderate, to his younger children. 8. In virtue of the Aberdeen Act, an Heir in possession of an estate held under an Existing En- tail, may grant Bonds of Provision in favour of his younger children, binding the succeeding Heir of Entail to pay such bonds out of the rents or proceeds UNDER EXISTING ENTAILS. 1? of the Entailed estate. Such bonds bear interest FAMILY Puo- from the granter's death. 9- The amount of such Bonds of Provision must not exceed ONE YEAR'S free rent or value of the estate, if there is only one younger child. If there are two younger children, it must not exceed TWO YEARS' free rent ; and if there are three or more younger children, it must not exceed THREE YEARS' free rent. 10. In estimating the free year's rent or value of the estate, there must be deducted the Public Bur- dens, liferent provisions, including those to wives or husbands authorized to be granted by the Aber- deen Act. There must also be deducted the year- ly interest of debts and provisions, and the yearly amount of all other burdens affecting the estate, or its yearly rents or proceeds, by which its clear yearly rent or value is diminished to the Heir in pos- session. 11. If a younger child to whom any such provi- sion may be granted shall marry, and if such provi- sion, or any part of it, shall be settled, with the consent of the granter of the provision, in such child's Marriage-Contract, and if the child shall die before the granter of the provision, the provision so settled in the child's Marriage- Con tract shall remain and be effectual in the same manner as if the child had survived the granter. 12. Except in the case where a provision to a younger child has been so settled in a Marriage- Contract, the provisions to younger children will be valid and effectual to such children only as shall be alive at the death of the granter, or of whom the wife of the granter shall then be pregnant. 13. If a younger child shall succeed to the en- tailed estate, the provision granted to him, in so far 18 POWERS COMPETENT ONLY TO HEIRS PRO- a s not previously paid, is held to be extinguished, VISIONS. i , i i. and can never be set up as a debt against any suc- ceeding Heir. 14. Where the power of granting provisions to younger children, in virtue of the Aberdeen Act, has been exercised to the full extent of THREE YEARS' free rent or value of the estate, no farther provision to younger children can be granted till the whole or part of the provisions already granted has been paid or extinguished, in which case new provisions to younger children may be granted to the extent of the provisions so paid or extinguished. 15. The power, however, of granting provisions to younger children, before some part of the provi- sions already granted has been paid or extinguished, although to take effect only on the previous provi- sions being partially or totally paid or extinguished, does not appear to be competent. Such a power is sanctioned by the Act in regard to liferents granted to husbands and wives. But the words made use of in regard to younger children are different from those made use of in regard to husbands and wives. The words in the former case only authorize the Heir to grant provisions to such extent " as may be open or unexercised for the time." These words would seem to exclude an Heir from granting provi- sions to younger children so long as the power is fully exercised, although not to take effect till part of the former provisions were paid or extinguished. 16. Where a provision granted under the Aber- deen Act, to a wife or husband or children, shall exceed the amount authorized by the Act, the pro- vision is not held to be null and void, but is voida- ble at the instance of a succeeding Heir of Entail to the extent of the excess, but no farther ; and the Court is required to make the necessary orders to UNDER EXISTING ENTAILS. 19 that effect, on an application being presented by a FAMILY Pao- succeeding Heir of Entail. o 17. If the Heir is empowered by the Entail under which the estate is held to grant provisions to a larger extent than those authorized by the Aberdeen Act, he is entitled to exercise them, but he cannot grant the provisions authorized by the Aberdeen Act in addition to those authorized by the Entail, so as to exceed in all the proportions of the yearly rent or value specified in that Act. 18. The provisions authorized by the Aberdeen Act cannot be made to affect the fee of the Entailed estate, but can only affect its yearly rents or pro- duce. 19- After the expiry of one year from the death of the granter of the provisions, the party having right to them may require the Heir succeeding to the estate to make payment of them, with the legal interest thereof from the term at which his right to the rents commenced, on his receiving a proper dis- charge of the provisions, or an assignment to them. 20. If the money is not paid within three months after such requisition, the party having right to the provisions may institute an action in the Court of Session against the Heir in possession, to compel him to pay the provisions, and the legal interest thereon ; and on obtaining a decree, he is at liberty to use every kind of legal diligence to enforce the decree, except adjudication against the Entailed estate. 21. Where an Heir in possession is sued for pay- ment of provisions granted to the children of any former heir, he is entitled to be discharged from the action, upon his conveying to a Trustee ONE-THIRD of the clear rents or proceeds of the estate, payable to him during his life, or until the provisions shall 20 POWERS COMPETENT ONLY TO HEIRS FAMILY PRO- be paid off. The rents so conveyed must be ap- VISIONS. T J J.U plied in payment ot the provisions. 22. The Heir in possession can in no case be de- prived of more than TWO-THIRDS of the rents or pro- ceeds of the estate, and the Court is authorized to give the necessary orders for relieving him of the payment of more than TWO-THIRDS, by authorizing him to retain any excess beyond that extent, from the security or provision which shall be least en- titled by the law of Scotland to legal preference. 23. The Act 1848 declares that the Aberdeen Act shall not be applicable to any future Entail. It confers, however, the following powers relative to Provisions to younger children already granted, or which may be granted, by Heirs possessing under Existing Entails. 24. Where an Heir in possession of an estate, held under an Existing Entail, is liable to pay, or provide by assignation of the rents for any sum of money granted by a former Heir of Entail, by way of pro- visions to younger children, in terms of the Aberdeen Act, or in virtue of powers contained in the Entail, whether existing or future, under which the estate is held, he may, under the authority of the Court, in virtue of the Act 1848, Charge the fee and rents of the estate, or any portion thereof, other than the man- sion-house, offices, and policies thereof, by granting a Bond and Disposition in Security, the amount of such Provisions, with the legal interest thereof from the date of the Bond and Disposition in Security, or any subsequent date, till the amount is repaid, and with corresponding penalties. 25. The Bond and Disposition in Security may be in ordinary form, binding the granter, and the other Heirs of Entail in their order, successively, to repay the principal sum therein, with the interest POWERS UNDER THE ACT 1848. UNDER EXISTING ENTAILS, 21 and penalties, and may contain all clauses usual in FAMILY PEO- Bonds and Dispositions in Security granted over estates held in Fee- Simple, and shall be free from all the clauses, prohibitory, irritant, and resolutive, contained in the Entail under which the estate is held. 26. Where an Heir in possession under an Exist- ing Entail has, in the Marriage-Contract of his younger child, validly granted a Provision to such child out of the rents and proceeds of the Entailed estate, in terms of the Aberdeen Act, or in virtue of powers contained in the Entail, whether existing or future, under which he holds the estate, he may, under the authority of the Court, grant a Bond and Disposition in Security of the like nature and effect as that mentioned in the preceding section. 27. The Heir of Entail in possession who shall grant such Bonds and Dispositions in Security, and the Heirs- Substitute to him in their order succes- sively, must each, during his own possession of the estate, pay and keep down the interest of such Bonds and Dispositions in Security accruing during their possession respectively of the estate. 28. The remedy competent to the creditor in such Bonds and Dispositions in Security against the fee and rents of the estate, is limited to the principal sum with two years' interest thereon, and corres- ponding penalties, except as to the rents accruing to the Heir in possession, who is bound to pay and keep down the arrears of interest. The creditor may also use his remedy for such arrears against the separate estates of the Heirs in possession, who are bound to pay and keep down the arrears ; and also against the representatives of these Heirs. 29. No Heir in possession under an Existing En- tail can, under the Act 1848, charge the Entailed 22 POWERS COMPETENT ONLY TO HEIRS FAMILY PKO- estate with any provisions to younger children, un- YISI ' til he shall have applied for and obtained the autho- rity of the Court, in the form and manner provided by that Act ; and the application to the Court must set forth, in a schedule to be annexed to the applica- tion, the specific portions of the estate which it is proposed to include in the Bond and Disposition in Security. 30. The Heir of Entail who has granted, or who is entitled to grant such a Bond and Disposition in Security may, under the authority of the Court, sell and dispose of such portion of the Entailed estate, other than the mansion-house, offices, and policies, as the Court shall select, and which may be neces- sary to be sold for the purpose of paying off the debt, in respect of which the Bond and Disposition in Security was or might be granted. See Chapter VIII. Section II. Improvements. IMPROVE- 1- No money expended by one Heir of Entail in MENTS. improving an Entailed estate is recoverable at Com- mon Law from the succeeding Heirs of Entail. 2. The Montgomery Act declares that it might be highly beneficial to the public if proprietors of En- tailed estates were encouraged to lay out money in enclosing, planting, or draining, or in erecting farm houses and offices, or out-buildings for the same upon their Entailed estates, and that they might be in- duced and encouraged to do so if they and their exe- cutors or assignees were secured in recovering from the succeeding Heirs of Entail a reasonable satisfac- tion for the money expended in making such im- provements. 3. An Heir of Entail who lays out money in en- closing, planting, or draining, or in erecting farm UNDER EXISTING ENTAILS. houses and offices or out-buildings for the improve- ment of the Entailed estate, becomes a creditor of the succeeding Heirs of Entail for THREE-FOURTHS of the money laid out by him in making such im- provements. 4. The money expended in improvements by any one Heir of Entail, must not exceed FOUR YEARS' free rent of the estate, after deduction of all public bur- dens, life-rents, and interest of debts which may affect the estate, as these shall happen to be at the first term of Whitsunday after the death of the Heir who expended the money claimed. 5. An Heir who intends to lay out money in im- provements must, three months at least before he begins to execute them, give notice of his intention in writing to the Heir of Entail next entitled to suc- ceed after the heirs of his own body, if he be within Great Britain or Ireland, and if he be not within Great Britain or Ireland, he must give notice in writing to the nearest male relation by his father, of lawful age, or to his known factor or attorney. In such notice, he must specify the kind of improve- ment intended, and the farms, or parts of the estate upon which the improvements are intended to be made, and he must lodge a copy of the notice with the Sheriff or Stewart-Clerk of the county in which the lands lie. 6. If an Heir expends money on improvements upon the Entailed estate with the intention of being a creditor of the succeeding Heirs of Entail, he must annually, during the making of the improvements, lodge with the Sheriff-Clerk of the county within which the lands improved are situated, an account of the money expended by him in improvements during the twelve months preceding that time. 7. The account must be accompanied with the '24 POWERS COMPETENT TO HEIRS ONLY MENTS. IMPROVE- vouchers by which it is to be supported when pay- ment shall be demanded, and it has been held by the House of Lords that the vouchers must be signed by the party performing the operations, and not by the tenants authorized to have them performed. 8. The Sheriff-Clerks, with whom the accounts, vouchers, and copies of notice shall be lodged, shall within one month thereafter record them in a book to be kept for that purpose, and shall return them when called for. The book is patent to all persons desirous to see it, and certified copies or extracts are authorized to be given. 9. As soon as an Heir of Entail has completed the improvement of all or any particular part of the En- tailed estate, he may, if he shall think proper, bring an action of declarator before the Court of Session, or a process before the Sheriff, in which he must call the heir next entitled to succeed after the heirs of his own body. In such action or process, he must produce proper evidence of the money laid out in the improvements, and the next heir, or any other heir of Entail, is entitled to produce proper evidence to set aside or diminish the claim. LO. In such process, the Court or the Sheriff may pronounce a decree for such part of the sum claimed as by the true intent and meaning of the Montgomery Act was intended to become a charge on the suc- ceeding heirs. This decree, if pronounced by the Sheriff, becomes final, unless carried to the Court of Session by suspension, within six months after it has been pronounced ; and if pronounced by the Court of Session, either in an original process of declarator, or in a process of suspension, it be- comes final, if no appeal is brought within twelve months. 11. When a sum equal to FOUR YEARS' free rent of UNDER EXISTING ENTAILS. 25 the estate has been laid out by one or more Heirs of IMPBOVE- Entail, and remains a subsisting charge against the succeeding heirs, no subsequent heir can lay out any more money in improvements, under the authority of the said Act. 12. On the expiry of one year from the death of the Heir who expended the money in improve- ments, his executors or the party having right to the claim, may require the heir next succeeding to the estate to pay THREE-FOURTHS of the sum ex- pended, with the legal interest from the term at which his right to the rents commenced, upon receiving a proper discharge and assignment of the claim. 13. If the money is not paid within three months after the requisition, the party having right to the claim may institute an action in the Court of Session to compel the next heir to pay the money and the interest thereof, and upon obtaining decree, he may use every kind of diligence for enforcing it, except adjudication against the Entailed estate, and in all questions of competition for the rents of the Entailed estate, the party having right to such decree shall be preferred to the other creditors of the Heir of Entail who has succeeded to the estate. 14. When an Heir in possession is sued for the money due for improvements, he is entitled to be discharged from the action upon his conveying to the creditor in the claim ONE-THIRD part of the clear rents of the estate during his life, or until the money due for Improvements shall be paid off and dis- charged. 15. If the Heir who succeeds the party by whom Case of next the money was expended, shall die before the money heir d ^ m ^ be ~ , / . i_ IT t_ r -j ,r fore payment. due tor the improvements shall have been paid, the party in right of the money may either sue the heirs and successors of that heir in anv other estate than '26 POWERS COMPETENT ONLY TO HEIRS IMPROVE- the Entailed estate, or he may sue the Heir of Entail next succeeding to that heir, and he may use every kind of diligence against them and their estates, ex- cept adjudication against the Entailed estate, until the money is paid. In like manner he is entitled to sue every succeeding Heir of Entail, and in any com- petition for the rents of the Entailed estates, he shall be preferred to the personal creditors of the Heir of Entail in possession. 16. The heirs and executors of the party who next succeeded in the Entailed estate to the Heir of Entail who expended the money on Improve- ments, must relieve all subsequent Heirs of Entail of all parts of the debt paid by them to the extent of ONE-THIRD of the rents which have been received by the first succeeding heir, or by his heirs or exe- cutors. 17- When the third of the rents which have been received by the first succeeding heir, or by his heirs or executors, are exhausted, then the heirs and exe- cutors of the next succeeding heir are in like man- ner bound to relieve all subsequent heirs to the ex- tent of ONE-THIRD of the rents which have been re- ceived by them or the next succeeding heir. Relief to this extent is competent in like manner to every succeeding heir who shall pay, against the heirs and executors of the preceding heir. 18. When the heirs and successors of an Heir of Entail, in any other estate than the Entailed estate, are sued for money due on account of improvements made on the Entailed estate, they are entitled to be discharged from such suits on making payment of ONE-THIRD of the rents of the Entailed estate which have been received by such Heir of Entail, or by his heirs or executors. 19. The executor of the Heir of Entail who has UNDER EXISTING ENTAILS. 27 expended money in improvements, or the party hav- IMPROVE- ing right to the money so expended, must, within the space of two years after the death of the heir who expended the money, require payment from the suc- ceeding heir. If the money is not paid, he must, within the space of six months after the elapse of these two years, institute an action in the Court of Session, and proceed without delay in recovering a decree for the sum due, and in doing exact dili- gence for recovering payment thereof, or at least to the amount of ONE-THIRD of the rents which shall have become due to the succeeding heir. 20. If the executor of the heir who expended the money, or the party having right to it, shall neglect to require the next, or any other succeeding heir, to pay, and shall allow such succeeding heir or heirs to die without recovering payment to the amount of ONE-THIRD at least of the free rents which shall be- come due to them, then he ceases to be a creditor of the subsequent succeeding heirs to the extent of one- third of the rents which became due to the heir or heirs so deceasing. He is entitled, however, to re- cover payment of his claim to the extent of that third part from the heirs or executors of the heir so de- ceasing, in any other estate than the Entailed estate, and if any surplus of his claim shall remain after ap- plying such third part to its extinction, he is entitled also to recover payment of it from the subsequent succeeding Heirs of Entail. 21. If the heir who next succeeds to the party who made the improvements shall pay all or part of the money due on account of the improvements, and dies before he is indemnified of what he pays by ONE- THIRD of the rents which shall be received by him or by his heirs or executors, then his executors or assig- nees may sue the succeeding heir of Entail for relief 28 POWERS COMPETENT ONLY TO HEIRS IMPROVE of such part of the money as shall not be repaid by MEMTg ' that third part of the reuts. In like manner relief is competent to the executors or assignees of every Heir of Entail who pays more than is repaid by the third part of the rents received by him, or by his heirs or executors. 22. The Entailed estate cannot be adjudged in re- spect of the money expended in improvements, and any decree of adjudication obtained against the En- tailed estate for a debt, is null and void. 23. If an heir succeeds to an Entailed estate upon which improvements have been made, and who has right to a claim of debt in respect of such improve- ments, as next of kin, or by the will or settlements of the heir who expended the money, his claim of debt becomes extinguished, and never can be set up against any succeeding heir. 24. Where an Heir of Entail, against whom a debt is created for improvements, refuses to pay the money required of him, and where decree shall have been obtained against him for the whole of the sum claimed, he is liable in full costs of suit. If decree is not obtained for the full sum claimed, it is in the dis- cretion of the Court to award costs against either party, as the justice of the case shall direct. Expenditure 25. An Heir of Entail, who expends money in building a mansion-house or offices, or in repairing or adding to the mansion-house or offices of the En- tailed estate, becomes a creditor of the next suc- ceeding Heir of Entail for THREE-FOURTHS of the money expended, but the money so expended by any one Heir of Entail must not exceed TWO YEARS' free rent of the Entailed estate. 26. The executors of the heir who expended money in building or repairing the mansion-house, or the party having right to such money, may, after upon mansion- house or offices. UNDER EXISTING ENTAILS. 29 the expiration of one year from the death of the heir IMPROVE- who expended the money, require the heir next suc- ceeding to pay THREE-FOURTHS of the sum so ex- pended, with the legal interest from the term at which his right to the rents of the estate commenced, upon receiving a proper discharge and assignment of the claim. The whole other provisions in the Montgo- mery Act regarding sums expended on the improve- ment of Entailed estates, are also applicable to money expended inbuilding and repairing the mansion-house or offices. 27. The Act 1848 declares that the Montgomery POWERS UN- Act shall not be applicable to any Future Entail. 1848 It contains, however, the following provisions rela- tive to improvements already made, or which may be made, under the Montgomery Act, by Heirs pos- sessing under Existing Entails. 28. If an Heir in possession of an estate held under Ca f e of an . ,. , M i -I heir who has an existing entail has executed improvements prior execu t e d hn- to the passing of the Act 1848, and has obtained provements decree for three-fourths of the sums expended by ^" ( him on improvements, in terms of the Montgomery Act, he may, under the authority of the Court, grant, in favour of any party, a Bond of Annual-rent in ordinary form over the Entailed estate or any part of it, binding himself and the other Heirs of Entail to pay an Annual-rent, DURING HIS OWN life, not exceeding the legal interest of THREE-FOURTHS of the sum expended by him on improvements, and also during TWENTY-FIVE YEARS after his decease, a farther sum of 7, 2s. for every 100 of THREE- FOURTHS of the sum so expended, and so in propor- tion for any greater or less sum. 29. Such Annual-rent is payable by equal moieties half-yearly, at the terms of Whitsunday and Martin- mas, beginning the first term's payment at the first 30 POWERS COMPETENT ONLY TO HEIRS IMPROVE- term of Whitsunday or Martinmas after the date of the bond for the proportion of Annual-rent then due, with legal interest and penalties in case of failure. Case of an 3Q. If an Heir in possession of an estate held ing r improve- un( l er an Existing Entail shall execute improvements ments after after the passing of the Act 1848, and shall obtain the Act 1848. (j ecree f or three-fourths of the sum expended by him upon improvements, in terms of the Montgomery Act, he may, under the authority of the Court, grant, in favour of any party, a Bond of Annual-rent in ordinary form, over the Entailed estate, or any portion of it, binding himself and the other Heirs of Entail to pay, during TWENTY-FIVE YEARS after the date of the decree, or during such part of that period as may remain unexpired at the date of the Bond, an Annual-rent not exceeding the sum of 7, 2s. for every 100 of the WHOLE of the sums expended by him, and so in proportion for any greater or less sum. The said Annual-rent is pay- able in the same manner as prescribed in regard to Bonds granted for sums expended on improvements executed prior to the passing of the Act 1848. Case of an 31. If an Heir in possession of an estate held h ^ dy i in , g under an existing Entail shall have executed im- witnout hav- ing granted a pro vements prior to the passing of the Act 1848, bond for im- an( j recorded the same in terms of the Montgomery executed be- Act, but shall have died without having granted a Bond fore the Act of Annual-rent, or charged the estate as authorized by the new Act, and if decree shall have been obtained in terms of the Montgomery Act for three-fourths of the sum expended on improvements, the executor or personal representative of the Heir of Entail who has executed such improvements, or the party to whom the Heir of Entail may have assigned the improvement debt, may apply by summary petition to the Court, praying the Court to ordain the heir in UNDER EXISTING ENTAILS. 31 MENTS. possession to grant, in favour of any party that the IMPBOVE- petitioner chooses, a Bond of Annual-rent in ordi- nary form over the Entailed estate, or any portion of it. 32. The Heir in possession shall be bound to exe- cute such a bond, at the sight of the Court, obliging himself and the other Heirs of Entail to pay, during TWENTY-FIVE YEARS from the date of the death of the heir who executed the improvements, an Annual- rent not exceeding the sum of 7, 2s. for every 100 of THREE-FOURTHS of the sum expended on improvements, and so in proportion for any greater or less sum. 33. The Annual-rent is payable half-yearly by equal moieties at the terms of Whitsunday and Martinmas, beginning the first term's payment, not- withstanding the date of the Bond of Annual-rent, at the first term of Whitsunday or Martinmas after the date of the death of the Heir of Entail who executed the improvements, for the proportion of Annual-rent then due, with legal interest and penalties in case of failure. 34. In granting such a Bond of Annual-rent the Sumsaiready Heir in possession may take into account the sums gpec/oHni- which he has already paid under the Montgomery provements Act on account of improvements, and may impute m towards payment of the Annual-rents due under men t of sums the Bond granted by him, any excess of sums which due under may have been paid by him, beyond the amount of annual-rents due under the Bond, from and after the death of the heir who executed the improve- ments. 35. If an Heir in possession under an Existing Case of im - Entail has executed improvements, either before or execu t e d after the Act 1848, of the nature of the improve- either before ments contemplated by the Montgomery Act, 32 POWERS COMPETENT ONLY TO HEIRS IMPROVE- shall not have obtained decree therefor in terms of MEN1S ' that Act, by reason of the provisions of that Act not not in terms having been adopted, or not having been duly com- of the Mont- pii e( j w ith, he may apply by summary petition to gomery Act. r . _, i / . the Court, setting forth the improvements executed, and the amount of money, not exceeding the amount authorized by the Montgomery Act, expended there- on, and praying the Court for authority to grant a Bond of Annual-rent of the nature provided in the case of improvements for which decree in terms of the Montgomery Act has been obtained. 36. On the petition being presented the Court shall, after such proceedings as they may think fit to direct or adopt, proceed to consider the applica- tion, and to take such evidence and to institute such enquiry into the facts alleged in the petition as they shall judge necessary. 37. If it shall appear to the Court that the im- provements set forth in the petition are of the na- ture contemplated by the Montgomery Act, and that the expenditure set forth was bona fide made, they shall find accordingly, and shall also grant warrant for execution of a Bond of Annual-rent of the nature provided in the case of improvements for which decree in terms of the Montgomery Act has been obtained. 38. So long as an estate remains entailed, or is not liable to be disentailed by the Heir in possession without the consent of any other party, no Bond of Annual-rent, which shall be granted under the au- thority of the Act 1848, can be made the ground of adjudication of the estate, but the Annual-rents con- tained in such bond shall be recoverable, as accords of law, out of the rents and profits of the estate, and from the Heir in possession for the time being. 39. The Heir in possession and the Heirs- Substi; UNDER EXISTING ENTAILS. 33 tute to him are bound, each during his own posses- IMPROVE- sion, to pay and keep down the Annual-rents accru- ing during their respective possession of the estate. 40. No remedy is competent to the creditor in such Bond of Annual-rent against the rents and pro- fits of the estate for any arrears beyond TWO YEARS' Annual-rent and interest thereon, and corresponding penalties, except against the rents and profits ac- cruing to the heir, who is bound to pay and keep down these arrears. The creditor in the Bond may also use his remedy for such arrears against the separate estates of the Heirs in possession, who are respectively bound to pay and keep down these ar- rears, and against the representatives of these heirs. 41. Where an Heir of Entail in possession is en- Bond and dis- titled to grant a bond of Annual-rent, in terms of the security may Act 1848, he may, under the authority of the Court, be granted charge the fee and rents of the Entailed estate, or of for Tf u! e " ' ment debt. any portion of it other than the mansion-house, offices, and policies thereof, with TWO-THIRDS of the sum on which the amount of such Bond of Annual- rent, if granted, would be calculated in terms of the Act 1848, by granting in favour of any creditor who may advance TWO-THIRDS of such sum, a Bond and Disposition in Security, with the due and legal interest thereof from the date of the advance till paid, and with corresponding penalties. 42. In the case of improvements executed prior to the passing of the Act 1848, the AMOUNT on which the bond of Annual-rent would fall to be cal- culated would be THREE-FOURTHS of the sum ex- pended. The Bond and Disposition in Security consequently must be for TWO-THIRDS of the THREE- FOURTHS that is, for one-half of the sums ex- pended. 43. In the case of improvements executed after c 34 POWERS COMPETENT ONLY TO HEIRS IMPROVE- the passing of the Act 1848, the AMOUNT on which the Bond of Annual-rent will fall to be executed will be the WHOLE of the sums expended. The Bond and Disposition in Security will therefore be for TWO-THIRDS of the sums expended. 44. Where also an Heir of Entail in possession may be called upon to grant a Bond of Annual-rent, in terms of the Act 1848, he may also be called upon, under the authority of the Court, to grant a like Bond and Disposition in Security. 45. The former of these provisions seems to apply to the case of the Heir in possession who executed the improvements, and the latter to that of the Heir who is called upon to grant a Bond for the improvements executed by his predecessor prior to the passing of the Act 1848, but who died before granting a Bond of Annual-rent, in terms of that Act. In the last of these cases, the option of taking a Bond of Annual-rent rests with the party who is in right of the improvement debt. He may, if he chooses, obtain payment under the Montgomery Act ; so also he seems to have the option of calling upon the Heir in possession to grant a Bond and Disposition in Security. 46. The Bond and Disposition in Security may be in the same form, and has the same effect and operation, and is subject to the same conditions and provisions, as to keeping down interest and as to the extent of remedy against the fee and rents of the Entailed estate, as in the case of Bonds and Dispositions in Security, authorized by the Act 1848 to be granted in respect of provisions to younger children. 47. Where improvements have been executed after the passing of the Act 1848, and a decree has been obtained for three-fourths of the sum expended, UNDER EXISTING ENTAILS. 35 the duration of the Bond of Annual-rent is limited IMPROVE- to TWENTY-FIVE years after the date of the decree, ___' or to such part of that period as may remain unex- pired at the date of the bond. But if an heir should have omitted to grant a Bond of Annual-rent till some years after the date of the decree, there does not appear to be anything to prevent him granting a Bond and Disposition in Security instead of a Bond of Annual-rent. In granting the former deed he would thus obtain an advantage in the case sup- posed, for, without reference to the date of the de- cree, the amount of the sum for which it would be granted would be TWO-THIRDS of the sums expended. 48. The granting under the authority of the Act 1 848 any Bond of Annual-rent, or Bond and Disposi- tion in Security, in respect of any improvements exe- cuted or to be executed on an Entailed estate, oper- ates as a discharge of all claims on account of such improvements against the estate, and the rents and profits thereof, and the Heir of Entail succeeding thereto, except the claims under the Bond of Annual- rent and the Bond and Disposition in Security them- selves. 49. Private roads through an estate held under an Existing Entail, or by way of immediate access thereto, which shall be made after the 1st of August, 1848, are deemed improvements falling under the Montgomery Act, and also under the Act 1848, in the same way and manner in all respects as enclosing, planting, and draining. Section III. Leases and Excambions under the Montgomery Act. 1. The Preamble of the Montgomery Act declares LEASES UNDER that many Entails contain clauses limiting the heir THE ] J l & MERY . trom granting leases 01 a longer endurance than 36 POWERS COMPETENT ONLY TO HEIRS Agricultural leases. LEASES UNDER their own lives, or for a small number of years only ; THE MONTGO- , , * l i i i MERY ACT. tna t the cultivation ot land is thereby greatly ob- structed ; and that much mischief arises to the public, and must daily increase so long as the law allowing such Entails subsists, if some remedy is not provided. To prevent " a mischief and inconveni- ency so hurtful to the public," certain powers of granting leases are therefore conferred upon Heirs of Entail. 2. An Heir of Entail is empowered by this Act to grant leases of any part of the Entailed estate except the manor-place, office-houses, gardens, orchards, or inclosures adjacent to the manor-place, which have usually been in the natural possession of the Heirs of Entail, or which have not been usually let for a longer term than seven years when the Heir in pos- session was of lawful age. 3. Such lease may be granted for any number of years not exceeding fourteen, from the term of Whitsunday next after its date, and for the life of one person, to be named in the lease, who is in being at its date. 4. Such lease may also be granted for the lives of two persons, to be named in the lease, who are in existence at its date. Or it may be granted for any number of years not exceeding thirty-one from the term of Whitsunday next after the date of the lease. 5. If the lease be granted for two lives it must contain a clause obliging the tenant to fence and in- close, in a sufficient and lasting manner, all the lands let, within the space of thirty years two-thirds of the lands being so fenced and inclosed within twenty years, and one-third within ten years, if the lease continue so long. 6. If the lease is granted for any term of years exceeding nineteen years, it must contain a clause UNDER EXISTING ENTAILS. 3? obliging the tenant to fence and inclose, in a suffi- LEASES TNOEB THE MONTC MERY ACT. cient and lasting manner, all the land let, during the THE MoNTG - continuance of the term of years for which it is let two-thirds of it being so fenced and inclosed be- fore the expiration of two-thirds of the term, and one-third before the expiry of the remainder of the term. 7. Leases granted for two lives, or for any term of years not exceeding nineteen years, must also contain a clause obliging the tenant to keep and preserve the fences when made in good and suffi- cient repair during the lease, and to leave them so at the expiry of the lease. 8. No inclosure which shall be made shall com- prehend more than forty acres in one field, ex- cept where the lands consist of hills and other grounds incapable or improper by their nature for culture by the plough in which case the inclosures may be made of such extent as the nature of the ground shall require. 9. The Montgomery Act further declares that Building building of villages and houses might in many cases be beneficial to the public, and might often be taken and executed if Heirs of Entail were entitled to en- courage the same by granting long leases of land for the purpose of building. 10. Under that Act an Heir of Entail in possession may grant leases of land for the purpose of building, which is not within three hundred yards of the manor-place usually in the natural possession of the proprietor, for any number of years not exceeding ninety-nine years. 11. Not more than five acres can be granted to any one person, either in his own name or to any other person in trust for him ; and every lease must contain a condition that it shall be void if one WP POWERS COMPETENT ONLY TO HEIRS LEASES UWDEB dwelling-house at least, not under the value of 10 THE MONTOO- ,. . .. , , .. . . . . ., MERY ACT. sterling, shall not be built within the space or ten years from the date of the lease, for each one-half acre of ground comprehended in the lease. The houses must be kept in good and tenantable repair ; and the lease becomes void whenever there shall be a less number of dwelling-houses standing upon the ground leased of the value of 10, and kept in good repair, for each half-acre of the ground leased. 12. All leases granted in virtue of the Mont- gomery Act must be granted for a rent not under the rent payable by the last lease, and without grassum or any benefit whatever, directly or in- directly, reserved or accruing to thegranter, except the rent payable by the lease ; and no lease can be granted till after the end of any former lease of the same premises, or if the former lease be granted for a time certain, then no new lease can be granted till within one year of its termination ; and all leases otherwise granted shall be void and null. 13. The Montgomery Act empowers Heirs of En- tail in possession to Excamb portions of their Entailed estates for an equivalent in land contiguous to the Entailed estate. 14. The quantity to be exchanged is limited to thirty acres of arable land, or one hundred acres of lands consisting of hills or other grounds incapable of, or improper by their nature for, culture by the plough, lying together in one place or plot. 15. In order to ascertain and adjust the nature of the lands proposed to be exchanged, application must be made by the Heir in possession to the Sheriff of the county within which the Entailed estate is situated, who shall appoint two or more skilful per- sons to inspect and adjust the value of the lands pro- posed to be exchanged. Excambions. UNDER EXISTING ENTAILS. O 1 J 16. When such persons have settled the marches EXCAMBIONS of the lands proposed to be exchanged, and reported MONTGOMERY upon oath that the exchange will be just and equal, ACT. the Sheriff is required to authorize the exchange to be made by a contract of excambion. 17. The contract of excambion, when executed, must be recorded within the Sheriff-Books within three months after its execution, and after that it is effectual to all intents and purposes. The land given in exchange to the Entailed estate is held to be a part thereof, and is subject to all the prohibitory, irritant, and resolutive clauses of the Entail in the same manner as if it had been originally a part of the Entailed estate ; and the lands given from the En- tailed estate are thenceforth held as out of the Entail, and are liberated from all these clauses of the Entail. CHAPTER VII. POWERS COMPETENT TO HEIRS UNDER ALL ENTAILS. Section I. Leases and Feus. 1. By the Rosebery Act, passed in 1836, an Heir FEns - of Entail in possession may grant leases for any Under the period not exceeding TWENTY-ONE YEARS, of any part Rosebery Act. of the Entailed estate, except the home-farm, or the mansion-house and offices, or the garden, lawn, park, or policy attached to it. These cannot be let for any period beyond the heir's own life. Mines and 40 POWERS COMPETENT TO HEIRS Under the Act 1848. LEASES AND minerals may be let for any period not exceeding EU3 ' THIRTY-ONE YEARS. 2. The rent of the lands let must be the fair rent at the period of letting, and the heir must not take any grassum or valuable consideration for granting the lease, other than the rent. If any grassum or consideration be taken, or if a lease prohibited by the Act be granted, such lease shall be null and void. 3. By the Act 1848, an Heir of Entail in posses- sion, on giving notice to the heir next entitled to succeed to the Entailed estate may, with the appro- bation of the Court, grant feus or long leases of any part of the estate other than the mansion-house, offices, or policies of the estate ; but such feus or long leases must not in all exceed ONE-EIGHTH of the value of the estate for the time. 4. Such feus or long leases must be granted for the highest feu-duty or rent that can be obtained, and no grassum, fine, or valuable consideration, other than the tack-duty or rent, must be received for granting such feu or lease. If any grassum, fine, or consideration shall be taken, and if any feu or lease prohibited by the Act 1848 shall be grant- ed, such feu or lease shall be null and void. Sites for 5. By the Act 3 and 4 Viet. cap. 48, passed in OV. K 'f 8 ' 1840, Heirs of Entail in possession who have made under the r Act 3 and 4 up a Feudal Title to their Entailed estates, are em- Vict. 48. powered to dispone in feu, or to let for any period of endurance, portions of their Entailed estates as the sites of places of public Christian worship and for burying-grounds for such places of public wor- ship ; also as the sites of schools, and for play-ground for such schools, and also for dwelling-houses and gardens for the ministers and schoolmasters. 6. Such feus or leases may be for any yearly UNDER ALL ENTAILS. 41 feu-duty or rent that may be agreed upon, although LEASES AND inadequate and below the just value of the grounds ETT8 ' disponed in feu or let, but no grassum, fine, or other consideration must be given for the exclusive benefit of the heir consenting to such feus or leases. 7. Previous to granting such feus or leases, the heir intending to do so must present a petition to the Sheriff of the County within which the Entailed land proposed to be feued or leased is situated, set- ting forth the particular description and extent of the land proposed to be feued or leased, the purpose to which it is to be applied, and the parties in whom it is to be vested for these purposes ; and praying the Sheriff to interpose his authority to the proposed feu or lease. 8. If the consent, in writing, of the Heir of Entail next in order of succession, being of lawful age, is not produced along with the petition, the Sheriff must order intimation of it to be made to him if he is within the United Kingdom. If the next heir is out of the United Kingdom, then the intimation must be made to his factor or agent, if he is of law- ful age ; and if he is not of lawful age, or if he is under mental or other legal disability, then the inti- mation must be made to his legal guardians. If such consent is not produced with the petition, the Sheriff must also order notice of it, in such terms as he shall direct, to be published in the Edinburgh Gazette, and in some one newspaper to be fixed on by him, three times, at intervals of fourteen days. 9- On production to the Sheriff of evidence of such intimation and publication, if there be any such heir in existence and known, or otherwise on production of evidence of the publication with a declaration by the petitioner, to which he may be required to make oath, that there is no such heir in existence and 42 POWERS COMPETENT TO HEIRS LIASES AND known, the Sheriff shall resume consideration of the " petition, and shall institute such enquiry into the cir- cumstances of the case as he shall think necessary. 10. If no appearance is made by the Heir of Entail next in order of succession to oppose the petition, or, after hearing him, if appearance is made, the Sheriff shall, if satisfied of the propriety of the mea- sure, pronounce a deliverance, interposing his autho- rity to the application as craved, or under such limi- tations or qualifications as he may judge necessary and proper ; or he may refuse the application, if he should deem the feu or lease injurious to the interest of the succeeding Heirs of Entail, in some other re- spect than as regards the feu-duty or rent agreed upon. 11. On obtaining the authority of the Sheriff, the Heir of Entail may execute a Feu-Charter or Lease, as the case may be, in conformity with the petition and the deliverance pronounced upon it, in favour of the Presbytery of the bounds, or the Trustees or Managers or Directors of the place of Christian worship or school, and their successors in office, or such other body as may be selected and agreed upon, in trust, for the purposes set forth in the petition. 12. The recording of such feu-charter in the Ge- neral Register of Sasines, without any infeftment being taken upon it, validly and effectually vests the lands in the persons named in the charter. Such feu-charter and sasine are also effectual to the suc- cessors in office of the person in whose favour they have been granted, for the trust-purposes for which they were granted, without any transference or renewal in all time after of the investiture as re- gards such feu-charter, and during the whole dura- tion of such lease. UNDER ALL ENTAILS. 43 13. The parties in whose favour such feu-charters LEASES AND or leases are granted in trust, cannot disppne, let, sub-feu, or sub-let the lands held by them, nor assign such leases, nor borrow money on security of them, nor burden the lands held by them in any way with debts or obligations of any description ; and all such deeds granted by the Trustees, and all adjudications of the lands, in implement or for any such debts or obligations, are null and void to all in- tents and purposes. Neither can the land, or the buildings erected upon it, be diverted to any other purpose than that for which the land was feued or leased. 14. If either the Land or Building shall be diverted from the original purpose, or if, for the space of three years, they shall be left unemployed for that purpose the Heir of Entail in possession for the time, may apply by petition to the Sheriff of the county in which the land is situated, setting forth the diver- sion or abandonment, and praying to have the feu- charter or lease declared to be forfeited, and the land, with the buildings thereon, to belong to the petitioner and the Substitute-heirs of Entail in all time thereafter, free from and unaffected by the feu or lease, and to be again subject to the destina- tion and fetters of the Entail, Binder which it was originally held. ^^ 15. The Sheriff must order this petition to be in- timated to the parties at the time in right of the feu-charter or lease, if known, and public notice of it to be affixed on the door of the parish church of the parish within which the land feued or leased is quoad sacra situated, for three successive Sundays. On evidence of such intimation and publication being produced to the Sheriff, he must enquire into the alleged diversion or abandonment, and must 44 POWERS COMPETENT TO HEIRS LEASES AND hear the parties in the right of the feu-charter or ' lease, or any of the inhabitants of the parish for whose behoof the land is held, and must receive any competent evidence that shall be offered by any of the parties interested. 16. If the Sheriff shall find the allegation of diversion or abandonment proved, he shall pro- nounce a deliverance to that effect, and shall de- clare the feu-charter or lease forfeited, and the ground comprehended by it to belong to the peti- tioner and the Substitute-heirs of Entail, in all time thereafter, in terms of the prayer of the petition. 17. The decree of declarator must be recorded in the General Register of Sasines, and the lands and the subjects to which it relates shall be there- after possessed by the Heir of Entail accordingly, as if the feu-charter or lease had never been granted. Section II. Excambions. EXCAMBIONS. 1 . By the Kosebery Act, passed in 1836, an Heir of . T" Entail in possession, who has made up a feudal title to U nder the .11 Rosebery Act. the estate, may, without the consent of any other heir under the authority of the Court, Excamb any por- tion of the Entailed estate, except the principal man- sion or offices, or the garden, park, lawn, home farm, or policy of the estate. 2. The excambion may be made for an equivalent in lands lying contiguous to those excambed, or to some other part of the Entailed estate, or which may be convenient to be held along with it, and whether the equivalent belongs to the heir himself in fee- simple, or to any other person, and although the heritages to be given and taken in exchange should consist of different descriptions of heritable pro- perty. 3. Notice of the intention to excamb must be given UNDER ALL ENTAILS. three months before the application to the Court to the whole Heirs of Entail, if their number be less than five, or to the five Heirs of Entail who are next in the order of succession to the heir making the application. 4. If any of the five heirs are under age, or under any mental or other legal disability, the notice must be given to their legal guardians. If three or more of the five heirs shall be under age, or under any mental or other legal disability, notice must be given to their respective guardians, and also to the two heirs who are next in the order of succession after the five heirs who shall be of lawful age, and not under any mental or other legal disability. 5. If any of the heirs to whom notice is directed to be given shall be forth of the united kingdom, the notice must be given to their known agent or factor. 6. In order to ascertain and adjust the value of the lands proposed to be exchanged, the heir in posses- sion, after due notice has been given, must apply to the Court by Summary Petition, setting forth the objectsof the excambion, and theadvantages expected to be derived from it, and praying for the excambion. 7. After proof has been made to the Court of notice having been given to the Heirs of Entail, they shall consider the expediency of the excambion, and the other circumstances affecting the lands proposed to be excambed, and the interests of the succeeding Heirs of Entail, and after appointing notice to be given, and hearing any party having an interest and title to be heard, they shall appoint two or more skilful persons to inspect the lands proposed to be excambed, and adjust their value and settle the marches. 8. On receiving the report upon oath of the per- 45 46 POWERS COMPETENT TO HEIRS EXCAMBIOKS. gon go appointed, and on being satisfied of the re- spective values of the lands proposed to be excambed, and of the expediency of the excambion, the Court shall give judgment authorizing the excambion. 9. The contract of excambion must then be exe- cuted at the sight, and with the approbation of the Court, and recorded in the Sheriff-Court Books, in each of the counties in which the lands are situated, and also within three mouths in the Register of Tailzies. 10. By the Act 4 and 5 Viet., cap. 24, passed in 1841, it is not necessary to insert in any contract of excambion, executed under the Rosebery Act, the whole destination of Heirs-substitutes, or the condi- tions and provisions, of the original Entail. It is suf- cient that reference be made to the original Entail, and its date and the date of its being recorded in the Register of Tailzies. 11. By the same Act, it is declared that the Keeper of the Register of Tailzies shall be bound to record it in that Register without the necessity of a warrant from the Court for that purpose. 12. No more than ONE- FOURTH in value of the En- tailed estate can be excambed, and after that amount of the Entailed estate has been excambed, no further excambion can take place. 13. The Contract of excambion, when executed and recorded, is effectual to all intents and pur- poses. The lands received in excambion by the Heir of Entail are held to be a part of the Entailed estate, and are subject to all the restrictions of the Entail in the same manner as if they had been originally part of the Entailed estate. The lands given from the Entailed estate are thenceforth held to be out of the Entail, and to be liberated from all the restrictions of the Entail, under which they were previously held. UNDER ALL ENTAILS. 47 14. If any Heir of Entail during the period inter- EXCAMBIONS. vening between the execution of the contract of ex- cambion and the recording of the contract in the Register of Tailzies, shall contract debt, no debt contracted by him during that period can affect the lands contained in the contract. 15. If in making an excambion there shall be an excess of value in either side, not exceeding 200, the excess must be paid to the proprietor, whether Heir of Entail in possession, or proprietor in fee- simple, to whom the lands of smaller value are awarded. 16. If any party to the excambion shall give or receive any consideration, or value of any kind what- ever, other than the lands to be exchanged, or the excess of value not exceeding 200, the excambion is null and void. 17. If the lands proposed tobeexcambed are held under more than one Deed of Entail, and are descend- ible to the same series of heirs, such Deeds of Entail, in reference to the application to excamb, are held to be one Deed of Entail. 18. The powers conferred by the Rosebery Act are extended by the Act 1 and 2 Viet, cap. 70, passed in 1838. The preamble of that Act declares that the powers conferred by the former Act were "granted only to heirs in possession under Entails, made and established pursuant to the Act 1685, and that it was expedient that these powers should be extended to heirs in possession under Entails not recorded in terms of that Act." The powers conferred by the Rosebery Act are therefore extended to Heirs in possession under such Entails. 19. Contracts of excambion executed in virtue of the Act 1838, by Heirs in possession under Entail not recorded in terms of the Act 1685, must be recorded '48 POWERS COMPETENT TO HEIRS EXCAMBIONS. i n t h e Sheriff- Court Books of the County in which the lands excambed are situated, and they do not require to be recorded in the Register of Tailzies, as required by the Rosebery Act. 20. If, however, an Entail not recorded in terms of the Act 1685, shall, after an excambion has been effected, be recorded in the Register of Tailzies, it is necessary to record also at the same time in that Register any contract of excambion that has been effected prior to the recording of the Entail, and if the contract is not so recorded, the Entail, in so far as regards any such excambion, is deemed to be un- recorded in the Register of Entails. PROVISIONS 21. The Act 1848 declares that it is expedient to simplify the mode of effecting excambions under the Rosebery Act, and to diminish the expense thereof. It therefore declares that after the passing of the Act 1848, it shall not be necessary for an Heir of Entail in possession, intending to effect an excambion under the Rosebery Act, to adopt any of the procedure re- quired by that Act, but that it shall be competent to him to apply to the Court by Summary Petition in the form and manner provided by the Act 1848. It farther enacts that the Court shall entertain, pro- ceed with, and dispose of, the application in every respect as if the powers to effect excambions, con- ferred by the Rosebery Act, had been contained in and conferred by the Act 1848. 22. By the Act 1848, it is not necessary to record any contract of excambion, which shall be executed at the sight, and with the approbation of the Court, as required by the Rosebery Act in any other Re- gister than the Register of Tailzies. 23. By the Act 1848, an heir in possession of an estate, held under an Existing Entail, being of full age, may, under the authority of the Court, excamb UNDER ALL ENTAILS. 49 the Entailed estate, in whole or in part, with the con- EXCAMBIONS. sent of the whole Heirs of Entail, if there be less than three in being at the date of applying to the Court, and may at the sight of the Court execute such con- tracts of excambion, and other deeds as may be necessary to give effect to the excambion, so as to substitute the lands to be acquired in the room and place in all respects of the lands to be disponed. 24. If there are three or more Heirs of Entail in being at the date of applying to the Court, then the consent of the three heirs next in the order of suc- cession is requisite. 25. An excambion may also take place, if the con- sent of the Heir- Apparent under the Entail be ob- tained, along with the consent of the other heir or heirs, who in order successively would be Heir- Appa- rent, provided the number of such heirs, including the Heir-Apparent, be not less than two. Section III. Sales for Payment of Entailers* Debts under the Rosebery Act. 1. Where an Entailed estate is liable to be ad- SALES POK judged for the debts of the Entailer, the Heir of En- tail in possession, or his legal guardians if under twenty-one years of age, or under any mental or other legal disability, may, under the authority of the Court, sell so much of the Entailed estate as may be necessary to pay the entailer's debts. 2. A summary petition must be presented to the Court setting forth the Entail and the debts affecting, or which may be made to affect, the estate, and pray- ing the Court that so much of the estate may be sold as will produce a sum adequate to discharge these debts. 3. On the petition being presented to the Court, D 50 POWERS COMPETENT TO HEIRS SALES FOB d ue notice must be given to all concerned; and all parties who shall appear for their interest must be heard. The Court must enquire into and take an account of the debts due by the entailer which affect, or may be made to affect, the estate, and must fix and ascertain their amount. 4. The Court must then enquire into and ascer- tain, by the investigation and evidence or report of such skilful persons as they shall think fit to appoint for that purpose, what portions of the estate will be sufficient to produce a price adequate to the payment of the debts, and which may be sold with the least in- jury to the remainder of the estate. The Court must take all necessary proof thereof, and the value at which such portions of the estate ought, either in whole or in lots, be exposed to sale, and they must then order and decern such portions of the estate to be sold by public auction. 5. Notice of the intended public sale or auction must be ordered by the Court to be inserted in one of the newspapers published in the county in which the lands are situated, and also in three of the news- papers published in Edinburgh, three times, and at least three weeks previous to the day of sale. Notice of sale must also be otherwise advertised and notified as to the Court shall seem necessary and proper. 6. The articles and conditions of roup must be adjusted at the sight and with the approbation of the Court, and the lands must be exposed to sale in such manner as the Court shall direct. 7. The Court may also authorize the sale to be adjourned from time to time, and to be again from time to time advertised and notified in the manner formerly mentioned. 8. Upon a sale taking place the Court shall ad- judge the lands sold free from all the restrictions of UNDER ALL ENTAILS. 51 the Entail under which they were formerly held, to SALES FOB t belong to the purchaser as soon as he shall have j) EBTSt completed the purchase by paying or consigning the price in the Bank of Scotland, or the Koyal Bank of Scotland, or the British Linen Company Bank, or the Commercial Bank, or the National Bank, in whichever of these Banks the Court shall order such payment or consignation to be made. 9- The price so paid or consigned must be placed to an account to be raised in the books of the Bank in the name of such person or persons as the Court shall direct. 10. The money so paid in shall produce the high- est interest that can be obtained for it, and the in- terest shall be annually accumulated and added to the principal sum to carry interest together, until it shall be applied by a warrant of the Court for the purposes of the Act. The Court shall also act far- ther in the matter as may appear to them necessary for fully carrying out the purposes of the Act. 11. By the decree of sale pronounced by the Court, the purchaser and his heirs and assignees ob- tain right to the lands, free of all the restrictions of the entail, and of all the debts and burdens by which the lands were affected, and from every other in- cumbrance, defect of title, or ground of eviction whatsoever, in as full and ample a manner as any purchaser of lands at a judicial sale before the Court of Session can have by the law of Scotland. 12. The Heir of Entail in possession, or his legal guardians, must execute and deliver, under the authority of the Court, all such conveyances of the lands sold, as the Court shall deem proper, in favour of the purchaser, his heirs and assignees. 13. Those parts of the Entailed estate which are not sold continue settled on the same series of heirs, 52 POWERS COMPETENT TO HEIRS SALES FOH an( j are held under the conditions contained in the ENTAILERS' -r-, , ., DEBTS. EntaiL 14. After the sale is completed, and the price paid or consigned, the Court shall issue warrants for payment out of the price, of the expenses of the proceedings attending the petition, enquiry, and sale, and also of the amount of the entailer's debts, and the creditors in these debts, on receiving payment, must execute a complete discharge of their debts, and the several discharges must be registered in the Books of Council and Session. 15. If a surplus less than 200 shall remain of the price, the Court shall order it to be paid to the heir in possession for the time being. If the sur- plus shall exceed 200, the Court are empowered to direct the surplus to be laid out in the purchase of other lands, which shall be settled in terms of the Deed of Entail under which the lands sold were formerly held, and a Deed of Entail of the lands purchased with the surplus, shall be framed at the sight and with the approbation of the Court, so as to bind both the Heir in possession and the other Heirs of Entail, and the Entail shall be directed by the Court to be recorded in the Eegister of Tailzies, and infeftment shall be taken upon it, which shall also be recorded agreeably to the law of Scotland. On all this being done, the Court shall interpose its authority by declaring that the direc- tions of the Act have been complied with according to its true intent and meaning. 16. Until the surplus shall be applied to the pur- chase of other lands, it shall remain in Bank, and subject to the provisions formerly mentioned, until a proper purchase shall be made. If the money aris- ing by the principal and accumulated interest shall exceed the amount of the original purchase-money, UNDER ALL ENTAILS. 53 then only the surplus which shall remain after dis- SALES FOR charging the expense of the application to the Court, :? shall be paid to the persons respectively who would have been entitled to receive the rents and profits of the Entailed estate. 17. Notices of all applications either to the Court of Session or to the Sheriff, under the provisions of the Rosebery Act, must be inserted once at least in the London and Edinburgh Gazettes, and in two or more newspapers published in Edinburgh and usually circulated in the part of Scotland in which the Entailed estates to which the application relates are situated, and also in any one newspaper pub- lished, if there be any in such part of Scotland, at least t^ree months previous to making the applica- tion. When the application is made to the Court of Session, the Court shall, if they see fit, cause such farther intimation thereof to be made in the Minute Book of the Court, or on the wall of the Parliament House, or otherwise as the Court shall think proper. 18. By the Act 1848, where the fee of an entailed estate is validly charged with debt, the Heir in posses- sion may sell a portion of the estate for payment of the debt. See Chapter VIII. Section IV. Sale of Superiorities ; also Sales and Burdens for Redemption of the Land- Tax. 1. The Act 20 Geo. II. cap. 50, for taking away SALE OF Su- the tenure of Ward Holding, passed in 1747, de- P1 clares that the enfranchising of vassals of subject- superiors, by causing them to become immediate vassals of the Crown, was a matter of public benefit which ought to be encouraged. It therefore em- powers Heirs of Entail to sell to their vassals the 54 POWERS COMPETENT TO HEI11S SALE OF Sc- superiorities of the lands held by them, in order ' that they may hold them direct of the Crown instead of the Heir of Entail. 2. The price received for the superiorities sold, is directed to be applied to the payment of the en- tailer's debts, or to the payment of any other debts affecting the Entailed estate, or to be laid out and settled to the same uses, and with the same limita- tions and restrictions as affected the superiorities before the sale. 3. For this purpose the price must be paid into the hands of Trustees to be appointed by the seller and the purchaser of the superiority. These Trus- tees must apply the price in payment of the en- tailer's debts, or other debts affecting the Entailed estate, or must lay it out in the purchase of other lands, and settle them in terms of the original entail. REDEMPTION 4. By the Act 42 Geo. III. cap. 110, passed in 1802, and entitled " An Act for consolidating the provision of several Acts passed for the Redemption and Sale of the Land- Tax into one Act," an Heir of Entail may sell or burden part of the Entailed estate for the purpose of redeeming the land-tax. 5. If he intends to sell, he must apply by petition to the Court, stating the amount of the land-tax pay- able out of the Entailed estate, and also what part of the estate it is proposed to sell, and the rents or an- nual value of such part, and praying the Court to au- thorize the sale, on it being established to their satis- faction that, considering all circumstances, the part specified is the proper part to be sold. 6. The petition must be duly intimated, in com- mon form, on the walls of the Parliament House, for ten sederunt days, and also advertised weekly, for two weeks successively, in the Edinburgh Gazette. OF THE LAND- TAX. UNDER ALL ENTAilLS. 55 Such intimation and advertisement is declared to be REDEMPTION as effectual as if the petition ha been intimated to all the Substitute-heirs of Entaip and all creditors on and all other persons having] any interest what- ever in the estate. On such intimation being duly made, the Court shall proceed 4 summarily in the matter, and if no sufficient JJfewon is stated to the contrary by any party ha vin^S^ interest, the Court are empowered to authorize the sale of that part of the estate which the heir is willing to sell, and which the Court thinks proper to be sold. 7. If any lands which are usually possessed toge- ther, shall be proposed to be sold, which shall be more than sufficient for that purpose, and if it shall appear to the Court, either from their detached situation, or from any other circumstances, that they cannot be divided, in order that an adequate part may be sold, without loss to the parties interested, or that the sale of the whole lands would be more eligible and advantageous to the Entailed estate, the Court may, after due notice has been given to the next Substitute-heir of Entail, being of lawful age, and resident within Great Britain, authorize the sale of the whole lands. 8. The surplus of the price of any lands sold, after purchasing Government stock sufficient to redeem the land-tax, and paying the expenses at- tending the sale, must, with the interest thereof, be applied under the direction and the approbation of the Court, either in the payment of debts affecting the Entailed estate, or in the purchase of other lands, to be settled on the same series of heirs, and under the same conditions as contained in the original Entail. 9. The sale must be carried on by public auction at such time and on such notices as the Court shall 56 POWERS COMPETENT TO HEIRS REDEMPTION from time to time direct ; and previous to any sale TAX" ? being made, the Court must cause articles of sale to to be drawn up in the usual form required by law for making such sale effectual. 10. By these articles, the purchaser must be taken bound to pay the price to a trustee to be named by the persons in whose name or for whose behoof the sale is carried on. The trustee so named mast be approved by the Court, and must find security, to their satisfaction, that the money paid to him by the purchaser shall be duly and faithfully applied in the manner and for the purposes directed by the Act. 11. On receiving the price from the purchaser, the trustee must pay the money into the Bank of Eng- land, to be there placed to the account of the Com- missioners for the Reduction of the National Debt, to be by them applied in the manner and for the purposes directed by the Act. 12. The receipt of the cashier of the Bank shall be a sufficient discharge to the trustee and to the pur- chaser for the sum paid by him ; and on payment of the same by the trustee into the Bank of England, the purchaser is entitled, under the direction of the Court, to obtain from the Heir of Entail a disposition of the lands sold, containing all the usual clauses necessary for the completion of his right. 13. If the Heir in possession wishes to burden the Entailed estate with a sum of money, to be borrowed for the purpose of enabling him to purchase the land-tax affecting the Entailed estate, he must apply by petition to the Court, stating the amount of land- tax payable out of the estate, the sum proposed to he borrowed, and whether it is proposed to grant security over the whole or part of the estate. If the security is proposed to be granted over part of the estate, the petitioner must specify what part, UNDER ALL ENTAILS. 57 and must pray the Court to authorize the petitioner REDEMPTION to borrow such sum as the Court shall think proper, F THE LAND ~ for the purpose of redeeming the tax, and to grant J heritable security, in common form, for the sum borrowed, over the whole or part of the estate, as the case may be. 14. The petition must be intimated and advertised in the same manner as petitions for authority to sell are directed to be intimated and advertised ; and on such intimation and advertisement being duly made, the Court shall proceed summarily in the matter, and authorize the security to be granted, if no suffi- cient reason is stated to the contrary, by any party having an interest. 15. The expenses incurred by an Heir of Entail, either in selling part of the Entailed estate, or in bor- rowing money over it, may be defrayed out of the price of the land sold, or be included in the security, and may be made part of the charge upon the Entailed estate, but the amount of these expenses must first be ascertained by the Court, by decree to be obtained on a summary petition presented for that purpose. Section V. Burdens for certain Public Improve- ments, and also under the Drainage Act. 1. The object of the Act 59 Geo. III., cap. 61, PUBLIC In- passed in 1819, was to enable Counties to give aid to PROYEMENTS - Royal Burghs situated in them, for the purpose of im- Building of proving, enlarging, or rebuilding their gaols, also to Gaols - improve, enlarge, and rebuild common gaols of coun- ties which were not the Gaols of Royal Burghs. For this purpose, the Commissioners of Supply are em- powered to make an assessment on Lands and Heri- tages according to their valued rent, and upon in- habited houses of the annual rent of 5 or upwards according to their annual value. 58 POWERS COMPETENT TO HEIRS PUBLIC IM- PUOVEMENTS. Turnpike Roads and Bridges. 2. An Heir of Entail in possession, who shall pay assessments under this Act, is declared to be a cre- ditor of the succeeding Heir of Entail for THREE- FOURTHS of the money paid by him. 3. After the expiry of one year from the death of the heir who paid the assessment, the party having right to the claim for three-fourths of it, may re- quire the succeeding Heir of Entail to repay that proportion of it, with the legal interest from the time at which his right to the rents of the Entailed estate commenced, upon receiving a proper assign- ment of the claim. If the money is not paid within three months after that requisition, the succeeding heir may be sued for it in the manner directed for the recovery of money expended on improvements under the Montgomery Act. 4. The same rules of relief among the succeeding Heirs of Entail, and their heirs and successors, and the same rules of preference in any competition for the rents which are enacted by the Montgomery Act, in respect to claims for money expended in im- provements, are applicable with regard to claims for money expended in payment of assessment under this Act. 5. By the Act 4 Geo. IV., cap. 49, passed in 1823, regulating Turnpike Roads in Scotland, an Heir of Entail in possession, who may be desirous of lend- ing any money for the purpose of making or main- taining a Turnpike Road, or of building a bridge upon it, is empowered to bind himself personally as a Trustee of the road, and also to bind the succeeding Heir of Entail for the repayment of the money to the person who may advance it to the road-trustees. Where the heir in possession is under age, his tutor or curator is empowered to act for him. 6. The Heir of Entail is also empowered to ad- UNDER ALL ENTAILS. 59 vance money himself, and to make it a burden on PUBLIC IM- the Entailed estate, and on the succeeding Heirs of P1 Entail, or after having advanced the money, to bor- row the like sum, and to bind himself, and the whole of the succeeding Heirs of Entail, to repay it. 7. All bonds and obligations for money so advanced, or borrowed, and applied, in which the Heir of Entail in possession has personally bound himself and the succeeding Heirs of Entail, are valid and effectual, both against the granter and also against the suc- ceeding Heirs of the Entail, and the sums so advanced continue to be real burdens on the Entailed estate, until repaid out of the tolls and duties levied on the turnpike road. 8. The sums advanced and borrowed, or applied, must not exceed ONE YEAR'S free rent of the Entailed lands, situated in each parish through which the road, or any part of it, runs, or on which the bridge, or any part of it, is built. The Heir of Entail in pos- session also must keep down the annual interest of the sums so advanced or borrowed, but the creditor in right of the debt cannot adjudge the Entailed estate, although he may prosecute such remedy against the rents of the estate, as is competent by law to Heri- table creditors. 9. An Heir of Entail in possession, or his Tutor or Curator, is also empowered to renounce any claim of damage competent to him for the ground and materials belonging to the Entailed estate, which any turnpike road may occupy or require, and the renunciation is binding on the succeeding Heirs of Entail. 10. The Act 9 and 10 Viet., cap. 101, passed in BURDENS 1846, authorizes the advance of public money to a . PIT certain amount to promote the improvement or land ACT. in Great Britain and Ireland, by works of drainage. - DEtt TIIB 60 ADDITIONAL POWERS CONFERRED BURDENS The land, in respect of which money is advanced for DRAJNAG^ E ^is P ur P ose is charged with a rent-charge of 6, 10s. ACT. for every 100 advanced, payable for the term of TWENTY-TWO YEARS. 11. An Heir of Entail in possession, who avails himself of the provisions of this Act, is declared not to contravene the conditions of the Entail under which the land so charged is held, and the rent- charge cannot be used as a ground for adjudging, selling, or evicting the Entailed lands so charged, but it is a good and effectual charge upon and against them to every other effect, and upon and against the rents and profits thereof. CHAPTER VIII. Additional Powers conferred by the Act 1848. 1. An Heir of Entail in possession, being of full age, may, under the authority of the Court, sell, alienate, dispone, charge with debts, lease, or feu the Entailed estate, in whole or part, provided he obtain the like consents, as by the Act 1848 would enable him to disentail the estate, and he may do so either unconditionally or subject to conditions and limitations according to the tenor of the con- sents obtained. All deeds which may be neces- sary for giving effect to such sales, dispositions, charges, leases, or feus, he is entitled to execute at the sight of the Court. BY THE ACT 1848. 61 2. Where an Heir of Entail in possession is en- titled by the Act 1848 to charge the estate with debt, by granting Bonds and Dispositions in Security over it, free from all the clauses, prohibitory, irritant, and resolutive, contained in the Entail under which the estate is held, he may sell such portion of the estate other than the mansion-house, offices, and policies thereof, as may be necessary, and which the Court may select as most suitable and proper to be sold, for the purpose of paying off the debt in respect of which such charge has been, or might be, competently made. 3. Where also it is made competent by any Act of Parliament to charge the estate with debt, by granting Bonds and Dispositions in Security over it, but where no power of sale is granted to the Heir of Entail in possession, he is entitled to exercise the like power of sale. 4. In all cases, also, in which the fee of an En- tailed estate is validly charged with debt, the Heir in possession is entitled to exercise the like power of sale. 5. The Court shall select the portion of the estate which is most suitable and proper to be sold ; and on the sale being effected, the Heir of Entail in posses- sion may grant, at the sight and under the authority of the Court, a valid and effectual disposition in fee- simple, in ordinary form, of the portion sold to the purchaser, his heirs and assignees. 6. The price to be obtained for the portion sold must be previously approved of by the Court, and must, under the application for sale, be paid into Court by the purchaser. By paying the price into Court the purchaser is fully discharged of the price, and has no interest, concern, or responsibility, as to the application of the price. 6*2 RIGHTS OF CREDITORS. 7. The price must be applied at the sight of the Court to the payment or extinction of the debt for which the bond and disposition in security was or might be granted. 8. If the surplus remaining after payment of the debt and of the expenses attending the application for sale and the procedure thereon, shall be less than 200, it shall be paid to the Heir in possession for the time, for his own use and behoof. If it exceed 200, it must be invested in the purchase of other lands, to be added to the remainder of the Entailed estate, or laid out in payment of the entailer's debts, or in payment of any debt charged on the fee of the Entailed estate, under the Act 1848 or any other Act, or in redemption of the land-tax affecting the Entailed estate, or in permanently improving it, or in repay- ment of money already expended in improvements, as may be deemed most advisable. 9. If the surplus shall be invested in the purchase of lands to be added to the remainder of the Entailed estate, the date of the entail of the lands purchased, whatever may be its actual date, is held to be of the same date as that of the original Entail. CHAPTEK IX. Rights of Creditors. 1. A creditor acting under powers of sale con- tained in a Bond and Disposition in Security, or other deed of security affecting an Entailed estate, RIGHTS OF CREDITORS. 63 by virtue of the Act 1848, or any other Act, cannot sell the estate, or any portion of it, in manifest ex- cess of what is necessary for the payment of the debt, principal and interest, and whole expenses effeiring to the debt for which the sale is made. 2. The judgment of the Court of Session pro- nounced in any Supension of an intended sale, on the ground of manifest excess, is final and not sub- ject to appeal. 3. If, on a sale being effected, the price shall exceed the amount of the debt, principal and in- terest, and the whole expenses effeiring to it, the creditor shall only be entitled to payment from the purchaser to that amount. 4. The creditor and purchaser must also present an application to the Court, setting forth the sur- plus, and praying for its reinvestment in other lands or heritages, to be entailed at the sight of the Court on the same scrips of heirs, and as far as may be, in the same terms, and subject to the same pro- hibitions and conditions as are contained in the En- tail under which the estate, or the portion sold, was held prior to the sale, or for the disposal of the sur- plus in such other manner as the Court may direct, consistently with the provisions of the Act 1848. 5. On the application being presented by the creditor and purchaser, the Court shall ordain the petitioner or other party in whose hands the ad- mitted surplus is, to pay the same into Bank, and to produce a receipt therefor taken payable as the Court may direct. The Court shall also appoint such intimation and advertisement of the application as they may deem proper. 6. Under the application it shall be competent to the Court to ascertain and determine the just (34 RIGHTS OF CREDITORS. amount of the surplus, and to give decree for the same, and to exoner and discharge the creditor and purchaser, and all others thereof. 7. If the surplus shall exceed 200, it shall be competent to the Court to see to the reinvestment of it in the purchase of other lands and heritages, and to entailing of the lands and heritages so purchased in the manner already specified, or to the dis- posal of it in such other way and manner as may be consistent with the provisions of the Act 1848, and as may appear to the Court to be suitable and proper. 8. If the surplus shall be reinvested in the pur- chase of other lands or heritages, the date of the En- tail of such lands or heritages, whatever may be its actual date, shall be held to be of the same date as the Entail of the remainder of the Entailed estate. 9. If the surplus shall not exceed 200, the Court shall order it to be paid over to the Heir of Entail in possession, for his own use and behoof. 10. If a party in right of an Entailer's debt, or of any other debt, or of any provision to a husband, widow, or younger child, affecting, or that may be made to affect, the fee of any Entailed estate, shall use and record Inhibition, in reference to such debt, against the Heir of Entail in possession of the Entailed estate for the time, before the expiry of one year from the date of recording an instrument of disen- tail in the Register of Tailzies, he is entitled to affect the estate in respect of the debt or provision to which he has right, in the same manner as if no instrument of disentail had been recorded. 11. In such a case no debt or charge on the es- tate, or any other right whatever in it which would not have competed with the debt or provision, had PERPETUITIES. 65 the instrument of disentail not been recorded, can compete with such debt or provision by reason of the recording of the instrument of disentail. 12. No irritancy committed by an Heir of Entail can operate to the effect of setting aside, impairing, or in any way affecting, directly or indirectly, the rights of purchasers, or bona fide onerous creditors, constituted by deeds granted in reference to the En- tailed estate, or the rents thereof, prior to the exe- cution of the Summons of Declarator of Irritancy, on which a Decree of Irritancy shall be obtained, provided such deeds are not invalid as being incon- sistent with the provisions of the Entail under which the estate is held. 13. When an Heir of Entail in possession is en- titled by himself alone, without the consent of any other party, to acquire the Entailed estate in fee- simple, by executing and recording an instrument of disentail, his creditors are entitled to affect the estate for payment of their debts, and have the same rights and interest in the estate as if such instru- ment of disentail had been duly executed and re- corded, although the Heir in possession may not have duly executed and recorded such instrument. CHAPTER X. Perpetuities. 1. A Perpetuity is a bar to the circulation of pro- perty. It may be defined to be an estate which can- not be alienated, although all parties having an in* 6(3 PERPETUITIES. terest in it should consent to the alienation. Strict Entails are therefore Perpetuities. Perpetuities are also valid at Common Law by the medium of a Trust, but Personal estate cannot be entailed without a trust. 2. The creation of future estates at Common Law has been limited by statute. The object of the Thelusson Act, passed in 1800, was to prevent the profits or produce of real or personal estates being accumulated beyond a certain period. This Act was declared not to extend to any disposition respecting heritable property in Scotland. The Act 1848 de- clares that it is expedient that the provisions of the Thelusson Act should be extended to Heritable pro- perty in Scotland, and it repeals the enactment by which it was made not to apply, and declares that in future it shall apply to Heritable property in Scot- land. 3. In consequence of the Thelusson Act, no per- son by deed or will can settle any real or personal property in such manner that the rents or produce thereof can be accumulated for a longer or more re- mote period than the life of the granter, or the term of twenty-one years from his death, or during the minority of any persons living or conceived at the time of his death, or during the minority of any per- sons who, under the deed directing the accumulation, would, for the time being, if of full age, be entitled to the rents and profits directed to be accumulated. 4. Where an accumulation is directed otherwise than in the manner authorized by the Act, the direc- tion is null and void, and the rents and profits, so long as they shall be directed to be accumulated contrary to the provisions of the Act, shall be re- ceived by the person who would have been entitled to them if such accumulation had not been directed. PERPETUITIES. 5. The Act does not extend to any provision for payment of the debts of the granter, or any other per- son, or to any provision for raising portions for any child of the granter, or for any child of any person taking any interest in the deed. Neither does it extend to any direction regarding the produce of timber upon any lands, but all such provisions and directions may be made and given as if the Act had not passed. 6. The Act 1848 provides against its objects being defeated by means of Trusts, Life-rents, or Leases. All such evasions of the Act are rendered inoperative to the effect of regulating the succession of a party of full age, born after the date of the deed by which his interest in the estate was created, or of limiting his enjoyment of the estate in favour of any future heir. 7. A party of full age who possesses an estate, either directly or through trustees for his behoof, in virtue of a trust-deed, dated on or after 1st August 1848, and who was born after the date of the trust- deed, is not in any way affected by any conditions and limitations in the trust-deed qualifying his in- terest in the estate, such conditions and limitations being of the nature of the conditions or limitations of an Entail, or being intended to regulate his succession, or to limit or abridge his possession and enjoyment of the estate in favour of any future heir. Such a party is deemed to be the fee-simple proprietor of the estate, and may apply to the Court by a sum- mary petition, setting forth the facts, and referring to the Act 1848, and craving the Court to pronounce an act and deed declaring that he is fee-simple pro- prietor of the estate. 8. The Court shall proceed in such petition as may be just, and shall have power to pronounce such an act and decree, and such act and decree may be ()8 PERPETUITIES. recorded in the Register of Sasines, and being so re- corded, has all the operation and effect of the most formal and valid disposition to the party in whose favour it was pronounced, and his heirs and assig- nees, with infeftment thereon duly recorded. 9. The rights of the Superior of the estate, and of all parties holding securities upon it, and all rights wjiich are held independently of the trust-deed, are not affected by such act and decree, but are reserved entire. 10. A mere life-rent interest in an estate cannot now be granted except to a party in life at the date of the grant. 11. A party of full age holding an estate in life- rent, in virtue of a deed, dated on or after 1st August 1848, and who was born after the date of such deed, is not affected by any of the conditions or limita- tions contained in the deed by which the interest of such party may bear to be qualified, but he is deemed to be the fee-simple proprietor of the estate. 12. Such a party may obtain and record an act and decree of the Court, in the like form and man- ner, and with the like operation and effect as has already been stated with regard to the case of deeds of trust, the right of the superior and of parties hold- ing securities, and all rights held independently of the deed constituting the life-rent, being also reserved entire. 13. A party of full age who holds an estate, either directly or through a trustee for his behoof, in vir- tue of a lease, or an assignation of a lease, or other deed or writing, dated on or after the said date, and who was born after the date of such deed, is not in any way affected by any conditions and limitations contained in such deed qualifying his interest in the lease, such conditions and limitations being of the PERPETUITIES. 69 nature of the conditions and limitations of an Entail, or intended to regulate his succession, or to limit or abridge his possession and enjoyment of the estate in favour of any future heir. 14. The proprietor of whom such lease is held, may, however, enforce any prohibitions, conditions, and limitations contained in the lease or assigna- tion of lease which have been inserted for the bona fide purpose of protecting his just rights and inter- ests, in so far as such enforcement may be necessary for that purpose. 15. These provisions of the Act 1848 limit the suspension of the vesting of the absolute interest in an estate to the lives of the parties called to the succession, who were born before the date of the deed creating their interest, and until the majority of a party called to the succession who was born after its date. 16. These provisions refer, however, exclusively to land. If therefore Perpetuities, in regard to move- able estate, are valid at Common Law through the medium of a trust, it is still allowable to convey moveable property to trustees, to be held by them for behoof of an indefinite series of heirs, the annual interest or profits being yearly consumed by these heirs. As there is thus no accumulation of interest, the Thelusson Act is not infringed, and as the Act 1848 relates exclusively to land, the Common Law right to prevent the acquisition of an absolute interest in the funds conveyed in trust remains. 17. The Rule of Perpetuity which prevails in the law of England limits the suspension of the right of absolute property to the lives of any number of per- sons arbitrarily chosen, and who may not be bene- ficially interested in the estate, and also for an ab- solute period of twenty-one years, and also for the (V PERPETUITIES. period of gestation in those cases in which gestation exists. The principle upon which any number of heirs arbitrarily chosen is allowed by the law of Eng- land, is that they are all wearing away at the same time, or as it has been observed, " All the candles are burning at once." Coke'a Re- 18. The creation of Perpetuities in England was opposed by the Courts of Law there at a very early period. Lord Coke thus refers to one case which he has reported : " THEN HAVE I PUBLISHED FOR THE GENERAL GOOD, BOTH OF PRINCE AND COUNTRY, THE HONOURABLE FUNERAL OF FOND AND NEW FOUND PERPETUITIES, A MONSTROUS BROOD CARVED OUT OF MERE INVENTION, AND NEVER KNOWN TO THE ANCIENT SAGES OF THE LAW. AT WHOSE SOLEMN FUNERAL I WAS PRESENT, AND ACCOMPANIED THE DEAD TO THE GRAVE OF OBLIVION, BUT MOURNED NOT, FOR THAT THE COMMONWEALTH REJOICED THAT FETTERED FREE- HOLDS AND INHERITANCES WERE SET AT LIBERTY, AND MANY AND MANIFOLD INCONVENIENCES TO THE HEAD AND ALL THE MEMBERS OF THE COMMONWEALTH THEREBY AVOIDED." 19. The object of the Act 1848, in regard to Fu- ture Entails, is to assimilate the law of Scotland to that of England, where an estate may be rendered absolutely inalienable during one life, or any given number of lives, in being at the same time, and for another period of twenty-one years. At the end of this period, the property again becomes open to alienation. Accordingly an Heir in possession, born before the date of the Entail, may generally disentail the estate with the consent of the Heir- Apparent, and in this way estates continue in the same family for a long period, the old Entail being successively discharged, and a new one, with the consent of the Heir-Apparent, being substituted in its place. GENERAL PROVISIONS OF THE ACT 1848. 71 20. The English system is thus described by Mr. Butler's Notes Butler : " The limits within which the English sys- to tern of the settlement of property confines the re- straints on alienation, prevent the substraction from commerce of an undue proportion of the national wealth, and leave as much of it for circulation as is sufficient to answer the wants of those who wish to purchase, and while a perpetual Entail is avoided, such an Entail may be framed as will effect all those provisions which it is consistent with the limited reach of human prudence to design." 21. The same author continues : "When the En- tail is discharged, it most frequently happens that the rights or views of parties interested in the pro- perty lead wholly or partially to a renewal of the Entail, and thus while individuals have the means of effecting reasonable arrangements, that succession of respectable proprietors is preserved, which conduces so much to public and private happiness." CHAPTEE XL General Provisions of the Act 1848. 1. Where an Entail is not valid and effectual in No defective terms of the Act 1685, in regard to the prohibitions P i? tai1 \ s now -, . e , , effectual to against alienation and contraction or debt and altera- a ny extent, tion of the order of succession, in consequence of defects either in the original Deed of Entail, or of the investiture following upon it, but is invalid and ineffectual as regards any one of these prohibitions, 72 GENERAL PROVISIONS OK THE ACT 1848. it is declared by the Act 1848 to be invalid and in- effectual as regards tbem all. 2. The estate held under such a defective Entail is subject to the deeds and debts of the Heir in pos- session, and of his successors under the Entail ; and no action of forfeiture is competent against the Heir in possession, in respect of any contravention of all or any of the prohibitions. 3. An Entail with a Prohibition only against alter- ing the Succession is now no longer binding upon the Heir in possession. As such an Entail was valid and effectual prior to the Act 1685, the Act 1848 in this respect alters the Common Law. Irritant and 4. In any Future Entail, it is not necessary to in- Resoluhve ger j. an y j rr jtant or resolutive clauses, in order to Clauses not ^ . necessary to render such Entail effectual, in terms 01 the Act be inserted in l(j85, provided it contain an express clause, autho- rizing it to be recorded in the Register of Tailzies. 5. The clause authorizing registration has in every respect the same operation and effect as the most formal irritant and resolutive clause duly applied to every prohibition, condition, and limita- tion contained in the Entail, except only such pro- hibitions, conditions, and limitations, as may be specially excepted by the terms of the Entail. 6. The clause of registration must be engrossed as part of the Entail, in the Register of Tailzies, when the Entail is recorded there, and must also be in- serted or duly referred to in all procuratories of re- signation, charters, decrees of special service, pre- cepts and instruments of sasine following on the Entail, in the same manner, or as nearly as may be, in the same manner as irritant and resolutive clauses are now required to be so inserted or referred to. Provisions as 7. Where any money or other property, real or to Trusts. personal, has been or shall be invested, intrust, for the GENERAL PROVISIONS OF THE ACT 1848. 73 purpose of purchasing lands to be entailed, or where any lands have been or shall be directed to be en- tailed, but the direction has not been carried into effect, such trust-money or other property, and such lands, though still unentailed, may be dealt with under the Act 1848 in all respects as such lands might have been dealt with if entailed, in terms of the directions of the trust. 8. In such a case the party who, if the land had been entailed in terms of the trust, would be the Heir in possession of the entailed land for the time, may grant provision in favour of his or her hus- band or wife and younger children, out of such money or other property, or out of such land of the like amount and extent as he or she would have been entitled to grant out of the land if entailed, and if subject to the provisions of the Aberdeen Act. This provision of the Act 1848 is in accord- ance with what has been adjudged at Common Law to be the powers of the party having the beneficial interest in such Trust-Estate. 9. In such a case, also, the party who, if the land had been entailed in terms of the trust, would be the Heir in possession of the Entailed land, and who might, by virtue of the Act 1848, have acquired the land to himself in fee-simple, by executing and re- cording an instrument of disentail, may make sum- mary application to the Court for warrant and authority for the payment to him of such money, or for the conveyance to him of such land in fee- simple. Upon such application, and with such con- sents, if any, as would have been required to the acquisition of the lands in fee-simple, the Court shall grant such warrant and authority. 10. The date at which the Act of Parliament, deed, or writing, placing such money or other property 74 GENEilAL PROVISIONS OF THE ACT 1848. under trust, or directing such land to be entailed, first came into operation, is held to be, for the pur- poses of the Act 1848, the date at which the land should have been entailed, in terms of the trust, and shall also be held to be the date of any Entail which may be made thereafter in execution of the trust, whatever may be the actual date of such Entail. Provisions as 1 1. Where money has been or may hereafter be de- to money de- rived from the sale of any part of an Entailed estate, rived from e , IP V . , , Sales &c. or i rom the sale ot any right or interest in it, or in respect of any permanent damage done to it under any private or other Act of Parliament, the Heir in possession of the entailed estate, if he could, by vir- tue of the Act 1848, acquire to himself the entailed estate in fee-simple, by executing and recording an instrument of disentail, may make summary appli- cation to the Court, for payment to him of such money as belonging to himself in fee-simple. 12. If, however, the Heir in possession shall not be entitled to acquire the entailed estate in fee-simple, he may, with the approbation of the Court, lay out the money in payment of the entailer's debts, or in payment of any debt charged on the fee of the entailed estate under the Act 1848, or any other Act, or in redemption of the land-tax affecting the estate, or in permanently improving the estate, or in repayment of money already expended in improv- ing it. 13. In such case the Heir in possession may apply summarily to the Court, setting forth the amount of the sums proposed to be laid out, and the special purpose to which it is intended to apply it. If the Court shall be satisfied of the propriety of the pro- posed application, they shall issue a finding or de- cree to that effect, and authorizing the application. On such decree being pronounced, the heir making GENERAL PROVISIONS OF THE ACT 1848. 75 the application may lay out the money in all or any of the before mentioned purposes, according as the Court shall have authorized the application of it. 14. If after the purposes authorized by the Court shall be fulfilled, there shall be a surplus of such money of more than 200, it shall be applied in the same manner as the whole money would have been applied but for the provision of the Act 1848. If the surplus shall be less than ,200, it shall be paid to the Heir of Entail in possession for the time, for his own use and behoof. 15. The same provisions are applicable to the case Provisions as where any money has been invested in trust, for the t^^fo/thT purpose of purchasing lands to be Entailed on the purchase of same series of heirs as are called to the succession additional lauds. of an entailed estate, and under the same prohibi- tions and conditions as are contained in the Entail under which the estate is held. The Heir in pos- session in such a case is entitled to obtain pay- ment of the money as belonging to himself in fee- simple, if he could, in virtue of the Act 1848, disentail the estate. But if he could not disentail the estate, then the money may be applied to all or any of the before mentioned purposes, according as the Court shall direct. 16. All the acts permitted by the Act 1848 to be For the pur- done by an Heir of Entail in possession, may be p . os ** he 11- i i T ^ -i i i i Acfc 1848 ' an done by him whether the Entail under which he Heir in Pos- holds the estate be recorded in the Register of session need Tailzies or not, and whether he be duly infeft in the estate or not. 76 JUDICIAL PROCEDURE UNDER THE ACT 1848. CHAPTER XII. Judicial Procedure under the Act 1848. 1. When an Heir of Entail in possession of an Entailed estate desires to take advantage of any of the provisions of the Act 1848, and for which the authority of the Court is required by that Act, he must apply to the Court by way of summary petition. 2. The petition must set forth the Entail under which the estate is held, and the date of the peti- tioner's infeftment therein, if he be infeft in the estate. If the consents of any of the Heirs-substi- tute of Entail are required to the petition, their names, designations, and places of abode, so far as known to the petitioner, must also be set forth. 3. The petition must also set forth whether the Heirs-substitute, whose consents are required, are of age, to consent on their own behalf, and if they are not, then it must set forth the names, designations, and places of abode of their fathers or tutors or curators or other legal guardians. 4. If any of the Heirs-substitutes, whose consents are required, are the children of the Heir in posses- sion himself, and are minors, or legally incapacitated to act in their own affairs, this also must be stated in the petition. 5. The petition must also set forth specifically to what extent, and in what way and manner, the es- tate is proposed to be affected. 6. No Heirs of Entail require to be called as par- JUDICIAL PROCEDURE UNDER THE ACT 1848. ties to any proceedings under the Act 1848, except those whose consents would be required for dis- entailing the estate, and no Heir of Entail, whose consent is not necessary to disentail the estate, is entitled to appear, or to be heard in the pro- ceedings. 7. In all applications to the Court for the pur- pose of disentailing, selling, alienating, disponing, charging with debts, leasing, feuing, or excambing an Entailed estate, in whole or in part, the Heir of Entail must make and produce an affidavit, setting forth that there are no entailer's debts, or other debts, and no provisions to husbands, widows, or children affecting, or that may be made to affect, the fee of the estate, or the Heir of Entail ; or if there are such debts or provisions, the affidavit must set forth their particulars, with the amounts thereof respectively, principal, interest, expenses, and the vouchers by which the same are instructed, and also the names, designations, and residences of the parties who are in right of the same. 8. The Court cannot proceed with the application until such affidavit is lodged; and any person who shall wilfully make such affidavit falsely, shall be deemed guilty of perjury, and be punishable accord- ingly. 9. If the Court shall see cause, the application may be ordered to be intimated to the parties who are in right of the debts and provisions set forth in the affidavit, or any of them, with a view to such parties appearing for their interest if they shall think fit. 10. Before granting the authority sought in the application, or as a condition of granting it, the Court shall order such provision as may appear just to be made for the debts or provisions set forth in 78 JUDICIAL PROCEDURE UNDER THE ACT 184S. the affidavit, or for the protection of the parties who are in right of the same. 11. The petition on being presented to the Court must be appointed to be intimated in the Minute Book and on the walls in common form. It must also be appointed to be publicly advertised once in the Edinburgh Gazette, and at least once weekly for six successive weeks, or for any longer period the Court shall deem fit. In such advertisements it is suffi- cient to state the leading name of the lands by which the same are commonly known, without giving any detailed description of them. 12. After the petition has been duly intimated and advertised, the petitioner may move the Court to grant the prayer of the petition. If the procedure shall appear to the Court to be regular and proper, the Court shall interpose their authority and give decree, authorizing the petitioner to do the act pro- posed in the petition, in so far as that act may ap- pear to the Court to be permitted by the Act 1848, or the Court shall do otherwise in reference to the petition as may appear to be proper and consistent with the Act. 13. At any time before decree is actually pro- nounced, any person having an interest may com- pear and object on any relevant ground to the prayer of the petition. If such objection be offered, the Court shall investigate and dispose of it by such form of procedure as may seem to be expedient and proper. ] 4. In all applications presented under the Act, it is competent to the Court to decern for costs of suit against the parties to the proceedings, or any of them, or to decern for payment of the costs out of the estate or fund to which the particular application relates. ANNO UNDECIMO & DUODECIMO. VICTORIA REGINJ3. CAP. XXXVI. An Act for the Amendment of the Law of Entail in Scotland. [14th August 1848.] TYTHEREAS tne L SW Q f E n t a ii j n Scotland has been found '* to be attended with serious Evils, both to Heirs of En- tail and to the Community at large, and it is expedient that the same be amended in manner herein-after provided for : 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 assem- bled, and by the Authority of the same, That where any Es- Heir born tate in Scotland shall be entailed by a Deed of Tailzie dated after the on or after the First Day of August One thousand eight hun- an a y te future ' dred and forty-eight it shall be lawful for any Heir of Entail Entail may born after the date of such Tailzie, being of full Age, and in disentail possession of such entailed Estate by virtue of such Tailzie, to jjorn b^- 6 ' acquire such Estate, in whole or in part, in Fee Simple, by ap- fore, may plying to the Court of Session for Authority to execute and ^ so wita executing, and recording in the Register of Tailzies, under the H^rnext Authority of the Court, an Instrument of Disentail in the Form in succes- and Manner herein-after provided ; and it shall be lawful for ? lon ' be ~ any Heir of Entail, being of lawful Age, and in possession of Ap pai f e ' nt such entailed Estate by virtue of such Tailzie, though born be- under the fore the Date of such Tailzie, with the Consent, and not other- Eutai1 - wise, of the Heir next in succession, being Heir Apparent under the Entail of the Heir in possession, to acquire such Es- tate, 2 IP & 12 VICTORLE, Cap. :JC. tate, in whole or in part, in Fee Simple, by applying to ths Court for Authority to execute and executing, and recording in the Register of Tailzies, under the Authority of the Court, an Instrument of Disentail in the Form and Manner herein- after provided : Provided always, that such Consent to such In- strument of Disentail shall not be valid and effectual unless granted by a person of the Age of Twenty-five Years complete, not subject to any legal Incapacity, and born after the Date oi the Tailzie to which such Instrument applies. Heir in II. And be it enacted, That where any Estate in Scotland possession j s ne i(j by virtue of any Tailzie dated prior to the said Fh>t existing" ^ a 7 of August One thousand eight hundred and forty-eight it Entail born shall be lawful for any Heir of Entail born on or after the sa:d after 1st First Day of August, being of full Age, and in possession of is'HTmay suca en tailed Estate by virtue of such Tailzie, to acquire such disentail; Estate, in whole or in part, in Fee Simple, by applying tothtj born be- Court of Session for Authority to execute and executing, and Date, may recording in the Register of Tailzies, under the Authority or* do so with the Court, an Instrument of Disentail, in the Form and Mail- Consent ner herein-after provided; and it shall be lawful for any Heir next in f Entail, though born before the said First Day of August succession, One thousand eight hundred and forty-eight, being of full Age, being Heir an( j j n possession of such entailed Estate by virtue of such btirrTafter Tailzie dated prior to the said First Day of August, with the 1st August^ Consent (and not otherwise) of the Heir next in succession, 1848. being Heir Apparent under the Entail of the Heir in posses- sion, he being born on or after the said First Day of August One thousand eight hundred and forty-eight, and being of the Age of Twenty-five Years complete at the Time of granting such Consent, and not subject to any legal Incapacity, to ac- quire such Estate, in whole or in part, in Fee Simple, by exe- cuting, under Authority of the Court, an Instrument of Dis- entail as aforesaid, in the Form and Manner herein-after pro- vided. Heir of En- HI. And be it enacted, That it shall be lawful for any Heir i exlstin ^ Entail, being of full Age, and in possession of an entailed Entail may Estate in Scotland holden by virtue of any Tailzie dated prior disentail, to the said First Day of August One thousand eight hundred Consents"" an< ^ f rt y -eight, to acquire such Estate, in whole or in part, in Fee Simple, by applying to the Court of Session for Authority to execute and executing, and recording in the Register of Tailzies, under the Authority of the Court, an Instrument of Disentail in the Form and Manner herein-after provided : Provided always, that such Heir of Entail in possession shall be the only Heir of Entail in existence for the Time, and un- married, or otherwise shall have obtained the Consents of the whole Heirs of Entail, if there be less than Three in being at the Date of such Consents and at the Date of presenting such Application. . ll c & 12 VICTORI^E, Cap. 36. Application, or otherwise shall have obtained the Consents of the Three nearest Heirs who at the said Dates are for the Time entitled to succeed to such Estate in their order succes- sively immediately after such Heir in possession, or otherwise shall have obtained the Consents of the Heir Apparent under the Entail and of the Heir or Heirs, in Number not less than Two, including such Heir Apparent, who in Order successively would be Heir Apparent : Provided also, that the nearest Heir of Entail for the Time entitled to succeed to such Estate im- mediately after such Heir in possession, where any such other Heir exists, shall be of the Age of Twenty-five Years complete, and not subject to any legal Incapacity. IV. And be it enacted, That it shall be lawful for any Heir Heir of of Entail, being of full Age, and in possession of an entailed Entail may Estate in Scotland, with such and the like Consents as by this ^' e Act would enable him to disentail such Estate, to sell, alienate, lease, and dispone, charge with Debts or Incuinbrances, lease and feu feu > * ith such Estate, in whole or in part, and that unconditionally, or Consents as .subject to Conditions, Restrictions, and Limitations, according enable him to the Tenor of such Consents, the Authority of the Court of to . Disen " Session being always obtained thereto in the Form and Manner herein-after provided ; and such Heir of Entail shall be entitled to make and execute, at the Sight of the Court, all such Deeds of Conveyance and other Deeds as may be necessary for giving Effect to the Sales, Dispositions, Charges, Leases, or Feus so made and granted. V. And be it enacted, That it shall be lawful for any Heir Heir of of Entail, being of full Age, and in possession of an entailed Entail Estate in Scotland holden by him by virtue of any Tailzie ? der ex- dated prior to the said First Day of August One thousand tail may eight hundred and forty-eight, with the Consent of the whole excamb, Heirs of Entail if there be less than Three in being at the Date ^^cTi" of such Consents and at the Date of presenting Application for S ents. the Authority of the Court as after mentioned, or otherwise with the Consent of the Three nearest Heirs who at the said Dates are for the Time entitled to succeed to such Estate in their Order successively immediately after such Heir in posses- sion, or otherwise with the Consent of the Heir Apparent under the Entail, and of the Heir or Heirs, in Number not less than Two, including such Heir Apparent, who in Order successively would be Heir Apparent, to excamb such Estate, in whole or in part, the Authority of the Court of Session being always ob- tained thereto in the Form and Manner herein-after provided, and such Heir of Entail in possession shall be entitled to make and execute, at the Sight of the Court, all such Contracts of Excambion and other Deeds as may be necessary in order to give effect to such Excambions, by the Substitution of the Lands to be acquired in the Room and Place in all respects of the Lands to be disponed. VI. And 11 & 12" VICTORIA, Cap. 36. Provision for Dis- closure of Kntailcr's Debts which affect the Estate disentailed. Creditors in En- tailer's Debts, &c., using Inhi- bition not to be af- fected by Instru- ment of Disentail. S^ttle- ments by Marriage Contract not to be disap- pointed. VI. And be it enacted, That where any Heir of Entail n possession of an Entailed Estate in Scotland shall apply to the Court of Session nnder this Act in order to disentail such Es- tate, in whole or in part, or to sell, alienate, dispone, charge with Debts or Incumbrances, lease, feu, or excamb the same or any Part thereof, he shall make and produce in such Ap- plication an Affidavit setting forth that there are no Entailer's Debts or other Debts, and no Provisions to Husbands, Widows, or Children, affecting or that may be made to affect the Fee of the said entailed Estate or the Heirs of Entail, or, if there are such Debts or Provisions, setting forth the Particulars of the same, with the Amounts thereof respectively, Principal, Interest, and Expenses, and the Vouchers by which the same are instructed, and the Names, Designations, and Residences of the Parties in right of the same ; and the Court shall not proceed with such Application until such Affidavit is lodged ; and, if the Court shall see Cause, Intimation of such Applica- tion may be ordered to be made to the Parties in right of the said Debts or Provisions or any of them, with a view to such Parties appearing for their Interest, if they shall see fit ; and it shall be lawful for the Court to order such Provision as may appear just to be made for such Debts or Provisions, or for the Protection of the Parties in right of the same, before granting the Authority sought for in such Application, or as the Condi- tion of granting the same; and any Person who shall wilfully make such Affidavit falsely shall be deemed to be guilty of Per- jury, and be punishable accordingly. VII. And be it enacted, That any Party in right of an En- tailer's Debt or of any otherDebt, or of any Provision to a Hus- band, Widow, or younger Child, affecting or that may be made to affect the Fee of any entailed Estate in Scotland, and who before the Expiry of One Year from the Date of recording an Instrument of Disentail of such Estate in the Register of Tail- zies shall use and record Inhibition in reference to such Debt against the Heir of Entail in possession of such Estate for the Time, shall be entitled to affect such Estate in respect of such Debt or Provision as if no such Instrument of Disentail had been recorded as aforesaid, and no Debt or Charge on such Es- tate, or Right whatsoever therein, which would not have com- peted with such Debt or Provision had such Instrument of Dis- entail not been recorded, shall be allowed to compete therewith by reason of the recording of such Instrument of Disentail. VIII. And be it enacted, That where any Heir of Entail in possession of an entailed Estate in Scotland holden by virtue of any Tailzie dated prior to the said First Day of August One thousand eight hundred and forty-eight, or the Heir Ap- parent to such Estate, shall, together or separately, have se- cured by Obligation in any Marriage Contract the Descent of such IT & 12 VICTORIA, C;i|i. 36. 5 such Estate upon the Issue of the Marriage in reference to which such Contract is entered into, it shall not be competent for such Heir of Entail in possession, or Heir Apparent, or either of them, to apply for or to consent to the Disentail of such Estate, until there shall be born a Child of such Marriage capable of taking the Estate in Terms of such Contract, and who, by himself or his Guardian, shall consent to such Disentail, or until such Marriage shall be dissolved without such Child being born, unless the Trustee or Trustees named in such Contract, or the Party or Parties at whose Sight the Provi- sions of the Contract are directed to be carried into execu- tion, shall concur in such Application or Consent. IX. And be it enacted, That where any Heir of Entail Heirs of called to the Succession of an entailed Estate in Scotland by Ku *?'l not any Tailzie dated prior to the said First Day of Auyust One Consent in thousand eight hundred and forty-eight shall have borrowed opposition Money previous to the passing of this Act on the Security or to Credi - Credit of his Right of Succession to or Interest in such entailed rjebtTnow Estate, such Heir shall not be entitled to give Consent to any existing. Application under this Act which shall be opposed by any Creditor to whom such Heir stands indebted in respect of Money borrowed as aforesaid, and who shall either hold In- feftment in the entailed Estate, duly recorded, in security of his said Debt, or shall enter Appearance, and prove the same, in the course of the Proceedings under such Application : Pro- vided always, that it shall be competent to the Court of Ses- sion, if, with reference to any offer of adequate Security, or otherwise in the Circumstances, it shall deem the Opposition on the Part of such Creditor to be unreasonable, to disallow the same, and to give effect to the Consent of such Heir. X. And be it enacted, That where any Heir Apparent of HeirAppa- an entailed Estate in Scotland under a Tailzie dated prior to rent under the said First Day of August One thousand eight hundred 2"^^" and forty-eight shall subsequent to the passing of this Act give Con- borrow Money on the Security or Credit of his Right of Sue- sent mop- cession to or Interest in such entailed Estate, such Heir A p- h parent shall not be entitled to give Consent to any Application tors. under this Act, except under the like Circumstances as would have enabled him to give Consent, and to have his Consent allowed, had such Money been borrowed previous to the pass- ing of this Act; but the Consents of the other Heirs Sntati- tute shall be given and allowed independently of the Rights of any such Creditors. Creditor of XI. And be it enacted, That any Creditor of an Heir of an Heir Entail in possession of an entailed Estate in Scotland who is ejT'^!" by this Act empowered by himself alone, without the Consent entail may of any other Party, to acquire such Estate in Fee Simple, by affect the executing and recording an Instrument of Disentail as afore- p^nu ntof said, his' Dei 6 11 Q & }'2- V1CTORLK, Cap. 36. said, shall be entitled to art'ect such Estate for Payment of Debt, and have the same J tights and Interests therein as if such Instrument of Disentail had been duly executed and re- corded, albeit such Heir in possession may not have duly exe- cuted and recorded such Instrument of Disentail. Acts 10 G. XII. And \vhereasan Act was passed in the Tenth Year 3. c. 51. o f the Reign of His Majesty King George the Third, intituled t'.'c 87. not ^ n ^t t encourage the Improvement of Lands, Tene- to apply to ments, and Hereditaments in that Part of Great Britain future cn n e d Scotland held under Settlements of strict Entail, and another Act was passed in the Fifth Year of the Reign of His Majesty King George the Fourth, intituled An Act to autho- rize the Proprietors of entailed Estates in Scotland to grant Provisions to the Wives or Husbands and Children of such Proprietors ; be it enacted, That neither of the Two last re-- cited Acts shall be applicable to any Tailzie dated on or after the First Day of August One thousand eight hundred and forty-eight. Heir XIII. And be it enacted, That where an Heir of Entail having ob- in possession of an entailed Estate holden by virtue of any tamed De- Tailzie dated prior to the said First Day of August One thou- Expense of san ^ eight hundred and forty-eight shall have executed Im- Improve- provemeiits on such Estate previous to the passing of this Act, ments may an( j 8na ]l have obtained Decree for Three Fourth Parts of the of 'annual" Sums expended thereon, in Terms of the said recited Act of Rent. the ^enth Year of the Reign of His Majesty King George the Third, and shall also have obtained the Authority of the Court of Session as after mentioned, it shall be lawful for such Heir to execute, in favour of any Party he may think fit, a Bond of annual Rent in ordinary Form over such entailed Estate or any Portion thereof, binding himself and his Heirs of Tailzie to make Payment of an annual Rent during the Period of his own Life and Twenty-five Years thereafter, such annual Rent during his own Life not exceeding the legal Interest of the said Three Fourth Parts of the Sums expended as aforesaid, and during the Twenty-five Years after his Decease not ex- ceeding the Sum of Seven Pounds Two Shillings for every One hundred Pounds of such Three Fourth Parts as aforesaid, and so in proportion for any greater or less Sum, and such annual Rent being payable by equal Moieties half-yearly at the Terms of Whitsunday and Martinmas, beginning the first Term's Payment at the first Term of Whitsunday or Martinmas after the Date of the Bond, for the Proportion of annual Rent then due, with legal Interest, and Penalties in case of Failure. ITcirin XIV. And be it enacted, That where an Heir of Entail in 1 ex ~ possession of an entailed Estate holden by virtue of any Tail- Money in zie dated prior to the said First Day of A ugitst One thousand improve- eight hundred and forty-eight shall execute Improvements on ments may such 11 & l.r VICTORI/E, Cap. 36. such Estate subsequent to the passing of this Act, and obtain grant Bond of aniv -' Rent. Decree for Three Fourth Parts of the'Sums expended thereon, ofannual in Terms of the said recited Act of the Tenth Year of the Reign of His Majesty King George the Third, and shall also obtain the Authority of the Court as after mentioned, it shall be lawful for such Heir of Entail to execute, in favour of any Party he may think fit, a Bond of annual Rent in ordinary Form over such entailed Estate or any Portion thereof, bind- ing himself and his Heirs of Tailzie to make Payment of an annual Rent during the Period of Twenty-five Years from and after the Date of such Decree, or during such Part of the said Period of Twenty-five Years as may remain unexpired at the Date of such Bond, such annual Rent not exceeding the Sum of Seven Pounds Two Shillings for every One hundred Pounds of the whole of the Sums expended as aforesaid, and so in pro- portion for any greater or less Sum, and being payable half- yearly by equal Moieties at the Terms of Whitsunday and Martinmas, beginning the first Term's Payment at the first Term of Whitsunday or Martinmas after the Date of the Bond, for the Proportion of annual Rent then due, with legal Interest, and Penalties in case of Failure. XV. And be it enacted, That where any Heir of Entail in Executor possession of an entailed Estate in Scotland shall have executed "j a -7 ? a!1 on Improvements on such Estate prior to the passing of this Act, ses sion to and recorded the same in Terms of the said last-recited Act, grant Bond and died without having executed a Bond of annual Rent as ^ annual herein-before authorized, or having charged the Estate as herein-after authorized, and where Decree shall have been ob- tained, in Terms of the said last-recited Act, for Three Fourth Parts of the Sums expended thereon, it shall be lawful for the Executor or personal Representative of such Heir of Entail, or for any Party to whom such Heir may have conveyed or assigned such Debt, to make Application by summary Peti- tion to the Court of Session, praying the Court to decern and ordain the Heir in possession of such entailed Estate to exe- cute, in favour of any Party such Petitioner may think fit, a Bond ofannual Rent in ordinary Form over such entailed Es- tate or any Portion thereof, binding himself and his Heirs of Tailzie to make Payment of an annual Rent during the Period of Twenty- five Years from the Date of the Death of the Heir of Entail who shall have executed the Improvements, such an- nual Rent not exceeding the Sum of Seven Pounds Two Shillings for every One hundred Pounds of such Three Fourth Parts aforesaid, and so in proportion for any greater or less Sum, and such annual Rent being payable half-yearly by equal Moieties at the Terms of Whitsunday and Martinmas, be- ginning the first Term's Payment, notwithstanding the Date of such Bond of annual Rent, at the first Term of Whitstm- day 3 11 & 12 VICTORIA, Cap. 36. day or Martinmas after the Date of the Death of the Heir of Entail who shall have executed the Improvements, for the Pro- portion of annual Rent then due, with legal Interest, and Pen- alties in case of Failure, which Bond such Heir of Entail in possession shall be bound to execute accordingly at the Sight of the Court : Provided always, that the Heir of Entail in possession required to grant and granting such Bond shall be entitled to impute towards Payment of the Sums thereby due any Excess of Sums which may have been paid by or recovered from him in Payment of the said Improvement Debt beyond the Amount of annual Rents due from and after the Decease of the Heir who shall have executed such Improvements. Proceed- XV j. And be it enacted, That where an Heir of Entail lliars Where . . ,, >i i T-I 1111 n n-i Improve- in possession or any entailed Instate holden by virtue or any 1 ail- ments not zie dated prior to the said First Day of August One thousand iT^Terina e ' l S^ hrniched anc | forty-eight shall, whether prior or subsequent of 10 G. 3. to the passing of this Act, have executed Improvements on such Estate of the Nature of the Improvements contemplated by the said last-recited Act, but shall not have obtained Decree therefor in Terms of the said Act, by reason of the Provisions thereof not having been adopted or not having been duly com- plied with, it shall be lawful for such Heir to apply by summary Petition to the Court in manner herein-after provided, setting forth such Improvements, and the Amount of Money, not exceeding the Amount authorized by the said Act, expended thereon, and praying the Court for Authority to grant Bond of annual Rent as is herein-before provided in the Case of Improvements for which Decree in Terms of the said Act has been obtained ; and the Court shall, after such Proceedings as they may think fit to direct or to adopt, proceed to consider such Application, and to take such Evidence, and institute such Inquiry into the Facts alleged in such Petition, as they shall judge necessary ; and if it shall appear to the Court that such Improvements are of the Nature contemplated by the said Act, and that such Expenditure was bond fide made, they shall find accordingly, and shall also grant Warrant for Execution of a Bond of annual Rent as herein provided in the Cases of Im- provements for which Decree in Terms of the said Act has been obtained. No Adjudi- XVII. And be it enacted, That so long as any entailed cation for Estate remains subject to the Tailzie thereof, or is not liable to Reut. be disentailed by the Heir of entail in possession without the Consent of any other Party, no Bond of annual Rent to be granted under the Authority of this Act shall be made the Ground of Adjudication or Eviction of such entailed Estate or Annual an ^ ^ urt t nere f '- ail( ^ tne annual Rents contained in such Bond Rent, how shall be recoverable as accords of Law from and out of the to be re- Rents and Profits of such entailed Estate, and from the Heir covered. 11 & 12* VICTORIA, Cap. %. 9 in possession thereof for the Time being ; provided always that Annual the Heir in possession of any such entailed Estate, and the * lent to be Heirs substitute to him, shall be bound, each during his own Possession, yearly and each Year to pay and keep down such annual Rents accruing during their respective Possessions of such entailed Estate ; and no Remedy shall be Competent to the Creditor in such Bond of annual Rent against the Rents and Profits of the said Estate for any Arrears beyond Two Years annual Rent, and Interest thereon, and corresponding Penalties; without Prejudice to his Remedy for such Arrears against the Heirs in possession respectively bound to pay and keep down the same, and against the Representatives of such Heirs, and the separate Estates of such Heirs, including the Rents of such entailed Estate during their respective Periods of possession. XVIII. And be it enacted, That in all Cases in which it Heir of may be competent for an Heir of Entail in possession of an en- ^r^e 'F^ tailed Estate in Scotland, or in which such Heir of Entail may tatesby be called upon to grant a Bond of annual Rent in Terms of granting this Act, it shall be lawful for such Heir of Entail, and such J! olld a " d TT . ' i ii i ii Disposition Heir or Entail may be called upon, to charge under the Autho- in Security rity of the Court of Session, as after mentioned, the Fee and Rents of such Estate other than the Mansion House, Offices, and Policies thereof, or the Fee and Rents of any Portion of such Estate other than as aforesaid, with Two Third Parts of the Sum on which the Amount of such Bond of annual Rent if granted would be calculated in Terms of this Act, by grant- ing, in favour of any Creditor who may advance the Amount of such Two Third Parts, Bond and Disposition in Security over such Estate or any Portion thereof other than as aforesaid for such Amount, with the due and legal Interest thereof from the Date of such Advance till repaid, and with corresponding Penalties ; and such Bond and Disposition in Security may be in the like Form, and shall have the like Effect and Operation, and be subject to the like Conditions and Provisions as to keeping down Interest, and as to the Extent of Remedy against the Fee and Rents of the entailed Estate, and otherwise, as are herein-after made and provided in regard to Bonds and Dispositions in Security by this Act authorized to be granted in respect of Provisions to younger Children. XIX. And be it enacted, That the granting under the Autho- Bonds of rity of this Act of any Bond of annual Rent, or Bond and annual Disposition in Security, in respect of any Improvements execu- ted or to be executed on an entailed Estate in Scotland, shall tionsin operate as a Discharge of all Claims for or on account of such Security Improvements, against such Estate, and the Rents and Profits pavements thereof, and the Heirs of Entail succeeding thereto, save and to operate except the Claims under such Bond of annual Rent or Bond' D and Disposition in Security themselves. B XX. And 10 II- 12 W VICTORI/K, Cap. Sfii may be iiiaile Charges. upon the entailed Estate. Private XX. And be it enacted, That private Roads which shall u''' oun s er of Entail in possession of an entailed Estate in Scotland shall be liable to pay or to provide by Assignation of the Rents and Proceeds of such Estate for any Sum or Sums of Money granted by any former Heir of Entail by way of Provisions to younger Children, in Terms of the said recited Act passed in the Fifth Year of the Reign of His Majesty King George the Fourth, or in virtue of the powers to that Effect contained in any Deed of Entail under which the Heir of Entail in possession holds, and in all Cases where any Heir of Entail in possession as aforesaid shall in the Marriage Contract of his younger Child have validly granted Provision for such younger Child ont of the Rents and Proceeds of such entailed Estate, in Terms of the said recited Act, or in Terms of such Deed of Entail, it shall be lawful for such Heir of Entail in possession to charge the Fee and Rents of such Estate other than the Mansion House, Offices, and Policies thereof, or to charge the Fee and Rents of any Portion of such Estate other than as aforesaid, with the Amount of such Provisions, by granting Bond and Disposition in Security over such Estate, or such Portion there- of other than as aforesaid, for such Amount, with the due and legal Interest thereof from the Date of such Bond and Dispo- sition in Security, or any subsequent Date, till repaid, and with corresponding Penalties ; and such Bond and Disposition in Security may be in ordinary Form, binding the Granter and his Heirs of Entail in their Order successively to repay the Principal Sum therein, with Interest and Penalties as afore- said, and may contain all Clauses usual in Bonds and Dispo- sitions in Security granted over Estates in Scotland held in Fee Simple. XXII. And be it enacted, That such Heir of Entail in possession, and the Heirs substitute to him in their Order successively, shall be bound, each during his own Possession of a t e yearly and each Year, to pav and keep down the J ' T\ o Interest on such Bonds and Dispositions in Security accruing during their Possession respectively of such entailed Estate; and the Remedy competent to the Creditor against the Fee and Rents of such Estate on such Bonds and Dispositions in Security shall be limited to the Principal Sum therein contained, with Heir in possession to keep down the Interest on guch Provisions to Chil- dren. 11' & 12 VICTORIA, Cap. 86. 1 1 with Two Years Interest thereon, and corresponding Penalties; without Prejudice to the Remedy of the Creditor for any further Arrears of Interest against the Heir or Heirs in posses- sion bound to pay and keep down the same, and against his or their Representatives, or his or their separate Estate or Estates, including the Rents of the said entailed Estate during his or their Possession of the same. XXIII. And be it enacted, That no Heir of Entail in Pt>vi sions possession of an entailed Estate shall charge the same under to . cl . nl ? rei1 i ni -i i /-ii -i i Bo * * bo this Act with any provision to any younger Child or Children charged until he shall have applied for and obtained the Authority of the Court thereto in the Form and Manner herein-after pro- vided ; and such Application to the Court shall set forth in a Schedule to be annexed thereto the specific Portion of the Estate which it is proposed to include in such Bonds and Dispositions in Security. XXIV. And be it enacted, That, notwithstanding any Power *" prohibitory, irritant, and resolutive Clauses, or any Limitation %[?fo H " by way of Maximum or Minimum of the Extent of Ground to Leases, be feued or to be granted in each separate Feu, contained in any Tailzie dated prior to the First Day of August One thou- sand eight hundred and forty-eight, it shall be lawful for an Heir of Entail in possession of an entailed Estate in Scotland, upon Notice to the Heir of Entail next entitled to succeed to such Estate immediately after such Heir of Entail in posses- sion, with the Approbation of the Court, to be obtained in the Form and Manner herein-after provided, to grant Feus or long Leases of any Part of the said entailed Estate for the highest Feu Duty or Rent that can be got for the same, such Feus or long Leases so granted by him not exceeding in all One Eighth Part in value for the Time of such Estate ; provided always, that it shall not be lawful for such Heir to take any Grassum or Fine or valuable Consideration other than the Tack Duty or Rent for granting any such Feu or Lease, nor to grant any such Feu or Lease of the Mansion House, Offices, or Policies of the Estate ; and such Heir shall be entitled to make, at the Sight of the Court, all such Feu Charters or other Feu Rights, or Tacks or Leases, as shall be necessary ; and in case any such Grassum, Fine, or Consideration shall be taken, and in case any Feu or Lease hereby prohibited shall be granted, such Feu or Lease shall be null and void ; but nothing herein contained shall preventer be construed to prevent any Heir of Entail in possession from exercising any Power of granting Feus or Leases which may be contained in the Tail/ie under which he possesses, more extensive than the Power of granting Feus or Leases hereby conferred. XXV. And be it enacted, That in all Cases in which it Where en- is made competent by this Act for any Heir of Entail in pos- session 12 IT & 12 VICTORIA, Cap. 36. be charged gession of an entailed Estate in Scotland to charge the Estate may w * tn Debt, by granting Bonds and Dispositions in Security be sold therefor over such Estate, freed from all the Clauses pro- for Pay- hibitory, irritant, and resolutive contained in the Tailzie in thereof virtue whereof such Estate is holden, and also in all Cases in which such Charge is made competent by any Act of Parlia-\ ment, but no Power of Sale granted to the Heir of Entail/ and in all Cases in which the Fee of an entailed Estate isr\7 validly charged with Debt, it shall be lawful for the Heir of Entail in possession for the Time being to sell and dispose of any Portion or Portions of such Estate, other than the Mansion House, Offices, and Policies thereof, which may be necessary, and which the Court of Session may select as most suitable and proper to be sold and disposed of for the Purpose of pay- ing off the Debt in respect of which such Charge has been or might be competently made; and it shall be lawful for such Heir of Entail in possession to grant, at the Sight and under Authority of the Court, valid and effectual Dispositions in Fee Simple in ordinary Form of such Portion or Portions of the said Estate, to the Purchaser thereof, and his Heirs or Assig- nees ; and the Price to be obtained for the Portion or Portions of the Estate to be so sold shall be previously approved of by the Court, and shall be paid into Court, under the Application for Sale, by the Purchaser, who shall by such Payment be fully discharged of such Price, and have no Interest, Concern, or Responsibility as to the Application thereof; and such Price shall be applied, at the Sight of the Court, in or towards Payment or Extinction of the said Debt ; and the Surplus of such Price remaining after Payment of the said Debt, and of the Expenses attending the Application for Sale and Proce- dure thereon, shall, if more than Two Hundred Pounds, be invested in other Lands or Heritages, to be added to the Remainder of such entailed Estate, or be laid out and expend- ed in or towards Payment of Entailers Debts, or in or towards Payment of any Money charged on the Fee of such entailed Estate under this or any other Act, or in Redemption of the Land Tax affecting such entailed Estate, or in permanently improving the same, or in Repayment of Money already ex- pended in such Improvements, as may be deemed most ad- visable ; and if such Surplus shall be invested in other Lands or Heritages, to be added to the Remainder of such entailed Estate, the Tailzie of such other Lands or Heritages shall, whatever be its actual Date, be taken to be of equal Date with the Tailzie of the Remainder of such entailed Estate ; and if such Surplus be less than Two Hundred Pounds, the same shall be paid to the Heir of Entail in possession of such entailed Estate for the Time, for his own Use and Behoof, all at the Sight and under the Direction of the Court of Session. XXVI. And 1 r & 12 VICTORIA, Cap. 36. 13 XXVI. And be it enacted, That in all Cases where Money Money has been derived or may hereafter be derived from the Sale or f^^Sale Disposal of any Portion of an Entailed Estate in Scotland, or of Estate, of any Right or Interest in or concerning the same, or in i" ld Trust respect of any permanent Damage done to such Estate, under m " e ^ e ' a any private or other Act of Parliament, or where any Money plied in has been invested in trust for the Purpose of purchasing Lands Payment of to be settled upon the Series of Heirs entitled to succeed to D e b ts & c . such entailed Estate, and where such Money would fall to be invested in Lands or Heritages to be entailed on the same Series of Heirs as are called to the Succession of such entailed Estate by the Tailzie thereof, and under the same Prohibitions, Conditions, Restrictions, and Limitations as are contained in such Tailzie, and where the Heir in possession of such entailed Estate could by virtue of this Act acquire to himself such Estate in Fee Simple by executing and recording an Instru- ment of Disentail as aforesaid, it shall be lawful for such Heir to make summary Application to the Court, in manner herein- after provided, for Warrant and Authority, and the Court upon such Application shall have Power to grant Warrant and Authority to and in favour of such Heir of Entail, for Pay- ment to such Heir of such Sums of Money, as belonging to himself in Fee Simple; but if such Heir of Entail shall not be entitled to acquire such Estate in Fee Simple, then it shall be lawful for such Heir, with the Approbation of the Court, to lay out such Money or any Portion thereof in or towards Pay- ment of Entailer's Debts, or in or towards Payment of any Money charged on the Fee of such entailed Estate under this or any other Act, or in Redemption of the Land Tax affecting such entailed Estate, or in permanently improving the same, or in Repayment of Money already expended in such Improvements; and in such Case such Heir shall apply summarily to the Court in manner herein-after provided, setting forth the Amount of the Sums proposed to be laid out, and the special Purpose to which it is intended to apply the same ; and if the Court shall be satisfied of the Propriety of the proposed Application, they shall issue a Finding or Decree to that Eifect, and authorizing such Application ; and it shall thereafter be lawful for the Heir so applying to lay out such Money or any Part thereof, accord- ing as the Court shall have authorized the Application of the same, to all or any of the before-mentioned Purposes ; and if there shall be any Surplus of such Money after the Purposes authorized by the Decree of the Court shall be fulfilled, the same shall, if more than Two Hundred Pounds, be applied as the whole Money would have been applied but for the Provi- sions of this Act, and if less than Two Hundred Pounds shall be paid to the Heir of Entail in possession of such entailed Estate for the Time, for his own Use and Behoof. XXVII. And u 1 1 & 12 VICTORIA, Cap. 36 entailed may be dealt with as if it were the entailed Land. Date of Act of Parlia- Money XXVII. And be it enacted, That where any Money or trust 'for 1 otner Property, Real or Personal, has been or shall be invested the- i'ur- in trust for the Purpose of purchasing Land to be entailed, or chase of where any Land is or shall be directed to be entailed, but the entailed Direction has not been carried into effect, it shall be lawful for the Party who, if the Land had been entailed in Terms of the Trust, would be the Heir in possession of the entailed Land, 1 s-*. i arid who in that Case might by virtue of this Act have acquir- ed to himself such Land in Fee Simple by executing and recording an Instrument of Disentail as aforesaid, to make summary Application to the Court, as herein-after provided, for Warrant and Authority for the Payment to him of such Money, or for the Conveyance to him of such Land in Fee Simple ; and the Court shall, upon such Application, and with such Consents, if any, as would have been required to the Acquisition of such Land in Fee Simple, have Power to grant such Warrant and Authority. XXVIII. And be it enacted, that for the Purposes of this Act, the Date at which the Act of Parliament, Deed, or Writ- in g placing such Money or other Property under trust, or direc- ting such Land to be entailed, first came into operation, shall be held to be the Date at which the Land should have been en- tailed in Terms of the Trust, and shall also be held to be the Date of any Entail to be made hereafter in execution of the Trust, whatever be the actual Date of such Entail. XXIX. And be it enacted, That where any Money or other Property, Real or Personal, has prior to the First Day Q f August One thousand eight hundred and forty-eight been mvestec l m trust f r tn e Prp se f purchasing Land to be entailed, or where any Land has prior to the said Date been directed to be entailed, but the Direction has not been carried into effect ' ' li sha11 be lavvful for the Part y who> if the Lan . d had been entailed in Terms of the Trust, would be the Heir in possession of the entailed Land for the Time, to grant Pro- visions in favour of his or her Husband or Wife and younger Children out of such Money or other Property, or out of such Land, as the Case may be, of such and the like Amount and Extent as he or she would have been entitled to grant out of the Land if entailed, and if subject to the Provisions and Enactments of the said recited Act passed in the Fifth Year of the Reign of His Majesty King George the Fourth. XXX. And be it enacted, That no Creditor acting under Powers of Sale contained in any Bond or Disposition in Se- curity or other Deed of Security affecting any entailed Estate in Scotland, by virtue of this or any other Act, shall be en- titled to sell such entailed Estate, or any Portion or Portions thereof, in manifest Excess of what is necessary or proper in order to Payment and Extinction of the Debt, Principal and Interest, directing Entail deemed to be the Date at which Land should have been entailed. and Chil- dren may be granted out of Money vested in trust for the Pur- chase of Lands to be entailed. Creditor not to sell Land in excess of what is necessary to pay Debt affecting the Estate, 11 & IS- VICTORIA, Cap. S(>. 1 "> Interest, and whole Expenses appertaining thereto, for which and : Rei "~, 101- i T i A- A i n ^c vestment ot such Sale is made ; and any Judgment ot the Court ot Session s urp i us . pronounced in any Suspension of any such intended Sale on the Ground of manifest Excess shall be final, and not subject to Appeal ; and wherever upon a Sale of such entailed Estate or of any Portion or Portions thereof by such Creditor acting under such Powers as aforesaid there shall arise a Surplus of the Price after Payment of such Debt, Principal and Interest, and whole Expenses effeiring thereto, such Creditor shall only be entitled to Payment from the Purchaser of the Amount of such Debt, Principal and Interest, and whole Expenses effeir- ing thereto ; and such Creditor and Purchaser shall be bound forthwith to present or cause to be presented an Application to the Court, setting forth such Surplus, and praying for the Reinvestment thereof in other Lands or Heritages, to be en- tailed, at the Sight of the Court, on the same Series of Heirs, and, as far as may be, in the same Terms, and subject to the same Prohibitions, Conditions, Restrictions, Limitations, and Clauses irritant and resolutive as are contained in the Tailzie under which the Estate or the Portion or Portions thereof so sold was or were liolden previous to such Sale, or for the Disposal of such Surplus in such other Manner as the Court may direct consistently with the Provisions of this Act ; and on such Application being presented the Court shall ordain the Peti- tioner, or other Party in whose Hands the admitted Surplus may be, to pay the same into Bank, and to produce a Receipt therefor taken, payable as the Court may direct, and shall also appoint such Intimation and Advertisement of the Application as they may deem proper ; and it shall be competent to the Court under such Application to ascertain and determine the just Amount of such Surplus, and to give Decree for the same, and to exonerate and discharge the Creditor and Purchaser, and all others thereof, and also, if such Surplus shall exceed Two Hundred Pounds, to see to the Reinvestment thereof in other Lands or Heritages, and to the entailing of such Lands or Heritages as aforesaid, or to the Disposal of such Surplus in such other Way and Manner as may be consistent with the Provisions of this Act, and as may appear to the Court to be suitable and proper; and if such Surplus shall be reinvested in other Lands or Heritages as aforesaid, the Tailzie of such other Lands or Heritages shall, whatever be its actual Date, be taken to be of equal Date with the Tailzie of the Remainder of such entailed Estate ; and if such Surplus shall not exceed Two Hundred Pounds the Court shall order the same to be paid over to the Heir of Entail in possession, for his own Use and Behoof. XXXI. And be it enacted, That, unless where inconsistent Guardians with any other Provisions of this Act, it shall be component "^ f 1 ' tor Minors. lt> 11- & 12 VICTORIA, Cap. 36. for the Court of Session, where any Heir of Entail whose Con- sent is required under this Act shall be under Age, or subject to any legal Incapacity, to appoint, in the course of any Appli- cation to which such Consent is required, a separate Tutor ad litem, or Curator adlitem, or Curator bonis, or other Guardian, to each such Party ; and such Tutor ad litem, or Curator ad litem, or Curator bonis, or other Guardian, being so appointed by the Court, shall be charged with the Interest of such Party in Reference to such Application, and shall be entitled, with or without Consideration, to act and to give Consent on the Behalf of such Party ; and no Tutor or Curator or other legal Guardian who may give any Consent under this Act on behalf of any Heir substitute shall incur any Responsibility on account of such Consent in respect of any alleged Error in Judgment, or Inadequacy of Consideration, or Want of Con- sideration therefor, unless it shall also be alleged and proved that he acted corruptly in the Matter ; and such Consent by such Tutor or Curator or other legal Guardian shall be in all respects as effectual as if the same had been given by such Heir himself when of full Age and of legal Capacity to act in his own Affairs: Provided always, that no Heir of Entail in possession of an entailed Estate in Scotland, or whose own Consent shall be required in the Application, shall be entitled to give Consent on the Behalf of any other Party in reference to any Application for Disentail of such Estate. Form and XXXII. And be it enacted, That an Instrument of Disentail Effect of un( j er t }jj s Act may be in the Form or as nearly as may be in Instrument J , -111 i * i of Disen- the Form set forth in the Schedule to this Act annexed, and tail, and it shall be the Duty of the Keeper of the Register of Tailzies tfmf there- ^ or ^ ne Time being to record such Instrument, when duly pre- of. sented, under Authority of the Court for that Purpose, in the Register of Tailzies along with the Decree of Court on which it proceeds, upon payment of such Fee for the same as may be fixed by the Court by Act of Sederunt ; and such Instrument, when duly executed, and recorded in the Register of Tailzies, under Authority of the Court in Terms of this Act, shall have the Effect of absolutely freeing, relieving, and disencumbering the entailed Estate to which such Instrument applies, and the Heir of Entail in possession of the same, and his Successors, of all the Prohibitions, Conditions, Restrictions, Limitations, and Clauses irritant and resolutive of the Tailzie under which such Estate is held, and of entitling such Heir in possession to alter the Course of Succession prescribed by such Tailzie, and to alienate and dispone such Estate, onerously or gratui- tously, and to burden the same with Debt, and to do any other Act or Deed in relation thereto competent by Law to any ab- solute Proprietor in Fee Simple : Provided always, that such Instrument of Disentail shall in no way defeat or affect injuri- ously IP & 12 VICTORIA, Cap. 3(i. 17 ously any Charges, Burdens, or Incumbrances, or Rights or Interests, of whatsoever Kind or Description, held by Third Parties, and lawfully affecting the Fee or Rents of such Estate, or such Heir in possession or his Successors, other than the Rights and Interests of the Heirs Substitute of Entail in or through the Tailzie under which such Estate is held, but that all such Charges, Burdens, and Incumbrances, and Rights and Interests, other than as aforesaid, shall remain at least as valid and operative in all respects as if no such Instrument of Dis- entail had been executed or recorded. XXXIII. And be it enacted, That it shall be lawful for Sto"^ any H eir of Entail in possession of an entailed Estate in Scot- Court. land, desiring to take advantage of any of the Provisions of this Act as to which the Authority of the Court is by this Act required, to make Application to that Effect by way of summary Petition to the Court, and such Petition shall set forth the Tailzie under which such Estate is held, and the Date of the Petitioner's Infeftment therein, if any be, and the Names, Designations, and Places of Abode, so far as known to the Petitioner, of the Heirs Substitute of Entail (if any) whose Con- sents are required to such Petition, and whether such Heirs Substitute are of Age to consent on their own Behalf, and if not then the Names, Designations, and Places of Abode of their Fathers, or Tutors or Curators or other legal Guardians, and if such Heirs Substitute or any of them are the Children of such Heir of Entail in possession himself, and are Minors, or legally incapacitated to act in their own Affairs, the same shall be stated in such Petition, and such Petition shall also set forth specifically to what Extent and in what Way and Manner such Estate is proposed to be affected. XXXIV And be it enacted, That the Court, on any such Inti* Petition being presented to it in Terms of this Act, shall ap- "; ons point Intimation thereof to be made in the Minute Book and on the Walls in common Form, and shall also appoint the same to be publicly advertised once in the Edinburgh Gazette, and at least once weekly for Six successive Weeks, or for anv longer Period the Court shall deem fit, in such Newspaper or Newspapers as shall be appointed by the Court ; and it shall be sufficient in such Advertisements to state the leading Name of such Lands by which the same are commonly known, with- out any detailed Description thereof. XXXV. And be it enacted, That after Intimation and Advertisement as aforesaid in Terms of such Deliverance of the Court it shall be competent to such Petitioner to move the Court to grant the Prayer of such Petition ; and if the Procedure shall appear to the Court to be regular and proper, the Court shall interpone their Authority, and give Dec-roc authorizing such Petitioner to do and perform the Act or Acts c proj o?od is 1 1 & W- VICTORIA, Cap. :3fi. Heirs to be called in Proceed- ings under this Act. Excam- bions under the Act 6 &. 7 W. 4. c. 42, may be carried through under the Forms of this Act. Instru- ments of proposed in such Petition, in so far as the same may appear to the Court to be permitted by this Act, or the Court shall do otherwise in reference to such Petition as may appear to them to be proper, and consistent with this Act : Provided always, that it shall be competent, at any Time before Decree is actually pronounced and extracted, for any Person or Persons having Interest to compear and object on any relevant Ground to the Prayer of such Petition ; and in the event of such Ob- jection being offered the Court shall investigate and dispose of the same by such Form of Procedure as may seem to the Court to be expedient and proper ; and in all Applications presented under this Act it shall be competent to the Court to decern for Costs of Suit against the Parties to the Proceedings, or any of them, or to decern for Payment thereof out of the Estate or Fund to which such Applications respectively relate. XXXVI. And be it enacted, That it shall not be necessary in any Proceedings under this Act to call as Parties thereto any Heirs of Entail other than those whose Consent would be required by the Heir in possession for the Time to an Instru- ment of Disentail ; and no Heir of Entail other than those whose Consent would be required as aforesaid shall be entitled to appear or to be heard in such Proceedings. XXXVII. And whereas by the said recited Act passed in the Session of Parliament holden in the Sixth and Seventh Years of the Reign of his late Majesty King William the Fourth certain Powers to make Excambions are conferred upon Heirs of Entail, certain Notices being given to Heirs Substi- tute and others, and certain Advertisements made, and certain Procedure had before the Court of Session, all as in the said re- cited Act especially provided ; and it is expedient to simplify the Mode of effecting Excambions under the said Act, and to diminish the Expense thereof; be it enacted, That from and after the passing of this Act it shall not be necessary for any Heir of Entail in possession intending to effect any Excam- bion under or by virtue of the said recited Act to adopt any of the Procedure thereby required, but it shall be competent to such Heir of Entail to present an Application to the Court by way of summary Petition in the Form and Manner provided by this Act, and the Court shall entertain, proceed with, and dispose of the same in every respect as if the Powers to effect Excambions conferred by the said recited Act had been contain- ed in and conferred by this Act ; and further, it shall not be necessary to record any Contract of Excambion which shall be executed at the Sight and with the Approbation of the Court, as required by the said recited Act, in any other Register than the Register of Tailzies. XXXVIII. And be it enacted, That any I nstrument of Dis-entail recorded in the Register of Tailzies under the A uthority 11 & 12 VICTORIA, Cap. 36. 19 Authority of the Court, where the Judgment of the Court Disentail to allowing such Instrument of Disentail has not been brought be nnal- under Review of the House of Lords by Appeal, or where such Judgment has not been brought under Reduction upon any relevant Ground during the Period within which such Judgment might have been appealed from, shall, as regards any Third Parties acting bond fide on the Faith thereof, be no longer reducible on any Ground of Irregularity or Noncompli- ance with the Provisions of this Act, but in respect of any such Ground of Challenge be final and conclusive. XXXIX. And be it enacted, That in any Tailzie dated In future on or after the First Day of Auqust One thousand eight bun- ? n . < i c , i A i. m fu imt urea and forty-eight, containing an express L/lause authorizing anf j Registration in the Register of Tailzies, it shall not be neces- tiveClausos sary to insert any irritant or resolutive Clauses in order to "v^tvn"' render such Tailzie effectual in Terms of an Act of the Parlia- to record, ment of Scotland passed in the Year One thousand six hundred and eighty-five, intituled Act concerning Tailzies, but such Clause of Registration shall have in every respect the same Operation and Effect as the most formal irritant and resolutive Clauses duly applied to every Prohibition, Condition, Restric- tion, and Limitation contained in such Tailzie, except only such Prohibitions, Conditions, Restrictions, and Limitations as by the Terms of such Tailzie may be specially excepted ; and such Clause authorizing Registration in the Register of Tailzies shall be engrossed as Part of such Tailzie in the Register of Tailzies when such Tailzie is recorded therein, and shall also be inserted or duly referred to in all Procuratories of Resigna- tion, Charters, Decrees of Special Service, Precepts, and In- struments of Seisin following on such Tailzie, in the same Manner, or as nearly as may be in the same Manner, as irritant and resolutive Clauses are now required to be so inserted or referred to, XL. And be it enacted, That no Irritancy committed Irritancy or that may be committed by any Heir of Entail in possession c"^.. 60 of an entailed Estate in Scotland shall operate to set aside, im- anccs or pair, or in an} 7 way affect, directly or indirectly, in the Person Securities. of any Purchasers or bona fide onerous Creditors, any Convey- ances, Deeds, or Securities granted in reference to such Estate, or the Rents thereof, prior to the Execution of the Summons of Declarator on which Decree in respect of such Irritancy shall proceed, and not invalid as being inconsistent with the Provisions of the Entail under which such Estate is held. XLI. And whereas an Act was passed in the Thirty-ninth 39 & 40 G and Fortieth Years of the Reign of His Majesty King George ^j^^f. the Third, intituled An Act to restrain all Trusts and Direc- i,i e p ro . tions in Deeds or Wills whereby the Profits or Produce o/perty in Real ( Personal Estate shall he accumulated, and the, bciie- Sco-ra * ficial 20 11 & 12 VICTORIA, Cap. 86. Jicial Enjoyment thereof postponed beyond the time therein limited, by which Act it is provided and enacted, " that nothing " in this Act contained shall extend to any Disposition respect- ' ing HefHaUJe Property within that Part of Great Britain " called Scotland;" and it is expedient that the Provisions of the said Act Hhould be extended to Heritable Property in Scotland; be it enacted, That the said Provision and Enactment of the said recited Act shall be and the same is hereby repealed, and the said Act shall in future apply to Heritable Property \i\Scotland. Proceed- XLII. And be it enacted, That all the Acts hereby permit- be^ta^en ^ ^ ^ e ^ one ^ an ^ e " * n P ossess i n of an Entailed Estate, under this m virtue of the Deed of Entail under which such Estate is Act, held, may be done by such Heir, whether such Deed of Entail though En- k e recor( j ef i j n the Register of Taiizies or not, or whether such tail not re- rr i 11 <<> i-n corded or Heir be duly inieit in such Estate or not. Heir iufcft. XL1II. And be it enacted, That where any Tailzie shall not Entail de- be valid and effectual in Terms of the said recited Act of the fective m Scottish Parliament passed in the year One thousand .six hun- anv one , , 1*1 . IITIM' Prohibition dreci and eighty-hve, m regard to the Prohibitions against ti be lad as Alienation and Contraction of Debt, and Alteration of the Order of Succession, in consequence of Defects either of the original Deed of Entail or of the Investiture following thereon, but shall be invalid and ineffectual as regards any one of such Prohibitions, then and in that Case such Tailzie shall be deemed and taken from and after the passing of this Act to be invalid and ineffectual as regards all the Prohibitions ; and the Estate shall be subject to the Deeds and Debts of the Heir then in possession, and of his Successors, as they shall there- after in Order take under such Tailzie ; and no Action of Forfeiture shall be competent at the Instance of any Heir Sub- stitute in such Tailzie against the Heir in possession under the same by reason of any Contravention of all or any of the Pro- hibitions ; and where any Money or other Property, Real or Personal, has been or shall be invested in trust for the Purpose of purchasing Lands to be entailed, or where any Lands are or shall be directed to be entailed, but the Direction has not been carried into effect, such Trust Money or other Pro- perty, and such Lands, though still unentailed, may be dealt with under this Act in all respects as such Lands might have been dealt with if entailed in Terms of such Trust or Direc- tions. Instru- XLIV. And be it enacted, That it shall be lawful for and moms of incumbent upon the Keepers of the Registers of Sasines of every m-Tv'bere County in which any Lands contained in any Instrument of gisicml in Disentail are situated and of the Keepers of the General Re- the Ri-gis- gister of Sasines at Edinburgh respectively to record any such Instrument of Disentail, and any Decree of the Court pro- * 1 ("ITI nounced under this Act, when presented to them tor that Pur- pose, 11 & 12 VICTORIA, Cap. 36. 21 pose, ou Payment of such Fees for the Registration thereof as may be fixed by the Court by Act of Secleruut. XLV. And be it enacted, That no Heir of Entail or other NO Irri- Person shall, by taking advantage of the Provisions of this Act, tancy or or by acting under the same, incur any Irritancy or Forfeiture t ,, ^ e ^ re under any Tailzie, any thing in such Tailzie to the contrary C urred for notwithstanding ; and no Disposition, or Bond and Dispo- any thing sition in Security, or Bond of annual Rent, or other Deed, $"*** Instrument, or Writing, granted under Authority of this Act, shall be held as any Contravention of or be in any way affected by any Prohibitions, Conditions, Restrictions, Limitations, or Clauses prohibitory, irritant, and resolutive contained in any Tailzie. XL VI. And be it enacted, That the before-recited Act of the Act 1085 Parliament of Scotland passed in the Year One thousand six * fo* m hundred and eighty-five shall be and the same is hereby repeal- except as ed, to the Effect of making the Provisions of this Act operative, affected by but no further. this Act ' XLVII. And be it enacted, That where any Land or Estate Act not to in Scotland shall, by virtue of any Trust Disposition or Settle- e defeated ment or other Deed of Trust whatsoever dated on or after the First Day of August One thousand eight hundred and forty- eight, be in the lawful Possession, either directly or through any Trustees for his Behoof, of a Party of full Age born after the Date of such Trust Disposition or Settlement or other Deed of Trust, such Party shall not be in any way affected by any Prohibitions, Conditions, Restrictions, or Limitations which may be contained in such Trust Disposition or Settlement or other Deed of Trust, or by which the same or the Interest of such Party therein may bear to be qualified, such Prohibitions, Conditions, Restrictions, or Limitations being of the Nature of Prohibitions, Conditions, Restrictions, or Limitations of Entail, or intended to regulate the Succession of such Party, or to limit, restrict, or abridge his Possession or Enjoyment of such Land or Estate in favour of any future Heir, and such Party shall be deemed and taken to be the Fee Simple Proprietor of such Land or Estate, and it shall be lawful to such Party to make Application by way of summary Petition to the Court of Session, setting forth the Facts, and referring to this Act, and craving the Court to pronounce an Act and Decree declaring him Fee Simple Proprietor of such Land or Estate, and unaffected by any such Conditions, Provisions, Restrictions, or Limitations ; and the Court shall proceed in such Petition as may be just, and shall have Power to pronounce an Act and Decree declar- ing such Party to be Fee Simple Proprietor of such Land or Estate, and unaffected as aforesaid ; and such Act and Decree mi\y be recorded in the Register of Sasines, and being so re- corded shall have all the Operation and Effect of the most formal 11 & 12 VICTORIA, Cap. 36. or by Lifereuts or by Leases. formal and valid Disposition to such Party, and his Heirs and Assignees whomsoever, of such Lands or Estate, with Infeft- ment thereon in favour of such Party duly recorded : Provided always, that the Rights of the Superior of such Lands or Estate, and of all Parties holding Securities thereon, and all Rights which are held independently of such Trust Disposition or Settlement or other Deed of Trust, shall be as they are here- by reserved entire. XLVIII. And be it enacted, That from and after the passing of this Act it shall be competent to grant an Estate in Scotland limited to a Liferent Interest in favour only of a Party in Life at the Date of such grant ; and where any Land or Estate in Scotland shall, by virtue of any Deed dated on or after the said First Day of August One thousand eight hundred and forty- eight, be held in Liferent by a Party of full Age, born after the Date of such Deed, such Party shall not be in any way affected by any Prohibitions, Conditions, Restrictions, or Limi- tations which may be contained in such Deed, or by which the same or the Interest of such Party therein may bear to be qualified, and such Party shall be deemed and taken to be the Fee Simple Proprietor of such Estate, and it shall be lawful to such Party to obtain and record an Act and Decree of the Court of Session in the like Form and Manner and in the like Terms and with the like Operation and Effect as is herein- before provided with reference to an Act and Decree of the said Court in the Case of Deeds of Trust: Provided always, that the Rights of the Superior of such Lands or Estate, and of all Parties holding Securities thereon, and all Rights which shall be held independently of the Deed by which such Life- rent is constituted, shall be as they are hereby reserved entire. XLIX. And be it enacted, That where any Land or Estate in Scotland shall, by virtue of any Tack, Assignation of Tack, or other Deed or Writing dated on or after the said First Day of August One thousand eight hundred and forty-eight, be held in Lease, either directly or through Trustees for his Behoof, by a Party of full Age born after the Date of such Tack, Assignation of Tack, or other Deed or Writing, such Party shall not be in any way affected by any Prohibitions, Conditions, Restrictions, or Limitations which may be contained in such Tack, Assignation of Tack, or other Deed or Writing, or by which the same or the Interest of such Party therein may be qualified, such Prohibitions, Conditions, Restrictions, or Limitations being of the Nature of Prohibitions, Conditions, Restrictions, or Limitations of Entail, or intended to regulate the Succession of such Party, or to limit, restrict, or abridge his Possession or Enjoyment of such Land or Estate in favour of any future Heir : Provided always, that it shall be lawful to the Proprietor of whom such Lease is held to enforce any Prohibitions, 11 & 12 VICTORIA, Cap. 36. 23 Prohibitions, Conditions, Restrictions, or Limitations contained in such Tack, Assignation of Tack, or other Deed or Writing which shall have been inserted therein for the bonajide Pur- pose of protecting the just Rights and Interests of such Pro- prietor, in so far as such Enforcement may be necessary in order to such Protection. L. And be it enacted, That all Consents of Heirs of En- Consorts to tail, or of their Tutors or Curators or other legal Guardians, jn and to under this Act, shall be in the Form of Writings duly tested bo irrevoc- according to the Law of Scotland, and otherwise in such Form a ^ e - as may be fixed by the Court of Session by Act of Sederunt ; and no Consent duly given in the Manner provided by this Act shall be revocable by the Granter thereof. LI. And be it enacted, That it shall be lawful to the Court Court may to pass such Act or Acts of Sederunt as the Court may deem "f a g e d Acts proper for the further Regulation of the Forms of Procedure run t. under this Act, and otherwise for rendering this Act more effectual, according to the true Intent and Meaning hereof. LII. And be it enacted, That in construing this Act, except interpreta- \vhere the Nature of the Provision shall be repugnant to such tion f Act- Construction, the Words " Court of Session" or " the Court" shall be construed to mean either Division of the Court of Ses- sion ; and the Words " Heir" and " Heir of Entail" shall in- clude the Institute ; and the Words " Heir Apparent" shall be construed to mean the Heir who is next in succession to the Heir in possession, and whose Right of Succession, if he sur- vive, must take effect ; the Words " Land" and " Lands" shall extend to and comprehend all Heritages ; the Words " entailed Estate" shall extend to and comprehend all Heri- tages which by the Law of Scotland may be made the Subject of Entail ; the Words " Creditor" and " Creditors" shall ex- tend to and comprehend the Heirs and Assignees of such Creditor or Creditors ; and all Words used in the Singular Number shall be held to include several Persons or Things; and Words in the Plural shall be held to include the Singular Number; and all Words importing the Masculine Gender shall extend and be applied to Females as well as Males. LIII. And be it enacted, That this Act may be amended or Act may be repealed by any Act to be passed in the present Session of Par- & en liament. SCHEDULE 24 11 & 12 VICTORIA. Cap. 36 : SCHEDULE to which the foregoing Act refers. Form of Instrument of Disentail. At [state Place] the [state Date], in Presence of [name Notary Public] Notary Public, and of the Witnesses sub- scribing, I [Name and Designation of Heir in possession], Heir of Entail in possession of the Lands and others after men- tioned, viz. [take in full Description from Titles], which Lands and others are held by me under a Deed of Entail dated [state Date of Entail], and recorded [state Particulars of Registration], take Instruments in the Hands of the said No- tary Public subscribing that the said Lands and others are now held by me free from the Conditions, Provisions, and Clauses prohibitory, irritant, and resolutive of the Entail, by virtue of the Act [specify this Act] ; and I consent to the Registration hereof in the Register of Tailzies, and also in the Books of Council and Session and others competent, therein to remain for Preservation, and thereto constitute my Procurators, fyc. In witness whereof I and the said Notary Public have sub- scribed this Instrument of Disentail, [complete the Testing Clause in ordinary Form]. [Signature of Heir of Entail in possession,] [Signature of Notary Public.] N.P. A. B., Witness. C. D., Witness. Printed by THOMAS CONSTABLE, 11, Thistle Street, Edinburgh, Queen's Printer, Appointed by Her Majesty/ c/ / UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 689 576 7