Service of Heirs (Scotland) Act 1847
| Jurisdiction | UK Non-devolved |
| Citation | 1847 c. 47 |
| Year | 1847 |
(10 & 11 Vict.) C A P. XLVII.
[25th June 1847]
'WHEREAS it is expedient to amend the Law and Practice inScotland relative to the Service of Heirs:' May it therefore please Your Majestythat it may be enacted; and be it enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That from and after the Fifteenth Day ofNovember One thousand eight hundred and forty-seven the Practice of issuing Brieves from Chancery for the Service of Heirs shall cease, and it shall not be competent to any Person to obtain himself served Heir by virtue of any such Brieve, or otherwise than according to the Provisions of this Act.
II Services to proceed by Petition to the Sheriff.
II. And be it enacted, That from and after the Date aforesaid every Person desirous of being served Heir to a Person deceased, whether in general or in special, and in whatsoever Character, shall, instead of applying, as heretofore, for a Brieve from Chancery, present a Petition of Service to the Sheriff in manner herein-after set forth.
III Petition to be presented to Sheriff of the County or to the Sheriff of Chancery.
III. And be it enacted, That in every Case in which a general Service only is intended to be carried through, such Petition shall be presented to the Sheriff of the County within which the Deceased had at the Time of his Death his ordinary or principal Domicile, or, in the Option of the Petitioner to the Sheriff of Chancery to be appointed under the Authority of this Act, and if the Deceased had at the Time of his Death no Domicile withinScotland , then in every such Case to the Sheriff of Chancery; and in every Case in which a special Service is intended to be carried through, such Petition shall be presented to the Sheriff within whose Jurisdiction the Lands or other Heritages are situated, or, in the Option of the Petitioner, to the Sheriff of Chancery, and in the event of the Lands or Heritages being situated in different Counties then in every such Case to the Sheriff of Chancery.
IV Nature and Form of the Petition.
IV. And be it enacted, That such Petition shall be subscribed by the Petitioner, or by a Mandatory specially authorized for the Purpose, and shall be in the Form, or as nearly so as the Case will admit, of one or other of the Schedules (A.) and (B.) hereunto annexed, and shall, under the Exceptions after mentioned, set forth the Particulars which, according to the Law and Practice heretofore existing have been in use to be set forth with reference to a Service sought to be carried through in any Claim presented to a Jury summoned under a Brieve of Inquest, and shall pray the Sheriff to serve the Petitioner accordingly: Provided always, that it shall not be necessary in such Petition to set forth in any Case the Value of the Lands, either according to new or old Extent, or the valued Rent thereof, or of whom the Lands are held, or by what Service or Tenure they are held, or in whose Hands the same have been since the Death of the Ancestor, or whether or how long the same have been in Non-entry, or that the Petitioner is of lawful Age, or that the Ancestor died at the Faith and Peace of the Sovereign; but that in setting forth the Death of the Ancestor there shall also be set forth the; Date at or about which the said Death took place; and that in every Case in which the Petitioner claims to be served Heir of Provision, whether in general or special, the Deed or Deeds under which he so claims shall be distinctly specified.
V Conditions of Entail and other Conditions may be referred to instead of being inserted at length.
V. And be it enacted, That in all Cases of Special Service, where the Lands are held under a Deed of Entail, it shall be lawful and competent in such Petition of Service, and in the Decree of Service to follow thereon, and in the Precepts, Sasines, or other Instruments necessary to complete the Investiture of the Lands which shall follow on such Decree, to omit the full Insertion of the Conditions and Provisions, and prohibitory, irritant, and resolutive Clauses of such Deed of Entail, provided such Conditions and Provisions, and prohibitory, irritant, and resolutive Clauses, shall be therein specially and directly referred to as set forth at full Length in the recorded Instrument of Sasine in favour of the deceased Person served to, or as set forth at full Length in the Deed of Entail itself, if the same shall have been recorded in the Register of Tailzies, or as set forth at full Length in any recorded Instrument of Sasine forming a Part of the Title Deeds of the Lands held under such Deed of Entail, such Reference being made in the Form or as nearly as may be in the Form shown in Schedule (B.) hereunto annexed; and the Reference thus made to such Conditions and Provisions, and prohibitory, irritant, and resolutive Clauses, shall be held legally equivalent to the full Insertion thereof, and shall to all Intents, and in all Questions whatever, whetherinter hoeredes or with Third Parties, have the same legal Effect as if the same had been inserted exactly as they may be expressed in the recorded Deed or Instrument referred to, notwithstanding of any Injunction to the contrary contained in such Deed of Entail, and notwithstanding of any Law or Practice to the contrary, and notwithstanding the Enactments or Provisions to the contrary contained in an Act of the Parliament of Scotland made in the Year One thousand six hundred and eighty-five, intituled Act concerning Tailzies , or in any other Act or Acts of the Parliament of Scotland or of Great Britain now in force, all which are hereby repealed to the Extent of making this Enactment operative, but no further.
VI Burdens, Conditions, and Limitations may be referred to.
VI. And be it enacted, That in all Cases of special Service, where the Lands are held under any Real Burdens or Conditions or Limitations whatsoever appointed to be fully inserted in the Investitures of such Lands, it shall, notwithstanding such Appointment, and notwithstanding any Law or Practice to the contrary now existing, be lawful and competent in the Petition of Service, and in the Decree of Service to follow thereon, and in the Precepts, Sasines, or other Instruments necessary to complete the Investiture which shall follow on such Decree, to omit the full Insertion of such Real Burdens or Conditions or Limitations; provided such Real Burdens or Conditions or Limitations shall be therein specially and directly referred to its set forth at full Length in the recorded Instrument of Sasine in favour of the deceased Person served to, or as set forth at full Length in the recorded Instrument of Sasine or of Resignationad remanentiam of the said Lands in which the same were first inserted, or in any other intermediate recorded Instrument of Sasine, such Reference being made in the Form or as near as may be in the Form shown in Schedule (B.) hereunto annexed; and the Reference thus made to such Real Burdens or Conditions or Limitations shall be held as legally equivalent to the full Insertion thereof, and to all Intents and in all Questions whatever, whether with the Disponer or Superior or Third Parties, shall have the same legal Effect as if the same had been inserted exactly as they may be expressed in the recorded Instrument referred to, notwithstanding any Law or Practice or any Act or Acts of Parliament to the contrary, all which are hereby repealed to the Extent of making this Enactment operative, but no further.
VII Services not to proceed till Publication be made.
VII. And be it enacted, That when any such Petition shall be presented to the Sheriff of any County the Service shall not proceed until Publication shall be made in such County, nor until the Sherif Clerk of the County shall have received from the Sherif Clerk of Chancery official Notice that Publication has been made edictally inEdinburgh ; and when such Petition shall be presented to the Sherif of Chancery the Service shall not proceed until Publication shall have been made edictally in Edinburgh , nor until the Sheriff Clerk of Chancery shall have received official Notice that Publication has been made in the County of the Domicile of the Party deceased, or the County or Counties in which the Lands are situated, as the Case may be; and the edictal Publication in Edinburgh shall be at the Office of the Keeper of Edictal Citations in the General Register Office, and in the same Mode and Form as in Edictal Citations; and in the County of the Domicile, and in the County or Counties where the Lands are situated, by affixing on the Doors of the Court-house, or in some conspicuous Place of the Court or of the Office of the Sheriff Clerk, as the Sheriff may direct, a short Abstract of the Petition, and there shall be no farther Publication; and the Form of such Abstract, and the Mode or Form of the official Notice of such Publications, shall be fixed and declared by the Court of Session, in virtue of the Powers herein-after mentioned.
VIII Caveats to be received.
VIII. And be it enacted, That the Sheriff Clerk of Chancery to be appointed in virtue of this Act, and the Sheriff Clerks of each County, shall be bound to receive any Caveat against any Petition of Service to be presented to them respectively, and on the Receipt of the...
To continue reading
Request your trial