with after such death or incapacity appoint another oversman in his place; and the decision of every such oversman on the matters on which the arbiters shall differ shall be final. 122. LORD ORDINARY TO APPOINT AN OVERSMAN, ON NEGLECT OF ARBITERS.—If in either of the cases aforesaid the said arbiters shall refuse, or shall for seven days after request of either party to such arbitration neglect to appoint an oversman, the lord ordinary, on the application of either party to such arbitration, shall appoint an oversman; and the decision of such oversman on the matters on which the arbiters shall differ, or which shall be referred to them under this or the special Act, shall be final. 123. IN CASE OF DEATH OF SINGLE ARBITER, MATTER TO BEGIN DE NOVO.-If when a single arbiter shall have been appointed such arbiter shall die or become incapable to act before he shall have made his award, the matters referred to him shall be determined by arbitration, under the provisions of this or the special Act, in the same manner as if such arbiter had not been appointed. 124. IF EITHER ARBITER REFUSE TO ACT, THE OTHER TO PROCEED EX PARTE.—If where more than one arbiter shall have been appointed either of the arbiters refuse or for seven days neglect to act, the other arbiter may proceed ex parte, and the decision of such arbiter shall be as effectual as if he had been the single arbiter by both parties. 125. IF ARBITERS FAIL TO MAKE THEIR AWARD WITHIN TWENTY-ONE DAYS, OR PRESCRIBED TIME, THE MATTER TO GO TO THE UMPIRE. If where more than one arbiter shall have been appointed, and where neither of them shall refuse or neglect to act as aforesaid, such arbiters shall fail to make their award within twenty-one days after the day on which the last of such arbiters shall have been appointed, or within such extended time as shall have been appointed for that purpose by both such arbiters under their hands, the matters referred to them shall be determined by the umpire to be appointed as aforesaid. 126. POWER OF ARBITERS TO CALL FOR BOOKS, &c.-The said arbiters or their oversman may call for the production of any documents in the possession or power of either party which they or he may think necessary for determining the question in dispute, and may examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose, and may also grant diligence for the recovery of such documents as either party may require, or for citing witnesses, and on application to the lord ordinary letters of supplement, or such other writ as may be necessary, shall be issued by the lord ordinary in support of such diligence. 127. EXPENCES TO BE IN THE DISCRETION OF THE ARBITERS.-Except where by this or the special Act, or any Act incorporated therewith, it shall be otherwise provided, the expences of and attending every such arbitration, to be determined by the arbiters, including the expence of recording the decreet arbitral or award in the books of council and session, and of furnishing extracts thereof from the said books, shall be in the discretion of the arbiters or the oversman, as the case may be. 128. AWARDS TO BE IN WRITING, AND RECORDED.-The arbiters or oversman, as the case may be, shall make the decreet arbitral or award in writing, and shall cause the same to be recorded in the books of council and session; and extracts of decreets arbitral or awards so recorded shall make faith in all courts and cases in like manner as the original decreets arbitral or awards themselves, except where the originals are offered to be improven. 129. AWARD NOT TO BE SET ASIDE FOR MATTER OF FORM.-No award made in respect to any question referred to arbitration under the provisions of this or the special Act shall be set aside for irregularity or error in matter of form. 130. SERVICE OF NOTICES UPON COMPANY.-And be it enacted, that any summons or notice, or any writ or other proceeding at law, requiring to be served upon the company, may be served by the same being left at or transmitted through the post directed to the principal office of the company, or one of their principal offices where there shall be more than one, or being given personally to the secretary, or in case there be no secretary then by being given to any one director of the company. 131. TENDER OF AMENDS-PAYMENT INTO COURT.-And be it enacted, that if any party shall have committed any irregularity, trespass, or other wrongful proceeding in the execution of this or the special Act, or any Act incorporated therewith, or by virtue of any power or authority thereby given, and if before action brought in respect. thereof such party make tender of sufficient amends to the party injured, such last mentioned party shall not recover in any such action; and if no such tender shall have been made it shall be lawful for the defender, by leave of the court where such action shall be pending, at any time before the record is closed, to pay into court such sum of money as he shall think fit, and thereupon such proceedings shall be had as in other cases where defenders are allowed to pay money into court. RECOVERY OF DAMAGES AND PENALTIES. And with respect to the recovery of damages not specially provided for, and to the determination of any other matter referred to the sheriff or to justices, be it enacted as follows: 132. PROVISION FOR ASCERTAINMENT OF DAMAGES NOT OTHERWISE PROVIDED FOR ENFORCEMENT BY POINDING AND SALE. In all cases where any damages, charges, or expences are by this or the special Act, or any Act incorporated therewith, directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for, such amount, in case of dispute, shall be ascertained and determined by the sheriff; and if the amount so ascertained be not paid by the company or other party liable to pay the same within seven days after demand, the amount may be recovered by poinding and sale of the goods of the company or other party liable as aforesaid; and the sheriff shall, on application, issue his warrant accordingly. 133. POINDING AND SALE AGAINST THE TREASURER-NOTICE TO TREASURER-REIMBURSEMENT OF TREASURER.—If sufficient goods of the company cannot be found whereon to levy any such damages, charges, or expences payable by the company, the same may, if the amount thereof do not exceed twenty pounds, be recovered by poinding and sale of the goods of the treasurer of the company; and the sheriff, on application, shall issue his warrant accordingly; but no such poinding and sale shall be executed against the goods of such treasurer unless seven days previous notice in writing, stating the amount so due, and demanding payment thereof, have been given to such treasurer, or left at his residence; and if such treasurer pay any money under such distress or poinding and sale as aforesaid, he may retain the amount so paid by him, and all expences occasioned thereby, out of any money belonging to the company coming into his custody or control, or he may sue the company for the same. 134. METHOD OF PROCEEDING BEFORE THE SHERIFF OR JUSTICES IN QUESTIONS OF DAMAGES, &C.-Where in this or the special Act, or any Act incorporated therewith, any question of damages, charges, expences, or other matter, is referred to the determination of any sheriff or justices, it shall be lawful for the sheriff or any justice, upon the application of either party, to order the other party to appear before such sheriff if the order shall be issued by the sheriff, or before two justices if the order shall have been issued by a justice, at a time and place to be named in such summons; and upon the appearance of such parties, or in the absence of any of them, upon proof of due service of the summons, it shall be lawful for such sheriff or such two justices, as the case may be, to hear and determine such question, and for that purpose to examine such parties or any of them, and their witnesses, on oath; and the expences of every such inquiry shall be in the discretion of such sheriff or justices, and he or they shall deter mine the amount thereof. 135. PUBLICATION OF PENALTIES.-The company shall publish the short particulars of the several offences for which any penalty is imposed by this or the special Act, or any Act incorporated therewith, or by any bye law of the company affecting other persons than the shareholders, officers, or servants of the company, and of the amount of every such penalty, and shall cause such particulars to be painted on a board, or printed upon paper and pasted thereon, and shall cause such board to be hung up or affixed on some conspicuous part of the principal place of business of the company, and where any such penalties are of local application shall cause such boards to be affixed in some conspicuous place in the immediate neighbourhood to which such penalties are applicable or have reference; and such particulars shall be renewed as often as the same or any part thereof is obliterated or destroyed; and no such penalty shall be recoverable unless it shall have been published and kept published in the manner herein-before required. 136. PENALTY FOR DEFACING BOARDS USED FOR SUCH PUBLICATION.-If any person pull down or injure any board put up or affixed as required by this or the special Act, or any Act incorporated therewith, for the purpose of publishing any bye law or penalty, or shall obliterate any of the letters or figures thereon, he shall forfeit for every such offence a sum not exceeding five pounds, and shall defray the expences attending the restoration of such board. 137. PENALTIES TO BE SUMMARILY RECOVERED BEFORE THE SHERIFF OR TWO JUSTICES. -Every penalty or forfeiture imposed by this or the special Act, or by any bye law made in pursuance thereof, the recovery of which is not otherwise provided for, may be recovered by summary proceeding before the sheriff or two justices; and upon the appearance of the party complained against, or in his absence, after proof of the due service of such order, it shall be lawful for any sheriff or two justices to proceed to the hearing of the complaint; and upon proof of the offence, either by the confession of the party complained against, or upon the oath of one credible witness or more, it shall be lawful for such sheriff or justices to convict the offender, and upon such conviction to adjudge the offender to pay the penalty or forfeiture incurred, as well as such expences attending the conviction as such sheriff or justices shall think fit. S. 137 in part rep. 55 & 56 Vict. c. 19 (S.L.R.). 138. PENALTIES MAY BE LEVIED BY POINDING AND SALE.-If forthwith amount of the penalty or forfeiture, and expences the be not paid the amount of such penalty and expences shall be levied by poinding and sale; S. 138 in part rep. 55 & 56 Vict. c. 19 (S.L.R.). 139. IMPRISONMENT IN DEFAULT OF SUFFICIENT POINDING.-It shall be lawful for any such sheriff or justices to order any offender so convicted as aforesaid to be detained and kept in safe custody until return can be conveniently made to the warrant of poinding and sale to be issued for levying such penalty or forfeiture and expences, unless the offender give sufficient security, by way of recognizance or otherwise, to the satisfaction of the sheriff or justices, for his appearance before him or them on the day appointed for such return, such day not being more than eight days from the time of taking such security; but if before issuing such warrant of poinding and sale it shall appear to the sheriff or justices, by the admission of the offender or otherwise, that no sufficient poinding and sale can be had within the jurisdiction of such sheriff or justices whereon to levy such penalty or forfeiture and expences, he or they may, if he or they think fit, refrain from issuing such warrant; and in such case, or if such warrant shall have been issued, and upon the return thereof such insufficiency as aforesaid shall be made to appear to the sheriff or justices, then such sheriff or justices shall, by warrant, cause such offender to be committed to gaol, there to remain without bail for any term not exceeding three months, unless such penalty or forfeiture and expences be sooner paid and satisfied. [Ss. 140, 141 rep. 55 & 56 Vict. c. 19 (S.L.R.).] 142. APPLICATION OF PENALTIES.-The sheriff or justices by whom any such penalty or forfeiture shall be imposed, where the application thereof is not otherwise provided for, may award not more than one half thereof to the informer, and shall award the remainder to the kirk session, or treasurer or collector of the funds for the poor, of the parish in which the offence shall have been committed, for the benefit of the poor of such parish. [S. 143 rep. 55 & 56 Vict. c. 19 (S.L.R.).] 144. DAMAGE TO BE MADE GOOD IN ADDITION TO PENALTY.-If, through any act, neglect, or default, on account whereof any person shall have incurred any penalty imposed by this or the special Act, or any Act incorporated therewith, any damage to the property of the company shall have been committed by such person, he shall be liable to make good such damage as well as to pay such penalty; and the amount of such damage shall, in case of dispute, be determined by the sheriff or justices by whom. the party incurring such penalty shall have been convicted; and on non-payment of such damages, on demand, the same shall be levied by poinding and sale, and such sheriff or justices shall issue his or their warrant accordingly. [S. 145 rep. 55 & 56 Vict. c. 19 (S.L.R.).] 146. TRANSIENT OFFENDERS.-It shall be lawful for any officer or agent of the company, and all persons called by him to his assistance, to seize and detain any person who shall be found committing any offence against the provisions of this or the special Act, or any Act incorporated therewith, and whose name and residence shall be unknown to such officer or agent, and convey him with all convenient despatch before the sheriff or a justice, without any warrant or other authority than this or the special Act; and such sheriff or justice shall proceed with all convenient despatch in the matter of the complaint against such offender. 147. PROCEEDINGS BY SHERIFF NEED NOT BE IN WRITING.-Any sheriff to whom any application is authorized to be made, and before whom any judicial proceeding shall in consequence take place or become necessary under or by virtue of this or the special Act, or any Act incorporated therewith, shall and he is hereby authorized and required summarily to call before him all parties who appear to him to be interested therein, and to proceed forthwith to hear vivâ voce, and pronounce judgment regarding the matters mentioned in such application or proceedings, or to do the several matters and things required by this Act to be done by him, without waiting the ordinary course of the roll of causes before him, and without written pleadings or a written record or reducing any evidence which may be led by either of the parties to writing, unless and except where the said sheriff shall consider that the matters mentioned in such application or proceedings can with more advantage be decided with written pleadings and with a written record, in which case he shall proceed to make up a record, and bring the said matters to a conclusion with all convenient despatch; and the orders and judgments of the said sheriff when pronounced without a record shall be final and conclusive, and not subject to review by suspension or advocation, or to reduction, on any ground whatever. [S. 148 rep. 55 & 56 Vict. c. 19 (S.L.R.).] 149. PROCEEDINGS NOT TO BE QUASHED FOR WANT OF FORM, &c.-No proceeding in pursuance of this or the special Act, or any Act incorporated therewith, shall be removed by suspension or otherwise into any superior court. S. 149 in part rep. 55 & 56 Vict. c. 19 (S.L.R.). APPEAL. 150. POWER OF APPEAL FROM SHERIFF SUBSTITUTE TO SHERIFF IN CERTAIN CASES.— In all cases which may come before any sheriff substitute under this or the special Act, or any Act incorporated therewith, in which written pleadings shall have been allowed, and a written record shall have been made up, and where the evidence which has been led by the parties shall have been reduced to writing, but in no other case whatever, it shall be competent for any of the parties thereto, within seven days after a final judgment shall have been pronounced by such sheriff substitute, to appeal against the same to the sheriff of the county, by lodging a minute of appeal with the sheriff clerk of such county, or his depute; and the said sheriff shall thereupon review the proceedings of the said sheriff substitute and whole process, and, if he think proper, hear the parties vivâ voce thereon, and pronounce judgment; and such judgment shall in no case be subject to review by suspension or to reduction, on any ground whatever. S. 150 in part rep. 55 & 56 Vict. c. 19 (S.L.R.). ACCESS TO SPECIAL ACT. And with respect to the provision to be made for affording access to the special Act by all parties interested, be it enacted as follows: 153. COPIES OF SPECIAL ACT TO BE KEPT AND DEPOSITED, AND ALLOWED TO BE INSPECTED. -7 WILL. 4 & 1 VICT. c. 83.-The company shall at all times after the expiration of six months after the passing of the special Act keep in their principal office of business a copy of the special Act, printed by the printers to her Majesty, or some of them; and shall also within the space of such six months deposit in the offices of each of the sheriff clerks of the several counties into which the works shall extend a copy of such special Act, so printed as aforesaid; and the said sheriff clerks shall receive, and they and the company respectively shall retain, the said copies of the special Act, and shall permit all persons interested to inspect the same, and make extracts or copies therefrom, in the like manner and upon the like terms and under the like penalty for default as is provided in the case of certain plans and sections by the Parliamentary Documents Deposit Act, 1837. 154. PENALTY ON COMPANY FAILING TO KEEP OR DEPOSIT ACT.-If the company shall fail to keep or deposit, as herein-before mentioned, any of the said copies of the special Act, they shall forfeit twenty pounds for every such offence, and also five pounds for every day afterwards during which such copy shall be not so kept or deposited. [S. 155 rep. 38 & 39 Vict. c. 66 (S.L.R.).] CHAPTER XXXV. THE INFEFTMENT ACT, 1845 (Short Titles Act, 1896). AN ACT to simplify the Form and diminish the Expence of obtaining Infeftment in Heritable Property in Scotland. [21st July 1845.] [Preamble.] 1. HOW SASINE TO BE GIVEN IN FUTURE IN LANDS IN SCOTLAND. From and after the first day of October in the present year one thousand eight hundred and forty-five it shall not be necessary to proceed to the lands in which sasine is to be given, or to perform any act of infeftment thereon, but sasine shall be effectually given therein and infeftment obtained by producing to a notary public the warrants of sasine and relative writs, as now in use to be produced at taking infeftment, and by expeding and recording in the general register of sasines in manner herein-after directed, an instrument of sasine, setting forth that sasine had been given in the said lands, and subscribed by the said notary public and witnesses, according to the form and as nearly as may be in the terms of schedule (B.) hereto annexed; and such form of infeftment shall be effectual, whether the lands lie contiguous or discontiguous, or are held by the same or by different titles, or of one or more superiors, or whether the deed entitling the party to obtain infeftment be dated prior or subsequent to the present Act, or whether the precept of sasine therein be in the form heretofore in use, or in the form authorized by the present Act. S. 1 in part rep. 56 & 57 Vict. c. 14 (S.L.R.). 2. INSTRUMENTS OF SASINE TO BE ENTERED AND RECORDED.-From and after the said first day of October every such instrument of sasine shall be recorded in manner heretofore in use with regard to instruments of sasine, and the keepers of the registers of sasines are hereby required to receive and register the same accordingly; and such instrument of sasine, being so recorded, shall in all respects have the same effect as if sasine had been taken and an instrument of sasine duly recorded according to the law and practice heretofore in use. 3. MAY BE RECORDED AT ANY TIME, BUT THE DATE OF THE PResentment to bE THE DATE OF THE INFEFTMENT. From and after the said first day of October every such instrument of sasine may be competently and effectually recorded at any time during the life of the party in whose favour such instrument has been expede, but the date of presentment and entry set forth on any such instrument by the keeper of the record shall be taken to be the date of the instrument of sasine and infeftment. 4. IN CASE OF ERROR OR DEFECT, ANOTHER INSTRUMENT MAY BE RECORDED.-In case of any error or defect in any such instrument of sasine, or in the recording thereof, it shall be competent of new to make and record an instrument of sasine, which shall have effect from the date of recording thereof, as if no previous instrument or instruments had been made or recorded. 5. FORMS OF THE PRECEPT AND INSTRUMENT OF SASINE. In all deeds containing a precept of sasine such precept may be in the form and as nearly as may be in the terms of the schedule (A.) hereto annexed, and the instrument of sasine on any such deed shall be in the form and as nearly as may be in the terms of the said schedule (B.) |