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PROMINENT AND PECULIAR LAWS AND USAGES
CONTINUED.

CUSTOMS IN CONNEXION WITH SUCCESSION TO HERITABLE
AND MOVEABLE PROPERTY-INFEFTMENTS-SELLING
OF ESTATES BY AUCTION.

"Well, have you carried through your law-business?"-With a wet finger; got our youngster's special service returned into Chancery. We had him served heir before the macers. "Macers? whe are they ?"—" Why, it is a kind of judicial saturnalia. You must know that one of the requisites to be a macer or officer in attendance upon our supreme court, is that they shall be men of no knowledge. Now, our Scottish legislature, for the joke's sake, I suppose, have constituted those men of no knowledge into a peculiar court for trying questions of relationship and descent, which often involve the most nice and complicated questions of evidence." "The devil they have? I should think that rather inconvenient." O, we have a practical remedy for the theoretical absurdity. One or two of the judges act upon such occasions as prompters and assessors to their own door-keepers. However, this saturnalian court has done our business; and a glorious batch of claret we had afterwards at Walker's. morlin will stare when he sees the bill."-Guy Mannering.

Mac

THE laws regulating successions to moveable and heritable property in Scotland, possess several distinguishing characteristics worthy of notice by those not intimately acquainted with the institutions of the country. With the laws of England on the same subject, they have only a partial resemblance; and as a want of attention to those customs relative to post mortem conveyances, often injures the property of inexperienced persons, we conceive a short exposition of their peculiarities may here be advantageously introduced.

MAKING TESTAMENTS.

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While there continue in England, agreeable to the protracted existence of several antiquated statutes of only local application, several different laws for the regulation of successions, whereby the inhabitants of particular provinces are subject to various customs, often irreconcileable with expediency and common sense; and while, by their operation, the families of certain privileged persons are entitled to benefits not enjoyed by others less fortunate, the laws of Scotland in this delicate matter are one and indivisible. Every district is placed on an equal footing, and the widows of bondmen and free-men, of noblemen or peasants, are all liable to a uniform usage not known so perfectly in the neighbouring nation.*

In England, a deed disposing of a landed estate to take effect after the death of the grantee, may be executed at any time previous to his decease, if he be sufficiently endowed with strength to append his signature to the deed in the presence of three witnesses Nay, should he die while about to sign his name, the deed will be held valid, if it can be proven that he heard it read, and shewed an inclination to attach his subscription. The document, moreover, does not require to be stamped previously,-it being sufficient if that operation be done afterwards;-neither does it require to be written by a notary, a conveyancer, or any legal practitioner: It may likewise be technically informal, and words may be missing in the construction of the sentences: It may further be written in any dead or living language, and any species of figures may be used; yet if the sense can be plainly gathered, the testament will be sufficiently valid.

This liberality, though apparently beneficial, is exceedingly injurious in the aggregate of cases, and gives occasion to innumerable suits at law. In Scotland,

* The customs of the provinces of York and London are here alluded to in an especial manner; but besides these, there are a va riety of local usages injurious to the uniform influence of the laws, and their general respectability.

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DIFFERENCE BETWEEN

the law affecting will-making is of a very different character. "Our law," says Erskine, "from its jealousy of the weakness of mankind while under sickness, and of the importunity of friends in that conjuncture, has declared that all deeds affecting heritage, if they be granted by a person on a death-bed, to the damage of the heir [at law], are ineffectual, except where the debts of the grantee have laid him under the necessity to alien his lands." The Scottish law therefore enjoins, that a "deed of settlement" be written on paper already stamped, and drawn out by a legal practitionthat it must be signed in presence of two witnesses; and above all, that it shall have been completed at least sixty days previous to dissolution; or, what is equally strict, that the deceased walked to and from the kirk or chapel-and market (any place of public business,) unsupported, after the date of the deed regulating his succession. In these points, the law is excessively strict, and a disregard of such customs has frequently been the cause of the reduction of settlements. It hence becomes more imperative on Scottish than English land-owners to avoid inconvenient delays on a matter of so great importance; for it will be observed, that an expression of the will verbally, or holograph on plain paper, while in extremis, will not be held of the slightest value.*

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By reason of this provision of the law, those indecorous and frivolous settlements so common among the English, never occur in this country. A will endowing a cat," or a favourite litter of spaniels, a brood of white chickens, or a suit of domestic parasites, is never executed by the most superannuated bachelor, or the most morbidly sick old maid; and a case wherein an individual was appointed residuary legatee, under provision that he drew the coffin to the church-yard by a flock of geese, and dressed himself as a mounte

*The attachment of seals to mostly every description of deeds, is customary and necessary in England; but in Scotland, this form is not required on any occasion. In all cases, signatures alone are substituted, except in the deeds of some judicatories.

ENGLISH AND SCOTCH LAWS.

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bank for the occasion, is entirely unheard of. The proverbial caution of the Scotch is fully exemplified in the making of testaments.

It may here be necessary to explain, that a person in Scotland, in making a deed of settlement, can convey the landed property, which he may chance to possess at his decease, over and above that which is specifically mentioned as in his present possession. In England, the law does not allow this; but as it permits deathbed settlement, such a provision is partly unnecessary. A mortgage over landed property in Scotland, by reason of an infeftment-which will shortly be explained —being taken, is, in the eye of the law, real property. It cannot be bequeathed by a common will, and if an individual lend money on an estate or house, he must go through the form of devising it by a deed of settlement. A want of proper information on this point, has sometimes put the heirs of English capitalists, or lenders of money on Scotch property, to inconvenience and loss.

The mode of taking possession of heritable property in Scotland is so peculiar, that it may be mentioned. The first step taken by the heir, whether he succced by a deed of settlement, or as heir-at-law, is to have himself "served heir." To be served heir in right of conquest, provision, or heir-at-law, an application must be made to the Chancery of Scotland,* from whence a brieve is issued for the purpose. This is an order in his Majesty's name to the sheriff of the coun

*The Scottish Chancery bears little analogy to the Chancery of England. It is merely an office situated in the General Register House, in which are preserved all returns of brieves of service, and writs relative to gifts of crown lands, with other documents requiring the attachment of some of the state seals now in use in Scotland. Of these seals, there are three the Great-the Privy-and the Quarter, which were remodelled at the Union. There being now no Chancellor, the business is conducted by a Director and Deputies. Patents for inventions, applying to Scotland only, are expeded at this office and caveats can be lodged in order to prevent patents from being procured for the same inventions, until the first inventor find it adviseable to negotiate his patent.

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SCOTTISH CHANCERY.

ty in which the heritage is placed, directing him to enclose an assize of fifteen men to decide upon the rights of the person named. It is written in an antique hand, in the Latin language, on a piece of vellum about the size of a man's hand. A proclamation being made (a fiction, we believe,) to bring forward competitors, the sheriff encloses a jury after fifteen days have elapsed. The jurors may be byestanders; no qualification being necessary. Proofs being adduced of the propinquity, and witnesses examined, the decision of the majority determines the case. The verdict, if affirmative, which it almost always is, is then marked on the brieve by the sheriff, and returned to the place from whence it emanated. Here it is preserved and recorded, and a "retour," or a certification of the right of the application, is given out. This may either be kept as a voucher of the consanguinity of the bolder to the person to whom he has been served heir, or it may be immediately operated upon. A process of this nature is invariably requisite before a person can sue for heritable property, and the retour is generally the basis of his action. When property is held free from the crown, and its possession is required, on the retour being brought back to the Chancery office, a precept is issued to the sheriff, commanding him to infeft the heir. When held from a subject superior, the retour is first recorded in the Chancery, and the precept sent to him, from whom an order to the sheriff to infeft is issued. When the infeftment, or corporal seisin, follows upon either of these forms of process, and is duly recorded in the register of seisins, in the language of the law, "the titles are made up." The sheriff of Edinburgh receives and returns the brieve when the property lies in different counties; and when within royal burghs, it is the magistrates who manage the

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The circumstance of the sheriff of the county of Edinburgh being the proper person to summon an assize for the disposal of cases of the above description, is only of recent institution. A few years since, the

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