Abbildungen der Seite
PDF
EPUB

ANCIENT USAGES IN TAKING

or the delivery of a part of the particular heritage conveyed, is still in full operation; though its speedy abrogation is now contemplated. The practice is called taking an infeftment. Infeftments are made by sheriffs, magistrates or their mandatories, and notariespublic, with an air of solemn foolery. If the property be a landed estate-handfuls of earth and stone are given; if houses-stone and lime; if tithes-a sheaf of corn; if a church patronage-a psalm book and the keys of the kirk; if a right of fishing-a net and boat; and if a mill-a clap and hopper. These deliveries being

*

These usages have come down unadulterated from an age of pure barbarism, and their existence may be considered a satire on the common sense of our own times. The elegant historian of the Decline and Fall of the Roman Empire, thus accounts for their origin in his usual felicitous manner : ters is imperfectly supplied by visible signs, which awaken attention, "Among savage nations, the want of letand perpetuate the remembrance of any public or private transaction. The jurisprudence of the Romans exhibited the scenes of a pantomine; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage life was denoted by the necessary elements of fire and water; and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of a family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clenched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and scales were introduced into every payment; and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap and dance with an affected transport. If a citizen pursued any stolen goods into a neighbour's house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should encounter the eyes of a virgin or matron. action, the plaintiff touched the ear of his witness, seized his relucIn a civil tant adversary by the neck, and implored in solemn lamentation the aid of his fellow citizens. The two competitors grasped each other's hand as if they stood prepared for combat before the tribunal of the pretor; he commanded them to produce the object of dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended," &c. The

INFEFTMENTS AND MAKING BARGAINS. 267.

made on the spot in the presence of witnesses; the transaction is recorded in the general or particular registers of sasines, when the acquirer becomes complete owner. Should estates or other heritages be purchased and paid for, and this latter process of registration be neglected, the acquirer is at the mercy of the seller; for until a registry has been made, the law is not bound to suppose that any change has been effected. In mortgaging money on property, unless infeftment and registry be made, a similar danger is incurred. The seller or borrower having it in his power to re-seller or re-borrow to the injury of the purchaser or lender. A certain number of days are allowed to have this transaction completed. In mortgaging property for different sums to different or the same persons, the first bond has a preference, and so on. It is contemplated to abolish the process of corporal seizure, and

symbolic usages practised by the North American Indians, of smoking the pipe and planting the tree, of peace, and burying the hatchet, are precisely akin to these primitive customs. Among the common orders of people in Scotland, until a recent period there were also certain figurative actions in use which attested particular negociations, and in some districts they are not altogether abandoned. We have seen the hucksters who attend fairs take possession of stations on the streets by chalking and spitting on a stone in the causeway, which they covered up with another stone. This is to the effect that they have built their house there, from which they cannot be ejected: on the eve of the fair, a town officer attends to see such corporal seisins properly executed, and to receive the fees or customs consequent thereupon. It is scarcely necessary to allude to the practice of still giving erels or earnest-money, on hiring servants or taking houses, which is a very simple and extremely useful custom. Shaking of hands is to this day expressive of a bargain being struck, but this we suspect to be a custom of English extraction. The genuine and ancient Scottish usage on concluding a bargain, consisted in the two parties wetting their thumbs with the saliva of the tongue, and striking them together. Perhaps this practice is not yet entirely abrogated, as we have seen the ceremony performed not many years since in the south of Scotland. In reference to this rude mode of plighting troth, we may recal to the reader's remembrance, the burden of one of Ramsay's Scottish songs:

"There's my thumb, I'll ne'er beguile thee."

[blocks in formation]

enter the registry of the acquirement on the deed of settlement or disposition. This would save both trouble and expense, and be equally beneficial.

The laws of Scotland prescribe no peculiar form in the auctioning of property. Both countries are liable to the same statutes on this point; but as there prevail certain local customs which the stranger may be unaware of, it is essential that such be particularized. Unless advertisements of sales of estates distinctly specify that the auctions are to be on the English plan,— which does not occur in one of ten thousand-the mode of sale is this: The property is knocked down to the highest bidder, who, if he do not lay down the money, is immediately obliged or taken bound that he will grant a bond, with security, within a certain number of days, for the price, the interest, and a penalty of a fifth of the sum offered, in case of failure, or desire to draw back. Should he find it impossible or be unwilling to implement the purchase, he must pay the penalty, and the seller has it in his option either to put the property again up to auction, or to let it fall on the shoulders of the next highest bidder. He is then bound to go through the same process; and, as the case may be, the property can be shifted in succession down to each bidder, to the very lowest.

It is worth while to compare this custom with that of the English. In England, the estate is knocked down to the highest bidder; but before the offer is recorded, he must lay down ten per cent. on the purchase. If he will not or cannot do so, the hammer is once more lifted; the sale proceeds or stands still, until a new offer is made, wherein the offerer is capable of fulfilling the regulation. Should the deposite of ten per cent. be made, and the remainder be not paid by a specified day, the money so deposited is forfeited. The superiority of the latter procedure is very observable. In the Scotch method, the seller is often a loser in spite of all the care he can take. No offer can be refused but at the risk of the agent, therefore any person, however poor, may become the purchaser.

AUCTIONED IN SCOTLAND.

269

Should he fail to implement the contract in any way, the seller falls on the next bidder, who having offered possibly several hundreds of pounds less, the overplus of auction duty has then to be disbursed by the disposer. It is a monstrous grievance, too, that the next highest bidder should be compelled, at any distance of time, to implement a bargain he had ceased to remember, and for the acquisition of which he has possibly incapacitated himself by the purchase of another property. The circumstance of terms being propounded at the sale, is no proper answer to such an objectionable peculiarity.*

Sales of heritable property by auction in Scotland are seldom so successful as they are in England, and this is in a great measure owing to the practice we mention, as well as he ill-advised mode of offering estates at a stated upset price, which being reduced year after year, when they are not sold, purchasers hang back so long that they at last give up any idea of buying. A power of buying-in would be preferable. Strangers not acquainted with these rules of selling estates in Scotland, and desirous of purchasing, should be cautious in making offers unless the property has been long in the market, as great allowance is made at first for afterwards coming down in price.

* Gibson on Law of Sale.

PROMINENT AND PECULIAR LAWS AND USAGES
CONTINUED.

SCOTCH ENTAILS.

Men will always be mending, and when a lawyer ventures to tamper with the laws of nature, he hazards much mischief. We have a pregnant instance above of an attempt to mend the laws of God in many absurd regulations for the poor; and that the law authorizing entails is another instance of the same kind, will be evident from what follows.

HENRY HOME of Kames.

ALL nations have had and still have their hobbies, for which they sometimes acquire so great an attachment by reason of long acquaintanceship, that it often occurs that neither the most sober advice nor the keenest ridicule is at all capable of breaking the charm which mysteriously binds their affections; it generally happening that they do not part with these ambling follies until they have received some painful kicks, and tolerably severe falls in the course of the connexion. Of all the absurd hobbies of mankind, almost none seems to have been so generally caressed as a passion for founding families. Not contented with toiling for a certain amount of wealth, sufficient for their comfortable subsistence, or that of their immediate descendants, men torture themselves to procure the means of enriching all of their race that have to come after them. They take an interest in the welfare of the child who is to be born a thousand years after their

« ZurückWeiter »