Scots Law

In the law of securities the conveyancing expedients for the constitution of a security over land differ so greatly that any comparison would be futile. In the constitution of securities over movables there is no provision, in Scotland, in any way analogous to the Bills of Sale Act 1882. And it is established law, with exceptions of little importance, that no security over movables which will give the creditor any preference in bankruptcy, or in a question with other creditors using diligence, can be created without delivery of the subjects, actual or constructive. Attempts to evade the rule by framing the security as a sale have met with little success. And the English law of equitable mortgage finds no counterpart in Scotland. At least since the decision in Christie v. Ruxton (1862, 24 D. 1182) it has been regarded as settled law that the mere deposit of documents of the nature of title deeds, which are not negotiable instruments, or documents of title under the Factors Acts (as to which the law is not free from doubt) will not give the party who takes them any security. And a memorandum or written statement of the object of the deposit, unless it amounts to an assignation of the property represented by the titles, does not affect the question.

Tort.

Apart from the mercantile contracts already mentioned the law as to liability for wrongful and negligent acts is the subject in which there is the least difference between England and Scot land. The provisions of 9 and io Vict. c. 93 (Lord Campbell's Act) give a right of action to the wife, husband, parent or child of a deceased person, which approximates closely to that allowed by the common law of Scotland.

In the case of defamation the distinctions are of some impor tance. Between defamation in "words" (slander) and defamation in "writing" (libel) the law of Scotland draws no distinction. It treats either merely as a civil wrong, not, except in the special case of parliamentary elections, as a criminal offence. It is not necessary, in any case, to prove that special damage has resulted, though this will be taken account of in the award of damages. And on the principle of allowing solatium for injured feelings an action is admitted in Scots law even although the defamatory statement is not made known to anyone except the person him self.

Criminal Law.

In criminal law the English law of high treason was expressly made applicable to Scotland by 7 Anne ch.

21. With regard to other crimes the terms used often differ, but

there is no case of serious importance in which an act is criminal in the one country and not in the other. The procedure, however, differs greatly. Private prosecution, at the instance of the injured party, though competent, is in Scotland very rare except in minor statutory offences. It requires the consent and concurrence of the Crown (given through the agency of the lord advocate, or, in minor offences, of the procurator fiscal) and, although the High Court of Justiciary has power to dispense with this requirement, the case of Coats (1909, S.C. [J] 29) is the only modern instance of the exercise of that power. There is no institution in Scotland analogous to the English grand jury; the question whether there is a prima facie case for prosecution being always one for the discretion of the criminal authorities. In the trial of criminal offences the jury in Scotland numbers 15, as opposed to the English 12, and the verdict may be given by a majority. The Scotch verdict of "not proven," having the same legal effect as a verdict of "not guilty," has no English counterpart. A defect in the Scotch legal system, which had no provision for any public inquiry in cases of death under doubtful or suspicious circumstances, analogous to the English coroner's inquest, has been partially remedied by the Fatal Accidents Inquiry Acts of 1895 and 1906, under which a public inquiry by a sheriff and jury is held in all cases of fatal accidents in any industrial employment, and may be directed by the lord advocate in the case of any sudden or suspicious death.

the law of Scotland generally, see Stair, Institu tions (1681; More's ed. 1832) ; Erskine, Institutes (1773; new ed. 1871) ; Bell, Principles (1824; loth ed. 1899) ; Bell, Commentaries (181o; 7th ed. 1894) ; Green, Encyclopaedia of the Law of Scotland (3rd ed. in course of publication). For criminal law, see Hume on Crimes (4th ed. 1844) ; Macdonald, Criminal Law (3rd ed. 1894). For the differences between English and Scots law, see Bankton, Institute of the Law of Scotland (1751) ; Paterson, Compendium of English and Scotch Law (2nd ed. 1865) ; Brodie-Innes, Comparative Principles of the Laws of England and Scotland (Courts and Procedure) (19o3) ; Burn Murdoch, Notes on English as Differing from Scots Law (1924) ; Gloag and Hudson, Introduction to the Law of Scotland (1927).

(W. M. G.)