speeches of counsel-might have been written by one who was intimately acquainted with the ways of our Courts.

But alas for our modern realism, and our infinite capacity for taking pains! The most modern description of a Scottish murder trial in fiction is, far and away, the most incorrect. It is published in this year's summer number of the Graphic, is written by Mr. Archibald Forbes, and is entitled "Our Parish "Murderer." As a story it is excellent; but, oh, the "hinferior "Dosset" of the trial scene! It is irritating even to think of the absolutely grotesque number of easily preventible errors that crowd that column and a half. As Dr. Johnson said of someone, "Such an amount of stupidity is not in nature. He must have "taken pains to be as stupid as he is." The mistakes are not with regard to any curious, occult, mysterious methods of Scottish forensic practice. They lie on the surface. Any second-year student, any apprentice in the office of a procurator-fiscal, could have given the author all the information necessary for their correction, but, with easy assurance and indifference, he goes on gaily piling error on error and blunder on blunder as though he revelled in it, till at last the whole illusion is destroyed and one can only cast aside the paper in despair.

Let us, "more in sorrow than in anger," pick out a few of these gems. In the course of the tale, a man Morgan is represented as having committed a murder in a village in the north of Scotland, and as having been apprehended by the police. The story goes on-"A smart young local solicitor volunteered to "undertake his defence; and, under his advice, the prisoner "declined the offer made to him by the procurator-fiscal that he "should, in Scottish legal phraseology, ‘emit a declaration,' in "other words, make a statement on his own behalf." Well, where are we to begin? We defy even the most painstaking and persevering modern realist to cram into the same number of lines a greater number of obvious and extraordinary errors on a subject so elementary as the law with regard to a prisoner's declaration. In the first place, a declaration is not a statement made by a prisoner "on his own behalf." The first thing that is impressed upon him when brought before a magistrate is that his declaration, if he chooses to make one, may be used against him at his trial. That is in the option of the public prosecutor; but under no circumstances whatever can the declaration be used on behalf of the prisoner. In the second place, the procurator-fiscal has not, and never had, the option of making "an offer" to a prisoner to emit a declaration. He is bound by law, in the case of serious crime, to carry the prisoner at once before a magistrate for that purpose, without any communication with him whatever.

Once there, it is true, the accused may either speak or hold his tongue as he pleases. Whatever he may say is taken down in writing, signed by himself and the magistrate, and, as already explained, may be used for the prosecution at the trial; but the procurator-fiscal has no power to make any offer of any kind whatever. His duty with regard to the declaration is purely administrative and compulsory. In the third place, forty years ago-which is the time at which the incidents of the tale are supposed to happen-and right on until the year 1887, the prisoner had no opportunity of seeing anyone until after the declaration was emitted. He could consult with neither relation, friend, nor agent; so that no solicitor, however “smart," "young," or "local" he may have been, could possibly have given Morgan the advice which he is here said to have received.

All this is elementary, and one almost apologises for printing it in a Scottish periodical; but, by way of incongruity and absurdity, it is only a prelude to what follows. For instance, we are told that the prisoner was brought into the dock "between "two prison warders," and that "the prosecution by the Crown "was conducted by the senior Advocate Depute." Now, prison warders do not accompany prisoners into the dock in Scots Courts of Justice. Any respectable policeman could have given the author that information. And by no chance does it ever happen that the senior Advocate Depute goes on circuit to prosecute. Of the four Advocates Depute the three juniors take the three circuits-north, west, and south-in rotation; but the senior Advocate Depute has charge of the counties around the metropolis. As the Christy Minstrels never leave London, so the senior Advocate Depute prosecutes only in the High Court of Justiciary in Edinburgh.

What need is there to go further? "The counsel for the Crown briefly and temperately opened the case for the prose"cution." He opened it neither briefly nor temperately, for the simple reason that, unless he and the judge were either drunk or mad, he did not open it at all. Except in trials for high treason, where the law of England prevails here with all its forms and ceremonies, there is no opening speech to the jury, either on behalf of the Crown or of the prisoner. In nine cases out of ten, on circuit-in trials for robbery, theft, and so on-the Advocate Depute does not address the jury at all. The normal order of procedure, which even a realistic novelist might succeed in mastering if he applied himself very hard to the task, is (1) evidence for the Crown; (2) evidence for the defence, or, as the records of Court call it, evidence in exculpation; (3) speech for the Crown if counsel thinks it necessary; (4) speech for the

defence by the prisoner's counsel, who is always entitled to the last word; and then follows the summing up of the presiding judge.

At this marvellous trial, however, the counsel for the prisoner was not to be outdone in incompetency by the Advocate Depute, so he too made an opening speech at the conclusion of the evidence for the prosecution. It must have been quite a little holiday to that dear old gentleman, "the judge of the stern old "school on the bench," to have this variety entertainment, this smoking concert trial in a dream, to break the monotony of the ordinary routine of judicial business. One can picture him so petrified with astonishment at the whole proceedings that he must have become as dumb as old John Willet when the rioters burst into the "Maypole," flooded the floors with whisky, and beat the boiler into an unrecognisable and unearthly looking mass of metal. He must have sat and stared. He can really never have "hauled his wind" to interrupt until this young advocate-" who later rose to a high eminence "!—had put the finishing touches on the day's irregularities by producing in evidence documents, and calling witnesses, of which and of whom absolutely no notice had apparently been given to the other side, and by these means proving that one of the witnesses for the Crown was in reality the prisoner's own wife.

Be it observed, this "young advocate" was well aware of this fact all the time! He had this trump card up his sleeve! And in the knowledge that the woman was the wife of the prisoner, he allowed her to be examined against him without giving notice of, or stating to the Court, this fatal objection. After that, one can easily understand the "high eminence" to which this promising youth rose in consequence of his conduct of the defence in this case. It must have been that he was suspended from the practice of the profession of an advocate for the rest of his natural life. Such a genius was really too great an ornament to be tolerated by the members of a self-respecting bar.

No; with sorrow be it confessed, knowledge of procedure in Scottish Courts of Justice is not one of the strong points of the modern English story-teller. That they know all about science, art, medicine, Scotland Yard, Henley Regatta, Russian Nihilism, and medieval chivalry, we take for granted. We are not experts in these matters, and can only sympathise with the writers when they prattle in their little autobiographical notices-so free from affectation and self-importance-of the labour they have undergone in getting up these intricate subjects. But when one remembers the manner in which these English fictionists treat Scots law, one trembles to consult those who are really learned

in other matters as to the quality of the rest of the butter they turn out. On the one hand, it may be prime, fresh, and of the first quality; on the other hand, it may be-let us hope it is not -that, as in Scottish legal procedure, so in science, art, medicine, Scotland Yard, and all the rest of it, it is very poor stuff"Dosset, sir, hinferior Dosset!"

W. D. L.

A POINT IN INTESTATE MOVEABLE SUCCESSION. SECTION 1 of the Intestate Moveable Succession Act, 1855, provides" The issue of a predeceasing next of kin shall come "in the place of their parent in the succession to an intestate. '-In all cases of intestate moveable succession in Scotland accruing after the passing of this Act, where any person who, "had he survived the intestate, would have been among his next " of kin, shall have predeceased such intestate, the lawful child or "children of such person so predeceasing shall come in the place of such person, and the issue of any such child or children, "or of any descendant of such child or children who may in "like manner have predeceased the intestate, shall come in the "place of his or their parent predeceasing, and shall respectively "have right to the share of the moveable estate of the intestate "to which the parent of such child or children or of such issue, "if he had survived the intestate, would have been entitled: 'provided always, that no representation shall be admitted 66 among collaterals after brothers and sisters descendants," &c.

Acts of Parliament are not notable for lucidity, yet the above section is not particularly incomprehensible. It appears to provide for the children of a predeceasing brother of an intestate person succeeding as his representatives to the share of moveables which the brother would have taken had he survived the intestate. This, however, is true only in a limited sense, although the point seems sometimes to be forgotten by lawyers. An illustration will make the matter clearer. If A dies intestate, survived by B, a sister, and D, F, and G, children of a predeceasing sister C, then D, F, and G will take equally among them the share to which their mother would have succeeded. Thus, if B gets £3000, C's children will also have £3000 to divide among them. If, however, both B and C predecease A, and B leaves one child Z, while C as above leaves D, F, G, then Z will not receive £3000, and C's children £3000 among them; on the contrary, the whole £6000 will be divided between Z, D, F, and G equally; that is to say, the division will be per capita and not per stirpes. This does not seem at first

sight to have been the intention of the Intestate Moveable Succession Act, and we may be asked what authority there is for denying representation in the case we have just stated. The authority is the case of Turner and Others, 27th November, 1869, 8 Mac. 222. It is a case decided by the First Division (Lord President Inglis, and Lords Deas, Ardmillan, and Kinloch), and the circumstances were as follows:-Miss Agnes Hamilton died predeceased by three sisters, (1) Mrs. Eadie, who was survived by one child, a daughter, Mrs. Turner; (2) Mrs. Couper, who was survived by a son Robert and three other children; and (3) Mrs. Macdonald, who was survived by a son Thomas and seven other children. There was no difficulty as to heritable property left by Miss Agnes Hamilton-Mrs. Turner, Robert Couper, and Thomas Macdonald shared it equally as heirs portioners. But a question arose as to the moveable estate, for Mrs. Turner claimed one-third of it as representing her mother, Mrs. Eadie, in terms of the quoted section of the Act of 1855. On the other hand, the younger children of Mrs. Couper, and the younger children of Mrs. Macdonald, "as Miss Hamilton's next of kin," claimed the whole residue of the moveable estate to the exclusion of Mrs. Turner, unless she collated her share as heritage, which she refused to do. Ultimately a special case was presented with the following queries:-(1) Whether Mrs. Turner, although one of the three heirs portioners of the said deceased Agnes Hamilton, and taking one-third of her heritable estate, is also entitled, as one of her next of kin, to a share of the residue of her moveable estate? (2) Whether, in the event of her being so found entitled, she has right to one-third part of the moveable estate, or to what part thereof? Mrs. Turner's counsel were Mr. (Lord) Fraser and Mr. Scott, and the other parties were represented by Solicitor-General (Lord) Rutherfurd Clark. The first question was answered in the negative, and the second was held not to arise in the circumstances. The Lord President discussed the applicability of the 1855 Act, saying, "We know very well what was the mischief intended to be remedied by this statute.

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"was to take away the hardship which arose when, of several persons who would have been all equally next of kin of an "intestate, one or more had predeceased the intestate, leaving "children. The hardship there is quite obvious, because there one of the relations as near to the intestate as any other has "died and left a large family, it may be, in great poverty, and yet, according to the common law, they could take no part of "the moveable estate of the intestate. It was to remove that apparent injustice that this alteration was made upon one of the