PREFACE TO FIRST EDITION.

THE Trustees of the late Professor MENZIES, in presenting this Volume to the Public, have been chiefly influenced by the conviction, that it will be found in a great measure to supply a desideratum that has for many years past been felt, not less by the members of the Legal Profession at large, than by the successive classes of Students for whose benefit the Lectures were originally designed.

The Lectures are accompanied by references, in the form of footnotes and an Appendix, to the recent important decisions of the Court of Session and of the House of Lords. Since Professor MENZIES ceased to occupy the Chair of Conveyancing, several extensive modifications of the Law have been introduced by the Legislature, and especially in the matter of Bankruptcy. In the Notes, the attention of the Student has been called to these Statutes, and he is requested to read the text with reference to their provisions.

The Trustees take this opportunity of acknowledging their deep obligations to Professors SWINTON and MORE for their kindness in undertaking the active duties of the Chair of the late Professor MENZIES during last Session, and to JAMES MITFORD MORISON, Esq., Advocate, for the great labour which he bestowed upon the Examinations.

Their sincere thanks are also due to the last-named gentleman, and to JOHN HUNTER, Esq., Auditor of the Court of Session, for superintending the present publication.

EDINBURGH, 1st October 1856.

t

LECTURES ON CONVEYANCING.

INTRODUCTION.

CHAPTER I.

EDUCATION OF THE CONVEYANCER, GENERAL AND PROFESSIONAL.

THE business of the Chair of Conveyancing is to show how property in this country may be acquired, possessed, and transferred. To most of you, it may be presumed that the study of the law in any of its branches is recent, if not entirely new, and it may not be without advantage, if at this stage of the student's progress, we glance backwards upon the pursuits which have hitherto engaged his attention, and inquire what prospective bearing these may have had upon the labours to which he is now to devote himself-how the acquirements already made may assist him in attaining his present object-and whether, while he is striving to become a lawyer, the studies of bygone years have any longer a claim upon his regard.

GENERAL EDU

CATION, AS PRE

PROFESSIONAL.

Until the period which introduces the student to professional training, the design of his education is the general formation of his PARATORY TO intellectual and moral character. His lessons, as regards their subject-matter, take an extensive range. They relate to the mind, and Retrospect of its affections and powers, and address him through the medium of PAST STUDIES. literature, history, and philosophy. They relate also to external nature, its elements, and man's power with respect to these, in their use, direction, and control. These are wide interests, and in such pursuits the student is necessarily brought into contact with the master-minds, who have most intimately known Nature, and have spoken her language so well, that in succeeding ages men have with one assent accepted them as her interpreters, and cherished their productions as those which, next to the pages of Inspiration, they would not willingly let die.

INTRODUCTION.

CHAP. I.

The results of such studies cannot obviously be claimed by any one profession exclusively for itself. They have an influence for every calling, and are, in some degree, an indispensable pre-requisite to those vocations in particular, which require intellectual culture and effort.

Now, from the various paths which, well trod, lead to usefulness, and profit, and honour, the student is here selecting the one which he is to follow through life, and henceforth, therefore, his studies will not, as hitherto, have for their only object general mental cultivation, but they will assume a definite character and direct application suited to his now determinate views. The desire to excel in languages or science will receive a new direction and impulse, and will either be accompanied by, or give place to the thirst for legal knowledge and skill.

Does the law student, then, by entering upon this path, bid a final adieu to literature and science? It is, indeed, too common for him to do so, but a slight reflection will show, that he is urgently called to a continued cultivation of these pursuits, not only upon general grounds, but by a consideration also of what is due to professional accomplishment and success. To throw away at this stage his classical knowledge, and such introduction to science as he may have obtained, is certainly to sacrifice a great source of mental enjoyment, a powerful implement of continued intellectual culture, a medium of communication with the finest minds of former ages, as well as of the present. There are some who conscientiously withhold their approval from the cultivation of the dead languages; and those, whose minds have been enriched with a better learning than the classic page unfolds, feel, with the pious Augustine, that even in Cicero there is a void for which no eloquence can compensate; but, however alloyed with human imperfection, there is here a fountain of excellence, whose invigorating qualities have commended it to the human mind in many succeeding centuries; and these writings have been preserved more carefully than others, both because they were intrinsically better, and because they have more important uses. Into such uses this is not the place to inquire, but even here we ought not to forget the aid which learning has always afforded in the investigation, preservation, and diffusion of Sacred Truth, and how powerfully the cultivation of Greek and Roman literature has, at the most important periods of history, tended to liberate the mind from superstition and error, to awaken its highest energies, and to aid it in the reception of a pure and simple faith.

The advantages derivable from the prosecution of liberal studies by that branch of the legal profession with which this Chair is more immediately connected, will be best appreciated by attending to the nature of a Conveyancer and Law-agent's business. Let us advert, then, shortly, to the functions which the members of this profession are called to execute.

AND LAW

The path of the Conveyancer does not at its entrance present the INTRODUCTION. attractions of those leading to some other professions, and it is un- CHAP. I. suited to minds which can only be satisfied with the stirring life of DUTIES OF THE the soldier, the excitement of commercial adventure, the profound CONVEYANCER researches of science, the eloquence of the pulpit, or the intellectual AGENT. strife of the bar. Yet the Conveyancer's calling, combined as it is in Scotland with the other business of a Law-agent, is not destitute of excitement or interest; and how absorbing and intense these may be, is best known to those who have most faithfully discharged its duties.

SION, AND CARE,

What is the general nature of these duties? As a Conveyancer, IN TRANSMISthe Law-agent must insure his client's safety in purchasing property, or PROPERTY. in selling it, in investing money with or without security, and in all the various circumstances and positions in which property is transferred from one owner to another, or made the subject of temporary or permanent arrangement or negotiation. In particular, he must advise and act in the arrangement and execution of family-settlements for the distribution of property, whether such settlements are made by parties jointly, and to take effect during their lives, or by individuals for the disposal of their means after their death. Here he is responsible both for the security of the rights created, and for the exact attainment of the intentions of the parties. As solicitor and attorney, again, he must advise-either upon his own responsibility, or with the assistance of counsel, whose aid he must know when it is necessary to obtain,-in matters of disputed right, instituting actions when necessary, and conducting them with minute attention to law and facts, and to the forms of Court. He will be called upon to enforce judgments of the Courts, in order to vindicate his client's right against the property or person of his debtor-proceedings inferring a high responsibility. There will be expected a general attention to his client's property and interests, the care of which may be entirely devolved upon him, maintaining his just rights, defending such as are assailed, watching over those which are precarious, and giving the benefit, not only of his professional knowledge and skill, but of the care and anxiety also, which a prudent man bestows upon his own affairs.

These are duties, obviously, which affect men's most important temporal interests. Property of great magnitude is dependent upon them, and professional skill is equally necessary where the value is small. The prosperity of individuals, the security of the estates which they have inherited or acquired, the comfort of families, happiness in the domestic relations, and tranquillity in circumstances of trial and anxiety-all and each of these interests, which come so home to men, to their hearthstones, and their bosoms-are committed to the Law-agent's keeping; and as by his attention and skill they