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Registration

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REGISTRATION. The registration of documents in Scotland is a great and important system intimately connected with the titles of real or heritable pro perty, and with the execution of the law. It is thus divided into two distinct depart ments 'which may be considered sepa rately — Registration for Preservation, and Registration for Execution.

Registration for Preservation, in its simplest form, is merely the preserving of an attested transcript of any deed in a public register, that thus an authentic copy may be had recourse to in case the original should be lost. Besides the re gular statutory records of particular deeds, there are books attached to the several courts of civil jurisdiction, in which parties may for their own conve nience register such documents as do not require by any special obligatory law to be recorded. It is a general rule that extracts from any such records may stand in the place of the originals when these are not forthcoming, but that a party is not to found on an extract if he have the original deed in his possession and can produce it. In the case of sasines, however, and other deeds, of which, as will be seen below, it is not the deed itself, but its registration, that makes the completed title, an extract from the register is the proper document to be produced. There is a certain class of actions, however, to meet which the original must be produced if it be ac cessible. These are called Actions of Re duction-Improbation. Such an action is raised against the party favoured by the deed, by some other party, and its object is the annulling the deed on some legal ground. As a matter of form, in commencing such an action, the pursuer states, along with whatever other grounds of objection he may have, that the deed is forged, and he desires the original to toe produced, that it may be judicially ex amined. The rule for production of the original is subject to modifications, where the ground of the action is ex trinsic of anything peculiar to the original document ; and if the original be lost without being intentionally de stroyed, the inquiry must proceed on the extract and the other circumstances that can be adduced. It is usual to speak of registration for preservation, as being also for publication ; and in this sense, when a deed is of such a character that to make it effectual in the grantee's favour it must have been delivered to him by the grantor, such registration is iu the general case equivalent to the de livery. It will operate in this respect in adjusting questions of competing right, as where a father makes over to one child the property that, in case of his dying intestate, would go to another, and registers the deed. It is questioned, how ever, if the mere registration would be in all cases that complete transference of property which is necessary to bar the claims of creditors under the statutes against alienations to their prejudice by in solvents. The registration of ordinary doctpnents for preservation was sanc tioned by the Act 1698, c. 4, which generally extends to registration "in any authentic public register that is competent" Besides the central register attached to the supreme court, there are others connected with the Sheriff and Corporation Courts, but it does not appear to be distinctly settled what may be, with reference to various descriptions of documents in each case, a "competent" register.

By far the most remarkable of the re gisters for preservation, is that of the " Sasines and Reversions," the former word expressing the Act by which an estate is created or transferred in heritable e. real) property, the latter the attes tation of the extinction of a burden, i. e. of the devolution of a temporary estate on the person entitled to the remainder. This system has been gradually formed. In its present state its main operative principle is, that when a title to land ap pears on the register, no latent title de rived from the same authority can com pete with it, and that registered titles rank according to their priority, so that if A first sell his property to B and exe cute the proper conveyance, and subse quently sell the same property to C, if C get his title first recorded it cannot be clues. tioned by B, who has only his pecuniary recourse against A. In pursuance of this system, in transactions regarding land, the public records are relied on as afford ing the means of ascertaining the cha racter and title, and after they have searched for the period of prescription, or examined over a period of forty years, [PRESCRIPTION ] parties can trust that there are no latent rights, and may safely deal with the person who professes to dispose of any right connected with it The origin of this system may be traced back to the commencement of the six teenth century, when the notaries were required hi record their proceedings it their protocols, and the other officers con nected with the feudal transference of land were bound to make returns of their official acts. In 1599 an Act was passed in which an effort was made to produce regularity in these registers, by penalties. It was by the Act 1617, c. 16, that the system was founded on its right prin ciple. The preamble of that statute bears " considering the great hurt sustained by his Majesty's lieges by the fraudulent dealing of parties who having annallied [alienated] their lands, and received great summes of money therefore, yet by their unjust concealing of some private right formerly made by them, render the sub sequent alienation done for greatsummes of money altogether unprofitable; which cannot be avoided unless the said private rights be made public and patent to her Majesty's lieges." The Act then appoints the sasines, reversions, &c., to be regis

tered within three-score days after exe cution, otherwise they are " to make no faith in judgment, by way of action or exception, in prejudice of a third party, who bath acquired a perfect and lawful right to the said lands and heritages : Bot prejudice alwayes to them to use the said writs against the party maker thereof, his heirs, and successours." By the other clansesof the Act the superintend ence of the system is given to the Clerk Register, and the country is divided into Registration Districts. There is one de fective provision in this Act, which is still in force. Parties are allowed to re gister their titles either in the particular register of their district or in the general register at Edinburgh. It is unusual to adopt the latter alternative, and when it is followed, it is generally for the pur pose of concealing instead of publish ing the transaction. There was another material defect in the old Act. A person might have his title immediately. I registered, but was liable to have it superseded by any other person able to register a title on a warrant previously obtained. This was remedied by the Act I 1693, c. 13, which gave the registerable titles priority not according to the date of their execution, but to that of their registration. To prevent injustice by the accumulation of unregistered deeds at the office, a minute-book was, by a con temporary Act, appointed to be kept, in which the keeper enters an outline of each document as it is presented to him. By the present practice, when a amine or other writing belonging to this register is presented to the keeper, he marks in the minute-book the day and hour of presentation. This is indorsed on the deed itself, and marks the date of regis tration. When the deed is engrossed at length in the register, a certificate to that effect is indorsed on the deed, mentioning the pages of the register in which it is to be found, and the deed is then re turned. Registration volumes, with minute-books accompanying them, are from time to time issued from the General Register-house to the district registrars, so systematically marked and certified, as to prevent them from being tampered with without either interpola tion or mutilation being easily percep tible. When a volume is finished, it is returned with the corresponding minute book to the General Register-house, the keeper of the District Register retaining a copy of the minute-book for general reference. The real titles of all the heritable property in Scotland are thus preserved in a seriatim and indexed col lection, in the General Register-house at Edinburgh. When property is offered for sale or mortgage, a " search " ge nerally forms part of the titles offered For inspection to the parties treating for it. This is a certificate by the proper Aker, describing all registered do iuments regarding that particular piece of land which have been recorded hiring forty years. The documents hat require to be registered have lately Peen much simplified and abbreviated by he act 8 & 9 Viet. c. 35. It has to be cept in view that the execution of the sal title which may be registered within the sixty days only gives a 'referable title. It is not necessary to :mate a title, and if the receiver of a ninveya Lee have an absolute reliance on the integrity of the granter and all from whom that person may have derived his title he may defer completing and re cording it, and may encounter the risk of some other person obtaining a title and getting on the register before him. The simplification of the documents to be registered tends to lessen the temptation to delay their completion and registration. It is remarkable that the enlightened mind of Cromwell appears to have compre hended the utility of this system, and that he made an effort to introduce it into Eng land. We are told by Ludlow (Memoirs I. p. 436), " In the meantime the re formation of the law went on but slowly, it being the interest of the lawyers to preserve the lives, liberties, and estates of the whole nation in their own hands, so that upon the debate of registering deeds in each county, for want of which within a certain time fixed after the sales, such sales should be void, and being so registered that land should not be subject to any incumbrance, this word incumbrance was so managed by the lawyers, that it took up three months' time before it could be ascertained by the committee." Registration for Execution is another peculiarity of the law of Scotland, although the system of warrants to confess judgment in England in some measure resembles it. The party to a solemn deed incorporates with it a clause of registration, by which, on the deed being registered in the books of a court competent to put the deed in force, the decision of the court shall be held as pronounced in terms of the deed, and execution may proceed against the party on an extract, as if it were the decree of a court. The engagement on which such execution may issue must be very dis tinctly set forth. Thus, if it be for pay ment of money, it must be for a slim named in the deed, and not for the balance that may be due on an account arising out of the transactions to which the deed refers. This method of execu tion was by statute (1681, c. 20) made applicable to bills and promissory notes without their containing any clause of registration. To entitle it to this pri vilege, the bill or note must be ap parently without flaw, must bear the ap pearance of due negotiation, and must have been protested. The operation of this system was much widened by the Act I & 2 Viet. c. 114, which extended registration for execution to the Sheriff Courts.