Mr. Duval's plan. In the twenty years that have elapsed since the failure of the bills founded on the Second Report of the Real Property Commissioners an amazing alteration has taken place, not only in the rapidity and facility of postal communications,the old mail-coaches would have been totally inadequate to the conveyance of any considerable quantity of documents,-but also in the topographical resources at the command (if necessary) of any registry office which may be established. And the bill, in its first shape, accordingly directed that maps should be provided for every one of the districts into which it was proposed that the whole kingdom should be gradually divided, and that such maps might be founded either on the Tithe Commutation maps or on the Ordnance Survey, or on such other local maps as should be thought fit; and that these maps should, when finally determined upon, form what were called the land index of the district. A register of titles was also to be kept, with an index, according to the principle of Mr. Duval's plan; and upon every entry in each index reference was to be made to the corresponding entry in the other. But however valuable the Tithe Commutation and Ordnance Survey maps may be, they do not possess sufficient accuracy, nor are they in general upon a sufficiently large scale, to answer the purpose here pointed out. However great the accuracy of private surveys, they do not possess the authority of a public survey by totally indifferent engineers; and thus the map index still stood exposed to all the difficulties, expense, labour, delay and inconvenience which had led to its rejection in 1830. The land index, therefore, which was so prominent a feature of the original scheme, subsided, while the bill was before the Lords. Committee, into a mere permissive enactment, providing that maps and a land index might, if deemed expedient, be provided for any district; being transposed from section No. 7, at the head of the bill, to No. 68 in the bill as altered. But as very finally brought down from the Lords, every provision concerning maps and land index is omitted.1

One important feature in the proposed bill will probably meet with considerable dissent. No copies of any documents will be admitted to registration, unless where the originals are already deposited in some authorized record office, or in cases of loss or destruction. Where more than one original exists, as if a deed or will be executed in duplicate, one original only is required. With these exceptions, it is only by a deposit of the

The clause was finally struck out on the third reading, on the decided objection of Lord Lyndhurst, and was readily acceded to by Lords Campbell and Brougham, who were both present.

original documents themselves that the security of the act is to be obtained. We confess that we viewed this provision, even in the form in which it existed in the abandoned propositions of 1830-32, with considerable disapprobation. By those measures it was to be optional with the purchaser to register either the original document or a copy. But it was evident that this would in a great number of cases operate as a compulsory enactment for the registration of the original, to the manifest violation of the universal national impulse by which, as Sir Edward Sugden remarks, "every Englishman likes to have his own 'sheepskins' in a box in his own 'castle."" No man's right, it was argued, should be unnecessarily, much less wantonly, broken in upon. Therefore no man's title deeds should be taken from him; and as to the option which was offered of depositing copies, the rich ought not to be put to the expense, and the poor could not afford to avail themselves of the alternative. Moreover, a man whose title deeds were thus deposited could not indorse a subsequent deed upon them, by which, in thousands of instances, great expense was avoided; nor would he be able to raise money by a deposit of the deeds themselves; and the want of such a power might in a mercantile panic be most fatal. These arguments were certainly of great weight; but by the system of caveats" and inhibitions," especially as these are proposed to be managed under the present measure, and by the abolition of the doctrine of notice, as hitherto applied by courts of equity, these same arguments lose all their force, or are even turned the other way, or are counterbalanced by immediate and far greater advantages.

The invidious distinction which the old measure practically drew between rich purchasers and poor is, at any rate, not to be found in the present bill; the originals must in every instance (with the above-mentioned exceptions, which are of a nature common to rich and poor) be deposited. There being no longer (after registration has commenced) any fear of notice, or of prior secret charges, the power of raising money on equitable mortgage, so far from being obstructed or extinguished, as has been objected, will be enormously increased: by registering a memorandum of equitable mortgage, or entering a caveat, the equitable mortgagee may instantly secure to himself the absolute security of a legal mortgagee without notice; a security which will last long enough for the mortgagee to clothe himself with the legal estate, if he thinks fit; or the caveat may from time to time be renewed. The effect of the caveat is to secure to the person filing it, and to every person claiming under him, Sug. V. and P. 978, seq.

the same priority as if he had then registered a conveyance of the legal estate.

The system of "inhibitions" is of a somewhat kindred nature, but will probably be even more valuable; tending as it does extremely to simplify titles. An inhibition may be filed by any person named in any registered assurance, or any person making affidavit that he has an interest in the lands affected by a registered assurance, although he be not named in it. The effect of this "inhibition" is to prevent the registrar from enrolling any assurance affecting the lands in question, without giving notice to the person who has filed it. Any person may require the Registrar to cancel such inhibition, of which requisition immediate notice is to be given to the party filing it; and the inhibition is to be cancelled, unless an injunction be obtained within a fortnight from some court of equity, restraining the Registrar from doing so. The injunction may be obtained exparte, on motion or petition, in a summary way.

Now, from this short account it will be perceived that there is good ground to hope that titles will for the future, in the majority of instances, be burthened by no trusts or settlements whatsoever that there will appear on the register a short summary conveyance showing an unincumbered title in fee simple; with possibly one or more inhibitions. Unless these are cancelled before any sale takes place, the purchaser will be affected by all the uses or trusts of any unregistered settlement. But the inhibitions being cancelled (as they may be in a fortnight if no steps be taken to prevent it by the persons who have filed them) a free unincumbered title may be immediately conveyed. The practice will probably be therefore upon every settlement of lands by deed or will, to effect this by two instruments: the one instrument, which will be duly registered, being a simple conveyance to trustees in fee, referring to the second instrument, not registered, in which all the trusts will be set out. Such a reference in a registered deed will not affect a purchaser with notice of the trusts of a non-registered instrument. Any or all of the cestui que trusts may file inhibitions however; and any person purchasing while any such inhibition remains uncancelled, will be bound by all the provisions of the non-registered instrument. 2 Thus the due execution of the trusts will be left to the fidelity of the selected trustees, and may be enforced as against them with the same facility as at present; indeed, not the slightest change will be effected as between trustees and cestui que trusts, properly so called; the latter will still

Sect. 38 of the Bill.

VOL. XV. NO. XXVIII.

2 Sect. 43.

с

possess all the rights and remedies which it was ever intended they should possess; but the doctrines of constructive trusts, so. often pushed to a monstrous length, alike to the injury of purchasers and vendors, will henceforth find no place. And the objection as to the inconvenience of being deprived of the power of endorsing new deeds upon old deeds will thus lose all its force; since, where the new deed affects the ostensible ownership, it is quite proper that it should be deposited; and if it merely refers to the non-registered deed, of course the power of endorsing it is not in the least interfered with. If, however, any settlor be desirous of fixing the trusts indelibly upon the land, he is to be at liberty to register the settlement; when, after all, the title will not be more encumbered than it is of necessity under the present system in a great majority of instances; and the security of those claiming under the registered settlement will be much increased. In fact, this security appears to be placed by the act on as high a footing as human foresight can reach; and as a further guarantee against all possible malversations on the part of the trustees, any person claiming under any assurance authorized to be registered may compel the registration of it at his own expense; he providing also at his own expense an office copy for the person who would otherwise have been entitled to retain possession of the original document.

As to the general objection above quoted, that no man's rights should be unnecessarily, far less wantonly, broken in upon : like all general objections, it depends for its force entirely upon the particular cases to which it is applicable. The advocates of a general registration are ready to take the proposition into their own mouths, and fully to acquiesce in its truth; but they deny that the present measure does unnecessarily or wantonly break in upon any man's rights. And in the preceding instances, which are those upon which Sir Edward Sugden relies, we submit that (all our space permits) at least some ground has been shown for denying that any unnecessary infraction is proposed, or any alteration which in reality deserves so harsh a title as infraction; but rather that every alteration is calculated for the good of all. And after all, what are a man's "rights?" It is only from a regard to the welfare of the community at large, that the laws secure to any individual the possession or enjoyment of any object of property. No individual has a sacrosanct right or title in any property, or in the "sheepskins" relating to it he holds them by permission of the community, and on such terms as the community thinks fit to impose; which vary extremely, be it observed, in different countries and in different parts of the same country. Even the maxim cujus est solum

ejus est usque ad cœlum, does not prevent the inhabitant of Lincoln's Inn from enjoying his "castle" in the air; neither an unreal nor incorporeal hereditament. And in most parts of the continent, the right to the soil gives no right to the mines under it. The terms therefore imposed by the community are in fact the measure of a man's "rights;" and nothing which is in accordance with those terms can be inconsistent with his " rights." If, therefore, the community deem it advantageous to require a deposit of a man's title deeds, it is no infraction of his rights to insist upon such a deposit.

The remaining clauses of the proposed measure are taken up principally with directions for regulating the practice of the office. There is one important set of provisions, however, relating to the duties and responsibilities of solicitors on the one hand, and the registrar on the other, under this act. The duty of a solicitor, as far as regards the searches to be made under the act, are to be deemed fulfilled upon his delivering at the office a requisition for a search, and obtaining a certificate of the result of such search: no solicitor, of course, is to be responsible for relying on the accuracy of such certificate. And as to the errors which must unavoidably be committed in the registrar's office, the registrar is not to be personally liable, but the damages, if any, which may be recovered in consequence of any such error, are to be defrayed out of the Consolidated Fund. The only other clauses of general importance are those which except from the operation of the act, 1. All copyhold lands; 2. Leases at a rack rent, where possession goes along with them; 3. Lands in the Bedford Level. But the provision abrogating the doctrine of tacking mortgages is nevertheless to be general; so that the hardships and malpractices springing from that ill-conceived equity will cease.1

We may observe, that of the five evils requiring remedies, as proposed by Sir E. Sugden, in the passage in the note, three have been already modified, to some extent at least, in previous parliaments; and the present measure deals with the other two, (viz.) notice and tacking, somewhat more summarily than Sir Edward perhaps intended to suggest in the passage referred to, but nevertheless in the same sense; where Sir Edward merely recommends restraint and modification, Lord Campbell abrogates at once. And this is following, in its true spirit, Lord Čoke's envoi, in the epilogue to his fourth Institute," Blessed be the amending hand." For whereas it may be objected that his lordship's is here a destroying hand, it is to be observed that

1 Sug. V. P. 986, 11th ed.