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SCOTTISH_Court_of_Session_Shaw

Page: 1363

016SS1363

Park

v.

Wood's Trustees

No. 272.

Court of Session

2d Division. T

July 10 1838

Ld. Cockburn, Lords President, Corehouse, Fullerton, Moncreiff, Jeffrey, Cockburn, Lords Gillies, Mackenzie, Lord Cuninghame.

William Park,     Pursuer.— Counsel:
Ivory— Patton.
Wood's Trustees,     Defenders.— Counsel:
Sol.-Gen. Rutherfurd— Milne.
Mason's Trustees,     Defenders.— Counsel:
Maidment.
James Bell,     Defender.— Counsel:
D. F. Hope— W. Bell.

Subject_Inhibition—Public Record—Reparation.— Headnote:

Letters of inhibition on the dependence of a process having been executed by a pursuer against three defenders, and entered in the minute-book of the particular register of a county as directed against one of the parties only, while the letters were correctly recorded in the register itself,—Held, 1. That the inhibition had not been duly recorded against the two parties whose names were omitted in the minute-book, and was null and void in so far as it might affect them or their assignees or creditors; 2. That the keeper of the register was liable for the consequences of the inhibition having been found null on the ground of defective registration.


Facts:

By the act 1693, c. 14, it is provided that the keepers of the registers of seisins, inhibitions, &c. “shall keep minute-books of all writs presented to them to be registrate in their several registers, expressing the day and hour when, and the names and designations of the persons by whom the said writs shall be presented, and that the said minute be immediately signed by the presenter of the writ and also by the keeper, and patent to all the lieges who shall desire inspection of it gratis: and that the writs shall be registrate exactly, conform to the order of the said minute-book, all under the pain of deprivation of the keeper of the register.” The act farther declares “the said keepers not observing the premises liable to the damages of the parties prejudged by the not due observing of this present act.” By the statute 1696, c. 18, which repealed in so far the statute 1686, c. 19, it is declared “that no seisin or other writ or diligence appointed to be registrate shall be of any force or effect against any but the granters and their heirs, unless it be duly booked and inserted in the register;” and it is also declared “that parties lesed by the omission or negligence of clerks to book and insert in the register such writs as are presented to them, and which they attest on the back to be registrate, shall have action of damage against the heirs and representatives of the said clerks, though no such actions be commenced in the clerk's lifetime.”

In 1815, an action was raised by the pursuer Park before the Sheriff of Berwickshire against Andrew Pringle, Matthew Wood, and Robert Steele, for payment of the contents of a bill indorsed to Park, of which these parties and another party resident in England were joint acceptors. On the dependence of this action letters of inhibition were raised against all the defenders, and were duly executed at the market-cross of Green-law, the head burgh of Berwickshire. The particular register of inhibitions for the county of Berwick, was kept at Dunse, where the defender Bell, sheriff-clerk and keeper of the register, resided; and to that place the messenger employed to execute the letters of inhibition sent them to be recorded. The following entry was inserted in the minute-book, being signed by Peat, a procurator at Dunse, as agent for the messenger Hunter:—“Inhibition and arrestment, Park v. Pringle. Eo. die et horis, William Park, residing in Eccles, against Andrew Pringle, merchant in Coldstream, was presented by James Hunter, messenger, Kelso, betwixt nine and ten o'clock, a. m. (Signed) George Peat, for Mr Hunter. James Bell, Clerk,” In the register itself the letters of inhibition were duly recorded against the three defenders nominatim. The inhibition was returned by Bell to Park, with the following certificate written upon it:—“At Green-law, the 28th day of August, 1815 years, 'twixt 9 and 10 forenoon, which day this inhibition, written upon these nine pages, and executions annexed, were presented by James Hunter, messenger, Kelso, and are recorded upon the 523d and 524th leaves of the particular register of hornings, inhibitions, &c., for the shire of Berwick, kept by me. (Signed) James Bell.” Park was also certified by letter from Bell of the inhibition having been duly recorded.

In the action above mentioned Park obtained decree, but was unsuccessful in recovering his debt from the defenders. After various procedure, inquiries were instituted in 1834 with a view to the attachment of their heritable estate; in the course of which it appeared that Matthew Wood had, in 1818, executed a voluntary disposition of his heritable property in favour of certain trustees, who had subsequently disponed the property to certain other parties now represented by the defenders, Mason's trustees, and on which dispositions infeftment had followed.

Thereupon Park raised action against Wood's trustees, Mason's trustees, and Bell, to have the above dispositions and infeftments reduced ex capite inhibitionis, concluding first for reduction of the same, and thereafter for payment by Wood's trustees and Mason's trustees, of such sum out of the rents of the property inhibited, as should be sufficient to cover the debt, and farther, and in the event of these defenders or any of them, being assoilzied from the above conclusions, in consequence of the entry by Bell, as keeper of the register, of the pursuer's inhibition being found to be null and void, that Bell should be ordained to make payment of the amount of the debt, and in the same event to make payment of the whole expenses of process between the pursuer and the other defenders.

In defence, it was pleaded by Wood's and Mason's trustees, that the action as directed against them was groundless, the inhibition in question not having been duly recorded or properly entered in the minute-book, in terms of the Acts of Parliament.

By the defender Bell it was pleaded,—

1. The letters of inhibition, with the execution thereof, having been duly and regularly recorded in the principal register, any omission in the entry of them in the minute-book does not affect the validity of the registration.

2. There is no precise form required for the entry in the minute-book, and the entry in question was sufficiently articulate to answer all the purposes for which the minute-book is appointed to be kept.

3. The pursuer is barred personali exceptione from stating any objection to the entry in the minute-book, seeing that it was signed by a party acting as his agent in the matter.

4. Under the circumstances of the case, the pursuer has no interest to insist in the present action against the defender Bell.

The Lord Ordinary pronounced the following interlocutor, with the subjoined note: *—“Finds that the inhibition libelled on not having been duly recorded against Matthew Wood, is null and void, quoad him: Therefore, sustains the defences against the reductive and petitory conclusions of the libel, in so far as these are directed against John Mason and John Wharton Mason, and against John Donald, John Johnstone, and James Thomson, trustees of the said Matthew Wood, and assoilzies them from the conclusions of the libel, and decerns: Finds them entitled to their expenses, appoints an account thereof to be given in, and when lodged, remits the same to the auditor to tax and to report: Finds that the defender, James Bell, keeper of the register of inhibitions for the county of Berwick, is liable to the pursuer for the consequences of the said inhibition having thus proved null and void: Therefore, repels his defences, and decerns against him in terms of the conclusions of the libel applicable to him: Finds him liable in expenses.”

_________________ Footnote _________________

*Note.—The pursuer Laving executed letters of inhibition against three persons, Andrew Pringle, Matthew Wood, and Robert Steele, sent them to the defender, Bell, the keeper of the particular register, to be recorded. He was certiorated by this officer, not only by letter, but by the usual certificate on the letters when they were returned, that this had been done; but, in point of fact, the entry in the minute-book described the inhibition as having been raised merely against Andrew Pringle. Mason wishing to purchase from the trustees of Wood, made a search for encumbrances, and in consequence of this state of the minute-book, obtained a certificate that there was no recorded inhibition against them. On this the transaction was gone into, but is now challenged. The pursuer maintains, 1st, That the register (apart from the minute-book) being correct, the diligence was complete, and that the sale was consequently incompetent. 2dly, That if the diligence was not complete, the keeper is liable for the debt.

“Certain objections have been stated to the pursuer's right to inhibit, but these are undeserving of notice. The real question is as to the validity of the diligence; and the pleas of the keeper make this a question of serious importance to the records. He maintains,—

“1st, That the signature of the entry in the minute-book, by the presenter of the letters, amounts to an acknowledgment that the entry is correct, and thus bars the party from complaining, and relieves the keeper. The Lord Ordinary cannot sanction a principle for which no authority is stated, and which at once destroys all such records, by making keepers responsible for no entry in the minute-book whatever, as all of them must be signed by some presenter. The object of the statutes in requiring presenters to subscribe was not to record their satisfaction, or in any way to supersede the keeper, or free him from the consequence of inaccuracy. Accordingly, the presenter has no control over the keeper as to the construction of the entry, which it is solely his duty to make out correctly, and on his own responsibility. The signature was intended for quite different purposes, chiefly in reference to time and identification. It is disputed in the record whether the person who presented in this instance, was, or was not, the agent of the pursuer. But this is immaterial. He was taken by the keeper as an adequate presenter of the diligence, and even though he had been the party's agent, or the party himself, and ho a skilful man of business, his signature would not cover the officer's blunder.

“2d, That though the minute-book be required by more than one statute, it is nowhere laid down what it, is to contain, and that at any rate, errors in it do not nullify the diligence, which is only understood to be recorded in the register.

“The Lord Ordinary conceives this position, which extinguishes the minute-book as an essential part of the record, to be also unwarranted and dangerous. The statute 1672, cap. 16, sec. 32, declares, that the minute-book shall contain ‘ The names, surnames, and designations of the parties, principals and cautioners;’ and both of the acts 1693, sec. 14, and 1696, sec. 18, imply as much; because they say that the keepers shall keep minute-books ‘ of the writs.’ Can it be said that an entry leaving out the name of the individual inhibited, is any minute of this personal writ? The statutes do not say, in formal words, that such a blunder in the minute shall be fatal, but they declare a proper minute to be a part of the process of recording, and the writ cannot be held to be complete till all the forms and steps are complied with. Accordingly, it is admitted in this record, that in searching for encumbrances, the practice is, and ever since 1672 has been, to examine the minute-book alone, and it is only on the margin of the minute-book that the recal of inhibitions is marked.”

Bell reclaimed against the interlocutor generally, and Park reclaimed in so far as it sustained the defences against the conclusions directed against Wood's and Mason's trustees.

On the cause coming to be advised, the Court ordered cases.

For Park it was maintained,—

1. The diligence either has been regularly recorded, in which case it must be effectual to enable the pursuer to set aside deeds granted in despite of the prohibition contained in it, and so as to recover his debt; or otherwise, if defective on the ground of an error in the registration, he must have good recourse for his debt, interest, and expenses, against the keeper of the register, who is responsible for the irregularity of the registration.

2. Where a party has used the diligence of inhibition, assuming it in this case to be valid, he is entitled to reduce deeds granted spreta inhibitione, and to operate payment of the sums secured by the inhibition, by going against the land which has been alienated by his debtor. When deeds are granted in despite of the inhibition, the remedy is by a reduction ex capite inhibitionis, to be followed, in the general case, by an adjudication of the subject, on the deeds being set aside; but by a direct claim, in the case where infeftment has actually taken place on the deed, the inhibition being in that case of itself sufficient to vindicate and assert the preference, in respect that no other party can adjudge in competition with the inhibitor. 1

_________________ Footnote _________________

1 Ivory's Erskine, II. 11, 13, note 336—2 Bell, 146, et seq. and 606.

3. Assuming the diligence, on the other hand, to be defective, by reason of the omission of Wood's name in the minute-book, the keeper of the register is responsible for the error and its consequences, and this both on the principles of the common law and by statute. 1

For Bell it was contended,—

1. The inhibition was recorded in the register in terms of the statutes regulating the registration or booking of inhibitions in the record books; 2 and to these statutes alone the institutional writers refer, when enumerating the requisites of due registration, without having regard to the entering of the inhibition in the minute-book.

2. Looking to the statutes in which provision is made as to the minute-book, 3 there is no declaration that where an inhibition directed against several parties is entered in the minute-book against the leading name, and otherwise fully identified, and is afterwards duly booked or engrossed in the record against all the parties, it is to be held as null against those parties whose names do not appear in the minute-book; and there is no sanction of nullity annexed even to the total omission to enter an inhibition in the minute-book. On the contrary, cases have occurred in which the registration has been held complete, either where there was no minute-book kept at all, or where the minute-book had been kept with great irregularity; 4 and the general principle that statutory requisites, where not enforced by nullities but by separate statutory penalties, are not indispensable to the validity of the deed or diligence, has been recently applied by the Court in a question as to the validity of this diligence of inhibition. 5 The entry of the inhibition in question in the minute-book amounted, therefore, to a sufficient compliance with the Act 1693, c. 14, which is the only subsisting statute on the subject; and even supposing it to be held that the omission of Wood's name in the minute-book was a contravention of the statute, or that, quoad Wood, the inhibition never entered the minute-book at all, still this infers no statutory nullity, and there is no ground for the Lord Ordinary's finding that the inhibition, as regards Wood, is null and void.

3. It appears from the Act of Sederunt, 15th July, 1692, which was the basis of the statute 1693, c. 14, that the subscription of the entry by the presenter of the inhibition (which in the present case was adhibited

_________________ Footnote _________________

1 1693, c. 14, and 1696, c. 18.

2 1581, c. 119—1597, c. 264 and 265—1600, c. 13.

3 1672, c. 16, § 32—1686, c. 19—1693, c. 14—1696, c. 18—Act Sed. 15th July, 1692—Stair, IV. 50, 12.

4 Dunbar v. Sutherland, March 10, 1790 (M. 8799)—M'Kenzie v. Macleod, February 9, 1768 (M. 8800)—Bell's Election Law, p. 274—Wight, App. p. 59—1 Bell, Com. 678.

5 Holmes v. Reid, March 4, 1829 (ante, VII., 535.)

by the agent Peat), was intended to operate as a check on the keeper of the record, by preventing him from transcribing and altering the minute-books at pleasure. Hence it is evident that the presenter, as representing the party recording the writ, is called upon to subscribe the entry in token of his satisfaction, and for the protection of his employer, and that if he sanctions or subscribes an incorrect entry, he must be responsible therefor; and to that extent, as representing his employer, he bars him from afterwards complaining.

4. Even supposing the inhibition to be null and void quoad Wood, the error in the registration cannot, in the circumstances, and particularly looking to the pursuer's mora, be held to render the defender Bell liable for the full debt. He is at all events responsible merely for the damage which the pursuer can instruct that he would have suffered in 1834 from the want of an inhibition duly recorded against Wood as in 1815. For Wood's trustees it was inter alia contended,—

1. The inhibition in question having been registered at Dunse, and not at Greenlaw, the head burgh of the shire, and at which the Sheriff-Court books are by law required to be kept, has not been properly and legally registered. *

_________________ Footnote _________________

* The answer on the part of Bell to this plea was, that the statutes did not require the register of inhibitions to be kept at the head burgh of the county; and that the uniform practice in Berwickshire, ever since 1696, when Greenlaw was established as the head burgh, has been for the Sheriff-clerk to reside and hare his office at Dunse, and to keep the county records there.

2. It is clear both from statutes and practice, that the entry in the minute-book is a required and essential part of the registration of an inhibition; and the “names, sirnames, and designations of the parties,” with reference to whom the deed or diligence is executed, must be set forth in the entry by the keeper of the register. But Wood's name was not so set forth, and parties consulting the minute-book could not possibly discover that the inhibition in question was directed against Wood, and the entry was, therefore, essentially defective, and null and void; and the disposition of Wood's heritable property is consequently not liable to challenge.

The Court having resumed consideration of the cause (May 16, 1837), before farther answer, appointed the printed pleadings to be laid before the other Judges for their opinion on the following questions:—

“lmo, The inhibition in question directed against Andrew Pringle, Mathew Wood and Robert Steele, having been entered in the minute-book as follows:—‘Inhibition and arrestment, Park against Pringle. Eo. die et horis, William Park, residing in Eccles, against Andrew Pringle, merchant in Coldstream, was presented by James Hunter, messenger, Kelso, 'wixt 9 and 10 o'lock a.m. (Signed) Geo. Peat, for Mr Hunter. James Bell, Clk.,’ and having been thereafter engrossed ad longum in the record,—

“Whether it was duly recorded, or whether the omission of the names J of Mathew Wood and Robert Steele in the minute-book, rendered the registration of the inhibition null and void in toto, or null only quoad those parties? Or merely exposed the keeper of the register to a claim of damages at the instance of the party prejudiced by the omission?

“2do, Whether the sale by Donald, Johnstone and Thomson (Wood's trustees) to the defender, Mason, in January 1824, was affected by the said inhibition used in the year 1815, against Matthew Wood, the author of the sellers, who were infeft on Wood's conveyance executed in 1818?” *

_________________ Footnote _________________

* As, in consequence of the decision of the Court on the foregoing question, the point involved in this second question was not considered by their Lordships, no reference has been made to it in the report.

The following Opinions were returned:—

Lords President, Corehouse, Fullerton, Moncreiff, Jeffrey, and Cockburn.—“1. As we understand the questions put to us, with reference to the nature of the case, the first involves three points:—1. Whether the omission of the names of Mathew Wood and Robert Steele in the minute-book of the register of inhibitions, rendered the inhibition in question null and void in regard to persons transacting with those parties? 2. Whether it rendered the inhibitions null in toto, or in particular with reference to Andrew Pringle, the person whose name was mentioned in the minute-book? and, 3. Whether the omission of the names of Wood and Steele, if it did create a nullity in whole or in part, exposed the keeper of the register to a claim of damages at the instance of the inhibiting creditor?

“Taking this view of the questions presented under the first part of the reference for our opinions, it appears to us that the most material point is in that part of the query, under which we are called upon to say, whether the omission of the names of Wood and Steele in the minute-book rendered the registration null quoad these parties. For, with regard to the other point involved in the question, whether the inhibition is null quoad the party who is named in the minute-book, we apprehend that we have not the materials to form any opinion, there being no question raised as to any person in his right.

“On the material question, we are of opinion that the inhibition has not been duly recorded against Mathew Wood and Robert Steele, and that it is null and void in so far as it may affect them or their assignees or creditors. We found our opinion simply on the terms and import of the act of Parliament 1693, c. 14. That statute proceeds on the narrative, that the previous acts appointing the registers of sasines and inhibitions had been much frustrated by the keepers not inserting the writs at the time and in the order in which they were presented, whereby none could know what writs were in the hands of the keeper, and safely bargain. To remedy this evil, they are appointed to keep a minute-book, in which the names and designations of the parties by whom the writs are presented shall be expressed. Then it provides, that the writs shall be registrate exactly according to the order of the minute-book, under pain of deprivation of the keeper; and farther, that he shall be liable for all the damage of the parties prejudiced by the non-observance of the act.

“Now, it is very evident to us, that when the statute speaks of a minute-book to be kept ‘of all the writs presented to the keepers,’ with a view to its declared object, it could hare no sense or meaning, if it did not mean to express, that the entry of such writs should exhibit the names of the parties against whom the inhibitions were directed. Without this being shown, it could be no more than a mere blank, which could give no person any information regarding the party with whom he wished to transact; and any idea of order among such writs would be entirely defeated. We therefore take it to be perfectly clear, that the most essential point in the entry in the minute-book, besides the date, is the names of the inhibiter and the parties inhibited. Without the names, the date would be of no use whatever; and we believe that there never was a doubt, that the registration could not be correctly made otherwise.

“In the present case, no doubt, there is one name, Andrew Pringle, inserted in the minute-book. But, as the present question relates to the rights of parties transacting, not with Andrew Pringle, but with Mathew Wood or his trustees, it appears to us to be truly the same case as if no name at all had been inserted.

“Considering it, therefore, to be perfectly clear, that the name of the person inhibited must be inserted in the minute-book, the next question is, whether the omission to mention the name of a party meant to be inhibited creates a nullity in the registration as to that party. We are of opinion, that it does render the inhibition null. There is no doubt, that without due registration no inhibition is effectual. But, though this statute does not say in so many words, that, if the writ shall not be inserted in the minute-book it shall have no effect, or be null as to third parties, this is necessarily implied in the purpose and whole structure of the act. The minute-book is made the absolute rule for the date of presenting, and the order of registration. It cannot, therefore, be maintained, that any such writ is duly recorded, when it does not appear of a specific date, and in a precise order, in that statutory part of the register. It cannot, in our opinion, be held that an inhibition is effectual against third parties, which is not to be found duly entered in that record to which, in reliance on the statute, all parties proposing to contract would naturally look. But if this be so, and if any entry in the minute-book, which does not specify the name of the party against whom the inhibition is directed, is really no better, quoad those contracting with that party, than no entry at all, we think it must necessarily follow that, according to the terms and general provision of the statute, the omission must create a nullity in the registration.

“The case, however, is stronger. For in the end of the enactment it is provided, that the keeper of the register not observing the premises, ‘shall be liable to the damage of the parties prejudiced by the not due observance of this act.’ Perhaps there may be different ways in which damage might arise to parties by the act not being duly observed. But we think it apparent, that the contemplation of such damage, in general terms, with a positive liability to repair it laid on the keeper, must have assumed that, by the omission, some nullity in the registration would arise whereby parties might be prejudiced. For either the parties inspecting the register must be entitled to rely on the minute-book showing the fact of any inhibition presented against an individual, or it is no essential part of the register, and no claim of damage could arise to a party who had not thought proper to carry his researches farther. The damage referred to, therefore, must have been supposed to arise to the inhibiting creditor from defect of registration; and to declare the keeper liable for such damage is really the same thing as declaring a nullity in express terms.

“In coming to this opinion, we do not think it necessary to rely on the act 1696, c. 18. Comparing that act with the act 1686, c. 19, to correct which it professes to be passed, we are rather inclined to think that the booking spoken of referred to the full entry of the writ in the extended register. At the same time, while even this may be doubtful, we think that, as the act was passed after the full establishment by the act 1693 of the minute-book as a statutory part of the process of registration, the express nullity declared by 1696 of all writs not ‘duly booked and inserted in the register,’ is certainly deserving of attention, as it could scarcely be held to receive full effect, if it were not applied to an entire neglect of that which three years before had been peremptorily enacted as an essential part of due registration.

“The remaining point involved in the first query proposed to us is, whether the omission to insert the inhibition, as directed against Mathew Wood and Robert Steele, exposed the keeper of the register to a claim of damages at the instance of the inhibiting creditor. We are of opinion, that this is settled by the express terms of the act 1693, which, though it directs the entry in the minute-book to be signed by the presenter of the writ, with a view to fix definitively the date of presenting, has still laid on the keeper, and on him exclusively, the responsibility for the damage incurred by any party prejudiced by the neglect duly to observe the provisions of the act.

“2. Our opinion being that now expressed on the first question stated, we are also of opinion, that the sale made by Wood's Trustees to Mason in January, 1824, was not affected by the inhibition in 1815, against Mathew Wood, the author of the sellers, who were infeft on Wood's conveyance in 1818.”

Lords Gillies and Mackenzie.—“I. We think it clear, that prior to the act 1696, ch. 18, the wrong minuting of an inhibition inferred no nullity of it. For the nullity of 1592, ch. 275, had no reference to the minute-book, which did not then exist. The minute-book of 1672, ch, 16, § 32, seems to have been made up in the first place from the register, running back for a great number of years, certainly under no nullity of any writ that might happen to be inaccurately minuted in that operation; and no distinction is made in this respect, nor is any nullity attached to wrong minuting in after time. Then by the statute 1686, ch. 19, it was enacted, ‘That where seasins and other writs are presented to the keepers of registers, and delivered back to the party, bearing a record and attestation under their hand, that the same are registrat, it shall make the same sufficient and valid for the security of the party, albeit by the omission or negligence of the keeper of the register, or his deputs, they should not be found booked or insert in the register.’ ‘That in case, by their omission or negligence, any writs presented to them and marked with their hands to be registrat, shall not be found booked and insert in the register, the saids deputs, guilty of such omission and negligence, shall be punishable as forgers of the public registers and records, and shall be lyable in damnage and prejudice to any party who shall be prejudged by the said omission and negligence.’ Of course this, which made even the total non-registration of inhibitions to infer no nullity, provided they were marked, showed a fortiori that the wrong minuting of them could infer none. While this act stood unrepealed, there passed the Act of Sederunt, 15th July, 1692, and the statute 1693, ch. 14, establishing the present form of minute-book of inhibitions, &c. The sanctions of these acts are directed against the keeper. Nothing is said of any nullity of the inhibition; and indeed, while the act 1686, ch. 19, was unrepealed, a nullity for want of minuting would have been absurd. But still this statute 1693 was very important in regard to the minuta-book, It enacted, ‘That all keepers of the said register shall keep minute-books of all writs presented to them to be registered in their several registers, expressing the day and hour when, and the names and designations of the persons by whom the saids writs shall be presented; and that the said minute be immediately signed by the presenter of the writ, and also by the keeper, and patent to all the leidges, who shall desire inspection of it gratis; and that the writs shall be registrat exactly, conform to the order of the said minute-book, all under the pain of deprivation of the keeper of the register.’ The effect of this seems to us to be, that the minuting was made part of the registering, insomuch, that no writ could be duly registered that was not duly minuted. The minute-book fixed the date of in giving, an essential point of good registration; it fixed the order of registration; it served as the permanent index to the register at large; and it was the only record till the full copy in the register could be written out. Such being the nature of the minute-book, the statute 1696, ch. 18, enacts, ‘That no sasine, or other writ, or diligence, appointed to be registrat, shall be of any force or effect against any but the granters and their heirs, unless it be duly booked and insert in the register.’ And it repeals the statute 1686, ch. 19.

“It is argued that the word ‘booked’ here must be applied to the minute-book, distinctively from the register. We do not adopt that distinctive application. But we incline to hold, that a writ is neither duly booked, nor registered, in the sense of this statute, unless it be duly minuted, the minuting having by that time come to form an inseparable and essential part of due registration. In this view, the nullity of this act applies directly to the want of due minuting. We are the more confirmed in this view, by considering, that as against the party who was to concur actively in making the minute, there was no sanction at all, if not that of nullity; and by the strong equity of holding, that a party so specially called on to concur in constituting the first stage of registration does not duly register, if he neglect this duty. In answer to the first question, therefore, we rather think that, under the statute 1696, there is a nullity. And such, we believe, has been the understanding of the country, on which practice has rested probably since its date.

“II. We rather think that the pursuer, having by himself, or his agent, signed the minute, cannot claim damages against the keeper of the register on account of its imperfection, It is true that the statute 1693, ch. 14, declares ‘The keepers not observing the premises liable to the damage of the parties prejudged by the not due observing of this present act.’ But that provision could not possibly have application to the ingiver of the writ; for at that time the want of minuting, or total want of registering, did not infer nullity, if only the writ was marked. It was the damage of parties, purchasers, or creditors, injured by the want of notice, that alone was in view in this act. Under this act, the ingiver signing the minute never could have any claim against the keeper on account of its imperfection. Then the act 1696, though, we think, it constituted the nullity for want of due minuting, yet provides nothing as to damage on that account against the keeper, in favour of the party concurring in and signing the wrong minute himself, This statute, therefore, seems to leave that matter to the ordinary rules of equity, which we think will not admit such a claim of damage. It is said the party's signature was only to fix the time, and that he is bound to look no further.

We cannot agree in that. It was, we think, clearly implied, that the signature was to fix also the writ, without which, the fixing of the time would have been of no use; and that it was not only the right, but the duty of the party ingiver, both to himself and the public, to read over the minute he signed, and see for himself that it was correct. Having neglected this right, given to him for his protection, and failed in this duty, we think he must bear the consequences without any claim of damages against the keeper, his co-delinquent. Bight or wrong, the minute is what he chose to concur in making it; and he cannot claim damages on account of it. This was evidently the view of the matter held by Lord Stair, the suggester of the Act of Sederunt 1692, and the statute 1693; for he says, that keepers ‘shall keep minute-books, wherein the presenter shall insert the writ, and date of presenting, and sign it presented, whereby the keeper cannot change these minute-books.’ It is true the Act of Sederunt and the statute do not order the presenter to write the entry; but they do order him to sign it, which equally makes it his act.”

Lord Cuninghame.—“Having been formerly of counsel for the pursuer, and having prepared the record, and argued the case before the Lord Ordinary, I would rather decline at present giving any opinion on it as a Judge.”

The cause was this day put out for advising, when the Court (Lord Justice-Clerk being absent), concurring generally in the opinion of the majority of the consulted Judges, pronounced the following interlocutor:—

The Lords having resumed consideration of this note for the pursuer, the other reclaiming note for the defender, James Bell, with the opinions of the consulted Judges, and whole proceedings, adhere to the interlocutor so far as it finds the inhibition null and void, sustains the defences for John Mason, John Wharton Mason, and the trustees of Mathew Wood, and assoilzies them from the conclusions of the libel and finds them entitled to expenses, and remit to the auditor to tax the amount and report, reserving to the pursuer any claim he may have against James Bell for relief of such expenses; also adhere to the interlocutor in so far as it finds James Bell liable for the consequences of the inhibition having been found null on the ground of defective registration; but recal the interlocutor hoc statu, in so far as it repels his defences, and decerns against him for the sums concluded for, and remit to the Lord Ordinary to hear parties, and consider to what extent the said defender is liable under this interlocutor, and to proceed thereanent as to his Lordship shall seem just.”

Solicitors: Greig and Morton, W.S.— J. S. Darling, W.S.— J. E. Skinner, W.S.— T. Turnbull, W.S.—Agents.

SS 16 SS 1363 1838


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