cc tors, and alfo to purchafers and mortgagees, by judgments entered upon record in their Maje"fties courts at Westminster, against the persons "defendants, by reafon of the difficulty there is in finding out fuch judgments." Now there can be no difficulty in finding out that, of which you have exprefs notice; for giving notice is nothing more nor lefs, than informing a perfon, in what court, at what time, for what fum, and in whose name the judgment is entered up. And therefore because parliament judged very obviously and wifely, that if the entries were regularly and openly kept of thefe incumbrances, it would be (as it ought to be) the fault of a purchafer, if he did not look into the dogget himfelf: and therefore I conceive, notwithstanding any determination before or fince this act, that a purchafer is not affected by a judgment recorded, without exprefs notice thereof; yet that by this act, the doggeting of the judgment is fufficient notice thereof to a purchafer. At least I cannot otherwife underftand the following claufe: "And be it further enacted, by the authority afore

faid, that no judgment not doggeted and entered in the books as aforefaid, fhall affect any "lands or tenements as to purchafers or mortga

gees, or have any preference against heirs, exe❝cutors or adminiftrators, in their administration "of their ancestors, teftators or inteftates eftates." Does not the regular doggeting of judgments (the want of which renders them ineffectual against purchasers and mortgagees) fuppofe that they are to be fearched for; and if they are not (when regularly doggeted) notice to purchafers and mortgagees, why are they to be fearched for, and how can they affect them?

According to the fenfe and fpirit, in which I understand both the language of these ftatutes and of our books, it is no final fatisfaction to find my

opinion

opinion exprefsly warranted by the authority of Lord Hardwicke, in the cafe of Hine and Dodd, which was determined on the 13th March 1741 (a), in which a judgment creditor, whofe judgment was registered in Middlefex on 12th June 1735, brought a bill to be let in upon an estate preferably to a mortgagee, whofe mortgage had been registered on the fecond of the faid month of June, upon a fuggeftion, that the mortgagee had notice of the judgment, before the mortgage was executed, although it was registered ten days before the regiftry of the judgment. Much of this cafe turned upon the nature of the notice given to the mortgagee of the prior judgment, which is irrelevant to the fubject under our present confideration; but as to what immediately relates to it, nothing in my opinion can be more peremptorily decifive, than the words of Lord Hardwicke, viz. "The register act, the 7th of Ann. c. 20. is notice to the

parties, and a notice to every body: and the rea"fon of this ftatute was to prevent parole proofs " of notice, or not notice." And he is further reported to have faid in this caufe, that if it were not fo, this ftatute would be mere wafte paper. This very clear and confiftent doctrine of Lord Hardwicke feems not to have been attended to by any modern writer upon this fubject; for they all unexceptionably take up the doctrine delivered fome years before that time by Sir Jofeph Jekyl, at the Rolls, on the 16th of February 1737, in the cafe of Wrightson and al. v. Hudson and al. (b); in which it was refolved, that these ftatutes avoid "only prior charges not registered, but did not

give fubfequent conveyances any further force "against prior ones registered, than they had be

(a) 2 Atk. 275.

(6) z Eq. Ca. Abr. 603,

D 4

"fore:

"fore: that to have affected Mr. Wrightfon, Hud"fon ought to have given him notice, when he "advanced his money; and though Wrightfon "might have searched the register, yet he was not "bound to do it." I need make no comment upon these two decifions: I will only repeat, that in the year 1737, Sir Jofeph Jekyl faid, that a man was not bound to fearch the register; and that Lord Hardwicke faid, in 1741, that the register was a notice to the parties, and a notice to every body. What more contradictory than these two pofitions? For that which a man is not bound to look to, cannot be notice; and that which is notice, a man is bound to look to, as is felf-evident,

In this, as in fome other inftances, where I have taken the liberty to exprefs my own perfonal opinion upon points of law and equity, I have done it with a view, that the legislature may be induced by one efficient act to reduce the ftatutes, which relate to the fame fubject, to confiftency both of fpirit and letter, and the future decifions of the courts of law and equity to plain rules and fixed principles.

I do not unexceptionally accede to the old obfervation, that Englishmen feldom make any good laws, till fome common calamity caufes them: but I flatter myself, that in this inftance they will be fenfible of the prefent inconveniences; and, forefeeing much future good, will anticipate the remedy to the further evil confequences of the difeafe, and thus contradict, what Dr. Swift obferved, that Englishmen can feel but not fee. And I think it no impertinent queftion to propofe; Who does not fee, that the obvious purpofe of recording a deed is, that thofe, whom it concerns may take notice of it?

But it must be remembered, that the registering of a deed is not recording it, as the inrolment of

a deed

a deed is; nor is a deed abfolutely null for want of being registered: whereas, according to the fyftem, which I have undertaken to suggest and recommend, no deed nor will affecting land will be valid, unless it fhall be inrolled within a limited time; and upon this ground, the argument for a deed inrolled being notice to all mankind, will acquire infinitely more ftrength, and will fall directly under the reafon and doctrine of Lord Hardwicke, in Hine and Dodd. The principle of this doctrine appears clearly to be, that the regiftering acts are meant to operate upon all fubfequent incumbrancers, who fhall not have received actual notice of a prior incumbrance, by affording them the means of acquiring that knowledge, which will be equivalent to actual notice. So Lord Hardwicke (a) decreed, that " if a deed "respecting lands in any of the registering coun"ties be not registered, and afterwards the fame "lands are fold or mortgaged by a deed properly "registered, if the perfon claiming under the fe"cond deed has notice of the first deed, the person "claiming under the firft deed, though it be not "registered, shall be preferred to him." Such a decifion could not have been made, if the regiftery were neceffary to the validity of the deed, as is felf evident (b)." And a fubfequent mortgagee having notice of a prior mortgage not regiftered, will not gain a priority by registering,

because fuch conduct is confidered in equity as ❝ fraudulent, and the party hath that notice, which "the act of parliament intended he should have." What more clear, than that the act intended that the registering of a deed fhould operate as notice,

(a) Le Neve v. Le Neve, 1 Vez. 64.

(6) Cowper's Rep. 712 and Powell upon the Law of Mortgage, 287.

which would be abfurd in the extreme, if a man fearched the registery at his own peril: for it is evidently more advantageous to a purchafer or mortgagee to complete his purchase or mortgage without notice, than with notice of a prior incumbrance.

In my prefent purfuit, it is not only my duty to ftate, what the law of notice now is, but more especially what under the propofed act of parliament it ought to be. And I am happy in being able to confirm the doctrine of Lord Hardwicke, in Hine and Dodd, by the more minute and exprefs opinion of the famed D'Agueffeau, chancellor of France. (a) By laws of that kingdom, as ancient as the fixteenth century, particularly an ordonnance of Henry the Second, of the year 1553, it was ordered that all wills and deeds, containing fubftitutions of eftates, fhould be registered within a particular period of time. If they were not regiftered within that time, the courts feem to have doubted whether they were binding even on the parties, in whofe favour the substitutions were made; but it was always fettled, that the fubftitutions were of no force against creditors or purchafers. Several points of the laws refpecting fubftitutions being unfettled, and the laws refpecting them being different in different parts of the kingdom, they were all reduced into one law by the celebrated ordonnance of Auguft 1747. That ordonnance was framed by the chancellor D'Agueffeau, after taking the fentiments of every parliament in the kingdom upon forty-five different questions propofed to them upon the fubject. The thirty-ninth question is, "Whether a creditor or "purchafer, having notice of the fubftitution be"fore his contract or purchase, is to be admitted

(a) Harg, and Butler's Co. Lit. 291.