"to plead the want of registration?" All the All the parliaments, except the parliament of Flanders, agreed that he was; that to admit the contrary doctrine would make it always open to argument, whether he had or had not notice of the fubftitution; and this would lead to endlefs uncertainty, confufion, and perjury; and that it was much better, that the right of the fubject fhould depend upon certain and fixed principles of law, than upon rules and conftructions of equity, which must be arbitrary, and confequently uncertain. The ordonnance of Auguft 1747 was framed accordingly. Thofe, who have commented upon that ordonnance, lay it down as a fixed and undeniable principle, that nothing, not even the moft actual and direct notice, countervails the want of registration; fo that if a perfon is a witnefs, or even a party to the deed of fubftitution, ftill if it is not registered he may safely purchase the property substituted, or lend money upon a mortgage of it. See queftions concernant les Subftitutions, Thoulouse 1770, and Commentaire de l'Ordonnance de Louis XV. Sur les Substitutions, par Mr. Furgole, a Paris, 1767.

Practical Applications.

Let us now, abstractedly from any prejudice of education, habit or profeffion, argue upon this matter in the dictates of plain common fenfe. A man wishes to purchase or place out a fum of money upon mortgage, or to buy a rent-charge or annuity, iffuing out of land. A title is propofed to him; he fubmits it to his law agent, who probably carries it to a conveyancing council; he perufes and approves of the title, as fubmitted to him in the abftract; but directs the follicitor, who brought him the abstract, to examine if the grant or fine or recovery, or act of parliament, upon which

the

the title may hinge, be faithfully abftracted from the record. This is the duty of a conveyancer; for he can only judge of what he fees, and direct what may be effected. The client with the approbation of council confides in the fecurity, and prefumes himself out of the reach of any impofition in the transaction, and will naturally conclude, not only, that every step has been taken, that can secure the title, but that no means nor power are left with the vendor or mortgagor or grantor of the annuity or rent-charge of overreaching or deceiving him in the title. And will he not moreover naturally conclude, if there be any repository of information to refort to concerning a man's title to land, that if it be not a fource of fatisfactory and conclufive intelligence, it must lead to deceit and error, by insuring doubt and uncertainty?

What then is the fact? A vendor or mortgagor may notwithstanding all, that has appeared to counfel upon the face of the abftract, and all the intelligence and information, which the moft diligent and attentive follicitor can by poffibility acquire, have previously fold, mortgaged, charged, or fettled the whole or any parts of the land in queftion, without an obligation of rendering notorious any one act, by which he may have made fuch fale, mortgage, charge or fettlement. Whence then arifes the neceffity, or even expediency, of making public and notorious fome acts, which affect the title of lands, whilft the owner is empowered to fupprefs many others, by which he can equally affect them? He cannot cut off the expectant rights of a child or a remainder man in an entailed eftate, but by matter of notoriety and record: and is there not as much or more reason, why that act should be public and notorious, by which a tenant in fee-fimple counteracts and defeats the known, fettled and certain courfe of the

law,

law, which would have caft the inheritance upon the heir at law, if he had not counteracted and defeated its effects; and this he has it in his power to do by a private deed in his lifetime, or by will after his decease; neither of which needs to be rendered public or notorious. He may by a private deed charge all his lands with a debt; but by confeffing a judgment, which equally charges them, it must be by matter of record and notoriety.

I may be blamed and cenfured by fome, for divulging the arcana of the profeffion, and uttering truths, which may be thought to disturb the peace and quiet of many, whofe money is now placed out upon landed fecurities; but I can neither invent nor conceive a stronger reason, why the law fhould be altered, than because the knowledge of it difturbs the peace and endangers the fecurity of individuals. It is then a truth no lefs certain than extraordinary, that in paffing many titles of land, it is abfolutely neceffary, that very great reliance and effential confidence fhould be placed in the perfonal honour and integrity of individuals, against whofe deceit, fraud and impofition, fhould they not be honest and honourable, there are abfolutely no means of providing. To prove this, I will ftate a cafe that has very lately happened, which as to many points applies ftrictly to my argument. I have met with feveral other cafes within my own knowledge, which turn upon the fame point. But fhould even the cafe I put, be merely fuppofitious, from the probability of its frequently happening, it would equally enforce my arguments.

.

The

The Cafes of Rickman against Morgan (a), and Pearfon against Morgan (b).

Mr. James Butler of Suffex was entitled, under his father's marriage-fettlement, to an eftate charged with £. 8000 for one younger child of the marriage; which fettlement contained a provifo, that if the father fhould give to any of his daughters or younger fons any money or lands, for or in advancement in marriage, or otherwise, the value thereof fhould be deducted from the portion, unless he fhould by writing declare to the contrary. The father gave the refidue of his perfonal eftate to his only younger child Mr. John Butler, and made other advancements to him during his life. The father being dead, Mr. James Butler fuffered a common recovery, by which he obtained a fee-fimple in the lands. In 1773, Mr. John Butler applied to Mr. Pearfon to lend him. 3c00 on the fecurity of the . 8000 £. portion, for which he affigned £. 5000, part of the faid . 8oco, as a fecurity. Mr. James Butler, who from the time of his fuffering the common recovery, held the fee-fimple of the eftate to his death, paid the intereft of the £. 8000. Mr. Pearfon, before he lent the money, applied by his follicitor, Mr. Hull, to Mr. James Butler, and defired to be informed by him, whether the .8000 was a fubfifting charge on the estate; when Mr. James Butler declared that it was, and that he might fafely advance his money on the fecurity. Mr. James Butler had poffeffion of the fettlement, and knew of the advancements of the father to his brother; but not fuppofing the por

(a) Brown's Reports, Vol. I. p. 63.

(b) Do Cafes argued and determined in 28th of his present Majefty, p. 384.

tion affected by them nor by the gift of the refidue, did not reveal the fame to Mr. Pearfon's, follicitor. Upon the death of Mr. James Butler fome time after, his eftates defcended upon his two daughters. The hufband of one of them (Mr. Bennet) in 1774 had alfo advanced £. 2978 to Mr. John Butler, upon the fecurity of the £. 8000 portion, (fubject to the first £. 3000 advanced by Mr. Pearfon). Upon the 24th of last June, Mr. Juftice Buller, fitting for Lord Chancellor, faid, "he ftrongly inclined to think "it a fatisfaction;" and the Lord Chancellor himfelf, on the 27th of last November, decreed the gift of the refidue to be a fatisfaction for the portion fecured by the marriage-fettlement. But as to the 3000 lent by Mr. Pearfon, the Court held, that Mr. James Butler's declaration to the lender's follicitor bound both him and his lands; and that fum was therefore directed to be raised and paid to Mr. Pearfon. But no relief hath been given to Mr. Bennet for the money he advanced,

If Mr. James Butler had remained tenant in tail of the eftates charged with . 8000, and he had died infolvent as to his perfonality, I know not what redress Mr. Pearfon would have had; but he had acquired the fee-fimple, and it was bound in equity by his verbal undertaking. It is not póffible to adduce a stronger inftance than this cafe, to prove the truth of what I have advanced concerning the neceffity there often is of making perfonal confidence the ground of opinion in the approbation of a landed fecurity for money. The words of the Court, in delivering the decree in this caufe, are: "The enquiry was a very proper one on the part of the plaintiff (viz. Pearson) and · "completely repels the imputation of negligence "in his agent; and the enquiry was properly made "of the party immediately interefted. James at

"the