United Kingdom House of Lords Decisions

On appeal, it was pleaded that—1. The instrument of sasine following upon the charter of resignation of 1785, dated the 15th October of that year, and appearing ex facie of the register to have been recorded upon the 16th December 1785, i e., more than 60 days beyond its date, was consequently null and void. 2. It was not legally recorded, in respect the portion of the instrument which sets forth the month and day of the month, and the year of the king's reign in which it is alleged to have been expede, was not inserted in the register, but appears in the form of a marginal note, not subscribed or authenticated. 3. It was not legally registered, in respect its date was not set forth in the entry in the minute book, and the party who presented it for registration, and the keeper of the register, did not sign the entry in the minute book, as required by statute, but only subscribed at the foot of the page of the minute book where it appeared, and after the entry of six other sasines. 4. It was further unavailing, in respect the proper and true name of “Maclaine” does not appear in the minute book, while another and a different name, “Maclean,” is substituted for it.

The respondents supported the judgment on the following grounds:—1. Because the Court of Session correctly gave effect to the entry in the minute book of the Register of Sasines as the legal evidence of the date of registration, and that entry proves that the instrument of sasine was duly recorded on 10th December 1785, being within 60 days after 15th October 1785, the date of he sasine. 2. Because, although in transcribing the said instrument of sasine the record keeper copied part on the margin, there was no ground for holding the marginal writing to be a part of he record.

Lord Advocate (Moncreiff), and Baggallay, for the appellants.—The whole system of registraion in Scotland is matter positivi juris, and this question turns on the construction of a series of statutes. The substance of the question is—whether, under those statutes, where the minute book differs from the record itself, the one is to be believed in preference to the other. Under the Statute 1617, c. 16, it was necessary to prefix the date of recording the instrument, for unless t had been so, it could never be ascertained whether the registration had been in time. Such has accordingly been the invariable practice since the year 1617. The date as prefixed, therefore, must be treated as part of the register. It was not till the Statute 1693, c. 14, that the necessity of a minute book was established, but even then the record itself was in no way superadeded. It still continued essential to have the date of recording prefixed to the engrossment. The minute book was intended merely to supplement and aid the register, not to derogate from it. It seems, therefore, an obvious conclusion, that where these two parts of the registry conflict, the principal register must be entitled to credit. There is no direct authority on the subject. Two election cases, Adam v. Duthie, 19th June 1810, F. C., and Drummond v. Ramsay, 24th June 1809, F. C., contradict each other, and, perhaps, neither is entitled to much weight. There

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¹ See previous report 14 D. 870; 24 Sc. Jur. 545. S. C. 27 Sc. Jur. 550.

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