be permitted to plead non-registration to set aside a deed, since registration would merely have given them notice, and notice they already had. Yet this provision (s. 37, ut supra,) which forbids fraudulent claimants to plead the non-registration of a previously executed deed, excepts from the whole body of fraudulent claimants, that particular class whose fraud consists in this, that they had already, without any registration, full notice of the non-registered deed. Now it strikes us that of all fraudulent claimants, this particular category ought to be most especially prevented from pleading its non-registration against the previous deed, since they already had full notice of it." But there is another reason which would induce us to lean against this description of fraudulents more than against any other, viz., that these alone commit a fraud both against the grantor and the prior grantee. If a subsequent (and fraudulent) grantee be not affected by any notice of a previous and valid grant, i.e., if the fraud consist only in undue pressure upon the grantor, or taking advantage of the connection between the grantor and the fraudulent grantee, drunkenness, misrepresentation, &c., that may be a very good ground for setting aside the deed as between the grantor and the subsequent (fraudulent) grantee; but as between the first and second grantee, it does not seem to afford so clearly room for the intervention of equity. Yet the clause in the proposed bill sets aside such a conveyance, or, at least, deprives the subsequent grantee of the benefit of the act. But where the fraud consists in this, that the subsequent grantee, by collusion or otherwise with the grantor, and with full notice of the previous deed, takes a conveyance in fraud of the first grantee and registers it under the act; there it is declared that the subsequent (fraudulent) grantee shall be entitled to plead the non-registration of the previous bonâ fide deed. Yet in this case the fraud is perpetrated directly against the person seeking relief, i.e., against the first grantee. Indeed it is difficult to conceive any case of fraud clearly calling for the interference of equity between a previous and a subsequent grantee in favour of the former, which does not in a great measure, or wholly, proceed upon notice had by the subsequent grantee of the previous conveyance. And it is certain that no more disgraceful frauds or more totally unworthy of all protection have ever been perpetrated than those in connection with this very subject, where the notice may have been obtained while filling offices of trust and confidence, undertaken solely with the view of obtaining such a knowledge of circumstances as to enable the trustee or solicitor to effect the fraud.

There appears to us this further inconsistency in the provision

now under consideration, viz. that whereas it seems, from what has just been stated, that there can be no case of fraud between subsequent and prior grantees calling for the application of these principles which does not proceed upon notice; so, as between subsequent and prior grantees, the circumstance of notice alone does not call for the intervention of equity unless it also involve fraud. Notice per se is totally uninteresting to a court of equity until a deceitful advantage is attempted to be taken; so that, as far as regards the application of these principles, each of the expressions, "notice' and "fraud," seems by itself alone always to indicate both circumstances, (viz.) a knowledge of the previous transaction, and a deceit attempted or intended in relation to it. Any attempt therefore to separate the one ground of relief from the other, as if they constituted two distinct heads, seems to be faulty alike in the reason of things and in logical truth; since the distinction is surely only verbal, as between two sets of grantees. We admit, that if "full" notice of anon registered deed be taken to be a bar to a registered claimant, then "constructive" notice must also be admitted, otherwise. endless uncertainty and collusion would quickly follow; and if "constructive notice" be permitted to stand in place of registration, a system of general registry would indeed be "a mockery, a delusion and a snare." It is therefore, we fully agree, of the first importance to make registration absolutely requisite, notwithstanding any private notice, however full, except perhaps as against the grantor himself. But we think that it follows as part of this result that no fraud, even in a subsequent grantee, should be allowed to supply the defect of non-registration by a previous grantee. Let the fraud be punished in any manner which may be thought proper, but not so as to weaken the operation of the whole system of general registry.

With this exception we think the effect proposed to be attributed to the registration of any assurance extremely judicious. It is not to be imperative to register any assurance; but the act authorizes certain assurances to be registered: and enacts, in effect, that any assurance authorized to be registered shall only rank as from the time of registration. A measure which, especially in connexion with the contrivances of caveats and inhibitions, to be described presently, seems to answer all useful objects and to avoid all solid objections.

But it is when we leave the consideration of what ought to be the force and effect of registration, and come to consider what are we to register, and where, and how, and especially how are we to class the registered documents so as to render them facile of access and reference, as they must be if a man's right to his

estate is to depend on his certainly discovering every document relating to it, that the amazing difficulty is seen of framing a system which shall be anything but an additional weight and incumbrance to conveyancing. Not to enter at large into all these questions, we will state that the present bill proposes, with the unanimous consent of all the Commissioners (both of the old Real Property Commissioners and the present), that not deeds only, and formal conveyances between parties, but all wills and letters of administration, petitions for adjudication of bankruptcy, &c., vesting orders in insolvency, memorandums of liens for nonpayment of purchase money, and of equitable mortgages, decrees in Chancery, &c., and in general all acts or documents affecting lands may be registered. One general central office in London is proposed to be established for the whole kingdom, not several local offices; and in general the originals themselves must be deposited in the register; in the case of decrees, &c., already of record, a memorial is to be sufficient. On all these points the commissioners are unanimous. But as to the mode by which any documents deposited or registered are to be discovered among the multitude of registered deeds, a very considerable difference of opinion has from time to time existed among the commissioners and amongst the various learned and experienced counsel and solicitors, whose opinions and evidence they have taken, and which are printed in the voluminous Appendices to the several Reports already mentioned. In fact, the form of Index to be adopted is that which will most materially affect the whole system; it may almost be said that the Index is the Register.

There are three obvious modes of indexing: one according to the alphabetical order of the names of grantors; a second according to the alphabetical order of the names of the lands or districts; a third, which is generally known by the name of a map-index. The objections to the first, which is the form of index now in use in Middlesex and the West Riding of Yorkshire, are, that the labour of searching for names, especially when they are common names, is very great, and therefore very expensive, and from its irksomeness, very liable to error: and requires to be constantly repeated and undertaken anew for the name of every person to whom a title is traced, on every occasion of the same lands coming over and over again into the market. The error, also, of misspelling a name can hardly be guarded against or compensated; and the expense of a continued search de die in diem, until the completion of a sale,1 has been practically 1 See Mr. Wimburn's evidence, App. 52nd Report of Real Property Commissioners, 1830.

found to render the examination, or rather proof of a title, little or not at all less expensive in a registered than in a non-registered county; while the risks common to both counties are not effectually guarded by the register, and new risks are necessarily imported with it.

The second plan of indexing, namely, according to the alphabetical names of places, is obvious to the same objections as the plan just noticed, and to many more. There is less variety of names; less facility of distinguishing places of the same name. This plan has accordingly been disused in the Middlesex and West Riding registries, where it was formerly adopted, though it is still retained, as well as the first-named plan, in Scotland, where however the indices are acknowledged to be found in very many instances to be practically cumbrous and unsatisfactory.1 Other, and very great, difficulties arise in towns, where the index, upon turning up the name of a street, shows an array of 100 or 200 figures referring to as many entries in the printed abridgment, all of which must be examined in order to ascertain which of the entries is applicable to the house which is the subject of search; and again, where a large district is converted to building purposes, and covered with buildings, this leads to minute subdivisions, sometimes to be traced only with great difficulty.

These two plans of indexing being dismissed on these and other grounds, stated with great force by the Real Property Commissioners in their Second Report, already so frequently referred to,2 we come to the plan of the map-index; where every separate portion of land is referred to its place on a general local map. But this plan the Real Property Commissioners likewise deemed inexpedient, notwithstanding the many manifest advantages which they admitted would flow from it.

"This plan," they say (p. 27), "has undergone particular consideration, in consequence of the collateral benefit to be derived from it, by affording evidence of the identity of the lands; but we have come to the conclusion that the preliminary expenses of framing a general map or description,-the difficulty of tracing land after complicated subdivisions or variations of boundary, -the difficulty of applying a description by boundaries to certain descriptions of property, together with the alteration which would be required in the modes of describing estates in deeds, and in the practice of conveyancing, render it inexpedient to attempt the establishment of a Register in this country founded on such a basis."

The Commissioners accordingly, having rejected all these plans, brought forward a plan of their own, or rather of Mr. Duval's,

1 See App. No. 4 to 1st Report of Conveyancing and Registration Commission, 1850, p. 169.

2

Page 24 et seq.

now known by the name of Mr. Duval's Plan: which was in fact a device to make the Register index itself. All deeds and transactions affecting one estate were to be registered under one head; each head was to have a separate number, or other distinctive symbol; and that symbol was to be endorsed upon every deed or memorial at the time of registration. Thus by producing any deed, with the symbol thereon, at the Register Office, or the symbol alone, all the deeds and documents relating to the lands affected by it might be seen at once. When lands held in one hand became divided into two channels, the offshoot might be registered under a new head, with a new symbol, referring to the first title from whence this new one was derived. And so when lands held by different titles became collected into one hand, it was to be sufficient to register the deeds affecting all the lands under one head, to which reference was to be made in each of the other titles.

Such was the principle of Mr. Duval's famous plan. It embraced also various ingenious devices of caveats and inhibitions, a directory of symbols, and several indexes under different subjects, for the greater facility of reference to all descriptions of transactions; but for the moment we shall omit these.

The bill founded on this plan, which was unanimously recommended by the Real Property Commissioners, met, as has been related, with a very solemn reception at the hands of the legislature, but was rejected without even being read a second time in the House of Commons. It was, however, re-considered with great care by the members of the existing Conveyancing and Registration Commission, and condemned by a majority of five against two; the five uniting in recommending the system of map indexing, and pointing out, with much acuteness and clearness, the difficulties attending Mr. Duval's plan, and the mode in which those difficulties would be obviated by their own. The two dissentient commissioners, however, while they admit the advantage, not to say necessity, of establishing some system of registration, and admit also the utility, for many purposes, of maps, adhere to Mr. Duval's plan, with certain modifications; and the present bill seems in a great measure to accord with their views, as far as these are stated, or rather hinted at, in the supplemental Report made by these two gentlemen.

The present bill, as originally introduced, seems to have attempted to unite the advantages of a map index with those of

See ante, p. 2, and n. (3).

2 Lords Langdale and Beaumont, Bellenden Ker, Coulson and Frere, against Messrs. Humphry and Broderip. 3 Pages 11-22.