clauses. The mandate when contained in the deed, or indorsed upon it, was blank in the name of the mandatory, and was completed by the grantee filling in the name of an advocate; who then had authority to appear for the granter and consent to the deed being registered. He did so by personal attendance in court; and latterly by a written consent (6). In course of time the attendance and consent were abolished as unnecessary (C); and every deed containing a clause consenting to registration came to be entered by the clerk of court in the court books on mere presentation to him for that purpose, without any formality or procedure in presence of the judge. In this state the matter has stood till now. Registration takes place of course; but the theory that it proceeds upon an order of the judge remains (d); and by a fiction of law the record and extract still narrate a decree of registration, interponed by the judge on the motion of a procurator for the granter of the deed, or for both parties if it is bilateral.

Originally the principal deeds were returned to the parties. But in course of time they came to be preserved in publica custodia, only an extract of the decree of registration, embodying an official copy of the deed, being given out (e). The principals can only be recovered under the order of a judge, as afterwards mentioned.

“In this manner the several Courts of Law in Scotland came to hold registers, and were made the custodiers of private deeds, without any special establislıment, act of Parliament, or grant from the Crown, as is the case of all the other registers in the kingdom" (f)

$ 1091. The register in the books of Council and Session was originally kept by the clerks of session, like the other records of the Court (9). But after the records of deeds and of judicial procedure had been for some time practically separate, the former was placed under separate superintendence (h). The registers of inferior courts are still kept by the clerks of court.

$ 1092. The advantage of allowing summary diligence to proceed on bills of exchange caused two acts (i) to be passed; by which instruments of protest, having copies of the relative bills

(b) Kames' Law Tracts, 78—1 Ross Lec., 111.

(c) A. S., 9th Dec. 1670. (d) This theory is well illustrated by the case of Fleming v. Newton, 1848, 6 Bell's Ap. Ca., 175; reversing, 8 D., 677; which related to protests of bills recorded in terms of the acts noticed infra, & 1092. (e) 1 Ross Lec., 108.

(f) 1 Ross Lec., 108. (9) See 1685, c. 38.

(h) 55 (eo. III, c. 70,? 4. (i) 1681, c. 20; 1696, c. 36. The former applies to foreign; the latter to inland bills.

a

prefixed, may be recorded within a limited time in the books of all competent judicatories for execution, like deeds bearing a clause of registration. And this privilege was afterwards extended to protests on promissory-notes (k). The instrument is retained in the register as the ground of the decree and extract, which narrate a fictitious decree; but the bill or note, if produced, is returned to the party, as it is often required for procedure elsewhere.

$ 1093. Deeds which bear a consent to register for preservation (and not also for execution) are entered in the books of competent courts. The principals are retained in order to give full effect to the granter’s intention-only an extract being given out to the parties interested (1).

§ 1094. At common law registration, even for preservation, could only proceed in virtue of a decree of registration causa cognita, or on consent of the parties to the deed. This defect was remedied hy the act 1698, c. 4. On the preamble that "it will be of great ease and advantage to the lieges that probative writs be allowed to be registrate albeit they want a clause of registration,” this statute enacts “ that it shall be lawful and leisume to registrate for conservation all charters granted by subjects, dispositions, bonds, contracts, tacks, reversions, and all other probative writs in any public authentic register that is competent, albeit the said writs want a clause of registration, and the principal to be given back to the party.”

$ 1095. The extract of deeds so registered do not set forth a fictitious decree. Nor is the principal deed preserved in publica custodia. The registers, therefore, merely contain authentic copies of the deeds recorded in them.

§ 1096. Formerly registration, either for preservation or for preservation and execution, used to be competent in the books of all inferior courts having civil jurisdiction, and of Commissary Courts. But this practice having become inconvenient, it was restricted by the act 49 Geo. III, c. 42, which on the preamble that “irregularities and inconveniences have arisen, or may arise, from the unnecessary multiplication of registers in Scotland,” &c., prohibits (§ 1) clerks of royal burghs or burghs of regality or barony from receiving deeds or writings for the purpose of registration in their respective books, either under the act 1698, c. 4, or in virtue of a clause of registration. And the same act also prohibits ($ 2)

(k) 12 Geo. III, c. 72, 236, made perpetual by 23 Geo. III, c. 18, 2 55. (1) 1 Ross Lec., 92, et seq.-Kames' Law Tr., 77, et seq.

clerks of Commissary Courts from receiving writings for registration in virtue of the statute or clause of registration referred to, or of the acts authorising the registration of protests on bills and promissory-notes. From those prohibitions, however, are excepted (§ 1) the right of clerks of royal burghs to record instruments of protest on bills and notes, and to record instruments of sasine and other writs relative to burgage property within their respective burghs and liberties thereof, under the act 1681, c. 11, and any deeds and instruments relating exclusively to the property or possession of such subjects, or to which all the parties are burgesses or domiciled within the burgh at the date of presentment.

§ 1097. The books and warrants of the records thus abolished were directed to be transmitted as follows:-that kept by the Edinburgh Commissary Clerks to the Clerk Register; and those of the Inferior Commissary Courts, and of burghs of regality and barony, to the Sheriff-clerks of their respective counties (m).

§ 1098. On account of the interest of the lieges in certain writings, chiefly those which affect real estate, publication in appropriate registers has been made essential to their full legal effect. This is the case as to letters of horning and relaxations, with their executions (~), inhibitions, and interdictions (o). Deeds of entail (p), adjudications (of which an abbreviate is recorded) (r), instruments and summonses for interrupting prescription in real rights (s), and "reversions, regressions, bonds and writs for making reversions, or regresses, assignations thereto, and discharges of the same, renunciation of wadsets, and grants of redemption, and instruments of sasine ()," and instruments of resignation ad remanentiam (u).1 Recording the instrument of sasine now constitutes infeftment (w). And deeds required for creating or transmitting heritable securities may now be recorded in the appropriate register of sasines, so as to complete the creditor's real right (x).2

(m) 49 Geo. III, c. 42, 22 4, 5, 6.

(n) 1579, c. 75-1600, c. 13.

(0) 1581, c. 119 (1)—1600, c. 13—Stair, 1, 6, 40, and 4, 50, 8—Ersk., 2, 11, 5—See 1597, c. 268; repealed by 20 Geo. II, c. 43, ? 14. (r) Regulations, 1695, art. 24.

(s) 1696, c. 19.

to lands, not burgage)-1681, c. 11 (as to burgage property).

(p) 1685, c. 22.

(t) 1617, c. 16 (as (u) 1669, c. 3.

(w) 8 and 9 Vict., c. 35 (as to lands not burgage)-10 and 11 Vict., c. 49 (as to burgage property). (x) 8 and 9 Vict., c. 31-10 and 11 Vict., c. 50-extended to

1 Instruments of sasine and of resignation ad remanentiam are not now required; 21 and 22 Vict., c. 76 (Titles to Land Act)—See infra, § 1187.

2 The 20 and 21 Vict., c. 26, on the registration and assignation of long leases,

§ 1099. The records of Chancery in Scotland contain retours and decrees of services of heirs, copies of charters and precepts by the Crown and Prince of Scotland, patents, and some other writings.

The

§ 1100. The retour (y) of a service is the verdict of an inquest under a brieve issued from Chancery for trying whether the claimant's ancestor died at the faith and peace of the Crown, whether the claimant is his heir, and, in cases of special service, what is the valued rent of the land succeeded to, and some other matters. The finding of the jury is returned or "retoured" to Chancery. ancient practice of that office was to record a memorandum of the "retours," and give back the principal. But for a considerable time the principals have been retained and preserved under the charge of the Lord Clerk Register and Director of Chancery, the parties receiving only an extract.

tected by collation with the originals. Notwithstanding its defects and its unauthorised origin, this record is of considerable value, and extracts from it have long been received in our Courts. The 5th volume, containing the retours from 1611 to 1614, has unfortunately been lost (2).

$ 1103. An act passed in 1821 directed the clerks to services of retourable brieves to transmit to Chancery for preservation, under the orders of the Lord Clerk Register, not only the verdicts of inquest, but also the original claims of service, minutes of the proceedings, and depositions of the witnesses in services (a).

$ 1104. Recent legislation has substituted for the old brieve and retour a petition and decree of service before the Sheriff of the bounds or the Sheriff of Chancery. But the original proceedings and decrees in all services are transmitted to Chancery, and there preserved. They are entered by the Director of Chancery or his depute in the “Record of Services,” under superintendence of the Lord Clerk Register; the parties receiving extracts certified from the Chancery Office, which are equivalent to extracts of retours. An index or abridgment of this register is directed to be prepared annually, and to be printed and published in such manner as the Lord Clerk Register shall direct (6).

$ 1105. The retours and books of the Record of Chancery are important evidence in cases of pedigree. Under the former election law, extracts from them were the proper evidence of the valued rent of persons claiming right to vote (c).3

$ 1106. Charters from the Crown and the Prince of Scotland are entered in the Record of Chancery before being delivered. Formerly no record of the sealing of them was preserved; in consequence of which the register did not prove that a completed charter had been expede (d). This defect has been remedied as to all writs which may have passed the Great Seal since the year 1809, when the Director of Chancery was ordained, before delivering the writ, to enter the sealing in the Register of the Great Seal ;-extracts of writs so recorded being made probative, except in improbations (e).

a

(2) The foregoing sketch is taken from Mr Thomson's preface to the Abridgment of Retours, published in 1811. See also Tait, 187. (a) 1 and 2 Geo. IV, c. 38, 2 12.

(6) 10 and 11 Vict., c. 47 (Service of Heirs Act), 22 12, 13, 14 (c) 16 Geo. II, c. 11, 28. See the chapter on extracts from records of deeds, infru. (d) Ersk., 4, 1, 22. (e) 49 Geo. III, c. 42, SS 15, 16. This is also the prac

3 For the present evidence of qualification, see note on the Valuation Roll, infra, 1161.