according to their date; or, in the language of the civil law, qui prior tempore, potior jure.' In following out this principle, there could have been no difficulty; but it was far too ordinary and easy to satisfy the ingenuity of the profession, and therefore another was let in to modify it, and to pervert, under pretence of directing, its application. It was said that the priority of date should prevail indeed among equities; but that where equities were equal, the legal estate should prevail over them all; and that, without regard to priority in point of time, and equally without regard to the legal estate having been sought and obtained with a full knowledge of the consequence which was to follow from uniting it to the equitable ;-nay, although it had been so obtained for the express purpose of squeezing out the prior encumbrancer, who could know nothing whatever of the operation that was going on, until he felt himself crushed by it. Sir E. Sugden, a person eminently skilled in conveyancing, and a zealous opponent of the Registry, thinks there is but little doubt that the character of fair dealing which we' (the English, of course) possess as a people, is mainly attributable to the moral equity of the law which regulates our transactions with each other.'-(Answer to Mr Humphreys.) Certainly we have no doubt of the alacrity with which our good neighbours on every occasion take their own perfections for granted, in all things, and especially in morality; but we suspect, if they are indeed so much distinguished in this respect, it must be owing to something else in their institutions than the celebrated refinements of tacking and squeezing.

These are pursued in practice variously, but always with the effect of exposing one man to have his estate taken from him, or his security damaged, in favour of another of whom he can know nothing. An apt illustration of this is afforded by that kind of safeguard for titles, which is so habitually sought for from protecting terms, that it may be said to have become an essential branch of English conveyancing. It is founded upon the principle, already adverted to, of preferring the legal estate ; and it has plainly been resorted to as a make-shift for want of a Registry,— affording a clumsy and precarious security to one party against latent claims, and often working injustice to another as innocent as himself.

In raising money upon the security of real property, it has been usual to create long terms; that is, to vest the estate in trustees for five hundred or a thousand years for raising a certain sum out of the rents and profits. When the money has been raised, and the purpose attained for which the term was created, it is said to be satisfied; and the natural course would be, that

it should cease of itself, or be considered to have merged in the fee. But not so is the more refined contemplation of the law; the trustees continue, though their occupation is gonethe trust continues, though its object is attained-and the term continues, though all that could constitute any thing like a term has ceased;-there being no landlord, no tenant, and no rent, apart from the person and the enjoyment of the owner, in whom every thing has now substantially vested. This shadow or phantom of a term, therefore, continues to haunt the recesses of the conveyancer's sanctuary; but-substance that may well be called, that shadow seems,-for it works the most powerful effects, and brings with it, now airs from heaven, now blasts from hell-to one dispensing secure enjoyment, and visiting another with swift destruction. To propitiate this being, and obtain his aid, becomes the object of all; and to gain so great a boon, the price required, as might be expected, is not small. The term is outstanding in the original trustees and their representatives; that is, the legal estate, for the unexpired part of the term is out of the apparent owner. He may settle, or sell, or pledge the estate, but, for many hundred years, his deeds can only give the equitable estate. A party comes forward to purchase, and he cannot tell what mesne conveyances may have been made; that is, what rights may have been constituted over the property since the creation of the term; but this he knows, that if he can only get that term assigned to him, he obtains the legal estate for the rest of the period, and, for eight or nine hundred years, he may laugh to scorn all prior claimants whom he knew nothing of when he paid his money, how fairly soever they may have advanced theirs, so as they only have equitable estates obtained since the term was created.

The following quotation from a celebrated judgment of Lord Hardwicke's, relates to the subject on which we have been treating, and which is known in courts of equity by the name of Tabula in Naufragio, from the scramble supposed to take place among persons equally entitled to be saved, and the supposedthe falsely assumed-impossibility of dealing out any thing more like justice among them, than by enabling one to escape entirely, and the others to be entirely ruined.

As to the equity of this Court, that a third encumbrancer having taken his security, without notice of the second encumbrance, and then being puisny taking in the first encumbrance, shall squeeze out, and have satisfaction before the second, that equity is certainly established, in general, and was so by a very solemn determination of Lord Hale. Perhaps it might be going a good way at first, but it has been followed ever since, and was rightly settled only on this foundation, by the particular consti

tution of the law of this country. It could not happen in any other country but this, because the jurisdiction of law and equity is administered here in different courts, and creates different kinds of rights in estates, and, therefore, as courts of equity break in upon the common law, where necessity and conscience require it, still they allow superior force to a legal title; and, therefore, when there is a legal title and equity on one side, this court never thought fit, that, by reason of a prior equity, against a man who had a legal title, that man should be hurt, and this by reason of that force this court necessarily and rightly allows to the common law, and to legal titles. But if this had happened in any other country, it could never have made a question, for if the law and equity are administered by the same jurisdiction, the rule, qui prior est tempore, potior est jure, must hold.' (2 Ves. sen. 573.)

We shall subjoin Mr Bellenden Ker's judicious and spirited reflections the above doctrine :upon

I have purposely left this picture to be drawn by Lord Hardwicke, one of the greatest expounders of equity. I might, however, add some more touches and new lights, by every one of his most admired successors, all in the same style, and all tending to heighten the composition. Was ever a more perfect caricature drawn of the doctrines of a court of justice, and were there ever weaker reasons for not departing from the doctrine, assuming that a perfect system of equitable and conscientious distribution of right is the object to be obtained? Why, in a new system, established purposely to supply the defects of the old, necessity and conscience should require the judge to have such a blind reverence for the old system which he is to correct, as professedly to depart from a wise, intelligible, and just rule, in order to establish one which has no such qualities, it is impossible to understand. At all events, here equity and conscience have done nothing for the suitor. The old rule, superseded by equity and conscience, has brought new injustice and doubt on all. I must not be understood to speak with any disrespect of Lord Hardwicke. I allude merely to the system, which he was bound to expound according to the decisions of his predecessors. Establish a Register, the whole of this doc. trine will be swept away, and the wise and just one of reckoning every man's right from the time he acquired it will alone prevail. In order to prevent misrepresentation, I must repeat, that the mere alteration of the rule, and giving every right priority according to time, would not have been sufficient, having regard to the secret mode of dealing with property which the present state of the law allows.'-Pp. 28-30.

The ruin to the ill-starred individuals who have been shoved out, or off the plank, and gone to the bottom, is plain enough ; but the fortunate party who gets hold of it, is left struggling in a sea of troubles. He never can be sure that some one will not come and destroy him with a yet older title; and he has, even when safe, to purchase his security by endless expense and delay. The term is a chattel interest; though a chattel real, it descends to the personal representatives; that is, though the equity, or

right to have it assigned, descends with the realty, the legal estate, the term itself, goes to the trustee's legatees, or his next of kin! Thus, in the course of half a century or more, it has descended several times; and it must be traced through its whole course. Administration must be taken where Probate had been taken in a wrong court, or where there is no representative of the last surviving trustee; and Mr B. Ker tells us, that he has known a term thus traced through twenty parties, and letters of limited administration four times had, at an expense of as many hundred pounds, to obtain such protection as a term could afford, on the purchase of a very small estate.

But imperfect and costly as this security is, there has been introduced a further modification of the principle on which it rests, and in a somewhat opposite direction. The qualification of the rule respecting dates, which prefers the legal estate, tends greatly to restrict that rule, and opens a door to much fraud, and still more injustice. Another qualification in some degree restores the vigour of the rule, and about half-shuts the door which had been thrown wide open. It is this: If the party seeking to avail himself of the plank had notice of prior rights, his proceeding is of no avail. Now, this principle, however fair and reasonable, if the courts, the sole law guides in all this matter, had clearly defined what should constitute notice, becomes the source of endless uncertainty, and not a little fraud, from the impossibility of divining what will, by any given judge, be considered as notice. And here, it is needless to say, the courts have revelled, as usual, in the largest measure of subtlety, and fancy, and refinement. Actual notice, of course, we do not here speak of; that must necessarily be confined within tolerably narrow bounds. But what limit is there to constructive notice? It is whatever the judge, before whom the question shall arise, may deem enough to make him think the party either did know, or ought to have known. Then, who can be in the least degree secure, after all the pains he has taken, and all the cost he has incurred, to obtain the protection of an attending term? He did not see; but then he may have shut his eyes. He knew nothing; but then he might have enquired. His attorney knew; or his attorney's town-agent knew, and that is enough; and that may be proved years and years after all the evidence is gone, by which the presumption might have been repelled. With a Register,' says Mr B. Ker, the whole rule as to notice, actual and constructive, 'would either be abolished, or so modified, as in a great degree to mitigate the numerous evils which spring from the present 'state of the law; with a Register, the only notice, with perhaps 'some few exceptions, would be the Register itself; all the facts

which I ought to know actually or constructively, by myself or my agents, are to be sought and found there; it is all I have to look to or care about. All that would then be required would be diligence and caution; not, however, that species of blind caution which the present rules of equity make necessary, but that rational care which a knowledge of all the facts of the title requires. The term constructive notice, as relates to real property, will be at once swept from the digests of the courts of equity, and judges will be relieved from the pain of 'coming to a conclusion in cases involving a vast mass of con'flicting circumstances. This will be no small matter gained at ' once; the purchaser secured, and the overloaded courts of equity ' relieved.'

We are unwilling, where a case rests upon such a broad basis. of reason, to load it with mere authority; but certainly the names of Sir M. Hale, Lord Keeper Guildford, Mr Justice Blackstone, and the learned author of the Touchstone, (whether he were Shepherd or Mr Justice Doddridge,) are to be recited with great respect, and these persons all have pronounced in favour of a Registry. The celebrated Committee, also, for reforming the law in the time of the Commonwealth, numbered this among their important propositions; but, as one of their ablest, though least learned members (Cromwell) said, the Sons of Zeruiah, the lawyers, were too many for them,' and their appointment was not renewed. But the example of what has been done in other countries, deserves to be considered even by our allperfect neighbours of the South; and on this head, we may cite Scotland, Ireland, most of the West India Colonies, the United States, and the greater part of the Continent of Europe. England is almost the only exception in this important branch of jurisprudence, although from the single exception in another respect, the strange peculiarity of her equitable jurisdiction,— she has far more pressing occasion for a Registry than any country not governed by English law. Two of her own provinces, the largest and wealthiest, Middlesex and Yorkshire, have at least recognised the principle for above a century, and would have had a perfect application of it in practice, had not certain most unfortunate decisions, and some defects in the arrangements, rendered the Registry in these counties of comparatively little use. Imperfect as it is, that it is deemed better than nothing, no one can doubt who reads the advertisements of lenders, and observes the preference given to Register counties.

The reader may next, and not unnaturally ask, where are the objectors? What arguments have the combined learning and prejudice of the very learned, and not wholly unprejudiced, pro