III. The remaining question I have to consider is how far purchases of land from persons, in whom it is ostensibly vested by titles ex facie regular, may notwithstanding be affected by preferable but latent claims of third parties? To risks of this class purchasers are frequently exposed. And there is no department of jurisprudence attended with greater difficulty than the establishment of rules for deciding such questions; because it generally happens that in cases of this kind a loss must be sustained by one of two parties, both of whom are quite innocent; and that justice cannot be done to either of them without injustice being suffered by the other. There arises here a conflict between justice and expediency, -between the equum and the bonum; justice requiring the protection of parties who are truly owners of the land, against usurpers who may happen to be infeft therein, or others deriving right from them,-commercial expediency requiring the protection of honest purchasers from parties who, although truly owners, are not ostensibly so on the face of the titles. It is the part of jurisprudence to temper each of these principles with the other. To a certain extent this difficulty has, from an early period, been satisfactorily met in Scotland by the establishment of public registers for the publication of certain classes of such claims; and these claims, when so published are effectual against purchasers, even although the sellers may exhibit an apparently good title. Hence the latter, before completing their purchases, ought to satisfy themselves, by searching these records, what claims, if any, affecting the subjects are published there, and if they fail to do so they have themselves to blame for their negligence. There are four of these public registers. First, there are the Registers of Sasines, which were established in 1617 in Edinburgh and in several provincial towns, and in which infeftments (and now the writings which come in their place) are entered. Secondly, there is a Register of Inhibitions in Edinburgh and in every county. The inhibitions, which are published in these registers, are writs which are issued by the Crown at the instance of parties who have claims against others holding heritable property, prohibiting them from alienating or burdening these estates, to the prejudice of the rights of the inhibitors. This remedy is available in several cases, and, among others, in cases where persons having personal claims of the kind we are now considering, have instituted actions in order to enforce or vindicate them. On exhibiting the summons in such an action the writ of inhibition is issued; and, after being executed, it is recorded in the register. The third is the Register of Adjudications, in which attachments of heritable subjects for satisfaction of the debts of their owners.

are recorded. Purchasers therefore are exposed to the risk of such inhibitions and adjudications, but they can guard against such risk by searching these records. And the fourth is the Register of Interruption of Prescription, in which proceedings asserting claims to heritable property are published, in order to prevent them from being excluded by prescription, and a purchaser by searching that record can ascertain whether or not any such claim is kept in dependance. The searching of all these records, considering the great accumulation of the register books, appears, at first sight, to be a very formidable task; but by the aid of indices and abridgment books, which experience has suggested to those officiating in the Register House; and through the dexterity acquired by official searchers by usage; the formidable-looking difficulty is to a great extent overcome; and rarely, indeed, do we hear of any error or omission in the searches. In practice the entries found in these books, as to any particular subject, are described in their order in a document certified by the searcher, and called a search of incumbrances. That document serves in practical effect, as a register of the title of the particular subject to which it refers; and any one inspecting it discovers at once the state of the title of that subject, so far as it is disclosed by these registers. And after it is brought down to a particular date, and a purchase or other transaction, requiring a knowledge of the subsequent history of the title, afterwards takes place, it is only necessary to add to the search of incumbrances the entries appearing in the registers during the intermediate period.

But many grounds of challenge may exist which do not appear in these registers, and which purchasers may have no means of becoming acquainted with; and the difficulty remains, are or are not these latent and undiscoverable claims to be available against them? Without attempting to enumerate the varieties of these claims, I may mention as examples, that, if the title of the seller or of any of his predecessors had previously been judicially rescinded by a degree of reduction: or if it had been revoked by the person from whom his title was derived in virtue of a power of revocation reserved to him in that title-there would be no entry of the proceeding in the registers, and the seller would still appear as the ostensible owner. This, also, would be the case if the seller's title had been made up on the footing of his being the heir of a preceding proprietor, while, in truth, that character belonged to a different person; or if the preceding owner from whom the purchaser obtained his title had been disabled by mental incapacity or non-age from making the conveyance which is the seller's title.

In these, and in numerous other cases, a purchaser, while in ignorance of the objections to the seller's title, and without having any means provided to him of acquiring a knowledge of them, may have made his purchase and paid the price, and may, moreover, have expended large sums in erections or other improvements on the subjects; and after all this, the party to whom the subject truly belonged, but whose claim was latent and unknown, may come forward and challenge his title, and insist upon his relinquishing his possession. Although in Scotland some of those grounds of challenge which are called personal do not affect honest purchasers, yet many of them, which are called real, do so. It is a most important and difficult question in jurisprudence whether any or what remedy ought to be adopted in such cases? I speak upon the subject with much diffidence; but as, in the course of a long experience, I have often witnessed, and sympathised with, the distress created by the existing state of the law, and remedies have suggested themselves to my mind, I shall mention them, crude as they are, in the hope that they may be sifted and criticised.

These suggestions may be stated under four heads :

The first is whether our existing registers might not be made more extensively available? As our law exposes not only usurpers of the right of property, but even honest purchasers from them to the risk of such claims, the interests of commerce and justice to purchasers appear to require that they should be published, so as to enable third parties, who might be affected by them, to discover their existence. Such a publication in a register appointed for the purpose would in effect operate as inhibitions do. Indeed, under the existing law, the remedy of inhibition, as already mentioned, is available in such a case if it proceed on an action instituted for the purpose of rendering the claim available. The Register of Inhibitions therefore, might be the appropriate one for publishing such claims, although the notice of the claim to be registered might be some caveat more simple and less expensive than formal inhibitions. As to another class of cases-viz., those where titles which are standing in the Register of Sasines have been judicially rescinded-some examples of which I have referred to-it might be fitting that the proceedings rescinding these titles should be published in the same register.

Secondly, if the use of these registers were to be thus extended, then the principle already in operation as to the registration of infeftments should be similarly extended-that is to say, such claims, if not so published, should be of no effect against honest purchasers ignorant of them; because,

when proper means are afforded to the owners of such claims of publicly warning all concerned of the existence of them, and when, by their failure to avail themselves of these means, and keeping the claims latent, third parties are ensnared into purchases, the loss should be borne by the former, not by the latter: but, on the other hand, if so published, these claims, if they be well founded, should be effectual against purchasers, who had not availed themselves of the means provided for their information and protection.

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Thirdly, to guard against the abuse of such publications, and to enable the parties against whom such claims might be published, to have these claims judicially disposed of some remedy would be requisite; and, in the practice of Scotland, two appropriate remedies exist already. One is a summary application to the Supreme Court to recall inhibition. The other is an action by which the claim, if not well founded, or even if not defended when it is challenged, is rendered ineffectual against the party challenging it and his successors. denominated an action of reduction-improbation. By means of it, the parties making such claims are compelled to produce judicially the writings on which their pretensions are founded, under the sanction that if they fail to do so, these writings are dealt with as forgeries and nullities, so far as the parties suing the action are concerned. It is characteristic of that action that such a decree, even although pronounced in absence and extracted, cannot be thereafter reviewed. This rule has of late years been somewhat relaxed in practice; but this should not be the case when a purchase is made on the faith of the decree. If, again, the writings should be produced, the merits of the claims are judicially tried and decided.

And fourthly, might not the period of time-the lapse of which, by the positive prescription, excludes such claims, and indeed claims of all kinds, against rights held by ostensibly regular titles-be safely shortened? That prescription was established in the year 1617, simultaneously with the Register of Sasines; and while that register has been of vast benefit in protecting the right of property from latent objections, the prescription has been no less so in protecting it from antiquated ones. The import of the enactment is that when a person and his predecessors have possessed an heritable estate peaceably and uninterruptedly for forty years in virtue of a regular title, that title is thereby rendered indefeasible on any ground whatever, either by the Crown, or by any other party. This law, accordingly, saves purchasers from the necessity of procuring searches of the records farther back than for forty years. Now, it deserves consideration whether that period ought not

to be shortened, in questions at all events with honest purchasers and other onerous transferees? When an estate is offered for sale which has been in the full and peaceable possession of the seller and his predecessors without interruption from any quarter for a period of, let us say, twenty years—and that, too, upon a title, or series of titles, which on their face are unimpeachable-do not the interests of commerce and fair dealing require that a purchaser in such circumstances should be protected from claims which during all that period had been allowed to lie latent and unknown? I believe the feeling generally prevails that the prescriptive period ought to be shortened to the extent I have mentioned at least; and many think, and perhaps with reason, that it should be limited to ten years. But even although this suggestion should be adopted to any extent, to the effect of protecting honest purchasers, the true owner might still be allowed to seek indemnification from the seller within the present prescriptive period.

It will be observed that these suggestions, as well as all the others I have ventured to submit to you, would be effected by merely extending the operation and efficacy of our existing and well established institutions, and would be only additional steps in the gradual but progressive improvement of them which has long been going on. And if these suggestions were adopted, honest purchasers, even from sellers who are usurpers, would be indefeasible in either of three predicaments: viz., either first, when the ground of challenge had not been notified by publication in the appropriate register by the true owner, or secondly, when the sellers and their authors had been allowed to enjoy the possession of the subjects without challenge or interruption, on a title ex facie regular, during the shortened prescriptive period, or thirdly, when the true owners, on their claims being judicially challenged by the appropriate action, should fail to appear and defend them. And if the titles of honest purchasers were to enjoy so much protection, would not the interests of commercial expediency be fairly and fully satisfied by giving such purchasers an immunity from all claims and objections of which they are not warned by the public records; while the true owners would have the means of protecting their rights by publishing them in these records, and then by enforcing them judicially within a reasonable period

of time?

I have already mentioned that in the sister countries, and in some of our colonies, changes of a more organic character have recently been adopted with the view of rendering titles to land absolutely indefeasible. Three different modes of effecting that object have been adopted, and are now on their