Scottish Court of Session Decisions

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^* The defences also applied to pleas rested on the price having exceeded the defender's debt, but it is not necessary at present to advert to that point.

^† “The Lord Ordinary has a clear opinion on the point, determined by the interlocutor. It is a question of importance; but he thinks that no other judgment would be either just or safe.

“The sasine of the defenders is first in date. That certainly does not determine the question of preference, according to the ruling statutes. But it may not be altogether foreign to the question of priority of registration on the facts in this record.

“By the statute 1617, sasines, if recorded within sixty days after their respective dates, were preferable according to their priority in date. That act being thought defective in respect of the principle of the system of registration, the acts 1693, c. 13 and c. 14, were passed. The first declared, that all sasines should be preferable “according to the date and priority of the registrations of the sasines,” &c. But it being known from experience that there might be delay in making the registration after a sasine was presented to the keeper, it was readily perceived that, after the preference was made to depend on the priority of registration, undue partiality and injustice might take place, unless a precise and definite rule were laid down for determining both the date and the priority of the legal act of registration. Therefore the succeeding act, c. 14, was passed, which provides, ‘That all the keepers of the said registers shall keep minute-books of all the write presented to them to be registered in their several registers, expressing the day and hour when, and the names and designations of the persons by whom, the said writs shall be presented, and that the said minute be immediately signed by the presenter of the writ, and also by the keeper, and patent to all the lieges who shall desire inspection of it gratis. And that the writs shall be registrate exactly according to the order of the said minute-book,’ &c.

“The statute says, that the minute shall express ‘the day and hour’ when the writ was presented. The Lord Ordinary apprehends, that, in speaking of the hour, there could be no intention to limit the question either of date or priority of registration to the separate measured periods of sixty minutes in the usual reckoning of time in a day; but that it was implied in the term hour, that there might be an equally clear case of priority within the minutes of the same nominal hour. It meant the precise point of time in a day. In practice, no doubt, it has not been usual to enter the fractions of time in the minute-book, it being thought enough to state that the writs were presented between the hours of and. But looking to the practical operation of the statute, on what principle has this been held sufficient? Evidently because the statute itself has provided another sure test for fixing the priority. The minute must be made immediately on the writ being presented, and must be signed by the presenter and the keeper; and the actual registration of the writs must be in the precise order of the minute-book. There can never, therefore, be any difficulty when the minute-book and registers are made up simply in the ordinary form, of telling with certainty which of two sasines is, according to the statute, the first in date and priority of registration, whether they were both presented within the same nominal hour of the day, or in different hours. The order of the minutes, as subscribed, and the registrations following it, must fix the point conclusively, if the statute is at all effectual to its purpose.

“A case, no doubt, may be figured, though apparently it has never occured, of two persons presenting two sasines at the very same instant; and it may be asked, how such a case is to be regulated under the statute? It is not necessary here, more than in any other question, to resolve a supposed difficulty which does not arise in the case before the Court. But the Lord Ordinary has little doubt how such a case must be extricated if it did not occur. The keeper could not arbitrarily prefer the one sasine to the other, and he could not compel the one presenter to yield to the other in the priority of the minute to be subscribed. And, therefore, although the statute is silent on the matter, the nature of the fact, with reference to the keeper's prescribed duty, would render it indispensable that be should, in some form, make a minute of the two sasines as presented at the same time, and have that minute subscribed by both the presenters and himself; and that he should afterwards make the registrations in such a way as to exhibit on the face of the register, that there was no actual or legal priority of the one before the other. Some such course would arise out of the necessity of the case; because the keeper could not make a minute of either before that of the other, without violating his express duty, and incurring the penalties of the statute. And when the register was so made up, the fact would be seen in it, out of which the question of pari passu preference might arise.

“But there is no such case here. The minute-book and the register are in the usual form; the minute of the sasine of Dunlop and Co., subscribed by the presenter and the keeper without any qualification, being first in the minute-book; and that of Stein, also subscribed simply, being posterior to it. The registration is in the same order. What, then, is it on which a claim of pari passu ranking is raised? Nothing but this, that the minute-book bears as to each sasine, that it was presented between the hours of eleven and twelve of the same day. But as the statute requires that the minute shall be made and subscribed immediately on the writ being presented, is it not the legal and necessary presumption that the keeper did his duty, and that though both sasines were presented within the same space of sixty minutes, the minute first made and subscribed does, notwithstanding, designate the writ which was first presented? The Lord Ordinary can see no justice or safety in any other rule.

“But, if the actual case be looked into more narrowly, there are other considerations which appear to be sufficient to resolve it. The two sasines were presented, not by two persons, but by the same person, and the averment is, that he presented them at the same time. But there is not only no evidence of this in the register, but actual and statutory evidence of the reverse. For the presenter has subscribed both the minutes without reserve or qualification; and the statute says, that the order of these minutes shall be the precise order of the registration. By so subscribing, the presenter legally attested the fact, and the keeper confirmed it by also subscribing, that the sasine of Dunlop and Co. was the first presented, the minute whereof was immediately made and subscribed. Can the Court allow this to be contradicted by parole evidence? The Lord Ordinary apprehends that it cannot, and that it would be most dangerous so to do.

“But there is also a presumption of ordinary law and justice in support of this state of the register. The two sasines had been taken by the same agent, that of Dunlop and Co. being three days anterior to the other. It is averred on the one hand, and denied or not admitted on the other, that Mr Stein, in transacting, or before advancing his money, was aware of the right previously constituted. There can be little doubt of the fact. But, at any rate, Mr Stein's agent, for whom he is answerable, having himself taken the first sasine, of course was aware of it. If he had done his duty strictly, ho should have recorded Dunlop's sasine even before he took the other. But as that was delayed, what was his duty after both were taken? Clearly to present Dunlop's for registration first. In that he did only justice to Dunlop and Co., and no injury to Stein. Supposing, therefore, that he did go to the register, having both in his possession at the same time, what is the presumption independent of the evidence of the register? Is it to be presumed, that he committed a gross fraud by presenting both at once, so as to render the securities equal? Or, that he did justice between his clients as his duty required? The Lord Ordinary conceives, that the presumption of fact and law, arising from the situation of the presenter of both sasines, is in precise conformity with the fact, as he has solemnly attested it by his subscription of the minutes, that, whether he held both in his hand or not, he did present the one for registration first, and the other only after it had been duly entered, or, what is the same thing, thing he presented them in that order, and with that explanation of, his act and purpose.

“But though these views are not without importance, the Lord Ordinary rests his opinion on the legal effect of the minute-book and register as they stand.

“The Lord Ordinary has not decided the other point of the cause, viz. Whether Dunlop and Co., as the venders of the subject, are accountable for the residue of the price, after payment of their debt, expenses of the sale, &c., which was left in the hands of Wilson, the agent who carried through the sale; because, on looking over the record, and the notes of the debate, he is afraid that the cause might get into some perplexity, and he might proceed in error, if he did not first hear what it is precisely which Wilson pleads in defence to the action of relief.”