duly subscribed and executed, and returned to the record on the 4th October, on which day it was entered in the minutebook; and the date of 25th September, which was prefixed to its insertion ad longum in the record, was erased, and the date of the 4th October superinduced, to correspond with the entry in the minute-book. The opposing party, on the other hand, offered to prove, by the evidence of the notary, of the keeper of the record, and of other witnesses, that the attestation on the original instrument of sasine had been truly vitiated, under circumstances very similar to those in the last mentioned case, and that the present instrument had been made out with its fair attestation, in order to avoid the objection. The majority of the Court held that the proof was incompetent; and that as, ex facie, the entry in the minutebook, and the attestation, were unimpeachable, whilst there was no necessity for any date prefixed to the entry in the principal record, the sasine ought to be sustained'.

But although, in the ordinary case, the entry in the minute-book is held as the date of registration, such entry by no means supersedes the necessity of a subsequent recording of the sasine at full length, in the body of the register. The act 1617, cap. 16, requires the keeper to engrosse the whole 'body of the writ in the register,' under the pain of deprivation of office; and the act 1696, c. 18, declares, that no sasine shall be of any force against third parties, unless duly booked and insert in the register.' A practice having afterwards crept in, of not engrossing in the register the whole of the notary's doquet attached to sasines, it was provided, by act of sederunt, 17th January 1756, that the entire sasine, including the whole of the notary's doquet, should afterwards be inserted in the record, under the sanction of nullity.

6

The effect of these repeated enactments, is to render an omission in the register of any material part of the sasine, or an error in copying such part into the record, fatal to the re

1 Adam v. Duthie, 19th June 1810; Fac.

gistration. Thus the omission of certain lands, in the copying into the register, of that part of the sasine in which the notary attests that delivery was given, although they were included in the precept of sasine in the register, was held to be fatal to a claim of enrolment founded partly on these lands1.

In a very recent case, the clause of delivery in the claimant's sasine bore, that sasine was given 'dict. villæ et terrarum 'de Eastertown de Lesmurdie (inibi comprehenden. tertiam

6

partem terrarum de Invercharrachy, tertiam partem terra'rum de Auchnastank, una cum tertia parte terrarum de 'Belchirrie, molendinum de Lesmurdie), terras molendinarias, 'multuras, sequelas, et lie knaveships ejusd:' &c. In the register the words within parentheses were omitted. In evidence of the extent, there was produced a retour, in omnibus et singulis villis et terris de Eistertown de Lesmurdie, tertiâ ' parte terrarum de Inverquherache, tertiâ parte terrarum de 'Auchnastank, et tertiâ parte terrarum de Belchirie, cum ' earundem pertinen.' The Court dismissed the claim, on the grounds that the recorded sasine did not correspond with the retour, and that the sasine could not be considered as duly recorded 2.

6

Errors in copying into the record the year in which the sasine, or precept of sasine, bears date, have also been found to void the registration; and this equally holds whether the error has been committed in the year of the Christian era, or in the year of the king's reign. Thus, in one case, an enrolment had been made on a sasine, which bore date, anno domini

1

Grey v. Hope, 23d February 1790, Fac. Note from the Session Papers of Lord President Campbell, on reclaiming petition. Interlocu'tor clearly right. Sasine taken out of the register. Any person, therefore, examining the register, would see nothing but the record copy.— 'Montboddo. Minute-book only supplies the date.-Justice-Clerk. Clear that the interlocutor is right. Attestation on sasine affords only pre'sumptive evidence. Minute-book is not registration, short description only. Evidence of date.'-' Adhere.'

2 Stewart . Lord Fife, 20th February 1827; Shaw, and Fac.

⚫ millesimo octingentesimo vigesimo primo, mensis vero Aprilis ⚫ die decimo, regnique S. D. N. Georgii Quarti, &c. anno se'cundo;' but, in the register, the word primo was omitted, although, in other respects, the date was accurate. The dates of the charter and precept, as engrossed in the instrument of sasine, were also correctly given in the record. The error, however, was found fatal to the enrolment. In another instance, the precept, as registered, bore date, anno millesimo 'octingentesimo et decimo tertio, regnique nostri anno quadra'gesimo quarto,' instead of 'quinquagesimo quarto,' the true date; which error was also found to be fatal to the enrolment 2.

SECTION 3.

Of the Claimant's Valuation.

WITH respect to the valuation of the land which affords a freehold qualification, the statute of Charles II. 1681, c. 21, has declared that the claimant shall be infeft either in a 'forty shilling land of old extent, holden of the king or prince, 'distinct from the feu-duties, or where the said old extent appears not, that he shall be infeft in lands liable in public burden for his Majestie's supply for four hundred pounds ' of valued rent.' There are thus two measures pointed out of the valuation of the qualification, the old extent and the valued rent; and it will be necessary to consider the nature and evidence of both in their order.

1. Old Extent.

The valuation by Old Extent is of great antiquity. In its origin and whole history, it is involved in much obscurity,

1

Macqueen v. Nairne, 23d Jan. 1823; Fac., and Shaw, ii. 637.

* Denniston v. Speirs, 16th November 1824; Shaw, iii. 285.

and has exercised the research and ingenuity of lawyers and antiquarians for a long period. A few years ago, great additional light was thrown on the subject by an eminent lawyer, in the course of a question involving this subject, which depended before the Court; although, from the very imperfect state of our ancient records, much remains still very obscure, and probably will long continue so 1.

There were two objects which early called for a valuation of lands in this country. The one was the levying of taxes on those occasions admitted by the genius of feudal government; the other, the ascertainment of the amount of the feudal casualties due by the vassal to his superior.

In the course of the twelfth and thirteenth centuries we know that considerable contributions were levied by the sovereign on different occasions. It can hardly be doubted that these aids were collected according to some fixed rule or proportion; and although history affords no light on the subject, yet the expressions, carracuta terræ, bovata terræ (ploughgate and ox-gate of land) which occur in deeds so early as the eleventh century, may be regarded as indications of valuation. Lord Hailes first pointed out a document, in the Chartulary of Aberdeen, shewing, that, in the reign of Alexander III. the expression antiqua extenta was used 3; and it has been inferred that the valuation so denominated must have been older than the reign of that monarch; but whether this antiqua extenta was a general estimation of the whole lands of the kingdom, is a point at least not established by any certain evidence

1 The following short account of the present state of our knowledge on this subject, is derived from the learned and able memorial written by Mr Thomson, in the case of Cranston, 16th May 1818.

2 Alexander III. reigned from 1249 to 1285. 3 In the Chartulary of Aberdeen (101) we have 'dri Tertii vicecomitat. de Aberdene et de Banff.'

6

Rentale Regis AlexAmong other articles

this occurs, de Thanagio de Nathdole, secundum antiquam extentam, xlix. 'lib. et xvi. denar.'-Hailes' Annals, vol. i. p. 224. 3d edit.

The first proof which exists of a double valuation, or an old and new extent of lands, is afforded, not by any document relating to taxation, but by retours, framed in obedience to briefs issued by Edward I. after his successful inroad into Scotland. The first of these retours relates to the succession to the lands of Riccardiston, in the county of Edinburgh, and is dated 18th February 1304. The brief is not extant. The retour bears, that the estate is holden of the Lord John de Soules, who held it of the Steward of Scotland, and that, 'valuit tempore pacis in omnibus exitubus per annum x libras, * et nunc valet xx solidos." Two other briefs were issued by Edward I. relative to the barony of Brade, also in the county of Edinburgh; the one directing the enquiry, inter alia' ce que meismes les terres et tenementz valent per an en 'totes issues;' the other proceeding on an application for a grant of the ward, and ordering the inquest to say,' quan'tum custodia illa valet per annum, in omnibus exitibus juxta ' verum valorem. A retour, dated 14th July 1305, ' super ' extentum baroniæ de Brade,' appears to have been drawn up in answer to both briefs, and bears: Item dicunt, quod

dicte terre tempore pacis, quando fuerunt edificate et culte 'per totum, cum molendino, et omnibus aliis commoditati

bus, valebant xl marcas, sed NUNC, propter destructionem guerre due partes de Brade et de Groutehill, de quibus 'dictus Henricus obiit vestitus et sasitus, valent hoc anno 'viii. marcas, quia in nullo edificantur: Item dicunt, quod se'cundo anno, si molendinum sit constructum, et terra edifi 'cata et de hominibus habitata, valebit xii marcas; et tertio 'anno xiiii marcas; et quarto anno xvi marcas; et quinto et ⚫ sexto anno, quolibet anno valebit xviii marcas,' &c.

These curious documents are very instructive. They show distinctly the precise meaning of the expression tempore pa'cis' in retours, about which lawyers were much divided. It plainly signifies the value of lands in a time of peace and