of the registration of some other person as proprietor. It is the popular belief that any person damnified by the issue of a certificate of title to another has his remedy in an action for damages, for the payment of which the Assurance Fund in the first instance, and the Consolidated Revenue in the last resort, are made liable. The foundation of this belief has fortunately never yet been tested in the Supreme Court, but no one can read that part of the Act which deals with this matter; especially sections 115 to 122 inclusive, without a feeling of regret that so important a possibility in a Registration Act as the registration of the wrong man should be dealt with by provisions so involved in structure and so pregnant with difficulties of construction.

6. The attempt to substitute a system of transfers, accompanied by instruments declaring trusts, and protected by caveats, in lieu of the ordinary form of Settlements embodying the trusts in the same instrument, may be the logical outcome of the Torrens system of registration; but the provisions effecting the change are very inartificially designed, and stand in great need of elaboration.

7. The effect of cancellation after registration upon the various classes of covenants should have been settled by express enactment.

8. There should have been some provision in the Act compelling caveators to proceed to trial (after issue of writ and lodgment of notice of proceedings) within some reasonable time. At present an application is suspended indefinitely, so far as the department is concerned, upon notice of proceedings after caveat.

9. There is no machinery provided in the Act for the purpose of bringing an applicant and a caveator to an issue when the title to land is in dispute. The Act invites a rival claimant to lodge his caveat and then dismisses him to make the best of his case before

another tribunal-the Supreme Court. This change of forum seems justifiable perhaps on the ground that it would have been dangerous to invest the Commissioners of Titles with judicial powers commensurate with the important function of deciding disputed titles to land. But if the Commissioners were selected from professional men familiar with the law of Real Property, and trained to sift and weigh evidence, there seems no well-founded objection to their investiture with the powers of a Court of First Instance. The creation of a Court of Titles, somewhat on the model of the Irish Encumbered Estates Courts, in the persons of the Examiners, had always been an article of faith for the late Mr. G. K. Holden,

and was a conspicuous feature in the Bill to remodel the Land Transfer system which he had prepared so far back as 1863, and had pressed-though unsuccessfully-upon successive Governments, from time to time, almost up to the year of his death.

10. The same Bill made provision, moreover, for the abolition of the office of Commissioners, and for a severance of the Land Titles Office from its then and still existing departmental connection with the Registrar General's Office. The first proposal was founded on the conviction that the interposition of an irresponsible lay Board between the investigation of titles by the officers virtually responsible for that duty and the actual issue of certificates was an increase of friction without any corresponding increase of power-was useless, either as a safeguard to the revenue or a check upon the Examiners-and was, moreover, open to the fatal objection common to all bodies so interpolated into a system as to fritter away the wholesome feeling of direct responsibility by diverting attention from the real to the ostensible agents. For years. no such Board had existed in Victoria where the land transfer system had reached its highest development; and, indeed, no such Board would have been invented even in South Australia, where that system was first introduced, but for a most unwarrantable suspicion of the loyal administration of the. Act, during its noviciate, by its official solicitors. (^) The present writer sees no reason for dissenting from the views of those able and dispassionate judges-his late predecessors—either in respect of the office of Commissioners, or in respect of the association of the Office of Titles with a statistical department with which it has no functional connection or affinity.

11. Some imperfections in structure, and some provisions of very questionable character, contained in our Real Property Act, are probably owing to an insufficient consideration of the corresponding enactments of the South Australian model, from which ours was but a transcript—although, it must be admitted, a transcript made after very mature deliberation and full consideration of rival schemes for the registration of titles. The present Land Transfer

(") It will be within the recollection of many persons, that Sir Robert (then Mr.) Torrens was an important witness before the Select Committee on the Land Titles Declaration Bill, in 1862. That gentleman, at page 38 of the Evidence printed with the Report, says "The only function of the Commissioners is to decide to what extent the claim of the party (sc. to be registered) shall be advertised, and the number of newspapers in which the advertisement shall appear, or whether it shall be advertised in any other of the Colonies or in Great Britain, and to advise and assist the Registrar General in this important duty."

Statute of Victoria is in every respect a much more studied measure than ours, and, though founded like our Act and that of Queensland on the South Australian, bears evident signs in its numerous and substantial variations from the original, that its framers knew when to avoid the beaten track as well as when to follow it.

12. The Statute has made no provision on the following subjects:

(a) Does the Statute of Limitations relating to Real Estate operate on land under the Act or not?

(b) How far are notifications on certificates to be deemed to be "notice" to purchasers and intending dealers in the equitable sense of the term?

(c) How far (if at all) do estates, interests, &c., registered under the old system, or unregistered, bind lands under the Act where there is no question of priority?

(d) What is a "lien" within the meaning of the Real Property Act?

(e) Is land under the Act subject nevertheless to the quit rents reserved on the original grant, and to all other conditions, reservations, and exceptions contained in such grant?

(f) Does the prohibition of the entry of trusts in the Register book, contained in section 66, bind the Crown?

13. The procedure prescribed by the 107th section for an applicant proprietor feeling himself aggrieved by any act or omission by the Land Titles officers, through their statutory medium, the Registrar General, lacks precisely the two recommendations which this popular statute might have been expected to offer, viz., cheapness and dispatch.

The Supreme Court (or a Judge thereof) ought to have been made accessible to a complainant at any stage of his application, by means of the proceeding now so common in England-a case stated at the instance of the applicant—which, as a rule, would probably not be half so costly, nor half so dilatory a course, as the present cumbrous procedure by summons to show cause.

14. Fair holding titles ought to have received some sort of recognition. The general tenor of the Real Property Act in its present form appears to be opposed to the registration of titles of lower quality than what are known as "marketable" titles, and

the practice of the Examiners has, speaking generally, (") been in accordance with that view; but it is, at all events, worth considering whether fair holding titles might not be safely accepted on condition that the applicant shall either pay an increased premium (say not to exceed 2 per cent.) for their insurance, or (at his option) consent to the issue of a qualified certificate

(b) The Legislature having omitted to declare or even to indicate in the Real Property Act what kind of titles should be placed upon the Register, with the measure of indefeasibility accorded by the Statute, the duty of determining this important question practically devolved upon the Examiners of Titles. And they appear to have come to the conclusion, very soon after the introduction of the system, that the only titles which they would be justified in recommending the Government to guarantee were the class known as "marketable" titles, but with these qualifications,—that if the equitable portion of the title in any case were unexceptionable, outstanding legal estates and interests should not be allowed to interfere with its acceptance; and that, as the machinery of the Act provides means for disseminating notice of applications and for the lodgment of caveats, some effect must be taken to be extended to the equitable doctrine of acquiescence, as also some allowances made for exceptional cases of missing documents of title. A "marketable" title, it is needless to say, is such as a Court of Equity will compel an unwilling purchaser to accept. And as this is, speaking generally, the class of title which by the contract of sale itself, Equity will imply in the absence of special agreement as between vendor and purchaser, it would seem that it is this class and this class alone which the Government, who may as guarantors be considered as purchasers in effect, appear to be entitled to require. The Land Titles Commissioners too, it must be remembered, are invested by the Act with discretionary powers as to the acceptance or rejection of a title, which must not be disregarded in the consideration of this question; and the element of risk in any case may, it would appear from the Act, be left to their determination; but risk is itself so often a question inseparable from legal considerations, that it would obviously be inexpedient that applications having that ingredient should be remitted to the arbitrament of non-professional persons. In the neighbouring Colony of Victoria, where a system of land transfer and registration of title, in the main similar to our own, has long been established, the Commissioner of Titles is content with what are there described as "substantially good" titles; but it is not therefore to be inferred that he would commit the Victorian Government to mere "holding titles"; and even if it be the practice of the department in Victoria to issue certificates of title to applicants who may be unable to disclose a good, much less a marketable title, yet there is some justification in the Victorian Statute for such a practice which is entirely absent from our Act. That justification is implied by the power given to the Commissioner of Titles to demand an additional indemnity for imperfect titles; or, in other words, to compel the applicant to contribute to the assurance fund—(in that Colony the same as with us)—" such an additional sum of money as the Commissioner shall "certify under his hand to be in his judgment a sufficient indemnity, by reason of the non"production of any document affecting the title, or of the imperfect nature of the evidence of "title, or against any uncertain or doubtful claim or demand arising upon the title." The Government of this Colony guarantees titles on the payment once for all of 4d. in the £, or th part of the declared value of the land applied for. Thus, the title to a property the value of which is declared to be £20,000, is, if the title be accepted, insured for the consideration of 20,000 half-pence, or £41 13s. 4d. That consideration is obviously ridiculously incommensurate if the Government be supposed to accept "risky" titles. Risky titles, like risky policies of marine or life assurance, can only be justified on the ground of adequate premiums being in every case charged. But who is to measure the probability in £ s. d. of this or that cestui que trust setting aside a particular sale-of an ignored remainderman enforcing his claim for deprivation of estate against the assurance fund-of an executor selling the estate under an implied charge of debts or of a presumed claim as heir-at-law being successfully impeached-and in every case to the prejudice and perhaps in some to the utter annihilation of the accepted title? Moreover, the acceptance of risky policies at all is excused rather than justified by the pressure of competition.

of title, the qualification to be so stated in the body of the certificate as to except from its indefeasibility any estates, interests, or rights which may be claimed by any person under a certain named instrument, or instruments, or anterior to a specified date. (©)

We now pass from the special consideration of the Real Property Act to the general body of Property and Conveyancing Acts comprised in this volume. Apart from the Statute of Charles the Second,() which converted all the ancient tenures (with a few exceptions) into free and common socage, land in this Colony could not, in the nature of things, be holden by any other than the same free tenure. And our system of conveying freehold and other interests in land, and of dealing with it generally, has naturally enough followed, up to a certain point, in the well-beaten track of English conveyancing, so far as that system was capable of application in the Colony. Accordingly, our conveyancers have for nearly a century adopted the old Common Law Assurances as well as those which operated under the Statute of Uses. Of the former class the Feoffment was once a favourite form of conveyance, and indeed it is even now occasionally adopted; of the latter class the Bargain and Sale, and Lease and Release, were for long the accepted modes of transfer. The extraordinary assurance by Fine and Recovery, was, however, never introduced, probably because the proceedings connected with the levying of a Fine and the suffering of a Recovery were both costly and complicated, and because the curious judicial fictions on which those proceedings in the English Court were based could not be well imitated in our Court, and also perhaps because estates tail were never so common in this Colony as to require any very special provision to be made for barring them. As Fines and Recoveries were never known to our Law, so

The State, however, has no competitors in its monopoly of Insurer of Titles. From these considerations alone (which in no sense pretend to exhaust the subject) it would appear that the practice of the department in this Colony of refusing all titles but such as are unexceptionable from an equitable point of view, is justified by sound principle, as it most certainly has been justified by the test of experience, for the result of the latter criterion discloses the extraordinary fact that not a single claim has been successfully made (and only one made at all) against the assurance fund during a period of more than fourteen years.

(c) Several of the matters above indicated as deserving of consideration by the Legislature have, in fact, been dealt with in a Bill which was recently introduced in and passed through the Legislative Assembly by Mr. Terry. That Bill is now (September, 1877) before the Legislative Council, but without much probability of becoming law during the present year. The publication of this book was delayed for a considerable time with the view of including that Bill so soon as it should have been passed into law.

(4) 12 Car. II. cap. 24.