No. 301. deposit with the registrar a map of such land if so required. Such 29 VICTORIA, map shall exhibit distinctly delineated all roads streets passages thoroughfares squares or reserves appropriated or set apart for the use of the purchasers, and also all allotments into which the said land may be divided marked with distinct numbers or symbols, and shall also show the areas, and shall be declared to be accurate by a statutory declaration of a licensed surveyor. No person shall be permitted to practise as a surveyor under this Act, unless specially licensed for that purpose by the surveyor-general. summon registrar 135. If upon the application of any owner or proprietor to Proprietor may have land brought under the operation of this Act or to have any to show cause if dealing or transmission registered or recorded or to have any certifi- dissatisfied. cate of title registration abstract foreclosure order or other document issued or to have any act or duty done or performed which by this Act is required to be done or performed by the registrar the registrar shall refuse so to do, or if such owner or proprietor shall be dissatisfied with the direction upon his application given by the commissioner, it shall be lawful for such owner or proprietor to require the registrar to set forth in writing under his hand the grounds of his refusal or the grounds upon which such direction was given; and such owner or proprietor may if he think fit at his own costs summon the registrar to appear before the Supreme Court to substantiate and uphold the grounds of his refusal or of such direction as aforesaid, such summons to be issued under the hand of a judge and to be served upon the registrar six clear days at least before the day appointed for hearing the complaint of such owner or proprietor. Upon such hearing the registrar or his counsel shall have the right of reply; and the said court may, if any question of fact be involved, direct an issue to be tried to decide such fact; and thereafter the said court shall make such order in the premises as the circumstances of the case may require; and the registrar shall obey such order,(a) Expense to be and all expenses attendant upon any such proceedings shall be borne borne by appliand paid by the applicant or other person preferring such complaint unless the court shall certify that there was no probable ground for such refusal or direction as aforesaid. cant. 136. The forms contained in the several schedules hereto and Forms may be the forms for the time being in force under this Act may be modified modified. or altered in expression to suit the circumstances of every case; and any variation from such forms respectively in any respect not being matter of substance shall not affect their validity or regularity. liable acts 137. The commissioner shall not, nor shall the registrar or any officers not to be person acting under the authority of either of them, be liable to any one for de action suit or proceeding for or in respect of any act or matter bonâ fide done or omitted to be done in the exercise or supposed exercise of the powers of this Act. 138. No action of ejectment or other action for the recovery of Registered proany land shall lie or be sustained against the person registered as against ejectment (a) The registrar must obey the order of the court to issue a certificate of title, although there be already one outstanding upon which there is a mortgage, and although there be, thereby, two prietor protected certificates issued for the same land.-In re "Transfer of Land Statute," ex parte Patterson, 5 A.J.R., 128. 29 VICTORIA, proprietor thereof under the provisions of this Act, except in any No. 301. of the following cases (that is to say): except in certain cases. Powers of court certain cases. (1.) The case of a mortgagee as against a mortgagor in default: (v.) The case of a person deprived of or claiming any land 139. Upon the recovery of any land estate or interest by any to direct cancel proceeding at law or in equity from the person registered as proficate or entry in prietor thereof, it shall be lawful for the court or a judge, in any case in which such proceeding is not herein expressly barred, to direct the registrar to cancel any certificate of title or instrument or any entry or memorial in the register book relating to such land estate or interest, and to substitute such certificate of title or entry as the circumstances of the case may require; and the registrar shall give effect to such order. Fees. 140. It shall be lawful for the registrar to demand such fees as shall be appointed by the Governor in Council, not in any case Last Schedule. exceeding the several fees specified in the last Schedule hereto. Searches and 141. Any person may, on payment of the fee for the time being certified coples. payable in that behalf, inspect the register book during the hours and upon the days of business. The registrar, on payment of the fee for the time being payable for a certified copy, shall furnish to any person applying for the same a certified copy of any grant certificate of title caveat or registered instrument affecting land under the operation of this Act; and every such certified copy signed by him or by any assistant registrar and authenticated by the seal of the office of titles shall be received in evidence in any court of justice or before any person having by law or by consent of parties authority to receive evidence as primâ facie proof of the original grant certificate caveat or instrument and of all the matters contained or recited in or endorsed thereon respectively. No. 301. moneys to re 142. The registrar shall keep a correct account of all sums of 29 VICTORIA, money which shall be received by him under the provisions of this Act, and shall pay the same to one of the receivers of revenue at Registrar to pay such times and shall render accounts of the same to such persons ceiver of revenue and in such manner as may be directed by any statute or regulations and to render for the time being in force relating to the collection and payment of the public moneys and the audit of the public accounts. All penalties and fees received under the provisions of this Act (except sums received as contributions to the assurance fund or in augmentation thereof) shall be carried to and form part of the consolidated revenue. accounts. to be invested in Government 143. All sums of money which shall be received by the registrar Assurance fund as contributions to the assurance fund or in augmentation thereof shall be paid to the Treasurer of Victoria; who shall place such securities. sums to the credit of an account to be kept in the Treasury to be called "the assurance fund," and shall from time to time invest the same together with all dividends and profits accruing thereon in Victorian Government securities, to constitute an assurance fund for the purposes hereinafter mentioned. of land. 144. Any person deprived of land or of any estate or interest Compensation of in land in consequence of fraud or through the bringing of such land party deprived under the operation of this Act or by the registration of any other person as proprietor of such land estate or interest or in consequence of any error or misdescription in any certificate of title or in any entry or memorial in the register book may bring and prosecute an action at law for the recovery of damages against the person upon whose application such land was brought under the operation of this Act, or such erroneous registration was made, or who acquired title to the estate or interest through such fraud error or misdescription. Provided always that, except in the case of fraud or of error occasioned by any omission misrepresentation or misdescription in the application of such person to bring such land under the operation of this Act or to be registered as proprietor of such land estate or interest or in any instrument signed by him, such person shall upon a transfer of such land bonâ fide for value cease to be liable for the payment of any damage which but for such transfer might have been recovered from him under the provisions herein contained; and in such last-mentioned case, and also in case the person against whom such action for damages is directed to be brought as aforesaid shall be dead or shall have been adjudged insolvent or cannot be found within the jurisdiction of the Supreme Court, then and in any such case such damages with costs of action may be recovered out of the assurance fund by action against the registrar as nominal defendant. Provided also that in estimating such damages the value of all buildings and other improvements erected or made subsequently to the deprivation shall be excluded. tected. 145. Nothing in this Act contained shall be so interpreted as Purchasers proto leave subject to an action of ejectment or to an action for recovery of damages as aforesaid or for deprivation of the estate or interest in respect to which he is registered as proprietor any purchaser bonâ fide for valuable consideration of land under the operation of this Act, on the ground that the proprietor through or under whom he No. 301. 29 VICTORIA, claims may have been registered as proprietor through fraud or error or may have derived from or through a person registered as proprietor through fraud or error; and this whether such fraud or error shall consist in wrong description of the boundaries or of the parcels of any land or otherwise howsoever. Actions for recovery of da mages may in brought against the registrar as nominal defendant. 146. Any person sustaining loss through any omission mistake or misfeasance of the registrar, or any other officer or clerk in the certain cases be execution of their respective duties under the provisions of this Act or by any error omission or misdescription in any certificate of title or any entry or memorial in the register book or by the registration of any other person as proprietor, and who by the provisions of this Act is barred from bringing an action of ejectment or other action for the recovery of the land, estate or interest, may, in any case in which the remedy by action for recovery of damages as herein provided is inapplicable, bring an action against the registrar as nominal defendant for recovery of damages; in estimating which damages however the value of all buildings and other improvements erected or made subsequently to the loss or deprivation shall be excluded. Notice of action to be served. Payment of amount recovered. Limitation of actions. 147. In any case in which an action for recovery of damages is permitted to be brought against the registrar as nominal defendant, notice in writing of such action and of the cause thereof shall be served upon such nominal defendant one month at least before the commencement of such action; and if in any such action judgment be given in favor of the nominal defendant or the plaintiff discontinue or become nonsuit, the plaintiff shall be liable to pay the full costs of defending such action; and the same when taxed shall be recovered in the name of the nominal defendant by the like process of execution as in other actions. 148. If in any such action the plaintiff recover final judgment against such nominal defendant, then the judge before whom such action may be tried or the Supreme Court shall certify the fact of such judgment; and the amount of damages and costs recovered and the amount of such damages and costs shall be paid to the person recovering the same, and shall be charged to the account of the assurance fund; and in case the balance to the credit of the assurance fund shall be inadequate to defray the amount specified, such sum as may be necessary for that purpose shall be paid out of the consolidated revenue; and the amount so advanced shall be repaid from the assurance fund as the same may thereafter accrue. 149. No action for recovery of damages sustained through deprivation of land or of any estate or interest in land shall lie or be sustained against the registrar or against the assurance fund or against the person upon whose application such land was brought under the operation of this Act or against the person who applied to be registered as proprietor in respect to such land, unless such action shall be commenced within the period of six years from the date of such deprivation. Provided nevertheless that any person being under the disability of coverture infancy unsoundness of mind or absence from Victoria may bring such action within six years from the date on which such disability shall have ceased, so however that such action be brought within thirty years next after the date of Persons having such deprivation. The plaintiff in any such action at whatever time to caveat barred. it may be brought, and the plaintiff in any action for the recovery of 29 VICTORIA, land, shall be nonsuited in any case in which the deprivation com- No. 301. plained of may have been occasioned through the bringing of land notice or cogniunder the operation of this Act, if it shall be made to appear to the zant neglecting satisfaction of the judge before whom such action shall be tried that such plaintiff or the persons through or under whom he claims title had notice by personal service or otherwise or was aware that application had been made to bring such land under the operation of this Act and had wilfully or collusively or negligently omitted to lodge a caveat forbidding the same or had allowed such caveat to lapse. of assurance fund 150. Whenever any amount has been paid out of the assurance Moneys paid out fund on account of any person who may be dead, such amount may may be recovered. be recovered from the estate of such person by action against his personal representatives in the name of the registrar; and whenever such amount has been paid on account of a person who shall have been adjudged insolvent, the amount so paid shall be considered to be a debt due from the estate of such insolvent, and a certificate signed by the Treasurer of Victoria certifying the fact of such payment out of the assurance fund and delivered to the official assignee shall be sufficient proof of such debt; and whenever any amount has been paid out of the assurance fund on account of any person who may have absconded or who cannot be found within the jurisdiction of the Supreme Court and may have left any real or personal estate within Victoria, it shall be lawful for the said court or a judge thereof, upon the application of the registrar and upon the production of a certificate signed by the Treasurer of Victoria certifying that the amount has been paid in satisfaction of a judgment against the registrar as nominal defendant, to allow the registrar to sign judgment against such person forthwith for the amount so paid out of the assurance fund together with the costs of the application and such judgment shall be final and signed in like manner as a final judgment by confession or default in an adverse suit, and execution may issue immediately; and if such person shall not have left real or personal estate within Victoria sufficient to satisfy the amount for which execution may have been issued as aforesaid, it shall be lawful for the registrar to recover such amount or the unrecovered balance thereof by action against such person at any time thereafter if he shall be found within the jurisdiction of the Supreme Court. certain cases. 151. The assurance fund shall not under any circumstances be Assurance fund liable for compensation for any loss damage or deprivation occasioned not be se by the breach by a proprietor of any trust, whether express implied or constructive; nor in any case in which the same land may have been included in two or more grants from the Crown; nor shall the assurance fund be liable in any case in which such loss or deprivation has been occasioned by any land being included in the same certificate of title with other land through misdescription of boundaries or parcels of any land, unless in the case last aforesaid it shall be proved that the person liable for compensation and damages is dead or has absconded or has been adjudged insolvent or the sheriff shall certify that such person is unable to pay the full amount awarded in any action for recovery of such compensation and damages. Provided always that any amount paid out of the assurance fund on account of any person who may have absconded |