Real Property Act are sufficient to protect the defendant's purchase, he having obtained from the Crown (through the alleged agreement with Sheppard) a grant to himself of the fee simple and legal estate in this land, this grant being dated 27th June, 1866, and being duly registered and also duly recorded and enrolled on the 3rd July, 1866, both grant and registration therefore being long subsequent to the above sale and also to the insolvency. The defendant in fact contends that by force of the word indefeasible' in the 40th section of the Real Property Act, and the words 'rules of law and equity' in the 115th section of that Act, every duly registered proprietor' of land under that Act is enabled by such registration alone to get rid of and set aside all equities whatever residing in himself in relation to such estate, although even (as in this case) a statutory equity in favour of an insolvent's creditors, and although admitted by the answer, or satisfactorily established by evidence, as binding on the conscience of the defendant up to the present time. Now it seems to me that such a construction of the Real Property Act cannot be supported, either by any argument or any principle. For, first, no one can argue that the Real Property Act was intended, per se, to alter and abolish by implication the whole law of trusts; also, to confound the distinction between legal and equitable estates, as well as to abolish all the equitable docrines relating to trusts and to notice, and, consequently, to set aside all the rights and interests of all cestui que trusts, claiming either by admissions or proofs against trustees to have their various existing and equitable interests maintained and enforced by decree of equity whenever necessary. Neither this, our colonial statute, nor the analogous statutes in England, Íreland, and other colonies, could possibly have been intended, per se, to defeat all cestui que trusts, and to deprive all other parties of all their lawful rights in Courts of Equity. For example, why should not the trustees of a settlement, or of a will, obtain all the real advantages provided by this Act as to the legal estate by registering their title to such legal estate, and rendering such title to the legal estate indefeasible as provided by the Act; but why should the trustees thereby destroy all the equities vested or admitted to be vested in themselves on behalf of their cestui que trusts. In the second place, I cannot admit for an instant that these Real Property Statutes were intended to enable the trustees of legal estates, with full knowledge and notice of such trusts, by mere registration of their title to the legal estate, and obtaining a certificate of such title, to get rid of all their trusts, whether open or secret, and whether for good consideration, for voluntary consideration, or otherwise, then legally existing as against the trustees themselves and their legal estates; and which except for this registration of title would be admitted or proved to be enforceable against the trustees by suit in Equity. Thirdly, the section 80 of this statute as to permitting notices of trusts to be entered in the registry, and many other sections of the statute, may be cited as being wholly at variance with any such interpretation as contended for by the defendant. Fourthly, it seems to me that if a Court of Equity should give to the statute any such interpretation of this enactment, its most useful, beneficial, and valuable provisions would become the means of the grossest frauds, and would cause a needless and complete repeal of all equitable jurisdiction in the enforcement of all trusts whatever; a construction the more absurd, because the Equity jurisdiction was invoked, as in this case, not in any degree to set aside the indefeasible title or certificate of the trustee, but only to render such title or certificate available for all lawful equities affecting such title or certificate. Fifthly, I am also of opinion that the 118th section, as to protection of the bona fide purchasers and mortgagees when obtaining their title from the owner of the certificate without fraud, is very strongly confirmatory of this construction of the previous sections of the statute as being the only construction consistent with the rights of property, with the rules of justice and equity, or with any reasonable interpretation of the intention of the Legislature. I am quite clear, therefore, that the Real Property Act affords to this defendant no protection against the decree prayed by the defendant's bill, which decree I, therefore, now make; and the defendant, having set up. an inequitable defence to the bill, must pay the defendant's costs up to and including the hearing of the cause; but the decree will be so drawn as to protect the defendant's rights as mortgagee, and also to give him a lien for the payment of the purchase money." An appeal to the full Court from this decree was dismissed with costs.

Ss. 55, 56, and 57.-Notice of default precedent to sale of mortgaged land. See Ex parte ·Hassall and another, 10, S. C. R., 292, in which case it was decided by a majority of the Court (Stephen, C. J., dissentiente) that the Registrar General is entitled to the production of proof, not only of default of payment of the principal sum, interest, &c., secured by the mortgage, for the space of one calendar month as prescribed by the 55th section, and of the continuance of such default for a like period as required by the 56th section that is to say, of two months' default after the due day of payment-but also of proof under section 57 that such default continued up to the day of sale of the mortgaged property.

In Campbell v. The Commercial Bank, 2, Knox, S. C. C., 240, it was held that a demand of more than was actually due, made by the mortgagee under section 55 of the Real Property Act, does not vitiate the notice to pay given under that section.

Add, also, as note to sec. 92, p. 105: The following case, on appeal from the Supreme Court of Victoria, reported 2, L. R., P. C. A., 110, may be referred to with advantage in the construction of section 92 of the Real Property Act:-"On the 2nd of January, 1872, B's transferror presented for registration under the Transfer of Lands Statute, transfers of certain lands; and on the 21st of the same month B obtained registration of the transfers and the usual certificates of title. More than three months previously, viz., on the 20th of October, 1871, a copy of a writ of fieri facias (which had been issued by the Supreme Court in an action against the said

transferror) was served on the appellant under section 106 of the said statute, specifying the said lands as 'the lands sought to be affected thereby,' and was by the appellant duly entered.

On the

5th of January, 1872, a copy of an alias fieri facias in the same action, with a statement specifying the same lands as the lands sought to be affected by such writ, was also served on the appellant. On the 2nd and 28th of March, 1872, transfers of the same lands from the District Sheriff to the respondent under the alias writ were lodged for registration with the appellant, who refused to register them or to issue certificates of title. Held, on petition by the respondent under section 135 of the said statute, that the appellant was right in such refusal. B had, previously to the 5th of January, 1872, acquired a title to the lands which could only be defeated by a Sheriff's transfer of them in pursuance of the original writ; and as the respondents' transfers were in pursuance of the alias writ, and were made at a time when, according to the statute, no valid transfer could have been made in execution of the original writ, the appellant was right in completing B's title by registration on the 21st of January. Per Curiam.-The policy of the Legislature in framing this section was obviously to prevent titles from being affected by the operation beyond a limited time of unexecuted writs of execution as charges on the land, and to reconcile the rights of a judgment creditor with those of a purchaser for value whether with or without notice. Both objects are effected by compelling the creditor to proceed within a limited time to enforce an execution by actual sale of the land affected thereby.'-Registrar of Titles v. Paterson."

S. 107. With reference to Ex parte Pennington and others, 13, S. C. R., 305, cited at page 109, post, it will be useful now to consider the more recent decision, on the application of the same parties, but as to a different parcel of land, reported in S. M. Herald of September 5, 1877. The judgment of the Court in the latter case would appear to be, that the effect of the Underwood Estate Acts was to vest in the statutory trustees the estates of James Underwood, freed from the trusts of his will as well as from any incumbrances created by the beneficiares thereunder, but not freed from any incumbrances created by the testator or the trustees; that none but the latter class of incumbrances, therefore, should be investigated by the Examiners for the purpose of being noted on the certificate of title as directed by the Court in the former case. This decision seems also to determine the following points under the Real Property Act :

1. Under the 22nd section of that Act a judgment of non pros. signed by applicant has the same effect in disposing of a caveat, as a "decision" of the Court.

2. But where a caveator had, under the 23rd section, taken proceedings by issuing a writ, which writ had been from time to time renewed, although, as it appeared, it had never been served on the applicants, and although no præcipe had been filed at the dates of such renewal, the Court held by majority (following Ex parte Macintosh, 10, S. C. R., 146, post, p. 104) that the caveat in that case had not been abandoned by a delay of more than fifteen months in prosecuting proceedings, and must be removed by an application under the 82nd section of the Act, and not be dealt with in an application under the 107th section. (The caveator was represented by counsel.)

Real Estate of Intestates Distribution.-Add as note to sec. 2, page 86: "See The Queen v. Dickson, 8, S. C. R., pp. 13, 14, ubi per Curiam,- We think that the natural and indeed the unavoidable conclusion to be deduced from these words is, that the Legislature which had by the first section transferred the succession to the real property of an intestate from his heir-at-law to his personal representatives, intended by this second section to give the property so transferred all the qualities of personal assets to impress it by law with the character of personalty for all purposes, from the moment of the intestate's death-and to make it undistinguishable in the hands of the personal representatives from other personal assets. Such property is thus, in fact, converted by the statute, while in the hands of the personal representatives, into personal estate'."

Crown Lands Alienation Act of 1861, ss. 13, 18, and 19.—The plaintiffs lodged an application for a Mineral Conditional Purchase under s. 19 of the "Crown Lands Alienation Act of 1861," of lands described as follows: "County of Bathurst, parish of Bracebridge, 40 acres, about 1 mile east of road from Spring Vale to James Park, and about a mile in a southerly direction from Markham & West's copper lease-to be taken as marked by applicants.' " Certain land not in the parish mentioned, and to the north of Markham & West's copper lease, was marked by the applicants, and was being worked by them at the time of the application. Held (per Sir James Martin, C.J., and Sir W. Manning, J.Hargrave, J., dissentiente), that without the words "to be taken as marked," the description was void for uncertainty; but that with those words it was capable of being rendered certain, and that the Judge was justified in leaving the question of identification to the jury: Per Hargrave, J.The description, without the words referring to the marking, was a sufficient compliance with the requirements of s. 13. Held also, that the words "to be taken as marked" controlled the inconsistent words of the description. After the plaintiffs' application a mineral lease of the same land was granted to the defendants, who ejected the plaintiffs. Before the expiration of three years from the date of the application, the plaintiffs went to the office of the Minister of Lands and were told by a clerk there that it was useless to tender the balance of the purchase money. The plaintiffs, consequently, did not pay it into the Treasury. In an action of ejectment brought by the plaintiffs against the defendants, it was objected that the land had reverted to the Crown under s. 18 upon the default of the plaintiffs in the payment of the balance. Held, that the plaintiffs were entitled to maintain ejectment, because-(1), per totam Curiam, the land does not revert under s. 13 until the Crown has made a declaration of forfeiture; (2), per Sir James Martin, C.J., and Sir W. Manning, J., because the Crown had dispensed with the tender of the balance by wrongfully issuing a lease and

repudiating the plaintiffs' title, and by the statement of the officer in the Lands Department that a tender would be useless.—Martin and others v. Baker and others. Supreme Court, 5th September, 1877. (Ex relatione Geo. Knox.)

Page 59, Insolvency, 25 Vic. No. 8, sec. 7.-See Sandeman v. Robinson, reported in S. M. Herald, 7 September, 1877-The Official Assignee of an insolvent sold by private contract an engine and fittings belonging to the estate of insolvent, but the Chief Commissioner declined to approve of the sale. Held, that no property in the engine, &c., passed to the purchaser (the defendant), because under this section no sale by private contract by an Official Assignee has any validity unless the assent of the Chief Commissioner has been first obtained.

Page 80, Real Property Suits Limitation.-Add to note of the case Laing and others v. Bain and others--The second new trial was held before Sir James Martin, C.J., in May, 1877, and a verdict was found for the defendants as to the homestead paddock in which Worrall's hut stood, and for the plaintiffs as to the residue of the grant. On a motion for a rule nisi for a new trial, on the ground of misdirection, the Court (Faucett, J., dissentiente) refused the rule. Sir James Martin, C.J., had directed the jury that the evidence of any acts of possession done subsequently to the commencement of the period of twenty years before action brought was immaterial; that for the purpose of shewing a possessory title, the same particularity was required in defining the area and boundaries of the land as would be required in showing a title under a deed of conveyance; that certain acts, such as putting up fences, &c., did not amount to possession, unless done with the intention of excluding all comers from the land.-2, Knox, S. C. C., p. 264; see also S. C. on motion to appeal to the Privy Council, ib., p. 284.

Page 255, Index, Real Property Act add "Power of Appointment may be created or executed by a registered proprietor under 85th section, p. 104."

A COLLECTION

OF

ACTS RELATING TO THE TRANSFER OF OR DEALING WITH LAND.

ACTS SHORTENING ACTS. (*)

16 Vic. No. 1. An Act for shortening Acts of the Legislative Council.

[26th July, 1852.]

Acts of the

Governor and Council may be altered, &c., in the same Session.

BE it enacted and declared by His Excellency the Governor of New South Wales, by and with the advice and consent of the Legislative Council thereof, as follows1. Every Act of the said Governor and Legislative Council of New South Wales, to be passed after the commencement of this Act, may be altered, amended, or repealed in the same Session of Council, (†) any law or usage to the contrary notwithstanding. 2. Such Acts shall be divided into sections, if there be more enactments than one, which sections shall be deemed to be substantive enactments, without any introductory without introwords.

Acts to be divided into sections

ductory words.

ments.

3. All Acts of the Governor and Legislative Council (†) of New South Wales, including References to prospective enactments, may be referred to by the term "Act of Council"; and when former enactany Act of Parliament, or any former Act of Council, or any section therein, shall be referred to in any Act, it shall be sufficient to cite the same by the year of the reign in which such Act was made, and the chapter or number of such Act, and the number of such section, without reciting the title of such Act or the provisions of such section so referred to; and the references in all cases shall be made according to the copies of such Acts printed by the Government Printer: Provided that, where it is only intended to amend or repeal a portion only of a section, it shall still be necessary either to recite such portion, or to set forth the matter or thing intended to be amended or repealed. 4. Wherever any Act shall be made repealing in the whole or in part any former Repealed Act, and substituting some provision or provisions in lieu thereof, such provision or provisions so repealed shall remain in force until the substituted provision or provisions shall come into operation by force of the last-made Act; and such repeal shall not, without express words, affect any act, matter, or thing commenced to be done under the repealed Act, but the same may be continued under the said repealed Act, unless the provisions of the repealing Act shall be adapted to such continuation. (†)

enactments.

5. Every Act made after the commencement of this Act shall be deemed and taken to All Acts to be be a Public Act, and shall be judicially taken notice of as such, unless the contrary be deemed Public expressly provided and declared by such Act.

Acts.

Acts.

6. In all Acts, words importing the masculine gender shall be deemed and taken to Interpretation of include females, and the singular to include the plural, and the plural the singular, unless certain words in the contrary as to gender or number is expressly provided; and the word "person" or "party" to include bodies politic or corporate as well as individuals, if the context be applicable thereto; and the word "month" to mean calendar month, unless words be added showing lunar month to be intended; and the word "land" shall include messuages, tenements, and hereditaments corporeal or incorporeal of any tenure or description, and whatever may be the estate or interest therein, unless where there are words to exclude houses and buildings, or to restrict the meaning to tenements of some particular tenure, or to some particular estate or interest; and the word "estate" shall include any estate or interest, charge, right, title, claim, demand, lien, or incumbrance at Law or in Equity, unless a more limited meaning is indicated by the context; and the words "oath," "swear," and "affidavit," shall include affirmation, declaration, affirming, and declaring in the case of persons by law allowed to declare or affirm instead of swearing.

7. Whenever the word "Her" or " His" Majesty shall be used in any Act, the same Meaning of the shall be taken to include the Successors to the Crown of England; and whenever the words "Her Majesty," word "Governor" shall be used, the same shall be construed to mean the Governor or "Governor," &c.

(*) It has been thought advisable to print these Acts in extenso, although many of the sections contain provisions not akin to the subjects treated in this collection.

See 22 Vic. No. 12, s. 1, post, p. 3.

See 22 Vic. No. 12, s. 4, post, p. 3.

A

Words "in for

other person for the time being lawfully administering the Government of this Colony; and whenever any person holding or occupying a particular office or position shall be mentioned or referred to in general terms, such mention or reference shall be taken to include all persons who shall at any time thereafter occupy for the time being the said office or position, unless a contrary intention shall appear.

8. When any officer or office is referred to in any enactment, the same shall be taken or of the Colony to refer to the officer or office of the description designated within and for the Colony of

of New South

Wales" to be implied.

Power to appoint

remove re

New South Wales; and all reference to localities, jurisdictions, and other matters and things shall be taken to relate to such localities, jurisdictions, and other matters and things within and of the said Colony, unless in any such case the contrary shall appear to have been intended by the Legislature.

9. Whenever power shall be given by any Act to Her Majesty, or to the Governor of implies power to the Colony or to any officer or person to make appointments to any office or place, it appoint, &c. shall, unless there are words to show a contrary intention, be intended that such power shall be capable of being exercised from time to time as occasion may require, and that Her said Majesty and the said Governor or such officer or person shall have power to remove or suspend the person appointed, and to appoint permanently or temporarily, as the case may require, another person in his stead, or in the place of any deceased, sick, or absent holder of such appointment.

From time to time.

Power to revoke and alter rules

and regulations to be inferred from power to make them.

Power to administer oath implied from power to hear and determine.

False oath or

affirmation or declaration punishable.

All judicial powers conferred on Justices to be exercised summarily.

Appropriation of

Act silent.

10. Whenever power shall be given to do, perform, or submit to any act, matter, or thing, such power shall be capable of being exercised from time to time as occasion may require, unless the nature of the thing or the words used shall indicate a contrary intention.

11. In every enactment whereby power shall be given to any officers or persons to make any rules, orders, or regulations, it shall be implied that such officers or persons may revoke, alter, or vary the same from time to time, as occasion may require, unless the terms used, or the nature and objects of the power, shall indicate that such power is intended to be exercised finally in the first instance.

12. Whenever any Court, Judge, Justice, Officer, Commissioner, Arbitrator, or other person shall be authorized by law, or by consent of parties, to hear and determine any matter or thing, such Court, Judge, Justice, Officer, Commissioner, Arbitrator, and other person shall have authority to receive and examine evidence, and are hereby empowered to administer an oath to, or take an affirmation from, all such witnesses as are legally called before them respectively.

13. In all cases in which an oath or affirmation shall be authorized to be administered or taken, any false evidence given by a party to whom such oath shall have been administered, or who shall have made such affirmation, shall be deemed to be a misdemeanor, and punishable as perjury; and in all cases where a solemn declaration shall be required to be taken or authorized to be received, a false declaration made by any person shall be deemed to be a misdemeanor and punishable with fine or imprisonment at the discretion of the Court before which such misdemeanor shall have been tried.

14. Whenever by any Act any penalty, fine, or forfeiture is made recoverable before, or is authorized to be imposed by or before, any Justice or Justices of the Peace otherwise than in General or Quarter Sessions, and whenever by any Act a Justice or Justices is or are empowered to hear and determine otherwise than in General or Quarter Sessions, any matter, or to make any order, or do any act of a judicial character, such Act shall be taken to empower such Justice or Justices to adjudicate, order, and act therein accordingly in a summary way; and such Act shall be taken to have enacted that no conviction or order made by any Justice or Justices of the Peace under the authority of said Act, shall be quashed for want of form.

15. Whenever any fine, penalty, or forfeiture shall be imposed or authorized to be impenalties when posed by any Act of Council, such Act shall be taken to provide that the same when recovered shall be paid, one moiety to Her Majesty, Her Heirs, and Successors, for the public uses of this Colony, and in support of the Government thereof, and that the same shall be applied in such manner as may from time to time be directed by any Act or Acts of the Governor and Legislative Council of New South Wales; and that the other moiety thereof shall be paid to the informer or person prosecuting or suing for the same, unless the Act imposing the said fine, penalty, or forfeiture shall otherwise direct.

Who may in general sue for penalties.

No private Act

16. Any fine, penalty, or forfeiture so imposed may be sued and proceeded for by any person whomsoever, unless by the Act imposing the same such right to sue or proceed shall be expressly given to any officer or person by name or designation.*

17. Whenever any Act of Council shall be passed in the nature of a Private Act, and to affect property whereby the property of any individual may be affected, nothing herein contained shall individuals not be deemed to affect the rights of Her Majesty, Her Heirs, or Successors, or of any bodies politic or corporate, or of any person excepting those at whose instance, or for whose especial benefit, such Act may have been passed, and those claiming by, through, or under

of Crown or named.

* See as to Remission of Penalties, 33 Vic. No. 13.