A collection of acts relating to the transfer of, or dealing with, land : with the cases decided in the Supreme Court noted, and a copious index appended
fc!*L 1 r^^iTr^ Ca^'^^^ Sr(M W: ^^'^^,^^. t^r^^/^^> ^rfmf^^-^...^^m?m^ :^,W 8^,^^^:^;^/ >:^C- •.v^^.rN^^nf^ m^ ^>5';,3- 0ir^.rCM.^^^^^^r^^ \Cac 7/. IV7 OforttfU Ham Bckooi Hibratg ULu^i tf- aTl ^ ^ l(jiA^.-.'-fr7-i <" C^ ^-J >" '^^^-. Cornell University Library KH 77.P6 1877 A collection of acts relating to the tra 3 1924 024 528 618 ■,\ ' Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024528618 A COLLECTION OF ACTS. BBLATINa TO THE TRANSFER OP, OR DEALING WITH, LAND WITH THE CASES DECIDED IN THE SUPREME COURT NOTED, A COPIOUS INDEX APPENDED. COMPIIED AND-EDITED BY ALEXANDER OLIVER, ESQ., BARRISTER-AT-LAW, ONE OF THE EXAMINERS OF TITLES UNDER THE REAL PROPERTY ACT. SYDNEY : CHARLES POTTER, ACTING GOVERNMENT PRINTER. 1877. ^ :2/3 ^3 PREFACE. In order to prevent any misapprehension, it is proper to state, before indicating the scope and contents of this Collection of Acts, that the fact of its having been printed at the Government Printing Office implies no responsibility whatsoever on the part of the Government, either in respect of its contents or its omissions. All „ responsibility in , connection with its compilation generally, and for any opinions expressed in the course of the following obser- vations, attaches solely to the writer. As the title imports, this is merely a collection of the many English and Colonial enactments which have a direct bearing on dealings with real estate ; and to these are subjoined, in the form of foot-notes, such decisions of the Supreme Court as appeared to determine any question of construction, or to be otherwise valuable for purposes of reference. In other words, it is an attempt to bring together, in a' compact and portable form, all those enactments to which the conveyancer of landed property requires to refer in practice, or whose bearing on proprietary rights and obligations ought to be known to its owners, as well as to all persons and associations concerned in dealing with it. If the book has any value to .the practitioner, it will probably be found in the alphabetical grouping of the various Acts hereto- fore scattered over thousands of pages, and several folio volumes, of the Statute Book, and perhaps also in the Index, upon which much labour ha^ been bestowed, with the design of facilitating, both to the professional and the non-professional inquirer, the tedious and often difficult task of finding, amidst a mass of sections', the par- ticular enactment sought for. And it may be mentioned here, that in order to assist persons to whom the forms in use under the Real Property Act may not be accessible, the whole of those forms, together with their very useful rubrics or commentaries, have been appended to the text of the Real Property Act. / The model followed in arrangement of subjects, annotation, type, and general form, has been Chitty's well-known Collection of the Statutes of Practical Utility. An Appendix has been added, VI . PREFACE. containing amongst other matters the wjiole text of the Charter of Justice and those sections of the Crown Lands Alienation Act of 1 86 1, and of the Amending Act of 1875, which appeared to fall within the scope of the book, together with all the reported cases decided on those Acts. In collecting the English Acts anterior to 1828, the writer has, he admits, undertaken a very formidable task ; for the applicability of those Acts to the Colony has not, in many cases, been affirmed either by the Legislature or by the Supreme Court. Guided however by such opinions as the Judges have expressed from time to time, and by the feeble light of his own judgment, he has endeavoured, to the best of his ability, to bring together in these pages all those early Statutes which purport to concern real estate, and of whose applicability to the Colony there appeared no reason- able doubt, without however going farther back into the antiquity of Conveyancing than the era of the Tudors. The notes of cases do not, as a rule, go back farther than the commencement of the present series of Supreme Court Reports. The Privy Council cases have however been carefully examined, and some valuable decisions have been extracted. If the book ever reaches a second edition, the writer hopes to be able to add a considerable number of decisions of our own Court collected from tTie early reports, but the time at his disposal has not enabled him for this edition to undertake a work demanding so much research. The principle upon which the selection of Acts has been determined may not have been always rigidly adhered to ; and some enactments have doubtless been incorporated which to many will appear redundant or inconsistent with the title (^f the book, and others have been omitted whicjh might appear to fall properly within its scope. For example, all the. provisions relating to " Ejectment" contained in the Common Law Procedure Act, and a considerable batch of enactments contained in the Acts dealing with persons under disability, have been deliberately omitted from this col- lection, because it was no part of the compiler's design to include Statutes of Procedure or to encumber the book with matter interesting only to litigants -or petitioners before the Court, The rule, however, here indicated has not been in every case inflexibly observed, for to have done so would not have been always expedient. Thus, the entire text of the Trustees' and Trust Property Acts, and of some other Acts has been given, although much of those . t'REFACE. Vli Statutes specially concerns procedure. If, however, the collection shall be found open to criticism because of some omissions, it may not unreasonably claim to set off against that blemish the added matter comprised in the Appendix— the Charter of Justice, and the veiy'.little known Colonial Laws Validation Act (28 & 29 Vic, cap. 63), being not the least valuable additions. Foremost among the Statutes relating to Real Property printed in this volume ranks the Real Property Act itself, which in a few months will have been in operation for a period of fifteen years. That Act and the system which it inaugurated, have in this Colony (as in the three adjoining Colonies), elicited a considerable amount of adverse criticism, not only from the legal profession but also from the general public, and there can be no doubt that much of that criticism is well founded. Still, when we consider the singular revolution in the law and practice of conveyancing which it introduced, as well as the large measure of hostility with which it was destined to cope, our Land Transfer Act will, it is conceived, be pronounced by impartial judges an achieved success ; while those who are thoroughly familiar with it, whether officially in its adminis- tration or non-officially through much contact with the depart- ment by which it is worked, will nevertheless be able to point out many imperfections in design and machinery which, though serious enough in themselves, are not so formidable as to be out of the reach of amendment. The enormous extent and value of propertie,s already placed on the new register, amounting at the end of the year 1875 to 3,139,525 acres, valued at, ;^ 6,447,484 i8s. iid., would alone be a sufficient reason for giving more prominence to the Real Property Act in this brief review than to any other conveyancing Statute ; but there is another reason in justification of such prominence. All devolutions of estates and interests by operation of law, and a-ll dealings, in respect of property so registered, are regulated and controlled, in perpetuity, by the provisions of the Real Property Act. This feature in the Torrens' system of registration, especially when it is remembered that all Crown grants issued since the ist January 1863, fall within the dominion of the Act, connects nearly all the landed proprietors) capitalists, and practising conveyancers in the Colony so intimately with that system — its development, its internal and external working, its merits and its demerits — that a fair measure of criticism should be invited rather than deprecated, even by its most pronounced admirers. Viii PREFACE. And if, haply, the present writer should be thought censurable for his assumption, while officially connected with the administra- tion of this, important Act, of the part of critic rather than of eulogist, it must not be forgotten that the founder and Va:(es Sacer of the system. Sir Robert Torrens, has succeeded in creating such^ a wide-spread and intense enthusiasm for his scheme of registra- tion that its progress has been latterly somewhat retarded by mere excess of championship. . It may not, therefore, be out of place for a friendly critic to note some points whieh either indicate defects in this beneficial measure or afford matter for the further consideration of the Ltegis- lature : — . ^ 1. The existing system of issuing one class of certificates of title is not fi"ee from objection, as it ignores the distinction which must always exist between fiduciary and beneficial ownership. There should be some mode of ear-marking the certificates issued to trustees more effective than that now adopted, so that intending purchasers should not be encouraged to assist in the perpetration of frauds. The nature of a trustee's ownership is now only disclosed when a caveat protects a deposited Declaration of Trust, and that is a safeguard which in the case of settlements of property under the Act depends on the sagacity of the settlor or beneficiary. It ought rather to be a matter of official obligation. 2. The conditions and the nature of the ownership which give a status to apply for registration under the existing law are too circumscribed. Persons should be equally entitled to registration in virtue of a power to dispose of the fee-simple as in virtue o^ an estate. 3. The modern doctrine of the "separate use" — that most beneficial of all the creations of an enlightened Equity jurispru- dence — has received only tlie very faintest recognition in the Act. This may perhaps be accounted for '\r\ some measure by the circumstance that the decisions which have finally established the doctrine on its present broad basis are not yet quite twenty years old. 4. The precise degree in which a Certificate of Title is declared to vest in the registered proprietor an estate, in reference to the land therein included, paramount to all others, or, in other words, the extent of indefeasibilty which the Certificate of Title commands, is left by the Act in some little obscurity. * » 5. So also is the remedy for deprivation of an estate or interest in land, and for other loss or injury sustained by reason PREFACE. ix of the registration of some other person as proprietor. It is the popular belief that any person damnified by the issue of a certifi- cate 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 Registrati6n 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 havp been settled by express enactment. 8. There should have been some provision in the Act com- pelling caveators to proceed to trial (after issue of writ and lodg- ment 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 profes- sional 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. Hplden, X tREFACE. 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 Govern- ments, 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 objec- tion common to all bodies so interpolated into a system as to fritter away the wholesome feeling of direct responsrbility 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 pre- decessors — 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. 1 1 . 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, firom 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.". PREFACE. xi Statute of Victoria is in every respect a much more studied measure than ours, and, though founded like our Act and that of Queens- land 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 ? {/) 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 recom- mendations which this popular statute might have been expected - to offer, viz.-, cheapness and dispatch. The Supreme Gourt (or a Judge thereof) ought to hg,ve 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 xii PREFACE. 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 insur- ance, or (at his option) consent to the issue of a qualified certificate (i") 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 intro- duction 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 qualifica- tions, — that if the equitable portion of the title in any case w^ere 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 takeii 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 ig, 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 vrould 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 neigh- bouring 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. PREFACE. xiii 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 firom the special consideration of the Real Property Act to ths general body of Property and Conveyancing Acts com- prised in this volume. Apart from the Statute of Charles the Second,('') which converted all the ancient tenures (with a few excep- tions) 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 convey- ancing, so far as that system was capable of application iij 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 Feoff- ment 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 proceed- ings connected with the levying of a Fine and the suffering of a Recovery were both postly 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 con- siderations alone (which in no sense pretend to exhaust the subject) it would appear thatthe prac- tice 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 thd 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. (") Several of the matters above indicated as deserving of consideration by the Legislature have, in fact, been dealt with in a Bill which was recejitly 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 publica- tion 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. (■•) 12 Car. IL cap. 24. ' XIV , PREFACE, the English Act abolishing them(') has never been adopted, and the provisions for acknowledgment, contained in the Registration Act (') remain our only substitute for the elaborate system established in England since 1834 by the Fines and Recoveries Abolition Act. The most important Acts concerning estates in land adopted by us from the English Statutes passed in the reign of William the Fourth, are without doubt the Dower,(B) Inheritance,(^) Limitation of Real Property Suits, {') and Wills Acts.f ) And so far it cannot be said, that since the time when Imperial Laws ceased to be operative in the Colony (25 July, 1828), we have been oblivious or careless of introducing into our Statute Book the most prominent English laws applicable to our condition. Adaptation, ' rather than a mere literal adoption of these laws, would perhaps have been the preferable course, but no doubt the lawgivers of that period thought that any deviation from the English models was dangerous. - A different opinion prevails at the present day ; but the experience which has created that opinion, it was, of course, not within the power of the last generation to forecast. From about the year 1840, the diligence exhibited by the Legisla- ture in assimilating our Property Law to that of England appears to have abated. In 1852, the 13 & 14 Vic. cap. 60 (a valuable enactment concerning property vested in Trustees or Mortgagees) was adopted ; but it may be said, with few exceptions, that since > that year, very -little English Property Law has been embodied in our Statute Book, the chief exceptions being Locke King's Act, 17 & 18 Vic. cap. 1 13,' and the Acts known by the names of Lord Cranworth's and Lord St. Leonards' Act§ (22 & 23 Vic. cap. 35, and 23 & 24 Vic. cap. 145) — the first-named Act having been adopted by our 19 Vic. No. i, and the last two .by our Trust Pro- perty Act, 26 Vic. No. 12. It may be said that during the last two decades we have been engaged in passing measures possessing at , least the merit of originality ; but this apology can hardly be maintained, at least in that branch of law which is now under consideration. The Real Estates of Intestates Distribution Act, which came into force in July, 1863, may certainly lay some claim to originality — (and it is indeed a well-meant, though insufficiently («) 3 & 4 Wm. ly. cap. 1 74. 7 Vic. No. 1 6, (K) 3 & 4 Wm. IV. c. loj ; adopted by 7 Wm. IV. No. 8.' (i>) 3 & 4 Wm. IV. c. io6 J adopted by 7 Wm. IV. No. 8. 0) 3 & 4 Wm. rv. c. 2> ; adopted by 8 Wm. IV. No. 3. (i) 7 Wm. IV. and i Vic. c. 26 ; adopted by 3 Vic. No. 5. PREFACE. XV elaborated measure) — but the Act which introduced the new Registration system in this Colony (26 Vic. No. 9), and the short amending Act passed in 1873, were almost literal copies of South Australian Acts. Indeed, the work of the transcriber in the first or principal Act has been so artlessly doni that those sections of the South Australian Statute (No. 22, of 1861) which were most distinguished by faultiness of structure, perplexity, ambiguity, and a tendency to work mischief, have been reproduced in our 26 Vic. No. 9 with curious fidelity. {'') The present is not an occasion when it is desirable to institute a minute comparison of modern -English legislation on subjects concerning Real Property with our own, but a very cursory compa- rison discloses some extraordinary contrasts and some results which cannot be said to be altogether creditable to us as an English community. For example, we are still without any modern" statute regulating ' the granting of Probates of Wills and of Letters of Administration — the Ecclesiastical Jurisdiction of the Supreme Court remaining- for these purposes exactly as it was more than half a century ago — ^we are still without any Statute corresponding with Lord Tenterden's Act, and therefore continue dependent on the Common Law in respect of titles to incorporeal hereditaments by prescription — tenants for life or in tail without express powers in C) Jn the compass of a note it is scarcely possible to specify all the sections of the Act which might be relied on to support the statement in the text. But mere enumeration without , explanation would not avail much ; and explanation would in almost all cases demand more space than could be conveniently accorded. Two, however, of the " mischievous " sections referred to may be here noticed — the 39th and the 49th. The first of these sections enacts that no unregistered instrument shall be effectual to pass any estate or interest in land under the provisions of the Act. So that if a registered proprietor, by a written contract, agrees to sell land, acknowledges to have received the purchase money, and — ^without more — dies, jhat contract passes no estate or interest in the" land unless it shall have been registered under the Act, although there be no question of priority involved. Can anything be conceived more alien from equitable principles, and more mischievous than such an enactment as this j Equally mischievous as to leases of land under the Act for less than three years is the 49th section. Such leases cannot be registered under the Act. XVI . PREFACE. the instruments creating their estates have still to apply to the Legislature for powers to grant long leases for agricultural, building, or mining purposes ; whilst in England, for more than twenty years, under the powers contained in the Leases and Sales of Settled Estates Acts, such leases may, subject to certain prescribed conditions, be granted by owners of limited estates — there is absolutely no restriction whatever in this Colony on the barring of an estate tail, except the merely formal requirements of the Registration Act. In England the consent of the Protector of the Settlement has long been a condition precedent to the exercise of such a power. This valuable provision, as well as many others contained in the Act for the Abolition of Fines and Recoveries, are here unknown. Another extraordinary omission in our Real Property Cpde is that of the 8 & 9 Vic. cap. 106 — the Real Property Amendment Act — in consequence of- which many important ques- tions as to leases, reversions, feoflfments, contingent remainders, &c., are still undetermined. And one very important change in con- veyancing, viz., the substitution of a simple Deed of Grant in place of the old familiar Lease and Release, would appear to have in this Colony, in consequence of this same omission, so far as the convey- ance of an immediate freehold estate in land is concerned, the sanction only of usage in its support. So, in respect of the law of attendant terms, we are without the Satisfied Terms Act, 8 & 9 Vic. cap. 112; without any statute enabling tenants for life to improve the property of which they are in possession, such as the 8 & 9 Vic. cap. 56 ; without any Acts corresponding to the English Improve- ment of Land Act of 1 864, the Limited Owners' Residences Acts, the Lands Clauses Consolidation Acts, the Rents Apportionment Act of 1870, the Partition Acts, the Married Womens' Property Act, the Vendors and Purchasers Act, and many other more or less recent English Statutes affecting the law of Real Property. No doubt the same complaint may be made in respect of other departments of our Statute Law, and notably in that of Equity Practice and Procedure and thfe Law relating to Insolvency and Debtors. At the same time it must be admitted that much mischief and confusion have been caused by the indiscriminate adoption of English Acts. There can hardly be two opinions as to the mischief which has been sown by the irrational attempt to acclimatize in this Colony the English Statute of Limitations affecting Real Estate. Another adopted Act teems with provisions relating to copyhold lands, and even the comparatively recent Wills Act contains sections relating PREFACE. Xvit to Custoitmry and Copyhold, Estates, while the Statute of Limitations just refeured to contains some very learned provisions in restriction of the right to recover an advowson, which it is needless to say are as inapplicable to this Colony as ig the nineteenth section of the same Act, which by the sa.me absuxd system of wholesale adoption is, made to announce that no part of the United Kingdom of Great Britain and Ireland, &e., &c., shall be deemed to be " beyond the s^s^s" — an intrinsically ridiculous declaration when applied to countries separated by at least two oceans, but one nevertheless which it required, quite recently, a solemn decision of the Suprenie Court to get rid of. In the judgment of some who are well qualified to give an opinion^ thiSre will heirdly be found an adequate remedy for this very unsatisfactory state of, things — the absente of beneficial Imperial laws from our Statute Book, and the presence therein of exotic laws wholly unsuited to, our circumstances — until the Legislature shall consent to the creation of a permanent College or Commission of Jurists, whose duty it shall Be to present to Parliament, from time to time, well-designed and carefully-prepared groups of Consolidation Acts covering the entire domain over which our Statute Law ought to range. (') (1) The writer makes no apology for appending the following extract from the well-known Treatise on Representative Government by the late John-Stuart Mill, because it is the statement by a master mind of the reasons for adopting som^such expedient as that above suggested ! — " There is hardly any kind of intellectual work which so much needs to be done not only by experienced- and exercised minds, but by minds trained to the task through long and laborious study, as the business of making laws. This is a sufficient reason, were there no other, why they can never be well made but by a committee of very few persons. A reason no less conclusive is, that every provision of a law requires to be framed with the most accurate and long-sighted perception of its effect onall the other provisions ; and the law when made should be capable of fitting into a consistent whole with the previously existing laws. It is impossible that these conditions should be in any degree fulfilled when laws are voted clause by clause in a miscellaneous assembly. The incongruity of-such a mode of legislating would strike all minds, were it not that our laws are already, as to form and construction,^ such a chaos, that the confusion and contradiction seem incapable of being made greater by any addition to the mass. Yet even now, the utter unfitness of our legislative machinery for its purpose is making itself practically felt every year more and more. The itiere time necessarily occupfed in getting through Bills, renders Parliament more and more incapable of passing any, except on detached and narrow points. If a Bill is prepared which even attempts to deal with- the whole of any subject (and it is impossible to legislate properly on'any part without having the'whole present to the mind), it hangs over from session to session through sheer impossibility of finding time to dispose of it. It matters. not though the Bill may have been deliberately drawn up by the authority deemed the best qualified, with all appliances and means to boot ; or by a select commission, chosen for their conversancy with the subject, and having employed years in considering, and digestiog the particular measure : it cannot be passed, because the House of Commons will not forego the precious privilege of tinkering it with their clumsy hands. The custom has of late beeii to some extent introduced, when the principle of a Bill has been aflSrmed on the second reading, of referring it for considera- 5 XVlll PREFACE. In conclusion, "the writer wishes to state — but without any desire to avert unfavourable criticism — that the work of cbllecting materials for this volume has of necessity been assigned to such rare intervals of leisure as his official duties left at disposal. He is apprehensive, therefore, that much of that work will be found to tion in detail to a Select Committee ; but it has not been found that this practice causes much less time to be lost afterwards in carrying it through the Committee of the whole House : the opinions or private crotchets which have been overruled b^ knowledge, always insist on giving ' themselves a second chance before the tribunal of ignorance. Indeed, the practice itself has been adopted principally by the House of Lords, the members of which are less busy and fond of meddling, and less jealous of the importance of their individual voices, than those of the elective House". And when a Bill of many clauses does succeed in getting itself discussed in detail, what can depict the state in which it comes out of Committee ! Clauses omitted, which are essential to the working of the rest ; incongruous ones inserted to conciliate some private interest, or some crotchety member who threatens to delay the Bill ; articles foisted in on the motion "of "some sciolist with a mere smattering of the subject, leading to consequences which the member who introduced or those who supported the Bill did not at the moment foresee, and which need an amending Act in the next session to correct their mischiefs. It is otae of the evils of the present mode of managing these things, that the explaining and defending of a Bill, and of its various provisions, is scarcely ever performed by the person from whose mind they emanated, who probably has not a seat jn the House. Their defence rests upon some minister or member of Parliament who did not frame them, who is dependent on cramming ipi all his arguments but those whibh are perfectly obvious, who does not know the full strength of his case, nor the best reasons by which to support it, and is wholly incapable of meeting unforeseen objections. This evil, as far as Government Bills are concerned, admits of remedy, and has been remedied in some representative constitutions, by allowing the Government to be represented in either House by persons in its confidence, havinga right to speak, though not to vote. ^ If that, as yet considerable, majority of the House of Commons who never desire to move an amendment or make a speech, would no longer leave the whole regulation of business to those who do ; if they would bethink themselves that better qualifications for legislation exist, and may be found if sought for, than a fluent tongue, and the faculty of getting elected by a constituency; it would soon be recognised, that in legislation as well as administration, the only task to which a representative assembly can possibly be competent, is not that of doing the workj but of causing it to be done : of determining to whom or to what sort of people it shall be confided, and giving or withholding the national sanction to it when performed. Any government fit for a high state of civilization, would have as one of its fundamental elements a small body, not exceeding in number the members of a Cabinet, who should act as a Commission of Legislation, having or its appointed office to make the laws. If the laws of this country were, as surely they will soon be, revised and put into a connected form, the Commission of Codification by which this is efTected should Temain as a permanent institution, to watch over the work, pi;otect it from deterioration, and make further improvements as often as required. No one would wish that this body should of itself have any power of enacting laws ; the Commission would only embody the element of intelligence in their construction ; Parliament would represent that of will. No measure would become a law until expressly sanctioned by- Parliament ; and Parliament, or either House, would have the power not only of rejecting but of sendin" back a Bill to the Commission for reconsideration and improvement. Either House might also exercise its initiative, by referring any subject to the Commission, with directions to prepare a law. The Commission, of course, would have no power of refusing its instrumentality to 'any legislation which the country desired. whether -of omission or commission, will inform him of , such discoveries, he will feel under great obligations to them, and will atone for his shortcomings in the next edition of the book, . . . A. O. September, 1877. — . __ remit it to the Commission for reconsideration. Tlie Commissioners should be appointed by the Crown, but should hold theif offices for a time certain, say five years, unless removed on an address from thetwo Houses of Parliament grounded either on personal misconduct (as in the case of judges), or on a refusal to draw up a Bill in obedience to the demands of Parliament. At the expiration of the five years a member should cease to hold office unless reappointed, in order to provide a convenient mode of ^tting'rid of those who had not been found equal to their duties, and of infusing new and younger blood info the body. " The necessity of some provision .corresponding to this was felt even in the Athenian Democracy, where, in the time of its most complete ascendancy, the popular Ecclesia could pass Psephisms (mostly decrees on single- matters of policy), but laws, so called, could only be made or altered by a different and less numerous body, renewed annually, called the Nomothetae, whose duty it also was to revise the whole of the laws, and kpep them consistent with one another. In the English Constitution there is great difficulty in, intrpducing any arrangement which is»new both in form and in substance, but comparatively little repugnance is felt to the attainment of new purposes by an adaptation of existing forms and traditions. It appears to me that the means might be devised of enriching the Constitution with this great improvement through the machinery of the House of Lords. A Commission for preparing Bills would in itself be no more an inno- vation on the Constitution than the Board for the administration of the Poor Laws, or the Inclosure Commission. If, in consideration of the great importance and dignity of the trust, it were made a rule that every person appointed a member of the Legislative Commission, unless removed from office on an address from Parliament, should be a Peer for life, it is probable that the same good sense arid taste which leave the judicial functions of the Peerage practically 'to the exclusive care of the Law Lords, would leave the business of legislation, except on questions involving political principles and interests, to the professional legislators ; that Bills originating in the Upper 'House would always be drawn up by them ; that the Government would devolve on them the framing of all its Bills; and that private members of the House of Commons would ^adually find it convenient, and likely to facilitate the passing of their measures through the tv»o Houses, if inslead of bringing in a Bill and submitting it directly to the House, they obtained leave to intro- ^ duce it'and have it referred to the Legislative Commission. TABLE OF STATUTES. IMPERIAL. Page. Page. 11 Hen. VII5 c. 20. Alienation 8 39&40,.a.ni,o.'98. Wills ... ' ... 184 21 Hen. VIII, e. 4. Executors 34 54 aeo. Ill, 0. 15. Debts (Payment 27 Hen. Villi 0. lO. Uses and Trusts 176 out of Realty) 16 SlHen. VIII, c. 1. Partition 73 9&. IV, 0.83. Constitution 62 150 32 Hen. VIII, c. 1. Wills. 178 iia.iv&iw.iv,o. 40. Residues of Tes- 0. 28. Leases ... 62 tators 149 0; 32. Partition 73 0. 46. Illusory appoint- 0. 34. Eeversions 150 ments 44 34 & 35 Hen. Vllly c. 5. Wills 179 0. 47. Debts (Payment ISEliZi c. 5. Fraudulent Con- out of Realty) 17 veyances 11 .3&4W. IV,o.27. Limitation (Re- 27Eliz. c. 4. Do. 12 alty) 74 12 Car. II, 0. 24. Socage Tenure... 150 ^. 105. Dower 28 22 & 23X!ar. II, c. 10. Distributions ... 26 c. 106. Inheritance . .. 46 29 Oar: II, c. 3. Frauds (Statp.te 7W.IV&lVic.c.26 Wills 185 of) ... 36 181 6 Vic. 0. 7. Felons 35 4 Ann, c. 16. Advancement of 27 Vic. -0.19. Companies Seals 9 Justice 8 28 & 29 Vic, e. 63. Colonial Laws 4 Will. & Mary c. 16. Clandestine ,. Validation . .. 197 Mortgages . . , 70 c. 64. Colonial Mar* 10&llW.ni,o.l6. Posthumous . - riages 231 ■► CMldreu 73 31 & 32 Vic, ' c. 37. Evidence (Docu- 7 a. n, c. 20. Mortgages 70^ mentary) 33 25 a. U, 0. 6. Wills 182 COLONIAL. Page. Pay*. 6 Gf. IV, No. 22 Registration of 3 Vic No. 5. " Wills (adopting) 184 ' Deeds 232 5 Vic No. 9. Advancement of 9 &. IV, No. 12. Fences ... 35 Justice ... 4 5 W. IV, 'So'. 21. Claims, Court of 13 No. 17. Insolvency ... 47 6 W. IV, No. 16. Grants of Land No. 21. ' , Deeds Registra- confirmation... 42 tion 234 7W. IV, No. 8. Imperial Acts 7 Vic No. 16. Do. 141 adoption 28 No. 19. ■Insolvency ... 53 3 Vic. No. 1. Land Gbants Va- lidity 43 8 Vic No. 15. Do. ... 65 xxu TABLE OF STATUTES— COLONIAL. 9 Vic No. 9. lOVio No. i4. 11 Vic .No. 24. No. 28. No. 33. No. 38. No. 54. 13 Vic .No. 16. No. 19. •14 Vic. No. 27. 15 Vic No. 8. 16 Vic No, 1. No. 3. No. 14. No. 19. 17 Vic. No. 4. No. 5. No. 7. No. 22. 19 Vic. No. 1 No. 30 No. 34. 20 Vic No. 2. No. 23. No. 27. Fage. Oaths 71 21 Vic. No. 6. InsolTCUcy 56 No. .7. Deceased Per- 22 Vic. No. 1. sons' Estates... 20 No. ei Leases ... 63 No; 7. Conveyancers ... 10 No. 12. Evidence 44 No. 18. Crown Lands 24 Vic. No. 3. (Titles) 43 No. .7. Evidence 31 Trustees .' " ... .154 25V40. No. 1. Dower ... 29 Deceased Per- % No. 8. sons' Estates 23 26 Vic. No. 9. Acts Shortening 1 No. 12. Equity 30 No. 20. Evidence 32 Trustees 155 27 Vic. No. 4. Do 162 31 Vic. No. 9. Wills 189 36 Vic. No. 7. Equity 30 37 Vic. No. 4. Powers of Attor- ney ... 74 58 Vie. No. 1. Deceased Per- 39 Vic. No. 13. sons'Estates... 25 No. 19. Marriage 66 No. 20. Eegistratiou (Births, &c.);.. 141 No. 25. Infants 45 Evidence 33 - Begistration / (Deeds) .... 