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 observations, 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 heretofore scattered over thousands of pages, and several folio volumes, of the Statute Book, and perhaps also in the Index, upon which much labour has 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 particular 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,

containing amongst other matters the whole text of the Charter of Justice and those sections of the Crown Lands Alienation Act of 1861, 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 reasonable 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 the 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 of the book, and others have been omitted which 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 collection, 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

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 very 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 administration or non-officially through much contact with the department 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 properties already placed on the new register, amounting at the end of the year 1875 to 3,139,525 acres, valued at £6,447,484 18s. 11d., 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 all 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 1st 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.

And if, haply, the present writer should be thought censurable for his assumption, while officially connected with the administration of this important Act, of the part of critic rather than of eulogist, it must not be forgotten that the founder and Vates Sacer of the system, Sir Robert Torrens, has succeeded in creating such a wide-spread and intense enthusiasm for his scheme of registration 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 which either indicate defects in this beneficial measure or afford matter for the further consideration of the Legislature:

1. The existing system of issuing one class of certificates of title is not free 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 of an estate.

3. The modern doctrine of the "separate use"-that most beneficial of all the creations of an enlightened Equity jurisprudence has received only the very faintest recognition in the Act. This may perhaps be accounted for in 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