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order, **in the matter of the Transfer of Land
Statute," was sufficient to show jurisdiction. The
order referred to the notice by the Registrar of
Titles as dated July 5th, and the order itself was
dated July 17th, and therefore showed on its face
that fourteen days had not expired. The taking
of an undertaking, or security, or sum for in-
demnity is discretionary with the judge under the
section. In re Wise is distinguishable because
there was nothing on the face of the order there
to show the time. His Honor said the order was
good on its face, and dismissed the summons with
costs. A. L. T., 1880, p. 82.

Costs Bringing Land under the Act.
See Watson v. Watson, No. 93, ante.

Costs, Soltcltor's Lien for. See re Crat'sf,
No. 76, ante.

Creditor's Aotfon. See Bank of Victoria



V. MawlingSf No, 52, ante.



08. Creditors' Trustee — Hall v. Hall-'
Certificate of Title— Fraud— Costs.]-— K bought
a piece of land, and directed the vendor to
transfer it to his wife, in whose name a certificate
of title accordingly issued. The wife died
leaving a son. The husband filed a declara-
tion of insolvency under the Debtors and
Creditors Act, 1876, vrithin three years from the
date of the transfer. In a suit by the creditors'
trustee to have the certificate of title declared
void : — Held, that although the certificate of title
was bad as against the plaintiff as trustee, it was
good as between the bankrupt' and the heir-at-
law. The decree was that, after satisfaction of
the claims under the bankruptcy and payment of
all costs, the residue of the land or the proceeds
therefrom, belonged to the heir-at-law. N. Z. J.,
vol. 2, p. 259.



Criminal Appeal — Tgg/r. v. Tideman

— Forgertf— Undertaking for Payment of Money
^Act 7 of 1869— iZffoi Prvfwty Act, 1861—



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Mortgaged] — A memorandum of mortgmge under
the Beal Propertj Act, 1861, is not an under-
taking for the payment of money within the
meaning of Act 7 of 1859, sec. 1, and cannot be
•o charged in an information for forgery. The
questions to be reserred by tiie Judge under Act
6 of 1859, must be reserved before the onminal
session has closed, and he has no power to
reserre a case after. 8. A. B., toI. 5, p. 48.

Crown Allotment. Original. See ex parte
EowaHf Ifo. 14, ante.

lOO. ^J^^^ Grants. — Mangahahia and
another y. The New Zealand Timber Campang,
Limited — Trespass — Title by Native Custom —
Native Lands Act, 1873, sees. 47, 48, 75, 87—
Land Transfer Act, 5, 1878, sec. IS— Memorial
of Ownership — Right of Entry.'] — A memorial
of ownership granted to native owners under the
Native Lands Act, 1873, confers upon them an
estate only according to native custom. It is not
an estate recognised by law, and is insufficient to
support a right of entry. Such an estate cannot
support an action for trespass where the plaintiffs
are out of possession. N. Z. L. B., No. 1, 345.

lOl- Fitzgerald v. Archer—Certificate of
Title — Crown Seventies. ] — The Registrar- General
is not bound to issue a certificate of title to
a purchaser from a Crown grantee until the
purchaser signs a receipt for tbe duplicate Crown
grant

Semble, (per Barry, J.) : It is the duty of tlie
supreme court, which acts as the Exchequer
Court of Englimd does in matters of revenue, to
protect the revenues of the Crown in this colony.
1, W. W. & A'B., L., 40.

102. Fisher v. Ckiffney — Parcels — For-
feiture'] — Motion upon notice by defendant
for an order directing the removal of plaintiff's
caveat from the file. The defendant applied
to have some land at Lane Cove brought
under the Beal Property Act. The plaintiff
entered a caveat, claiming part of the land.
Issues were settled and tried before a jury.
It appeared that the plaintiff claimed under a
Crown grant issued in 1821 to Daniel McNally
of SO acres. The grant contained a provision
that if the grantee should sell or alienate the
land within 5 years from the date of the grant,
the land should revert to the Crown, and the
grant should be held and deemed to be null and
Toid. The defendant claimed under a subsequent
Crown grant to one Munro. The Court declared
that the caveator was entitled to the land in dis-
pute. Order accordingly. N. S. W. "Weekly
Notes," vol. 1, 18.

Crown Lease Conditions. See ex parte
Bondf No. 90, ante.

Crown out of Possession. See Mndgwag
T. JOavg and BiUck, No. 1, ante.



Crown Revenues. See FUzgerald v.
Archer, No. 101, ante.

Crown. Status of. See Kiakham v. Tht



Queen^ No. 47, ante.

Crown Suits. See Mudgway t. Daty and
Buicky No. 1, ante.

103. Damages — ^i^fpr^Mi v. Maori RiS
Borough — Easement — Land Transfer A.et, 187Q,
sec. 46.] — When a certificate of title is granted to
a man reserving over other lands an easemgnt
which was granted by deed before the land «w
brought under the Luid Transfer Act, the serv^
tenement remains subject to the easement, even if
it has subsequently been brought under the Art,
and the certificate of title, therefore, contaios do
mention of the easement to which the land ii
subject. The plaintiff in such a case can reoorer
substantial damages, although he cannot mon
the existence of the easements over other londi
without which that over the defendants' landi
would be useless so long as he can prore that be
has been able to use the latter easement beoe-
ficiaUf . N. Z. L. B., vol. 3, p. 364.

104. Schroeder t. BCarcourt — Deteniim o/

Certificate of Title,"] — In an action for detentiffl
of a certificate of title where no special damages
are claimed or proved, £100 damages are ex-
cessive. N. Z. L. B., 1887, p. 226.

lOS* Van Damme r. Bloxam — Beal Pro-
perty Act, 1861 — Mortgage — Notice — Specific
Performance.] — A mortgage of land under the
provisions of the Beal Property Act of 1861 pro-
vided that it should be lawful for the mortgagee
to sell the mortgaged land on default^ " withoet
serving me (the mortgagor) with any written
demand for payment." A subsequent clause pro-
vided that " all notices which by virtue of the
Beal Property Act of 1861, whether in respect of
the payment of any money or otherwise, would
require to be served by the said mortgagee on me
at my last known or usual place of abmle in thii
province, shall be deemed to be duly served by
sending to me, through the Poet Office, a letter
addressed to me at Mount Gkunbier." The land
having been sold without giving the notice pro-
vided by section 52 of the Beal Property Act of
1861, on bill filed by the mortgagor, praying that
the sale and transfer might be set aside, or for
damages : — Held, that the mortgage did not dis-
pense with the necessity of giving the notices
required by the Beal Property Act, but only with
the mode of giving them there provided, and that
the sale was therefore improper, but that the
transferee was protected by the Beal Property
Act as a bona fide purchaser. That the btll
showing no claim to equitable relief, irrespeetiTe
of the question of damages, the Court of Bquity
would not entertain that question. S. A. B., vol.

9, p. 27. See also Fotheringham r. Archer, A*.

10, ante.



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Debts. Liability for. See Bank of Victoria
Y. Rawlings^ No. 52, ante,

lOO. Declaration, Counts of — Stockdale
V. Hamilton and another.'] — The first count of a
declaration framed under the 2drd section of the
Beal Property Act alleged that the plaintiff was
seized and was in possession of land, and that the
defendants knew uiese facts, but that the defen-
dants, notwithstanding, falsely alleged themselyes
to be seized and in possession, and thereupon
applied for a title under the Act. The second
count omitted the allegation that the plaintiff
was seized, and the allegation that the defendants
knew of the plaintiff's title. The third count
alleged both seisin and possession, but omitted
the statement that the defendants knew either
fact. The fourth count alleged only possession
in the plaintiff. In all other respects every count
was the same as the first. The acts complained
of were stated in exactly the same terms, and so
was the resulting damage. On motion to strike
out three of the four counts, the Court confined
the plaintiff to the first count, on the ground that
the four counts were founded on the same cause
of action, and in violation of the Reg. Gen. T. T.
1853 (P. 1.), r. I. N. S. W. S. C. E., vol. 3,
p. 313.

_ 107. Decree, Fraudulent Purchaser—

Colonial Bank v. Fie and others — Voluntary
Settlements — Fraud on Execution Creditor —
Purchase from Voluntary Settler — ^* Fraud**
under Transfer of Land Statute^ sees, 49, 50 —
Beference to Master to enquire as to the circum-
stances of the purchase — As to decree where
fraudulent purchaser has encumbered his interest J]
— This was a suit by the Colonial Bank against
William Pie, and Mary Pie, his wife, and against
David Comfoot, to set aside the voluntary assign-
ment of the equity of redemption of certain land
made by Pie in trust for his wife, and also to set
aside voluntary transfers of other land under the
Transfer of Land Statute by Pie to his wife, as
being fraudulent against the plaintiff, who was
an execution creditor, and to set aside a subsequent
purchase of the latter land by Comfoot from Mrs.
Pie, but as to Mr. Comfoot it was contended that
he was not bound by any notice of the Bank's
claim, as Mrs. Pie held a certificate to the land
under the Transfer of Land, No. 301. Mr Hol-
royd, Q. C, and Mr. De Verdon for the plaintiff ;
Mr. aoldsmith for Mr. and Mrs. Pie; Mr.
Billing, Q. C, and Mr. Topp for the defendant
Comloot. The following cases were cited : — As
to the intent to defraud : Freeman v. Pope^ L. E.,
5, Ch., 541 ; as to the conveyance being made in
anticipation of and to defeat a future claim:
Barling v. Bishop,^ Jur. (N.8.), 813 ; Goodman
V. Hughesy 1 W. and W. Eq., 221 ; Bichmond v.
IHck, 2 W. W. and A*B. Eq., 143 j on the con-
Btruction of 13 Eliz., c. 5 : Cadogan v. Kennett,
2 Cowp., 434 ; as to constructive notice : Jones
▼. Snuth, 1 Hare, 65; Storg v. Winter, 2 Atk.



530 ; Nash V. •



-, 8 P. Wms., 306 ; TUdes-



leg V. Lodge, 3 Sm. and Giff, 548 ; Cullen v.
Thomson^ 5 T. L. B. Bq., 15; Maddison v.
U*Carthy, 2 W. W. and A'B. Eq., 151 j and on
the form of decree : Voolcensohn v. Leven^ 8 W.
W. and A'B. Eq., 11. Judgment was reserved.
On March 31st, His Honor said : The defendant,
Mr. Pie, was seized of land, comer of Victoria
street and Stawell street, under the old tenure,
and of land adjoining, held under the Act 801,
and of seven other pieces of land of that tenure.
An action was commenced against him by the
plaintiff, the Colonial Bank of Australasia, Sep-
tember, 1878, which he resisted, but judgment
was recovered against him July, 1879, for more
than £4000, and a fieri facias was issued, which
was nearly unproductive, and so returned. On
February 25th, 1879, Pie mortgaged the two first-
mentioned pieces of land to a bmlding society for
£1000. The plaintiff does not impugn that mort-
gage, seeks only the equity of redemption. On
March 10th, he assigned the equity of redemption
to the defendant, Mr. Comfoot, a cousin of his
wife, Mrs. Mary Comfoot Pie, as a trustee for
her. Comfoot never accepted this conveyance,
and disclaims. He was made a parW in reference
to it only. About the same time (February 27th,
1879) all the other pieces of land under the Act
301 were transferred to her by instruments falsely
reciting that £2000 was paid by her as a con-
sideration, they being really voluntary, and she
obtained certificates of title for them. I think it
clear, upon the evidence, that these conveyances
to or in trust for Mrs. Pie were designed to defeat
the action then pending by the plaintiff, and
fraudulent against it. The bill was sealed August
19th, 1879, seeking declaration to the above effect,
and to restrain transfers from the defendant
being acted upon at the Transfer of Titles office.
But the defendants, Comfoot, Pie, and wife, by
answers alleged that Comfoot purchased from
Mrs. Pie four of the above seven pieces of land held
under the Act 301 for the sum of £1100, and on
August 9th she transferred them to him, and that
he became the registered proprietor of them. The
plaintiff did not amend its bill to impugn this
transaction, and evidence was taken before me
throwing some light upon it. I think Comfoot
knew enough of the affairs of the Pies to be fixed
with constructive notice of the fraud by which
Mrs. Pie had acquired this property to have his
title postponed to plaintiff, if the property were
held by the old tenure ; and with reference to
the Act 301, sees. 49 and 60, that there is much
reason for saying that his motives for acquiring
the property were not those of an ordinary pur-
chaser, but a wish to screen the property for the
Pies from the plaintiff. Accordmg to the defen-
dants' evidence, the contract of sale was for
£1103. (There was some evidence this was an
under-value.) This was payable £475 cash, the
rest bills at three, six, and twelve months ; that
the cash was paid August 29th ; that the bills
the same time were handed to Mis. Pie and not



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negotifttedi but thej remaining in her hands were
taken up and paid long before thej were ree-
pectiyelj dne. Oomfoot appears not to have bad
money for this purchase, but to have raised the
£475 cash and the moneys paid for the bills by
depositing the oertiBoates of title, which makes it
hard to say what should be the form of a decree
against him, in regard to which I mean to direct
iD<^uiry. The plaintiff has been paid and is being
paid part of its demand against the defendant
Pie by other persons liable with him, as to which
I shall direct an inquiry. The case has been
argued on behalf of the defendants in regard to
judgment creditors not having a lien upon land.
The true aspect of this suit is that it seeks redress
for an execution creditor frustrated by fraudulent
conveyance of property, the same as if the pro-
perty were chattels personal. I have been re-
lerred to various cases as to the duty of a
purchaser informed of a claim on property before
payment of part of the purchase money to reserve
that part, and not to pay it to the seller, which
may bear upon this case hereafter. 1 shall declare
that the conveyance of March lOth, 1879, in bill
mentioned, from the defendant, William Fie, to
the defendant, David Cornfoot, and also the
transfer of allotment 10, sec. 23, in the bill
mentioned, were fraudulent and void as against
the plaintiff's ri^ht to execution of the judgment
of July 8th, 1 879, in bill mentioned, and costs of
this suit. Declare also that the transfer of the
27th day of February, 1879, in bill mentioned, by
the defendant, William Pie, to the defendant,
Mary Comfoot Pie, were fraudulent and void as
against the plaintiff, so far as may be necessary to
satisfy his said judgment debt, interest, and costs.
Refer it to the Master to inquire and report the
circumstances of the sale mentioned in the answer
of the said defendant, David Corn foot, paragraph
21, and the value of the lands comprised therein,
and whether and how far the defendant, David
Comfoot, then had notice of the nature and
motives of the transactions of the defendants,
William Pie and Mary Cornfoot Pie, or when he
first had notice thereof, and also of the time and
manner of the payment of the purchase money of
the lands bought by the said David Comfoot, and
of the bills forming part of the consideration for
the same. Also, to inquire and report whether
the defendants, Mary Comfoot Pie and David
Comfoot, have given any lien or encumbrance
upon the lands in the sixth paragraph of the bill
mentioned by deposit of certificates of title or
otherwise. Befer it also to the Master to inquire
and report whether the plaintiff has been paid
any part of its demand against the defendant,
William Pie, by other persons liable thereto.
Order that in the meantime the defendants, Mary
Comfoot Pie and David Comfoot, be restrained
from selling or enctunberiog any of the lands
comprised in the transfer of February 27th, 1879,
in bill mentioned, and the defendant, Richard
Gibbs, aa Registrar of Titles, be restrained from
registering any transfers or other dealings with {



the said lands by the said Maiy Comfoot Pie tad
David Comfoot ; an injunction to imae for tk
above purpose, if necessary. Reserve fuitbff
directions and costs. Liberty to apply. A. L
T., 1880, p. 156.

Dedication to Public See re (/Briem, So.
34, ante.



OBBda. See Mudgicoif v. Doty and Bwitk, A'».
1, antes re Dr. O, Quinn, No. 40, amU.



Deeds, Production.
76, anie.



See re Oraig, A's.



Default, Payment of Interest. Seel^m

V. Stewart, No, 28, ante.



108. Default, Proof of -^Bamh of NJS.W.
V. Palmer — Real Propertg Act, 26 ViH.,N4.
9, sect. 58, 59 — Lease by Mortgagor offer Men-
gage — Demand of Rent hy Mortg€iff€e.'\^l^
possessing a house registered under R. P. id
mortgaged the same to the plaintiff, and afkr
wards gave a lease to the defendaiit;. Bat
payable quarterly on Ist October, &c. On ^sd
September, A. assigned his estate to trustees for
creditors. On 14ui September, the plaint^ sad ■
one of the trustees went together to the defea- i
dant, and told him to pay rent to the piaintifi:—
Held, that under these ciroumstanoes, the plaic*
tiff need not, in an action for use and oocupatiiB:;,
gire formal proof of default on the part of A.
QusDre, whether the tenant can sat up "do
default " as a defence ?

Semble : That sees. 58 and 59 muat be icad
together as one clause. N.S. W. L.B., vol. 2, p. 125.

lOO. Default, Payment Rates — JLtrt-

iMtn V. Julien — Local Oovemment Act, 1874 {No,
606), tecs. 295. 296, 299. Sol—Trane/ir of Load
Statute {No. 301), sec. 42-^ Ejectment— Lea$f k
Municipal Corporation — Notice.'] — The nati»
required by sec. 296 of Act Ko. 506 must W
posted before a municipal council can take
possession of land for the non-payment of rates ;
sec. 301 of Act No. 506 only requires that the
notice of intention to lease should be posted oq
some conspicuous part of the land taken possessioa
of; it is not necessary where only a portion rftfc
land taken possession of is leased, that the noti»
should have been placed on the portion so'lctos^l.
The provisions in section 301 as to posting mAx»
after taking possession are not a condition to the
validity of the lease, and do not affect the txtk of
the lessee — object of sec. 301. Sec. 295 of Art
No. 506 passes all the land taken possession of U
t.he municipal council, whether such land be undo'
the Transfer of Land Statute or not. A muni'
cipal council cannot give a lease under t^
Transfer of Land Statute, as it is not the regfistend
proprietor under that Act, and consequently sec
42 of that Act does not apply. A. L. T., vol. 6,
p. 253.



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_ ULO. Defence — Stewart v. Bolton— Tenancy
at Will — I£oio to set «p.] — If, in an action of
ejectment, the plaintiff relies on certificates of
title, whioh he produces, and the defendant sets
up as a defence a tenancy at -will, and absence of
any demand of possession, he must show distinctly
that such tenancy at will has been created. 8 V.
L. B. (L), 305 ; 4 A. L. T., 79.

Til Kirhham, v. Carpenter and others —
Transfer of Land Statute {No. 301), sec. 47 —
Certificate of Title — Flan in margin — Figured
Dimensions — Starting Point — Defendant Mis-
joinedy hut nevertheless appearing and defending
— Plaintiff entitled to verdict against him.'] —
Plaintiff's certificate of title referred to a plan in
its margin which showed by figured dimensions
that the commencing point of his land was 76
feet north from the north-east angle of a certain
allotment 2. Defendant, C. T., also referred to a
plan in its margin which showed by figured
dimensions that the commencing point of her
land was 69 feet 6 inches north from the same
north-east angle, and that her land extended fur-
ther north 16 feet 6 inches, thus making its
northern boundary coterminous with plaintiff's
southern boundary. There was nothing on the
face of either certificate to fix whereupon this
land the N.E. angle of allotment 2 was, but its

Position in fact was proved by evidence aliunde.
)efendant was in possession of land lying between
points 76 feet and 78 feet 4f inches north of that
angle as so proved, thus apparently encroaching
2 feet 4J inches on plaintiff's land, to recover
which this action was brought. Defendant proved
that, measuring southward from an old peg found
at the angle of two streets, there was a distance
of 531 feet ^-inch between that peg and the north-
east angle of allotment 2, which showed an excess
of 3 feet i-inch between these points according
to a plan of subdivision produced, and if the
measurement were taken from that peg there
would be no encroachment by the defendant : —
Held, that the north-east angle of allotment 2
being the point from which the figured dimen-
sions were shown on the C. T.'s, that point and
not the old peg must be taken ns the starting
point to detei-mine the position of the boundary
line between plaintiff's and defendants' land.
Mortgagor in possession an^ mortgagee who has
never been in possession, being jointly sued in
ejectment, both defended : — Held, that although
it was doubted whether they were properly joined
as defendants, yet mortgagee having appeared
and defended, plaintiff succeeding on his title was
entitled to a verdict against both. Y. L. B. 12,
p. 144.

.Delineation Land Inconsistent. See

Small and another v. Olen^ No. 20, ante,

Jemand of Rent. See Bank N, S. W.
V. Palmer, No, 108, ante.



Xlg. Demurrer— 'Hodgson v. Sunter—Act
No. 301, sees. 24 and 152 — Injunction to restrain
registration — Jurisdiction of Court."] — Bill by
H. and others against Hunter, alleging an
equitable title by Sie plaintiffs under an agree-
ment in writing for a price paid vrith persons
originally seized, an application and advertbement
to bring the land under Act No. 301 by defendant,
and lodging of caveats against such application,
and praying for declaration of plaintiff^'s rights
and an injunction to restrain defendant : — Held,
on demurrer, that as the fiiU did not negative
the defendant's possession, did not shoM strictly
that defendant claimed title, and did not show
any obligation or relation between the plaintiffs
and defendant, the bill would have been de-
murrable as to want of equity and indistinctness,
and that sec. 24 of the Statute does not create a
new jurisdiction of Courts of Equity to protect
persons having legal or equitable titles against
the inconveniences resulting from improper
registration j it merely directs such proceedings
as would be right before, according to the interest
of the caveator being legal or equitable, and makes
notice of that proceeding upon the Hegistrar as
a stop to him ; that sec. 152 makes it competent
for judges to direct the details of any special
procedure under the Act. 3 A. J. B., 13.

na. neposlt Certificate of Title-

Patchell V. Maunsell — transfer of Lands Statute^
sees. 49, 50, 106, 117, 130— Squitable Mortgagee
hy deposit of Certificate of Title — Purchaser at
Sheriff *s sale — Priority — Unregistered incum-
brance — Duty of Registrar to Register.] — An
equitable mortgagee, by deposit of certificate of
title, who lodges a caveat and allows it to lapse
without taking any further steps to protect him-
self, will not have priority over a purchaser at a
Sheriff 's sale, under a fi. fa. which has been duly
lodged under sec. 106 of the Transfer of Land
Statute (No. 301).

Semble : It is the duty of the Begistrar of
Titles to register a transfer from a Sheriff to a
purchaser at the Sheriff's sale, although the
Begistrar may have notice of an unregistered in-
cumbrance. V. L. B., vol. 7, p. 6.

114* In the matter of a caveat hy William
Wadham—Real Property Act, 1861— Beat Pro-
perty Amendment Act, 1878, sees. 41 and 42 —
Sale hy Sheriff— Fieri facias — Unregistered
Transfer — Caveat — Summons.] — On the 13th
June, 1879, a writ of fieri facias, with the
necessary statement, was lodged with the
Begistrar- General, and an entry thereof made on
register, pursuant to sec. 41 of the Beal Property
Amendment Act, 1878. On the 25th June, after



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