approaches, and gave evidence on that point only. Would it be contended that according to the law of Scotland, if it were afterwards found that he was concerned in the murder, he could not be put on his trial, because he had been previously a witness in the case?" But whatever the state of the law may be, I think few will be found to dissent from Mr. Stirling's conclusion, that the law of Scotland, if it be what it was propounded by the Lord Advocate to be, is unworthy of any rational country, and that there is an immediate necessity for some alteration of a law so defective, or the declaration of a law so uncertain.

What then ought to be the position of a witness adduced by the crown at a criminal trial in reference to his protection against sub-. sequent trial? It appears to me that the protection, to whomsoever it may be extended, should be absolute, and should be made to depend upon his giving evidence, and answering the questions put to himwhether what he says shall directly criminate his associates or not. This is at present the rule in Scotland, and it seems to be more likely to secure honest evidence than the English practice, according to which the accomplice has merely an equitable claim to a pardon if afterwards tried, but dependent upon his speaking out against his associates, and criminating them. There is under such a system too great a temptation to the accomplice to exaggerate or invent statements against the prisoners, as he knows that his own immunity from future trial or punishment depends upon how far he can by his testimony convict them. It would be better to secure him absolutely against all consequences of his evidence, beyond the penalties for perjury in the event of his giving manifestly false testimony.

On the other hand, I think there cannot be a doubt that this protection should not be extended to any but an actual or suspected accomplice, and if necessary, the law should be distinctly declared to be, that no witness shall have any right to plead in bar of future trial, or as a ground for pardon, that he has been examined as a witness at the trial of another person for the same crime-unless at the time of giving such evidence he was known to be, or charged with, or suspected of being concerned in that crime, or had given his evidence under an assurance, express or implied, of protection against future trial for that crime. Of course it would be necessary as a measure of common fairness, to prevent the evidence given at a trial by an unsuspected witness from being used against himself in the event of his being afterwards tried for the same offence. But to give such a witness absolute protection would be simply opening a very wide door for perjury and malevolence, and would enable an unscrupulous, or cunning, or malicious person to divert all suspicion from himself as the real author of the crime, and fix it upon an innocent individual.

In conclusion, I may be permitted to express the hope that there may be no unnecessary delay in removing what, if it be not a blot, at all events amounts to a very unfortunate uncertainty in our otherwise wonderfully perfect criminal system.

180

Titles, as in operation in Australia, and applicable to Ireland. By R. R. TORRENS, Registrar-General of South Australia. I HAVE undertaken to give some account of the method of conducting transfers and dealings in land which has for some time past been in operation in the Australian Colonies, with a view to considering how far the benefits there derived under that method can be extended to these old established communities.

The evils flowing from the old system of conveyancing diverge from one source-that is, the retrospective or dependent character of titles. When title has to be traced back through successive proprietors, each instrument examined, each transaction scrutinised, to ascertain that all necessary formalities have been observed, and that no equitable interest or claim remains outstanding, and this investigation has to be gone over afresh ab initio each time the property is dealt with, the procedure must of necessity be both tedious and expensive; "dependent title" is a chain no stronger than its weakest link. Each transaction adds a fresh link increasing the perplexity and risk of loss; and therefore the distinguishing feature of the remedial measure which I am about to explain consists in cutting off on each change of ownership this derivative or dependent character of title, the common source of all the uncertainties, delays, costs, and perplexities, to which landowners are subjected under the existing system of conveyancing.

It is not possible within my present limits to describe in detail the procedure preliminary to placing land upon the Register; and it is the less necessary so to do because that procedure is, as nearly as possible, identical with that followed by the Landed Estates Court in Ireland, the formal act which places land under the system in Australia being the issue of a "Certificate of Title " to the owner equivalent to the indefeasible" Declaration of Title," of the Irish Estates Court. These certificates of title are in duplicate, they define the lands in respect to which they are issued by verbal description and by diagrams, and set forth distinctly the nature of the estate held therein by the applicant, and all lesser estates, interests, or charges whatever then existing, which limit or affect his interest. Whenever a certificate is issued to a tenant for life, the reversioners and remaindermen may require to be registered thereon, as such, which places them in a position to dispose of their reversionary interests by the procedure hereafter described.

The grand distinction, however, between the Irish measure of law reform and that which we have adopted in Australia consists in this, that the former having achieved the first stage, and overcome all either of danger or of difficulty that stood in the way of thorough reform, unfortunately stopped short, omitting the safe and easy work of providing a method under which future dealings in land might be carried on without accumulating fresh perplexities; the

* See Transactions of 1857, p. 80; 1858, p. 192; 1861, p. 182.

result is, that titles which at a heavy charge have been freed from involvement and complexities, left to be dealt with under the same costly and intricate system of conveyancing, are exposed to be whelmed under fresh accumulations of doubt and difficulty from which they will require to be periodically purged, by passing through the alembic of the Landed Estates Court; whereas the Australian system having relieved titles from existing complexities, provides a method of procedure, under which, without at all curtailing the privileges and powers at present enjoyed by landed proprietors in the disposition and settlement of estates, all ordinary dealings in land may be conducted with the same safety, expedition, simplicity, and economy which attend dealing with property in shipping and stock in the funds.

The Register Book and mode of Registering.-The register is the point upon which the whole mechanism turns. It is compiled by binding together the duplicates of all certificates of title representing the freehold, each of which constitutes a distinct folium, consisting of two or more pages set apart for recording together in the order of their registration the memorials of all future dealings, whether with the freehold or any lesser estate or interest in the land represented by the certificate until a change of ownership of the freehold is registered. When this occurs, the existing certificate is cancelled, the existing folium of the register closed, a fresh certificate issued to the new proprietor, and a new folium opened in the register, upon which are carried forward the memorials of all lesser estates, interests, and charges affecting the land, and continuing current at the time of registering the change of ownership of the freehold. In order that no more than one folium of the regist may be kept open for any one parcel of land, it is enacted, that upon bringing under the system an estate in "fee-simple or" feetail" in any land in respect to which a folium of the register has already been opened for a "leasehold interest," the Registrar shall close such folium, and carry forward memorial of such leasehold upon the folium opened, by registering the fee of such land.

Marking with the volume and the folium of the register constitutes registration of a certificate bringing land under the Act. Entry of memorial of any transfer, charge, or dealing, whether affecting the fee or any lesser estate or interest upon the folium of the register constituted by the existing certificate of title of any land, constitutes registration of such transfer, charge, or dealing.

Registered estates are held subject to such charges, liens, estates, and interests as are notified on the folium of the register, constituted by the certificate of title, but free from all other charges, liens, estates, or interests whatever, and are indefeasible, except when the registration has been obtained by fraud; and the registration of a transfer or charge, bonâ fide for value, is indefeasible, even though it be from or through a transferor or a mortgagor who obtained registration fraudulently.

Printed forms of contract, with full instruction for the guidance

of parties dealing, are obtainable at the Registry Office, and at the principal stationers' shops. These instruments must be filled in duplicate in a legible hand. All covenants essential to the existence, use, and enjoyment of estates and interests which are the subject of the contract, are, by law, declared to be implied. Certain usual though not essential covenants may, by the use of brief forms of words, to which specific signification is given by law, be stipulated as fully and effectually as if set out at length.

If the contracting proprietor does not attend personally at the Registry Office and execute the instrument in presence of the Registrar, then the execution must be attested by a legal practitioner; or else the contracting proprietor or the person who attested his signature, must acknowledge or prove the execution of the instrument before a notary-public, justice of the peace, or commissioner for taking affidavits, who will testify such acknowledgement or proof by a certificate to that effect, under his hand and seal endorsed upon the instrument.

These instruments of contract, even when executed as above described, do not pass the estate or interest, but merely constitute the authority to the registering officer for entering the memorial of the transaction in the register book. For this purpose the instrument may be presented at the Registry Office or forwarded through the post. Upon receipt of these instruments, the Registrar enters the registration memorial on the proper folium of the register, and on the certificate or other instrument evidencing the title of the registered proprietor; he then endorses the instrument with a memorandum, certifying the date of registration and the volume and folium of the register where the memorial has been recorded.

Entry on the register is the essential which gives validity to transactions. The memorandum certifying registration endorsed upon instruments under the hand and seal of the Registrar, renders them conclusive evidence of title in all courts of law and equity. Registered instruments are declared to be constructively embodied in the register, and one original of each is filed in the Registry Office, the other being returned to the party entitled under it.

Registered interests take priority one over the other according to the date of registration, and not according to the dates on which the instruments of contract are executed.

Charges. No portion of the system has made so sweeping a change in existing practice as that which relates to mortgage. The old fiction of transferring the legal estate is abolished, and the object is accomplished by a direct instead of a circuitous course. In the language of the Act "mortgage and encumbrance shall have effect as security, but shall not operate as a transfer of the land thereby charged, and in case default be made in the payment of the principal sum, interest, annuity, or rent-charge thereby secured, or in the observance of any covenant expressed in any memorandum of mortgage or of encumbrance registered under this Act, or that is hereinafter declared to be implied in such instrument, and such default

be continued for the space of one calendar month, or for such other period of time as may therein for that purpose be expressly limited, the mortgagee or encumbrancee may give to the mortgagor or encumbrancer notice in writing to pay the money then due or owing on such memorandum of mortgage or of encumbrance, or to observe the covenants therein expressed or implied, as the case may be, and that sale will be effected unless such default be remedied, or may leave such notice on the mortgaged or encumbered land, or at the usual or last known place of abode in the colony of the mortgagor or encumbrancer, or other person claiming to be then entitled to the said land or with his known agent."

The Registrar is required to register the proprietor of the charge, or his purchaser, as owner of the land; and if the subject of the charge be an estate of freehold, to issue to him a fresh certificate of title, and open a fresh folium in the register, carrying forward on each the memorials of existing terms and prior charges, if any, unexpired or unreleased. The Act further enables the proprietor of the charge, in such case, to distrain or enter into receipt of rent and profits.

Charges are released by memorial entered on the appropriate folium of the register, and upon the certificate or other instrument evidencing title, which memorial the registrar is required to make upon production of receipt for the sum of money, annuity, or rentcharge; or upon production of evidence of the decease of the annuitant; or that the circumstances or conditions upon the occurrence of which the charge was contingent have ceased to be possible. These charges on land are transferable by endorsement in a simple form, printed on the back of the instrument, evidencing the charge, and as the title is indefeasible, they pass as freely as Exchequer Bills between parties acquainted with the value of the property to which they attach. The expense attendant on creating a charge is but 10s., the cost of transfer 5s. and of re-lease 5s. The proprietor of the land may, if he thinks fit, upon payment of a further sum of £1 and surrender of the existing certificate, obtain a fresh certificate of title cleared of the memorials of all extinguished charges.

Equitable mortgages for the purpose of securing cash credit, and advances for fluctuating amounts, and also when parties desire secresy, are created under this system with a degree of security and facility for realising unattainable under the English law of conveyancing.

Transfers.-In order to transfer any estate or interest in registered land, the certificate or other instrument evidencing the title of the transferor must be deposited, together with the form of contract for transfer. The Registrar will then enter the memorial of transfer on the proper folium of the register; which act passes the estate or interest.

If an estate in "fee-simple" or "life estate" be transferred, the certificate of title evidencing that estate is cancelled, the folium of