| George t h e F o u r t h in t i tu led " An Act for registering Deeds and Conveyances m New South Wales and for other purposes''' all memoria ls of deeds and o ther i n s t rumen t s re la t ing to real p roper ty in N e w South Wales are requi red to be verified and all acknowledgments of mar r ied women and other persons to be made and t aken before one of t h e J u d g e s of t he Supreme Cour t of New South W a l e s or before | t he |
No. XXI.
An Act to amend the Act for the Registrat ion of
Deeds and to provide for the establishment
of a separate Regis t ry for Sydney and Por t
| Phillip respectively. | [3rd January, | 1842.] |
| W" H E R E AS by an Ac t of t h e Governor a n d Council of New | Sou th "Wales passed in t h e s ix th year of t he re ign of K i n g |
t he Reg i s t r a r thereof or a Commissioner specially appointed for t h a t
purpose and whereas t h e said provisions have by reason of the
present wide ex ten t of t h e Colony of N e w South W a l e s been found
| inconvenient | and t h e said Act | requi res | a m e n d m e n t | in cer ta in | o ther |
| respects and in par t i cu la r | i t is expedient to provide for t he establ ish |
| m e n t of a separate R e g i s t r y Office for Sydney | and for t he Dis t r ic t of |
| Po r t | Phi l l ip respectively Be it therefore | enacted by H i s Excel lency t h e |
| Governor of N e w South | W a l e s w i th | t h e advice of t he | Legislat ive |
Council thereof T h a t from and after t h e pass ing a n d publ ica t ion of
th i s Act every memor ia l which by t h e said reci ted Ac t or by this
presen t Ac t is requi red to be verified a n d every acknowledgment by a mar r i ed w o m a n or other person which b y t h e said recited A c t is directed in certain cases to be m a d e m a y be verified and m a d e respectively before e i ther a J u d g e of t h e said Supreme Cour t or before t he Reg i s t r a r of t he same or wi th in t he Dis t r ic t of P o r t Ph i l l ip before
| t h e D e p u t y | Reg i s t r a r or o ther | person Avho m a y | be appointed to dis |
| charge t h e dut ies of Reg i s t r a r t he re or before | any Commissioner | of t h e |
| said Supreme Cour t | appointed in any p a r t of t h e Colony under th i s |
| A c t for those purposes (such | Commissioner not be ing a pa r ty t o t h e |
| i n s t r u m e n t | no r hav ing been employed to p repare t h e same) | and every |
| memor ia l so verified and acknowledgment | so m a d e such acknowledg |
| m e n t be ing certified unde r | t h e h a n d | and seal | of the | J u d g e or o ther |
| person t a k i n g the same in t he form | or to t h e effect of t h e form | set |
forth in t h e Schedule t o th is A c t annexed m a r k e d A shall be as valid and effectual as if t he same h a d been verified or m a d e a n d certified
| respectively in m a n n e r | requi red by the said reci ted Ac t . |
| 2. | Prov ided always and be i t enacted | T h a t t h e or iginal | ins t ru |
m e n t t o which any such memor ia l or acknowledgment relates shall lie produced to t h e J u d g e or Reg i s t r a r or o ther person before w h o m t h e same shall be verified or m a d e as aforesaid and in case such ins t ru m e n t shal l appear t o have been executed by any pa r ty unab le to wr i te t h e n such J u d g e Reg i s t r a r or o ther person shal l refuse to complete such memor ia l or acknowledgment by certifying t he same unless t h e execut ion by such p a r t y shall be a t tes ted by some Jus t i ce of t he Peace
| or | Bar r i s t e r | or A t t o r n e y | or N o t a r y | Pub l i c | whose | a t tes ta t ion | shall | con |
| t a in a certificate | t h a t | t h e contents of such i n s t r u m e n t | were | previously |
| explained to t he p a r t y so unab le | to | wri te | a n d t h a t | t he n a t u r e | and |
| effect thereof were a t t h e t ime | of such | a t t es ta t ion | to t h e best of the |
| belief | of | such | J u s t i c e | or | Bar r i s te r | or | A t t o r n e y | or | N o t a r y | Pub l i c |
| unders tood by such | pa r ty . |
| 3. A n d be i t enacted Tha t t he re shal l be paid in respect of t h e |
several m a t t e r s men t ioned in th is A c t and in t h e Schedule here to annexed marked B and also for and u p o n t h e enro lment of every g ran t from t h e Crown hereafter m a d e and issued t h e sums of fees respect ively set forth in such last men t ioned Schedule which respec t ive sums or fees shall be demanded and t aken by t h e Reg i s t r a r of t h e said Supreme Cour t or wi th in the Dis t r ic t of Po r t Ph i l l ip by t h e Depu ty
| Regis t ra r or other person who m a y be appoin ted | to d ischarge t h e |
| duties of Reg i s t r a r t he re upon t h e receipt by h i m of any such | memo |
rial or g ran t from the Crown for t h e purpose of regis t ra t ion or enrol m e n t as t h e case m a y be a n d such sums or fees shall severally be accounted for and paid as by t h e said A c t is directed w i t h respect t o
| the fees thereby m a d e payable a n d from and after | t h e publ ica t ion | of |
| th i s A c t t h e fees | so by t h e said | reci ted | Ac t m a d e | payable | a n d |
ment ioned in t he Schedule annexed the re to m a r k e d B shall cease a n d determine Provided always t h a t t h e sums or fees hereby m a d e payable on t he enro lment of any g r a n t from t h e Crown shall no t be paid to such Reg i s t r a r D e p u t y Reg i s t r a r or other person as afore said b u t to t h e Colonial Treasurer in Sydney or Sub-Treasurer in
Melbourne
Melbourne or to such other officer as m a y be appoin ted by H i s Excel lency t h e Governor to deliver such g r a n t s upon t h e delivery of t h e same to such gran tee or to his representa t ives or assigns and all such fees or sums so pa id shall be accounted for and appl ied in t h e same m a n n e r as o the r publ ic monies coming in to t h e h a n d s of t h e said Colonial Treasurer are requi red to be accounted for and applied.
4. A n d be it enacted Tha t in addi t ion to t h e fees m a d e payable by t h e said Schedule m a r k e d B i t shall be lawful for every Com miss ioner appointed unde r th i s Ac t except a t Sydney a n d Melbourne to d e m a n d and have for his own use for t he t a k i n g a n d certifying by h i m as aforesaid of every acknowledgment unde r th i s A c t t he sum of five shil l ings and for t he t ak ing of every such verification to a memoria l as aforesaid t h e s u m of two shil l ings and sixpence.
5.. A n d be it enacted Tha t from and after t h e pass ing of th i s
| Ac t all Crown | g ran t s and | all | i n s t r u m e n t s | except | leases for a period |
| less t h a n th ree years affecting any lands or he red i taments | s i tuate |
w i th in t h e Dis t r ic t of P o r t Phi l l ip whe ther a l ready or hereafter to be executed shall be enrol led or regis tered as t he case may requi re in t he office of t he D e p u t y Reg i s t r a r of the. said Supreme Cour t a t Melbourne in the said district and for all purposes of and connected wi th such enro lment a n d regis t ra t ion and of and connected wi th t h e regis ter ing of all wills affecting or in tend ing to affect lands in t he said district tin; D e p u t y Reg i s t r a r or o ther person who m a y be appoin ted to discharge t he duties of Reg i s t r a r of such Cour t in t h e said district shall have and be subject to all such and the same powers liabilities and duties in every respect as the Reg i s t r a r of t he Supreme Cour t of t h e said Colony at Sydney has or would have and is or would be subject to in respect of t h e l ike g ran t s and ins t rumen t s enrolled or regis tered or which of
| r i g h t ough t to be enrolled or regis tered in t h e office of | such | Reg i s t r a r |
| at Sydney. |
| 0. A n d | be i t enacted | Tha t | t h e l imi ts of t he Dis t r ic t | of | P o r t |
| Phi l l ip shal l for | the purposes of th i s A c t | comprise all such p a r t s of |
| t h e Ter r i to ry of New. South Wales as now are or shal l a t any | t ime |
| hereafter | be comprised in t he l imi ts wi th in which the Resident | J u d g e |
of t h e said distr ict now h a t h or m a y hereafter have jur isdic t ion.
| 7. A n d be i t enacted | That | t h e Reg i s t r a r of | t h e said | Supreme |
Cour t a t Sydney shal l as soon as convenient ly may be after t h e pass ing of th i s Ac t except in t he cases hereinafter o therwise provided for m a k e
| out | and | t r a n s m i t | to t he D e p u t y | Reg i s t r a r | or o ther person | discharging |
| the dut ies of Reg i s t r a r of t h e said Supreme Cour t a t Melbourne in t he |
| Dis t r ic t | of | P o r t Ph i l l ip | a | t r ansc r ip t certified | unde r | his | h a n d of | all |
memoria ls of i n s t r u m e n t s affecting l and wi th in the said distr ict which are now regis tered or which have been deposited for reg is t ra t ion in the office of such R e g i s t r a r of t he Supreme Cour t a t Sydney and all such t ranscr ip t s shal l be received by t h e D e p u t y Reg i s t r a r or o ther person
| d ischarging the duties of Reg i s t r a r of t h e said Supreme Cour t | a t |
Melbourne in t he Distr ict of P o r t Ph i l l ip and be by h i m entered and preserved and shall be of t he same force and effect to all in ten t s and
| purposes as t h e or iginal memor ia l s a t | Sydney. |
| 8. A n d be it enacted Tha t after t h e pass ing of th i s A c t | the |
receipt which by the said recited A c t is directed to be given on the delivery of any memor ia l in to t he office of t h e Reg i s t r a r of t h e said
| Sup reme Cour t | of N e w South W a l e s for | reg is t ra t ion | shall in | every |
| case whe re such memor ia l re la tes to any i n s t r u m e n t | no t | be ing | a | will |
| be endorsed on such i n s t r u m e n t | and | the | Reg i s t r a r | or | D e p u t y | Regis |
t r a r or other p roper officer in t h a t behalf shall t h e n a t t ach his s igna ture the re to and every such receipt so endorsed and signed shall on proof of such s igna ture be t aken and allowed as evidence of t h e regis t ra t ion of such i n s t rumen t and of the t ime when such regis t ra t ion was made.
| 9. A n d be it enacted | Tha t | where | more | t h a n | one | i n s t r u m e n t |
shall have been used or shall be used for perfecting- t h e same convey ance or securi ty re la t ing to t h e same lands or hered i taments one memor ia l only shal l be necessary nor shall more t h a n one memor ia l be deemed to have been necessary in any such case unde r t he said reci ted A c t a t any t ime heretofore and in any such memor ia l i t
| shal l be sufficient | if t he lands and hered i t aments be par t icu lar i sed | once |
| only. |
| 10. | A n d be it enacted and declared | T h a t | no j u d g m e n t | in a b |
action a t law already recovered or to be recovered shall b ind or affect or be deemed to have bound or affected any lands or he red i t amen t s in t h e said Colony Prov ided always t h a t every wr i t of execut ion on any such j u d g m e n t aga ins t t h e lands or he red i t ament s of t he person against w h o m such j u d g m e n t shall be obta ined w h e n delivered to t h e Sheriff of t h e said Colony or t h e Sheriff of any distr ict thereof as t h e case m a y be shall affect and be deemed to have bound such lands from t h e t ime of such delivery thereof in l ike m a n n e r as any wri t of fieri facias now binds goods and chat te ls .
1 1 . A n d be i t enacted T h a t after t h e pass ing of th i s A c t so
| m u c h | of t h e said reci ted A c t as enacts t h a t no deed conveyance or |
| o ther | | i n s t r u m e n t | in Avriting conveying | or affecting | any lands | t e n e m e n t s | |
| or he red i t amen t s shall be subject | to lose any pr ior i ty | t o which | t h e |
| same m i g h t otherwise be legally ent i t led | if t h e | same be regis tered in |
conformity w i t h t h a t Ac t wi th in t he t imes the re in for t h a t purpose l imi ted shall be and t h e same is hereby repealed and t h a t all deeds and other i n s t r u m e n t s affecting any lands or he red i t amen t s in N e w South
| W a l e s or i ts Dependencies | which shall be execu ted or m a d e after t h e |
| pass ing of th i s A c t a n d which shal l be du ly registered u n d e r | t h e | pro |
| visions of | th i s | Ac t shal l have a n d t ake p r io r i ty no t according to the i r |
| respect ive dates b u t according to t h e | pr ior i ty | of reg i s t ra t ion | thereof |
only Provided a lways t h a t th is section shal l no t ex tend to or affect any deed which shall be executed a t any place in E u r o p e w i th in twelve m o n t h s or a t any other place elsewhere out of New South Wales w i th in
| six m o n t h s | after | t h e pass ing | of th i s Ac t . |
| 12. A n d be it enacted Tha t where t h e p a r t y | on whose | behalf |
| any i n s t r u m e n t requi red to be regis tered shal l be dead or absent | from |
| t h e | said | Colony | a t | t h e t ime | w h e n | t h e reg is t ra t ion thereof shall be |
| requi red to be m a d e i t shall and m a y be competen t for t he lawful | repre |
| sentat ive or a t to rney | of such p a r t y u p o n | appl ica t ion to one of t h e | J u d g e s |
| of t he said Supreme Cour t a t Sydney or t o t h e Res iden t J u d g e of | t h e |
| said Cour t a t P o r t Ph i l l ip | and u p o n proof | to t h e satisfaction of | such |
| «J udge of t he fact of t h e death or absence of | such p a r t y a n d upon t h e |
| order of such J u d g e to sign t h e memor ia l | thereof | in t h e n a m e a n d on |
| t h e | behalf | of t h e or iginal pa r ty to such i n s t r u m e n t and such | s igning |
| shal l be as valid and effectual | to al l i n t en t s a n d purposes as if such |
| memor ia l | had been | s igned by t h e or iginal p a r t y | or par t ies | the re to . |
| 13 . A n d be i t enac ted T h a t | if any person | shal l | a t any | t i m e |
| wilfully forswear | himself | or s ta te a n y t h i n g | con t ra ry to | t h e t r u t h in |
| any oa th t a k e n unde r t h e a u t h o r i t y | of | th i s or t he said | reci ted A c t | he |
| shall | be deemed | gui l ty of per jury a n d | shal l suffer | such | p u n i s h m e n t s |
| as a re or m a y be provided by law for t h a t | cr ime. |
| 14. | A n d be i t enacted | Tha t t he t e r m | i n s t r u m e n t | hereinbefore |
used shall for t h e several purposes of t h i s A c t be cons t rued to inc lude no t only conveyances a n d other deeds b u t also all i n s t rumen t s in Aviating Avhatsoever Avherebv real es ta te shall he affected or shall be in tended so to be.
| 15 . | A n d be i t enacted | Tha t | i t shall be t he d u t y of the R e g i s t r a r |
| of | t h e said Supreme Cour t a t | Sydney a n d of t h e Depu ty | Reg i s t r a r of |
| t h e | said | Cour t | a t P o r t | Phi l l ip | w i th | respect to all i n s t r u m e n t s | p rope r |
to
| to be t h e r e respectively regis tered from t ime to t ime to m a k e | and |
prescr ibe t h e form and size of memor ia l s so as to facilitate references to t h e m a n d render thei r preservat ion secure and to m a k e proper indexes to al l reg is t ra t ions in such a m a n n e r t h a t (as far as m a y be)
| in format ion | m a y readi ly be obta ined by par t ies in teres ted | the re in | as |
to all i ncumbrances and liens or i n s t rumen t s affecting or in tended to affect rea l es ta te in t h e Colony and tha t reference may be had to all such reg i s t ra t ions according to t h e count ies in which the lands are s i tua te to which they respectively apply.
1G. A n d be i t enacted Tha t in all cases where unde r t he said rec i ted A c t an acknowledgment is requi red to be certified u n d e r an official seal the seal ac tua l ly affixed to any such acknowledgment or to any certificate thereof shal l for t h e purposes of t he said Act be t aken to be t h e official seal of t h e officer t a k i n g or cert ifying t h e same and no evidence to prove the contrary shall be admissible in a n y case e i ther ait law or in equi ty .
17. A n d be i t enacted T h a t in all cases where after t he pass ing of th i s A c t in addi t ion to a memor ia l of t he i n s t r u m e n t in tended to be registered t he r e shall also be the rewi th deposited in t he office of t h e R e g i s t r a r of t he said Supreme Cour t a t Sydney or t h e D e p u t y
| Regis t ra r of t h e said Cour t a t P o r t | Phi l l ip as t he | case m a y | be | an |
| examined copy of | such i n s t r u m e n t at full l eng th certified by t h e oath |
of two credible persons such oath hav ing been t a k e n before a J u d g e or any Commissioner appointed unde r th i s Act or before such Reg i s t r a r or D e p u t y Reg i s t r a r to be a t r u e copy of t h e original to which t h e
| same re la tes and by the oath in l ike m a n n e r | of t he | a t tes t ing | wi tness |
or witnesses to such original i n s t r u m e n t t h a t i t was duly executed by t h e several par t ies there to or by such of t h e m as shall appear to have; executed t h e same every such or iginal i n s t rumen t a n d also in all cases where secondary evidence thereof would be receivable every such examined copy thereof shall or lawfully m a y be received and given in evidence in any suit or proceeding whatsoever wi thout proof of i ts execu t ion by t h e par t ies or any of t h e m whose execut ion shall have;
| been so a t t es ted a n d certified and as if such execut ion by t h e | said |
| par t i es h a d been proved in t h e ord inary | manner . |
18. Provided always and be it enacted Tha t in every such case
as las t aforesaid such examined copy shal l have been referred to in t h e
memor ia l as accompanying or in tended to accompany t h e same a n d
| t h a t i t shal l have been deposited as aforesaid | wi th in two m o n t h s | or if |
| executed out of t h e | said Colony | wi th in twelve m o n t h s | after t h e date |
| of t h e i n s t r u m e n t to which it relates or if executed before t h e | pass ing |
of th i s A c t wi th in six m o n t h s after t h e pass ing hereof and t h e day and h o u r of such deposit shal l immedia te ly after receipt of every such examined copy be endorsed the reon and also on the or iginal i n s t r u m e n t of which it pu rpo r t s t o be a copy Avhich endorsements respectively be ing signed by the said Reg i s t r a r or D e p u t y Regis t ra r m a k i n g the same shall on proof of such s igna ture be received as conclusive evi dence of t he fact or facts the re in s tated and every such examined copy be ing consecutively numbered according to t h e order of i ts receipt and also m a r k e d wi th t h e n u m b e r of t h e memor ia l to which it relates shall thencefor th be carefully re ta ined by such Reg i s t r a r or D e p u t y Regis t ra r and preserved for fu ture reference and n o such copy shall be received wi th any in ter l inea t ion or erasure the re in unless t h e same shall be not iced in t h e m a r g i n opposite there to by the s ignatures of t he persons certifying on oa th to such copy.
19. A n d be i t enacted T h a t in every case where t he produc t ion of any such examined copy as aforesaid or of any memoria l shall be requi red for t h e purposes of evidence unde r th i s Ac t t he same shall or m a y be produced respectively ei ther by t h e said Reg i s t r a r or D e p u t y