The Trustee Act 1852 No 19a (NSW)

No. XIX.

a n ?>

An Act to consolidate and amend the Laws relating to the Conveyance and Transfer of Leal and Personal Property  ested in Mort­ gagees and Trustees. [2ud Beptemher, 1852.] 31okt(;ageks.

"I^TH EIIEA S an Act of Council Avas passed in the fifth year of the ,7 w, t No. h.

reign of His late Majesty King AVilliani the Eourth for adopting and applying amongst other Acts an Act of Parliament

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passed in the first year of the same reign intituled “ A h Act fo r 11 o. 1	ami 1	av. t
“ amending the Laics respecting Conveyances and Transfers o f Estates’̂' “ and Funds vested in Trustees and Mortgagees and for enabling “ Courts o f Equity to give effect to their Decrees and Orders in
“ certain cases ” And Avhereas it is expedient that the proAusions of the said adopted Act should be enlarged Be it therefore enacted by His Excellency the Go\-ernor of Ncay South AYales by and Avith the adAuce and consent of the Legislative Council thereof as folloAA's :—

1 . All proceedings under the said Act commenced before the RepoaUnf; so numii

passing of this Act maybe proceeded AAdtli under the said adopted mentioned shall be and the same is hereby repealed Provided alAvays that the several Acts repealed by the said adopted Act shall not be revived.

Act or according to the provisions of this Act as shall bo thouglit n o-1 ami 1 • 1

expedient and subject as aforesaid so much of the said recited Act of

2. The several Avords hereinafter named are herein used and i"tsTretatiuii of

applied in the manner folloAA'ing respectively (that is to say)—

The AA'ord “ stock” shall mean any fund annuity or security

. transferable in books kept by any company or society

established

2524 N o. 19. 16*' y ic . 1852.

Trustees and Mortgagees.

established or to be established or transferable by deed alone or by deed accompanied by other formalities and any share or interest therein

The word “ seised ” shall be applicable to any vested estate for life or of a greater description at law and in equity in possession or in futurity in any lands

The word “ possessed ” shall be applicable to any vested estate less than a life estate at law or in equity in possession or in expectancy in any lands

The words “ contingent right ” as applied to lands shall mean a contingent or executory interest a possibility coupled with an interest whether the object of the gift or limitation of such interest or possibility be or be not ascertained also a right of entry whether immediate or future and whether vested or contingent

The words “ convey ” and “ conveyance ” applied to any person shall mean the execution by such person of every necessary or suitable assurance for conveying or disposing to another lands whereof such person is seised or entitled to a contin­ gent right either for the whole estate of the person con­ veying or disposing or for any less estate together with the performance of all formalities required by law to the validity of such conveyance including the acts to be per­ formed by married women and tenants in tail in accord- anee with the provisions of the Act passed in the seventh year of the reign of Her present Majesty number sixteen or under any future Act or enactments giving effect to conveyances by such persons as if fines with proclamations had been levied or common recoveries suffered

The words “ assign” or “ assignment ” shall mean the execu­ tion and performance by a person of every necessary or suitable deed or act for assigning surrendering or other­ wise transferring lands of which such person is possessed either for the whole estate of the person so possessed or for any less estate

The Avord “ transfer ” shall mean the execution and perform­ ance of every deed and act by which a person entitled to stock can transfer such stock from himself to another

The Avord “ trust ” shall not mean the duties incident to an estate conveyed by way of mortgage but with this excep­ tion the words “ trust” and “ trustee” shall extend to and include implied and constructive trusts and cases where the trustee has some beneficial estate or interest in the subject of the trust and shall extend to and include the duties incident to the office of personal representative of a deceased person

The word “ devisee” shall in addition to its ordinary significa­ tion mean the heir of a devisee and the devisee of an heir and generally any person claiming an interest in the lands of a deceased person not as heir of such deceased person but by a title dependant solely upon the operation of the laws concerning devise and descent

The word “ mortgage” shall be applicable to every estate interest or property in lands or personal estate AÂ hich would in a Court of Equity be deemed merely a security for money

The word “ lunatic” shall mean “ any person who shall have “ been found to be a lunatic upon a commission of inquiry “ in the nature of a Avrit de lunatico inquirendo ”

The

1852. 16̂ ̂ VIC. N o. 19. 2525

Trustees and Mortgagees.

The expression “ person of unsound mind” shall mean any person not an infant who not havin" been found to be a lunatic shall he incapable from infirmity of mind to manage his own affairs.

3. When any lunatic or person of unsound mind shall be seised Supreme Oomt may

or possessed of any lands upon any trust or by way of mortgage it

and

shall be lawful for the Supreme Court to make an order that such mortgagees

lands be vested in such person or persons in such manner and for such

estate as he shall direct and the order shall have the same effect as if

the trustee or mortgagee had been sane and had duly executed a

conveyance or assignment of the lands in the samt; manner for the

same estate.

4. When any lunatic or person of unsound mind shall be

entitled to any contingent right in any lands upon any trust or by way iunttSc tvLteaa and

of mortgage it shall be lawful for the Supreme Court to make an order mortgagees,

wholly releasing such lands from such contingent right or disposing of

the same to sucli person or persons as the said Court shall direct and

the order shall have the same effect as if the trustee or mortgagee

had been sane and had duly executed a deed so I'eleasing or disposing

of the contingent right.

convey eou-

5. When any lunatic or person of unsound mind shall be solely comt may transfer

entitled to any stock or to any chose in action upon any trust or by

way of mortgage it shall be lawful for the Supi’eme Court to make an

°

order vesting in any person or persons the right to transfer such stock or to receive the dividends or income thereof or to sue for and recover such chose in action or any interest in resj>ect thereof and when any person or persons shall be entitled jointly with any lunatic or person of unsound mind to any stock or chose in action upon any trust or by way of mortgage it shall be lawful for the said Court to make an order vesting the right to transfer such stock or to receive the dividends or income thereof or to sue for and recover such chose in action or any interest in respect thereof either in such person or persons so jointly entitled as ’ aforesaid or in such last-mentioned person or persons together with any other person or persons the said Court may appoint.

G. When any stock shall l)e standing in the name of any Power to transfer

deceased person whose personal representative is a lunatic or person of unsound mind or when any chose in action shall be vested in any lunatic or person of unsound mind as the personal representative of a deceased person it shall be lawful for the Supreme Court to make an order vesting the right to transfer such stock or to receive the dividends or income thereof or to sue for and recover such chose in action or any interest in respect thereof in any person or persons he may appoint.

7. Where any infant shall be seised or possessed of any lands Court may convey upon any trust or by way of mortgage it shall be lawful for the Supreme trusteL”L*d*mort- Court to make an order vesting such lands in such person or persons gageei.

in such manner and for such estate as the said Court shall direct and the order shall have the same effect as if the infant trustee or mort­ gagee had been twenty-one years of age and had duly executed a conveyance or assignment of the lands in the same manner for the same estate.

8. Where any infant shall be entitled to any contingent right Contingeut rights oi

in any lands upon any trust or by way of mortgage it shall be lawful “‘or“*ngcer*̂ ^

for the Supreme Court to make an order wholly releasing such lands	°
from such contingent right or disposing of the same to such person or persons as the said Court shall direct and the order shall have the same effect as if the infant bad been twenty-one years of age and had duly executed a deed so- releasing or disposing of the contingent

right. .

2o2G N o. 19. W VIC. 1852.

Trustees and Mortgagees.

Court may convey 9. When any person solely seised or possessed of any lands

tee onfor tte jnrit l™st shall bc out of the jurisdiction of the Supreme Court iiiction of the Court. Or cauiiot he fouiid it shall he lawful for the said Court to make an

order vesting such lands in such person or persons in such manner and ibr such estate as the said Court shall direct and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate.

Court m.ay make 10. When any j)ei’son or persons shall he seised or possessed of

pers™'s\*irseiledTf luiids jointlv with a person out of the jurisdiction of the Supreme

lands jointly rvith Coui’t 01’ wdio caiiiiot 1)6 fouud it shall 1)6 lawful for the said Court to

diction of Court &e. iiiake au Order vestiDg the lands in the person or persons so jointly

seised or possessed or in such last-mentioned person or persons together with any other person or persons in such manner and for such estate as the said Court shall direct and the order shall have the same effect as if the trustee out of the jurisdiction or who cannot he found had duly executed a conveyance or assignment of the lands in the same manner for the same estate.

Contingent rigiits of 11. When any person solely entitled to a contingent right in any lands upon any trust shall he out of the jurisdiction of the Supreme Court or cannot he found it shall be lawful for the said Court to make an order wholly releasing such lands from such contingent right or disposing of the same to such person or persons as the said Court shall direct and the order shall have the same effect as if the trustee had duly executed a conveyance so releasing or disposing of the contingent right.

Court may make 12. When any person jointly entitled with any other person or

order in c.ascs where persons to a Contingent right in any lands upon any trust shall he out

Entitled with others of tlic jui’isdictiou of the Supreme Court or cannot he found it shall be tion°o/the lawful foi’ the Said Court to make an order disposing of the contingent a contingent rigiit in right of tlic pcrson out of the jurisdiction or who cannot be fotind to

the person or persons so jointly entitled as aforesaid or to such last- mentioned person or persons together with any other person or persons and the order shall have the same effect as if the trustee out of the jurisdiction or who cannot he found had duly executed a conveyance so releasing or disposing of the contingent right.

When it is uncertain	13. Where there shall have been two or more persons jointly whicli of sucli trustccs Tvas the survivor it shall he lawful for the Supreme Court to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct and the order shall have the same effect as if the survivor of such trustees had duly executed a conveyance or assignment of the lands in the same manner for the same estate,
uustees\vas the	sciscd 01’ posscsscd of any lands upon any trust and it shall he uncertain
survivor.

wiien it is uncertain	14. Whei’o any One 01’ nioi’e person or persons shall have been
uust'rbe**̂ iivh)°- or	01’ posscsscd of any lands upon any trust and it shall not be

dead.	“	known as to the trustee last knowm to have been seised or possessed whether he be living or dead it shall be lawful for the Supremo Court to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct and the order shall have the same effect as if the last trustee had duly executed a com eyance or assignment of the lands in the same manner for the same estate.
^Vhen trustee tlies
without an lieir.	15. When any person seised of any lands upon any trust shall have died intestate as to such lands without an heir or shall have died and it shall not be known who is his heir or devisee it shall he lawful for the Supreme Court to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct and the order shall have the same effect as if the heir or devisee of such trustee had duly executed a conveyance of the lands in the same manner for the same estate.

IG.

1851. IG'̂ VIC. N o. 19. 2527

Trustees and Morigacjees.

1 6 . When any lands are subj(!ct to a contingent right in an Continsont ri-iit of

unhorn person or class of unhorn persons who upon coming into

“uatcc.

existence would in respect thereof become seised or possessed of sucli lands upon any trust it shall be lawful for the Sujircme Court to make an order which shall wholly release and discharge such lands from such contingent right in such unborn person or class of unborn persons or to make an order which shall vest in any person or j3ersons the estate or estates which such unborn person or class of unborn persons would upon coming into existence be seised or possessed of in such lands.

17. Where any person jointly or solely seised or possessed of Power to convey m

any lands upon any trust shall after a demand by a person entitled to

^

require a conveyance or assignment of such lands or a duly authorized agent of such last-mentioned person have stated in writing that he will not convey or assign the same or shall neglect or refuse to convey or assign such lands for the space of twenty-eight days next after a proper deed for conveying or assigning the same shall have been tendered to him by any person entitled to require the same or hy a duly authorized agent of such last-mentioned person it shall be lawful for the Supreme Court to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner for the same estate.

1 8 . Where any person jointly or solely entitled to a contingent Power to convey in

right in any lands upon any trust shall after a demand for a convey- cntukmuconû ̂ right in such manner as it shall direct and the order shall have the same effect as if the trustee so neglecting or refusing had duly executed a conveyance so releasing or disposing of the contingent right.

ance or release of such contingent right by a person entitled to require

the same or a duly authorized agent of such last-mentioned person

have stated in writing that he Avill not convey or release such

contingent rigid or shall neglect or refuse to convey or release such

contingent right for the space of twenty-eight days next after a proper

deed for conveying or releasing the same shall have been tendered to

him hy any person entitled to require the same or by a duly autborized

agent of such last-mentioned person it shall be lawful for the Supreme

1 9 . When any person to whom any lands have been conveyed Power to convey in

by way of mortgage shall have died without having entered into the

mortgagee,

possession or into the receipt of tlic rents and profits thereof and the money due in respect of such mortgage shall have been paid to a person entitled to receive the same or such last-mentioned person shall consent to an order for the re-conveyance of such lands then in any of the following cases it sliall be lawful for the Supreme Court to make an order vesting such lands in sucli person or persons in such manner and for such estate as the said Court shall direct that is to say-

When an heir or devisee of such mortgagee shall be out of tlie

jurisdiction of the Supreme Court or cannot be found

When an heir or devisee of such mortgagee shall upon a demand by a person entitled to require a conveyance of such lands or a duly authorized agent of sucli last-mentioned person have stated in writing that he ivill not convey the same or shall not convey the same for the space of twenty-eight days next after a proper deed for conveying such lands shall have been tendered to him by a person entitled as aforesaid or a duly authorized agent of such last-mentioned person

G— VOL, 4. When

2528 N o. 19. IG*’ VIC. 1852.

Trustees and Mortgagees.

When it shall he uncertain which of several devisees of sucli

mortgagee was the survivor

When it shall he uncertain as to the survivor of several devisees of such mortgagee or as to the heir of such mortgagee whether he he living or dead

W"hen such mortgagee shall have died intestate as to such lands and without an heir or shall have died and it shall not be known who is his heir or devisee

And the order of the said Court made in any one of the foregoing cases shall have the same effect as if the heir or devisee or surviving devisee as the case may be had duly executed a conveyance or assignment of the lands in the same manner and for the same estate.

Power to appoint a 20. In cvcry cusc whcre the Supreme Court shall under the person to convey in ppovisious of this Act he enabled to make an order having the effect of

a conveyance or assignment of any lands or having the effect of a release or disposition of the contingent right of any person horn or unborn it shall also he lawful for the said Court should it be deemed more convenient to make an order appointing a person to convey or assign such lands or release or dispose of such contingent right and the conveyance or assignment or release or disposition of the person so appointed shall when in conformity with the terms of the order hy which he is appointed have the same effect in conveying or assigning the lands or releasing or disposing of the contingent right as an order of the said Court would in the particular case have had under the provisions

, of this Act and in every case where the Su})reme Court shall under the

. provisions of this Act be enabled to make an order vesting in any person or persons the right to transfer any stock transferable in the hooks of any company or society established or to be established it shall also be lawful for the said Court if it he deemed more convenient to make an order directing any officer of sucli company or society at oncii to transfer or join in transferring the stock to the person or persons to he named in the order and this Act shall he a full and complete indemnity and discharge to all companies or societies and their officers and servants for all acts done or permitted to he done pursuant thereto.

When trustees of	21. AThen any person or persons shall be jointly entitled with any person out of the jurisdiction of the Supreme Court or who cannot be found or eoncerning whom it shall he uncertain whether he be living or dead to any stock or chose in action upon any trust it shall he lawful for the said Court to make an order vesting the right to transfer such stock or to receive the dividends or income thereof or to sue for or recover such chose in action or any interest in respect thereof either in sucli person or persons so jointly entitled as aforesaid or in such last-mentioned person or persons together with any person or persons the said Court may appoint and when any sole trustee of any stock or chose in action shall be out of the jurisdiction of the said Court or cannot be found or it shall be uncertain whether he be living or dead it shall he lawful for the said Court to make an order vesting the right to transfer such stock or to receive the dividends or income thereof or to sue for and recover such chose in action or any interest in respect thereof in any person or persons the said Court may appoint.
stock out of
jurisdiction.
When trustee of	22. AAffiere any sole trustee of any stock or chose in action shall neglect or refuse to transfer such stock or to receive the dividends or income thereof or to sue for or recover such chose in action or any interest in respect thereof according to the direction of the person absolutely entitled thereto for the space of twenty-eight days next after a request in Avriting for that purpose shall have been made to him hy the person absolutely entitled tliereto it shall be lawful for the
stock refuses to
transfer.

Supreme

1852. 16 ̂ VIC. N o. 19. 2529

Trustees and Mortgagees.

Supreme Court to make an order vesting the sole right to transfer such stock or to receive the dividends or income thereof or to sue for and recover such chose in action or any interest in respect thereof in such person or persons as the said Court may appoint.

23. Where any one of the trustees of any stock or chose in wiion one of several

action shall neglect or refuse to transfer such stock or to receive the l-Xserto u,Ser m-

dividends or income thereof or to sue for or recover such chose in receive .and pay

action according to the directions of the person absolutely entitled iiivideuds.

thereto for the space of twenty-eight days next after a request in

writing for that purpose shall have been made to him or her by such

person it shall he lawful for tlic Supreme Court to make an order

vesting the right to transfer such stock or to receive the dividends or

income thereof or to sue for and recover such chose in action in the

other trustee or trustees of the said stock or chose in action or in any

person or persons whom the said Court may appoint jointly with such

other trustee or trustees.

24. When any stock shall be standing in the sole name of a wiic.n stock is

deceased person and his or her personal representatives shall be out of

^

the jurisdiction ot tlie Supreme Court or cannot be lound or it shall poison.

be uncertain whether such personal representative he living or dead or

such personal representative shall neglect or refuse to transfer such

stock or receive the dividends or income thereof according to the

direction of the person absolutely entitled thereto for the space of

twenty-eight days next after a request in ivriting for that purpose

shall have been made to him by the person entitled as aforesaid it shall

he lawful for the said Court to make an order vesting the right to

transfer such stock or to receive the dividends or income thereof in

any person or persons whom the said Court may apjioint.

25. Where any order shall have been made under any of the Effect of m order

provisions of this Act vesting the right to any stock in any person or for any company or association whatever or any person having received such notice to act upon the requisition of the person in whose place an appointment shall have been made in any matter whatever relating to the transfer of such stock or the payment of the dividends or produce thereof.

persons appointed by the Supreme Court such legal right shall vest stock,

accordingly and thereupon the person or persons so appointed are

hereby authorized and empowered to execute all deeds and powers of

attorney and to perform all acts relating to the transfer of such stock

into his or their own name or names or otherwise or relating to tlie

receipt of the dividends thereof to the extent and in conformity with

the terms of such order and all companies and associations whatever

and all persons shall he equally bound and compellable to comply with

tire requisitions of such person or persons so appointed as aforesaid to

the extent and in conformity with the terms of such order as sucli

companies associations or persons would have been bound and com­

pellable to comply with the requisitions of the person in whose pla<fc

such appointment shall liave been made and shall he ecpially indernni-

lied in complying with the rcfprisition of such person or persons so

appointed as they would have been indemnitied in complying with the

requisition of the person in whoso place such appointment shall have

been made and after notice in writing of any such order of the said

2(1 Where any order shall have been made under the provisions Effect of an order

of this Act hy the Supreme Court vesting the legal right to sue for or	"pf;’*,
. recover any chose in action or any interest in respect thereof in any person or persons such legal right shall vest accordingly and thereupon it shall be lawful for the per.son or ]fcrsons so appointed to ctirry on commence and prosecute in his or their own name or names any

action

2530 N o. 19. 16 ̂ YIC. 1852.

Trustees and Mortgagees.

action suit or other proceeding at Law or in Equity for the recovery of such chose in action in the same manner in all respects as the person in whose place an appointment shall have been made could have sued for or recovered such chose in action.

When a decree is

made for sale of real	27. When a decree shall have been made hy the Supreme a deceased person every person seised or possessed of such lands or entitled to a contingent right therein as heir or under the will of such d(!ceased debtor shall be deemed to he so seised or possessed or entitled as the case may be upon a trust within the meaning of this Act aud the said Court is hereby empowered to make an order Avholly dis­ charging the contingent right under the will of such deceased debtor of any unborn person.
estate for payment of	Court directing the sale of any lands for the payment of the debts of
debts.
Covirt todeclare what

jiartics are trustees 28. 'Where any decree shall be made hy the Supreme Court Jbr

of lands comprised in	the specific performance of a contract concerning any lands or for tlic
any suit and as to
the interests of per­	partition or exchange of any lands or generally when any decree shall
sons unborn.	he made for the coiivoyanee or assignment of any lands either in cases arising out of the doctrine of election or otherwise it shall be lawful for the said Court to declare that any of the parties to the said suit Avherein such decree is made ai*e trustees of such lands or any part thereof within the meaning of; this A ctor to declare concerning the interests of unborn persons who might claim under any party to the said suit or under the will or voluntary settlement of any person deceased who was during his lifetime a party to the conti’aet or transactions concerning wiiich such decree is made that such interests of unborn persons are the interests of persons who upon coming into existence would be trustees within the meaning of this Act and there­ upon it shall he lawful for the said Court to make such order or orders as to the estates rights and interests of such persons horn or unborn as the said Court might under the provisions of this Act make con­ cerning the estates rights and interests of trustees horn or unborn.
Power to make
directions how the	29. I t shall he lawful for the Supreme Court to make declara­ any stock or chose in action vested under the provisions of this Act shall he exercised and tliereupon the person or persons in whom such right shall he vested shall he compcllahle to obey such directions and declarations hy the same process as that hy which other orders under this Act are enforced.
right to transfer	tions and give directions concerning the manner in which the right to
stock to be exercised.
Power to Court to
make order appoint­	30. Whenever it shall be expedient to appoint a new trustee or new trustees and it shall l)e found inexpedient difficult or imprac­ ticable so to do without the assistance of the Supreme Court it shall he lawful for the said Court to make an order appointing a new trustee or new trustees either in substitution for or in addition to any exist­ ing trustee or trustees.
ing new trustees.
TIio new trustees to

have tlic powers of 31. The person or persons who upon the making of such order

trustees appointed

as last aforesaid shall he trustee or trustees shall have all the same

by decree in suit.

rights and powers as he or they would have had if appointed by decree

in a suit duly instituted.

Power to Court to

vest lands in new

32. I t shall be laAvful for the said Court upon making any order for appointing a new trustee or new trustees either by the same or by any subsequent order to direct that any lands subject to the trust shall vest in the person or persons who upon the appointment shall be the trustee or trustees for such estate as the Court shall direct and such order shall have the same effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estate.

trustees.

Power to Court to

vest right to sue at 33. I t shall he lawful for the said Court upon making any

law in new trustees. order for appointing a new trustee or new trustees either by the sam<' or

1852. 1()’ VIO. N o. 19. 2531

Trustees and Mortgagees.

by any subsequent order to vest the right to call for a transfer of any stock subject to the trust or to receive the dividends or income thereof or to sue for or recover any chose in action subject to the trust or any interest in respect thereof in the person or persons who upon the appointment shall be the trustee or trustees.

3 t. Any such appointment by the Court of noAv trustees and oi,i trustees net to

any such conveyance assignment or transfer as aforesaid shall operate

no further or otherwise as a discharge to any former or continuing

'

trustee tlian an appointment of new trustees under any power for that

purpose contained in any instrument would have done.

35. That an order under any of the hereinbefore contained who muy uppiy.

provisions for the appointment of a new' trustee or trustees or con- eerning any lands stock or chose in action subject to a trust may be made upon the application of any person beneficially interested in such lands stock or chose in action whether under disability or not or upon the application of any person duly appointed as a trustee thereof and that an order under any of the provisions hereinbefore contained concerning any lands stock or chose in action subject to a mortgage may be made on the application of any person beneficially interested in tbc equity of redemption whether under disability or not or of any person interested in the moneys secured by such mortgage.

3;!. When any person shall deem himself entitled to an order Pow er to gn b. rnic

under any of the provisions hereinbefore contained from the said Court

it sliall be lawful for him to exhibit before the Master in Equity of

tlic said Court a statement of the facts whereon such order is sought	*
to be obtained and adduce evidence in support thereof and if such evidence shall be satisfactory to the said Master he shall at the request of the person adducing such evidence give a certificate under liis hand of the several material facts found by him to be true and of his opinion that such a person is entitled to an order in the form set forth in such certificate.

37. Any person who shall have obtained such certificate may Power to petiiion tiic

apply by motion to the Supreme Court for an order to the effect set fortli in such certificate or for such other as such person may deem himself entitled to upon the facts found by the Master.

38. Any person or persons entitled in manner aforesaid tc apply Power t(. iircî mt

for an order from the said Court may should he so think fit present a petition in the first instance to the said Court for such order as he may deem himself entitled to and may give evidence by affidavit or other- Avise in support of such petition before the said Court and may serve such person or persons Avith notice of such petition as he may deem entitled to service thereof.

39. Upon the hearing of any such motion or petition it shall AVhat may iio dono

be laAvful for the said Court should it be deemed necessary to direct a reference to the Master in Equity of the Court to inquire into any facts Avhich require such an investigation or it shall be laAiTul for the said Court to direct such motion or petition to stand over to enable the petitioner or petitioners to adduce evidence or further evidence before the said Court or to enable notice or any further notice of such motion or petition to he served upon any person or persons.

40. Upon the hearing of any such motion or petition Avhether Com t may dismiss

any certificate or report from the Master shall have been obtained or

not it shall be lawful for the Court to dismiss such motion or petition Avith or Avithout costs or to make an order thereupon in conformity Avith the provisions of this Act.

41. "VYhensoever in any cause or matter either by the CAudence Power to i.iaiamm

adduced therein or by the admissions of the parties or by a report of

the Master the facts necessary for an order under this Act shall

appear to such Court to be sufficiently proved it shall be lawful for «

the

2532 N o. 19. 16 ̂ VIC. 1852.

Trustees and Mortgagees.

the said Court either upon the hearing of the said cause or of any petition or motion in the said cause or matter to make such order under this Act.

Orders made by the 42. Whenever aiiv order shall be made under this Act for the

certaUaTeŝ atioMto assigning any lands or for the purpose of

be conclusive evi-	releasing Or disposing of any contingent right and such order shall he
contained'in	founded On an allegation of the personal incapacity of a trustee or
allegations.	mortgagee or on an allegation that a trustee or the heir or devisee of a mortgagee is out of the jurisdiction of the Supreme Court or cannot he found or that it is uncertain which of several trustees or which of several devisees of a mortgagee was the survivor or whether the last trustee or the heir or last surviving devisee of a mortgagee he living or dead or on an allegation that any trustee or mortgagee has died intestate without an heir or has died and it is not known who is his heir or devisee then in any such cases the fact that the Court has made an order upon such an allegation shall he conclusive evidence of the matter so alleged in any Court of Law or Equity upon any question as to the legal validity of the order Provided always that nothing herein contained shall prevent the Court directing a re-conveyance or re-assignment of any lands conveyed or assigned by any order under this Act. or are-disposition of any contingent right conveyed or disposed of by such order and it shall be lawful for the said Court to direct any of the parties to any suit concerning such lands or contingent right to pay any costs occasioned by the order under this Act when the

■ same shall appear to have been improperly obtained.

Trustees of charities. 43. I t shall be lawful for the Supreme Court to exercise the powers herein conferred for the purpose of vesting any lands stock or

' chose in action in the trustee or trustees of any charity or society over which charity or society the said Court would have jurisdiction upon suit duly instituted whether such trustee or trustees shall have been duly appointed by any power contained in any deed or instru­ ment or by the decree of the said Court or by order made upon a petition to the said Court under any Act authorizing the said Court to make an order to that effect in a summary way upon petition.

No csoheat of	44. Xo lands stock or chose in action vested in any person upon any trust or by way of mortgage or any profits thereof shall escheat or be forfeited to Her Majesty by reason of the attainder or conviction for any offence of such trustee or mortgagee but shall remain in such trustee or mortgagee or survive to his or her co-trustee or descend or vest in his or her representative as if no such attainder or conviction had taken place.
trust or mortgage.
Aet not to prevent	45. Nothing contained in this Act shall prevent the escheat or forfeiture of any lands or personal estate vested in any such trustee or mortgagee so far as relates to any beneficial interest therein of any such trustee or mortgagee but such lands or personal estate so far as relates to any such beneficial interest shall be recoverable in the same manner as if this Act had not passed.
orbeneflcL?inTê ^̂
Money of infants
and persons of	46. Where any infant or person of unsound mind shall be chose in action conveyed assigned or transferred under this Act it shall be lawful for the person by Avhom such money is payable to pay the same into any of the banks established in tliis Colony by Acts of Council in the name and with the privity of the Master in Equity of the Supreme Court in trust in any cause then depending concerning such money or if there shall be no such cause to the credit of such infant or person of unsound mind subject to the order or disposition of the said Court and it shall be lawful for the said Court ujion petition in a summary way to order any money so paid to be invested in such manner as the said Court shall think fit and to order payment
unsound mind to be	entitled to any money payable in discharge of any lands stock or
paid into Court.

property hold upon

or

1852. VIC. N o. 19. 2533

Trustees mid Mortgagees.

01- distribution thereof or payment of the diAudends or interest thereof

as to the said Court shall seem reasonable and every cashier of any bank who shall receive any such money is hereby required to give to the person paying the same a receipt for such money and such receipt shall be an eifectual discharge for the money therein respectively expressed to have been received.

47. Where in any suit commenced or to be commenced in the comt may make a

Supreme Court it shall be made to appear to the Court by aftklavit that diligent search and inquiry has heen made after any person made a defendant by name or by designation if his name be unknown who is only a trustee and that he cannot be found it shall be laAvful for the said Court to hear and determine such cause and to make sucli absolute decree therein against every person who shall appear to them to be only a trustee and not otherwise concerned in interest in the matter in question in such and the same manner as if such trustee had been duly served with the process of the Court and had appeared and filed his answer thereto and had also appeared by his counsel and solicitor at the hearing of such cause Provided always that no such decree shall bind aftect or in anyivise prejudice any person against whom the same shall be made without service of process upon him as aforesaid his heirs executors or administrators for or in respect of any estate right or interest which such person shall have at the time ol‘ making such decree for his oivn use or henefit or otherwise than as a trustee as aforesaid.

48. When any person shall under the provisions of this Act Coweisoi thoMastt i-.

apply to the Master in Equity of the Supreme Court in the first instance and adduce evidence for the purpose of obtaining the cer­ tificate of such Master as a foundation for an order of the said Court it shall be lawful for the said Master to order service of sucli applica­ tion upon any person or to dismiss such application and to direct that the costs of any person consequent thereon shall be paid by the person making the same and all orders of the Master under this Aid shall be enforced by the same process as orders of the Court made in any suit against a party thereto.

49. The Supreme Court may order the costs and expenses of Costs may be paid

and relating to the petitions orders directions conveyances assignments and transfers to be made in pursuance of this Act or any of them to be paid and raised out. of or from the lands or personal estate or the rents or produce thereof in respect of which the same respectively shall be made or in such manner as the said Court shall think proper.

50. Upon any petition being presented under this Act to the Commission con-

Supreme Court concerning a person of unsound mind it shall be lawful u“Xund'm\mr

for the said Court of Equity should it so think fit to direct that a

commission in the nature of a writ de lunatico inquirendo shall issue

concerning such person and to postpone making any order upon such

petition until a return shall have been made to such commission.

51. Upon any petition under this Act being presented to the suit may be directed.

Supreme Court it shall be lawful for the said Court to postpone making any order upon such petition until the right of the petitioner or peti­ tioners shall have been declared in a suit duly instituted for that purpose.

52. Whenever the person entitled to receive payment of any Facilitating extin-

money secured by mortgage upon land shall indorse upon the deed of

mortgage an acknowledgment under his hand attested by one witness	°
of the payment of the mortgage debt in full or of any less sum in satisfaction thereof such indorsement shall (upon registration thereof in the manner provided by law for the registration of other instruments affecting land) operate as a discharge of the mortgage debt and a re­ conveyance of all and singular the hereditaments comprised in such

mortgage

2534 N o. 19. 16 ̂ VIC. 1852.

Trustees and Mortgagees.

mortgage to the person or persons who shall at the time of such pay­ ment be entitled to the equity of redemption thereof according to ids and tlieir respective interests therein.

Facilitating redemp­	53. Whenever a person entitled to receive payment of any mort­ Supreme Court or cannot he found within this Colony or is unknown or it shall be uncertain w'ho is so entitled it shall he lawful for the said Court upon petition for that purpose hy the person entitled to redeem the mortgaged premises to direct the amount of such mortgage debt or of such portion as aforesaid to be paid into Court for tlie use of such person or persons as may thereafter claim the same and establish his or their right thereto and upon such payment into Court a certificate under the hand and seal of the Master in Equity that such payment was allowed and has heen made shall on registration thereof as aforesaid operate in the same manner as an indorsement upon the mortgage! deed hy the person entitled as aforesaid and registered as aforesaid under the provisions hereinbefore contained respectively Provided tliat before any such payment into Court shall he allowed the amount of the debt or of such portion thereof as aforesaid shall he ascertained in such manner as the said Court or Judge may think fit and that in respect of any amount not paid into Court and Avhich may eventually he shewn hy the person or persons claiming the same to have heen in fact due or payable over and above the amount paid into Court the same shall continue to be a debt due upon the mortgage upon the land anything in this section to the contrary notwithstanding.
or unknown inort-	gage debt or of any portion thereof shall be out of the jurisdiction of the
gagcc.s.
])f:tItion and ]H'oof

tion in case of absent

On claim made by 51. Upon petition hy the person or persons claiming to be

of right Court nia}*	entitled to the money so paid into Court and on proof of his or their
order money to bo
paid provided it Itc	right thereto the said Court shall order the said money to be paid to
j>roved also that all	the said person or persons according to his or their riglit or interest
<leeds liave been	to and in the same Provided that no such money shall l)c paid to the
ilelivered up to per­
son or person.s	said person or persons under such order until it shall he sliewn by the
entitled thereto.	admission of the parties concerned or otherwise to the satisfaction of the Master in Equity of the said Court that the deed or instrument of mortgage and all the title deeds which were delivered hy the mortgagor to the mortgagee on executing the same or in connection therewitli have been delivered up to the person or persons by Avhom the said money Avas so paid into Court or to his or their executors administra­
tors or assigns. ,
may by order of

Master in Fiqnity 55. I t shall be laAA'fnl for the said Master in Equity by the

rrimary .Judge or

order of the Primary Judge in Equity of the said Court to he mad(!

of the Court invest

tiu! money paid into

Avithout any formal request hy motion petition or otherAvise to invest

(\jm t in Govern­

tlu! money so paid into Court in the purchase of debentures or

ment securities.

other negotiable securities granted hy the Government of this Colony

in respect of debts contracted by the said GoA^ernment.

.liirisdiction and

powers given by 50. The jurisdiction and poAvers hy this Act conferred and

tills Act to be	vested in the Supreme Court shall and may be exercised and discharged
exercised hy
Primary Judge	l)y the Primary Judge thereof in Equity or hy one other Judge acting
subject to appeal	as such in his absence or during his illness in the same manner as th<!
A'c.	ordinary equitable jurisdiction and poAvers of the Supreme Court are noAv exercised and discharged and subject in like manner to appeal rehearing and revicAV.
Short title.	57. In citing this Act in other Acts of Council and in legal instruments and in legal proceedings it shall he sufficient to use the expression “ The Trustee Act 1852.”
Act.
Commencement of	58. This Act shall come into operation on the first day of Se]itember one thousand eight hundred and fifty-two.

No. XX.