Convicts appointed warder, officer or sentry, at such time or place, unless sufficient proof shall be given to the contrary. 10. That judgment of death for any offence against this Ordinance Death recorded may, instead of being pronounced, be recorded in like manner as is provided by the first section of an Act of Parliament passed in the fourth year of the reign of His late Majesty King George IV., intituled 'An Act for enabling Courts to abstain from pronouncing sentence of death in certain capital offences.' 11. That in all cases in which sentence of death is recorded as Transported aforesaid, it shall be lawful for His Excellency the Governor to commute such sentence to transportation for life or for any term not less than seven years, or to hard labour, in or without irons, on any of the roads or public works of the Colony for any term not exceeding seven years, and in addition to either of the aforesaid punishments, to award punishment by whipping not exceeding one hundred lashes. 12. That this Ordinance shall commence and take effect from and immediately after the publication in the Government Gazette' of the said Colony, of a proclamation notifying Her Majesty's assent thereto. CHARLES FITZGERALD, GOVERNOR AND COMMANDER-IN-CHIEF. Queen's assent proclaimed May 31st, 1856 An Ordinance to consolidate and amend the Laws relating to the Conveyance and Transfer of Real and Personal Property vested in Trustees and Mortgagees. WHE [Assented to 20th June, 1854. HEREAS it is expedient that the laws relating to the convey- Preamble ance and transfer of Real and Personal Property vested in trustees and mortgagees should be consolidated and enlarged: Be it enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, that so much of the Ordinance No. 4 of the sixth year of the reign of His late Majesty King William IV., as adopts and makes applicable in the administration of justice in this Colony an Act of Parliament passed in the first year of the reign of His said late Majesty, intituled 'An Act for amending the Laws respecting the Conveyances and Transfers of Estates and Funds vested in Trustees and Mortgagees, and for enabling Courts of Equity to give effect to their Decrees and Orders in certain Cases,' and so much of the Ordinance No. 18 of the seventh year of the reign of Her present Majesty Definitions of terms Land Stock Seized Possessed Contingent right Convey Assign Transfer Trust and trustee Transfer of Real Property as adopts and makes applicable in the administration of justice in this Colony an Act of Parliament passed in a session held in the first and second years of the reign of Her present Majesty, intituled 'An Act to remove doubts respecting Conveyances of Estates vested in Heirs and Devisees of Mortgagees,' shall be and the same are hereby repealed. 2. The several words hereinafter named are herein used and applied in the manner following respectively, that is to say : The word 'land' shall extend to and include messuages, tenements and hereditaments, corporeal and incorporeal, of every description, situated within the said Colony, whatever may be the estate or interest therein. The word 'stock' shall mean any fund, annuity or security trans- The word 'seized' shall be applicable to any vested estate for life The words 'contingent right,' as applied to lands, shall mean 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 seized or entitled to a contingent right, either for the whole estate of the person conveying 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 performed by married women and tenants in tail. The words 'assigned' and 'assignment' shall mean the execution and performance by a person of every necessary or suitable deed or act for assigning, surrendering or otherwise transferring lands of which such person is possessed, either for the whole estate of the person so possessed or for any less estate. The word 'transfer' shall mean the execution and performance of every deed and act, by which a person entitled to stock can transfer such stock from himself to another. The word trust' shall not mean the duties incident to an estate conveyed by way of mortgage; but with this exception, the words ' trust and trustee' shall extend to and include implied and constructive trusts, and shall extend to and Transfer of Real Property include cases where the trustee has some beneficial estate or The word 'lunatic' shall mean any person who shall have Lunatic the nature of a writ de lunatico inquirendo. The expression 'person of unsound mind' shall mean any person Unsound mind his own affairs. The word 'devisee' shall, in addition to its ordinary significa- Devisee The word 'mortgage' shall be applicable to every estate, interest Mortgage Court may make infant or lunatic 3. When any infant or any lunatic or person of unsound mind shall be seized or possessed of any lands, or entitled to a contingent right vesting order for therein, upon any trust or by way of mortgage, it shall be lawful for the Civil Court of the said Colony 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, or releasing or disposing of such contingent right in such manner as the said Court shall direct; and such order shall have the same effect as if the trustee or mortgagee had been sane and twenty-one years of age, and had duly executed a conveyance or assignment of the lands, or a release or other disposition of such contingent right, in the same manner for the same estate. interest 4. When any infant or any lunatic or person of unsound mind shall Do. for receiving be solely entitled to any stock or to any chose in action upon any trust or by way of mortgage, it shall be lawful for the said Civil 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 respect thereof; and when any person or persons shall be entitled jointly with any infant or 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. 5. When any stock is standing in the name of any 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, When the repre sentative of deceased holder of stock is a lunatic If out of jurisdiction If neglect or refuse twenty-eight days after order When one or two jointly entitled persons cannot be found When sole trustee out of jurisdiction Order of Civil Transfer of Real Property it shall be lawful for the said Civil 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. 6. When any stock shall be standing in the sole name of a deceased person, and his or her personal representative shall be out of the jurisdiction of the said Civil Court, or cannot be found, or it shall not be known whether such representative be living or dead, or such personal representative shall refuse or neglect to transfer such stock or to receive the dividends or income thereof for the space of twentyeight days next after an order of the said Civil Court for that purpose shall have been served upon him, 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 in any person or persons whom the said Court may appoint. 7. When any person shall neglect or refuse to transfer any stock or to receive the dividends or income thereof, or to sue for or recover any chose in action, or any interest in respect thereof, for the space of twenty-eight days next after an order of the said Civil Court for that purpose shall have been served upon him, it shall be lawful for the said Court to make an order vesting all the right of such person 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. 8. When any person or persons shall be jointly entitled with any person out of the jurisdiction of the said Civil Court, or who cannot be found, or concerning whom it shall be uncertain whether he be living or dead, to any stock or chose in action upon any trust, it shall be lawful for the said Civil 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 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 dead or living, 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, in any person or persons the said Court may appoint. 9. When any order, being or purporting to be under this Ordinance, shall be made by the said Civil Court vesting the right to any stock or vesting the right to transfer any stock, or vesting the right to call for the transfer of any stock, in any person or persons, in every such case the legal right to transfer such stock shall vest accordingly, and the person or persons so appointed shall be authorised 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, to the extent or in conformity with the terms of the order; and all companies and associations whatever, and all Transfer of Real Property persons shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid to the extent and in conformity with the terms of such order as such companies, associations or persons would have been bound and compellable to comply with the requisitions of the person in whose place such appointment shall have been made. 10. Every order being or purporting to be made under this Ordi- And an indemnance by the said Civil Court and duly recorded in the said Court, shall nity be a complete indemnity to all companies, associations and persons for any act done pursuant thereto, and it shall not be necessary for any company, association or person to inquire concerning the propriety of such order or whether the said Court had jurisdiction to make the same. 11. It shall be lawful for the said Civil Court to make declarations and give directions concerning the manner in which the right to any stock or chose in action vested under the provisions of this Ordinance shall be exercised, and thereupon the person or persons in whom such right shall be vested shall be compellable to obey such declarations and directions by the same process as that by which other orders under this Ordinance may be enforced. Persons in whose 12. That where any order shall have been made under the provi- And may sue sions of this Ordinance vesting the legal right to sue for or 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 person or persons so appointed to carry on, commence and prosecute in his or their own name or names any 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. 13. When any person solely seized or possessed of any lands or entitled to a contingent right therein upon any trust, shall be out of the jurisdiction of the said Civil Court, or cannot be found, it shall be lawful for the said 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, or releasing or disposing of such contingent right in such manner as the said Court may direct; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands, or a release or disposition of such contingent right, in the same manner and for the same estate. 14. When any person or persons shall be seized or possessed of any lands, or entitled to a contingent right therein, jointly with a person out of the jurisdiction of the said Civil Court, or who cannot be found, it shall be lawful for the said Civil Court to make an order vesting the lands in the person or persons so jointly seized 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, or releasing or disposing of such contingent right in such manner as the said Court may direct; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment, or a release If out of jurisdiction, Court effectually as if may dispose as he had executed Same if one of titled, cannot be found two jointly en |