1904. of 12. 10s. per share in the event of liquidation. The market MACKENZIE Value of the shares was 261. 5s. each.

บ.

BLOMFIELD.

The shares in the Union Bank of Australia, Ltd., were 75l. shares paid up to 251. The market value of the shares was 461. 158. each.

The shares in the New South Wales Shale and Oil Company, Ltd., were 17. shares paid up to 178. 6d. The market value of the shares was 10d. each.

The affidavits stated that the Australian Joint Stock Bank, Ltd., would not transfer shares in that bank to the legatee without reserving the liability of the testator's estate, and that consequently the liability of the testator's estate to calls on those shares could not be got rid of by a transfer. The other companies were prepared to register transfers to the legatees.

The usual statutory notices calling for creditors had been issued by the executor, and all claims of which he had received notice had been paid, other than the liabilities upon the shares belonging to the estate and the costs of the present proceedings.

The executor now applied for authority from the Court to transfer to the various legatees the shares bequeathed to them, and for directions as to indemnities and the retention of the residue, and so far as might be necessary for administration of the estate by the Court. All persons interested in the estate were made parties.

Harvey, for the executor, the plaintiff. The executor is prepared to transfer all the shares to the legatees without requiring any indemnity, except the shares in the Australian Joint Stock Bank, Ltd.; as to these, the bank refuse to register the transfers, and insist on the executor retaining the liability. He referred to Chisholm v. Gilchrist (2 S.R. Eq. 84); and In re Nixon; Gray v. Bell ([1904] 1 Ch. 638).

Sheppard, for a residuary legatee. As between the residuary legatees and the specific legatees the latter are liable to pay the calls due on the shares; on behalf of the residuary legatees, I ask that the respective shares be declared liable for the amount of future calls and all future liabilities which may hereafter

attach to the estate by reason of these shares. v. Barton (17 N.S.W. Eq. 180).

Hamilton, for another residuary legatee.

He cited Smith

A. H. SIMPSON, C.J. in Eq. I think Mr. Sheppard puts his case much too high; the fact that the Australian Joint Stock Bank, Ltd., takes up a certain position is no reason why the specific legatees should not get the benefit of the other property.

I will make a declaration that the plaintiff as executor will be justified in transferring to the legatees their respective legacies so far as the same can be transferred upon the legatees respectively indemnifying the executor and the residuary legatees against any liabilities on the shares for one year after the respective transfers. Costs will come out of the residuary

estate.

The material portion of the decree was as follows:—

Declare that the plaintiff, as executor of the said will, will be justified in transferring to the legatees their respective legacies of the shares in the Commercial Banking Company of Sydney, Ltd., and in the Bank of New South Wales, so far as the same can be transferred, upon the said legatees respectively executing indemnities respectively to the executor and the residuary legatees against any liability on the shares for one year after transfer; and that the plaintiff, as such executor, may transfer to the defendant Mary Mackenzie her legacy of the testator's shares in the Union Bank of Australia, Ltd., and the Australian Joint Stock Bank, Ltd., on the execution by her of an indemnity to the plaintiff and the said residuary legatces against any sum or sums which he or they respectively may become liable to pay in respect of the said shares or any of them, within one year from the date of the registration of the said transfers respectively; and that the plaintiff will be justified in applying to be registered as transferee of the testator's shares in the New South Wales Shale and Oil Company, Ltd., upon his executing a like indemnity to the said residuary legatees in respect of the said shares; and that the plaintiff, as such executor, will be justified in paying and transferring to the various legatees under the said will all sums of money or chattels bequeathed to them by the said will, without retaining any portion of the real or personal estate of the said testator to provide for the contingent liabilities of the estate of the said testator arising upon the shares abovementioned, or any of them. Costs of all parties out of the residuary

estate.

Solicitors: Dibbs & Parker; J. Williamson & Sons; Langley & Brown.

1904.

MACKENZIE

v.

BLOMFIELD.

1905.

WOODS v. WILLIAMS.

March 28, 29, Pretenced Titles-Pretenced Titles Act, 32 Henry VIII. c. 9. 8. 2—Official Assignee -Conveyance by-7 Vic. No. 19. s. 15-8 Vic. No. 15. s. 2-10 Vic. No. 14. 8. 3-Bankruptcy Act, 1898 (No. 25), ss. 67. 68.

30.

C.J. in Eq.

The Pretenced Titles Act, 32 Henry VIII. c. 9, s. 2, applies to conveyances made by Official Assignees in their official capacity. The effect of 7 Vic. No. 19. s. 15, 8 Vic. No. 5. s. 2, 10 Vic. No. 14. s. 3, is merely to provide that a purchaser may deal with the Official Assignee as if the latter were the beneficial owner of the bankrupt's property. They do not render valid a conveyance by the Official Assignee which would have been invalid if made by a beneficial

owner.

SUIT.

This was a suit by Georgina Wood, who claimed to be entitled to certain land as beneficial owner, having purchased the same for 50l. on the 12th April, 1904, from W. H. Palmer the official assignee of one R. E. Krauth, to whom the land had on the 7th September, 1886, been conveyed, subject to a mortgage. It appeared that neither Mr. Palmer nor Krauth, his predecessor in title, had been in possession of the land, nor in receipt of the rents, since November, 1887; and that ever since November, 1887, the same had been in the possession of the defendants or some of them, and of their predecessors in title. The defendants were John William Williams, Andrew Edye, Patrick Joseph Flanagan, and Mary Ann Starr. Various defences were raised to the present suit; but the contention that the conveyance by Mr. Palmer was the sale of a pretenced title, and was, as such, void under the statute 32 Henry VIII. c. 9. s. 2, was argued on a demurrer ore tenus.

S. A. Thompson (with him Cullen, K.C.) for the defendant J. W. Williams. The conveyance of the 12th April, 1904, from W. H. Palmer to the plaintiff is void under 32 Henry VIII. c. 9. s. 2. He referred to Nicholls v. Anglo-Australian Investment, Finance and Land Co. (11 N.S.W.L.R. 354); Salter v. Clarke (4 S.R. 280); Doe. d. Williams v. Evans (1 C.B. 717).

Gordon, K.C., and Rich, for the defendants A. Edye and P. J. Flanagan; and King, for the defendant Mrs. M. A. Starr, adopted that argument.

Langer Owen (with him Carlos) for the plaintiff. The rule at Common Law and the Statue 32 Henry VIII. c. 9. s. 2, have no application to conveyances by official assignees in their official capacity. He referred to 5 Vic. No. 17. s. 53; 7 Vic. No. 19. s. 15; 8 Vic. No. 15. s. 2; 10 Vic. No. 14. s. 3; 51 Vic. No. 19, s. 2; Bankruptcy Act, 1898, ss. 63, 67, 68. A bankrupt's right to bring a writ of entry in respect of a freehold estate passes to his official assignee: Smith v. Coffin (2 H. Bl. 451).

Gordon, K.C., in reply. The sections referred to do no more than vest in the official assignee the rights formerly vested in the insolvent or bankrupt; an official assignee's conveyance does not vest in a purchaser of the official assignee's right, title and interest anything more than the beneficial interest, if any, of the bankrupt at the date of the commencement of the bankruptcy: Re Carey (14 N.S.W.B. 66).

Cur. adv. vult.

On March 30th the following judgment was delivered by

A. H. SIMPSON, C.J. in Eq. The plaintiff seeks in this suit to recover certain land as beneficial owner; she claims under a conveyance, dated the 12th April, 1904, to her by W. H. Palmer, as official assignee of R. E. Krauth.

Krauth's estate was sequestrated in February, 1880, and on the 7th September, 1886, the land in question was conveyed to Krauth by Thomas Mace, subject to a mortgage.

It is disputed whether at that date Krauth was an uncertificated insolvent. It is immaterial to consider how this is; if the certificate had issued Krauth could at that time buy the land, but the plaintiff does not claim under him; if the certificate had not issued, any land acquired by Krauth passed to his official assignee. I will assume in favour of the plaintiff that on the 7th September, 1886, Krauth was an uncertificated bankrupt.

It is admitted that neither Krauth nor his official assignee has been in possession of any part of the land since November, 1887,

1905.

WOODS

V.

WILLIAMS.

March 30.

1905. WOODS

v.

WILLIAMS.

C.J. in Eq.

and that the defendants J. W. Williams and Mrs. M. A. Starr, or their respective predecessors in title, have been in possession since that date. In April, 1904, the official assignee of Krauth would, therefore, have a right of entry only, and the question is whether he could make a valid conveyance of the land or of the right of entry to the plaintiff. It is clear that if W. H. Palmer had been the owner of the land in April, 1904, he could not have made a valid conveyance, because such a conveyance is not merely void at law, but by 32 Henry VIII. c. 9. s. 2, making the same is a punishable offence: Nicholls v. Anglo-Australian Investment, Finance and Land Co. (11 N.S W.L.R. 354); Salter v. Clarke (4 S.R. 280). It is contended, however, that the official assignee stands in a better position than an ordinary owner, and that he can sell and convey a right of entry, and that he is not within the statute of Henry VIII. The contention was largely based on the argument that whatever property or right of the bankrupt is vested in the official assignee by the statute might be sold by him. Even if this argument is sound, it does not apply in this case, for I must assume that Mace was in possession on the 7th September, 1886, and could validly convey to Krauth on that day. If so, the official assignee then became the owner not merely of a right of entry, but of the land, and if he became disseised in November, 1887, and his rights reduced to a right of entry, this was by his own inaction. There seems to be no reason why he should be in a better position than any other owner who has been disseised. The case of an administrator, though, of course, distinguishable, forms some analogy, and it has been held that an administrator is bound by the Act of Henry VIII. Doe. d. Williams v. Evans (1 C.B. 717). It is contended that by virtue of 7 Vic. No. 19. s. 15, 8 Vic. No 15. s. 2, and 10 Vic. No. 14. s. 3, the official assignee could make a valid conveyance of his right of entry to the plaintiff. The last mentioned section, which is in pari materia with the other sections, only in fuller terms, provides in substance that deeds executed by official assignees shall be deemed both at law and in equity effectual conveyances, and that purchasers shall not be bound to inquire whether various formalities have been complied with, and shall not be bound to enquire into or ascertain the power