Australian, that his cant about the sin of Usury we utterly despise, for money is as much an article of commerce as sugar, tea, or tobacco (wine, oil, tobacco, sheets fabric, 1689) that is, nine years after the decision responsible in large measure for a considerable increase in investment in the pastoral industry, in 1843, the Liens on Wool Bill, which allowed pastoralists to mortgage a wool clip while still on the sheep’s back, elicited the same complaint from Secretary of the State Lord Stanley, who forewarns, not textually that they will Run all into sheep where they can, keeping only such other Cattle as are necessary, then they will be their own merchants, but that it will give unwonted facilities for borrowing money, and increasing the evil of excessive credit, which criticism, together with the Bill’s precedent, that is, for mortgaging the stock of the estates, namely, according to Hastings Elwin, Negroes, in Antigua for instance, which shows how close geography can lie to history, where he says they are real estate, and are literally walking freeholds, indicate the path taken by legal reform as it emerged from the conflict between the preservation of inherited territorially vested interests and land appearing for the first time in its true form as void of value per se. One can see how far we have come from the chiromatic residue where The Atlas, promoting the case for Liens on Wool, and bemoaning the distinction inherited between real and personal property, springing out of a state of feudal tenure, almost every vestige of which is claimed to have long since passed away, affirms that those who have become large purchasers of land have found that real property is in New South Wales the most illusory of all possessions, evoking the legal corollary of the division between real and personal property, which is to say the division between law and equity. Now, in consideration of the question of joint tenancy, it is through equity, not common law, which recognises a single possessor of title only, that such a form of ownership is made possible, creating as it did a trust, with the property vested in a trustee, on behalf of a beneficiary, to whom the trustee had certain obligations, the Achilles’ heel of which, aliter conflict of interest, having been pinned down in England in 1726 when the Lord Chancellor ordered Mr. Sandford to disgorge the profits made on the lease of a market to his once infant beneficiary, because, failing to renew the child’s lease, he had it himself. If we are accustomed to see the odd hero even of our time swindled out of a large property by his guardian in this way, suits in equity were relatively infrequent during the first decade in the life of this Court, and their hearing apt to be intermittent and protracted, consisting as they did of a Bill, an Answer, and perhaps, in addition, a Reply, and perhaps a Rejoinder, as in Simeon Lord v The Executors of the Will of D’Arcy Wentworth, where the Answer alone used up sheets which laced together measured thirty-two feet, and where ten years elapsed before the case brought by Sarah Howe, widow of George Happy alias Happy George, printer of the first book and pardoned robber, against the last minute beneficiaries of land and printing paper, that is, Underwood, Robinson, and ‘their confederates’, was resolved, but the division itself marked the so-called legal landscape to the quick. The systemic hurdles to making a secure profit on land that has changed hands, notably the difficulties bound up in the possession of good title, were eventually felt to be an impediment to the progress of our disembark’d generation. Conveyancing under the common law system required a new deed to be drawn up every time a lot was sold or mortgaged, establishing proof of title demanding a tedious search for and examination of a whole chain of discrete documents; a complicated and expensive system without guarantee from the State, there not even existing a statutory requirement for registering all deeds, and even then insinuation, as it used to be called, had to be paid for. By the 1840s the four families crouching spread-eagle over most of New South Wales had their cronies in the executive to thank but to what, Robert Lowe was asked by the Select Committee of the Administration of Intestate Estates in 1854, fifteen years after Darling’s open grant, did he attribute the fact that even in the most important streets in Sydney there are patches of land not occupied, or not improved. Chiefly to a want to title, Lowe replied. The deep uncertainty about the suitability of the existing legal apparatus for securing title in the colony appears forcefully in the first outline of the court rules concerning probate as it is drawn up in a letter drafted by Chief Justice Dowling and Justices Burton and Stephen to Governor Gipps, their purpose being to point out that, whereas in England there was very little in the way of deceased estates appearing with no one to claim them, a great number of persons have died in different parts of this extended territory, with its widely scattered population, without either relative or friend; but with, occasionally, a considerable amount of property, surrounded by convicts (or those who have been so) if not in their actual care, making it necessary to prevent that the property of such persons shall be taken possession of, if not stolen or wasted, (as it assurably would be) by the dissolute and dishonest. Are you following me. Eliza must have signalled. The question of the management of intestate estates, a concern that all too naturally began to peak with the discovery of gold in 1851, for in the following ten years the population increased threefold, while in less than half that time business in the Department of Intestate Estates increased fivefold, turned not only on the ability or inability of the Court to intervene in the absence of an heir, all witnesses to the Committee agreeing that in such cases the land should escheat to the parens patrice, though the basic role of the colonial judiciary in respect to any case in which provisions had to be made for the transferal of a deceased estate was wanting fleshing out, as was apparent in the case of the affairs of Thomas Campbell, who in 1830 left most of his estate to relatives in Great Britain and Ireland but failed to nominate, in writing, an executor, so that a petition to the Court on the grounds that one had been verbally nominated as such was met by an order that the will be deposited in the Court Registry, an authority from the Court to the Registrar, associated with the petitioner Captain Robert Robison, directing them to collect, discover and hold the effects of the deceased, subject to all further Orders of the Court — with an instruction to report, with as little delay as possible, upon the state and condition of the estate, and, in case the same or any part thereof be exposed or liable to waste, further to report what parts may be so liable — and how far there may be immediate and pressing demands upon the estate, and any other matters of moment, but turned also on the possible removal of an heir, who was advantaged by the law of primogeniture, but who might be unascertainable, and moreover against whose interests there was a moral argument, in favour of the labourer to whom the land in question had been, in the words of Justice Stephen, what canvas is to the painter, for, there being, in English law, no absolute land ownership, an owner, for instance, being restricted to transfer life-interest to a purchaser who merely became tenant per autre vie, the period of limitations for actions to be effective could be extended for those under the disability of lunacy, infancy, coverture or absence beyond the seas, and here, anticipating the same reform that would wipe away the uncertain purchase of interminable research and silence those revendications that threatened, or so the fear ran, to issue from under the most eccentric weeds, subsuming the antinomy of interests under the unique pressure of the Government Seal, one might recall G.K. Holden seeing no just reason why an antipodean heir, whose existence is likely to be unknown and even undiscoverable here, should have a double time allocated him for raking up the ashes of his genealogy, to the prejudice of parties who have bought and improved the land, while he, one might as well add, is moved by no more than that unholy effervescence in the very need that he in dem Mund nimmt, indeed, to get a proper handful of this picnic, forgive me my forensic roots, the justice in the risk that land improved to a hundred-fold its original value, may excite the cupidity of an heir whose connection with the forgotten owner would never have been otherwise thought of, and who gains his first intelligence of the prize from an advertising attorney speculating on his share of the spoil —