things required by this act to be had, done, and executed for 3 & 4 Will. 4, completing and giving effect to such acknowledgments and c. 74, s. 89. examinations (c).

(c) From this section divers words have been omitted which have been repealed by 38 & 39 Vict. c. 66; 42 & 43 Vict. c. 78, s. 29, and 51 & 52 Vict. c. 57. The power of making rules as regards acknowledgments (under this section and sect. 7 of the Conv. Act, 1882) is now vested in the Rule Committee (Judicature Act, 1879, s. 22).

For the present rules as to taking examinations, and as to fees, see post, pp. 303 et seq.

Disposition of Equitable Interests in Copyholds.

able estate in

90. In every case in which a husband and wife shall, either A married in or out of court, surrender into the hands of the lord of the woman to be manor any lands held by copy of court roll, parcel of the manor, examined on separately and in which she alone, or she and her husband in her right, the surrender may have an equitable estate, the wife shall, upon such surrender of an equitbeing made, be separately examined by the person taking the copyholds, as surrender in the same manner as she would have been if the if such estate estate to which she alone, or she and her husband in her right, were legal. may be entitled in such lands were an estate at law instead of a mere estate in equity; and every such surrender, when such examination shall be taken, shall be binding on the married woman and all persons claiming under her; and all surrenders heretofore made of lands similarly circumstanced, where the wife shall have been separately examined by the person taking the surrender, are hereby declared to be good and valid (d).

(d) A feme covert who surrenders copyhold lands ought previously to be examined separately from her husband by the steward of the manor, although by special custom such examination may be made before two customary tenants (Driver v. Thompson, 4 Taunt. 293; see 1 Watk. on Cop. by Cov. 89). Special customs must be strictly observed (Doe v. Shelton, 3 Ad. & Ell. 265). It seems that a special custom may authorize a surrender by the wife alone, with the assent of the husband (Taylor v. Phillips, 1 Ves. sen. 229; 1 Watk. on Cop. 64). But a custom for the wife to dispose of her copyhold estate by surrender without the husband's assent is bad (Stevens v. Tyrrell, 2 Wils. 1; see White v. Driver, 4 Taunt. 294; Doe v. Bartle, 5 B. & Ald. 492). A surrender of a copyhold estate, after secret examination by the steward, to the use of a married woman's husband, in his presence and with his consent, testified by his immediate admittance, was valid (Scamon v. Maw, 3 Bing. 378). A surrender by the wife of a copyholder with his consent, and after having been separately examined, was held effectual to bar her right to freebench (Wood v. Lambirth, 1 Phil. 8). See further, Scriven on Copyholds, 84, 6th ed. As to whether previously to this act, a married woman could have conveyed an equitable interest in copyholds by fine, see Scriven, 46, 6th ed.

Dispensation with Husband's Concurrence.

91. Provided always, that if a husband shall in consequence of being a lunatic, idiot, or of unsound mind, and whether he

Court of Common Pleas, in

the case of a

c. 74, s. 91.

husband

concurrence, except where where the Lord

Chancellor or

other persons

entrusted

with lunatics,

or the Court'

of Chancery, shall be the

protector of a

3 & 4 Will. 4, shall have been found such by inquisition or not, or shall from any other cause be incapable of executing a deed, or of making a surrender of lands held by copy of court roll, or if his resibeing lunatic, dence shall not be known, or he shall be in prison, or shall be &c., may dispense with his living apart from his wife, either by mutual consent or by sentence of divorce, or in consequence of his being transported beyond the seas, or from any other cause whatsoever, it shall be lawful for the Court of Common Pleas at Westminster, by an order to be made in a summary way upon the application of the wife, and upon such evidence as to the said court shall seem meet, to dispense with the concurrence of the husband in any case in which his concurrence is required by this act or otherwise; and all acts, deeds, or surrenders to be done, executed, or settlement in made by the wife in pursuance of such order in regard to lands of any tenure, or in regard to money subject to be invested in the purchase of lands, shall be done, executed, or made by her in the same manner as if she were a feme sole, and when done, executed, or made by her shall (but without prejudice to the rights of the husband as then existing independently of this act) be as good and valid as they would have been if the husband had concurred (ƒ): provided always, that this clause shall not extend to the case of a married woman where under this act the Lord High Chancellor, Lord Keeper or Lords Commissioners for the custody of the great seal, or other the person or persons intrusted with the care and commitment of the custody of the persons and estates of persons found lunatic, idiot, or of unsound mind, or his Majesty's High Court of Chancery, shall be the protector of a settlement in lieu of her husband.

lieu of the

husband.

Husband of unsound mind.

Husband abroad

dispensation granted;

(f) Application for orders under this section should now be made to the Queen's Bench Division of the High Court (See Jud. Act, 1873, sects. 16 and 34; Order in Council of 16 Dec. 1880; Re Caine, 10 Q. B. D. 284). This section gives no authority to the court to grant a dispensation order unless the land is actually contracted to be sold or conveyed (Re Graham, 13 W. R. 782; see, however, Re Hart, 1882, W. N. 36). Where the concurrence of the husband is dispensed with under this section, the deed need not be acknowledged (Goodchild v. Dougal, 3 Ch. D. 650). A dispensation order under this section does not deprive the husband of his common law rights in the property (Fowke v. Draycott, 29 Ch. D. 996). If an order is obtained by fraud it may be set aside (Ex p. Cockerell, 4 C. P. D. 39).

Where the application is on the ground that the husband is of unsound mind, the affidavit must show in distinct terms, or by necessary inference, that the husband is a lunatic at the time of the application (Re Turner, 3 C. B. 166). The court refused to act upon an affidavit merely stating that the husband and wife were living apart, and that the former was in a very nervous and excitable state, and that it was believed that it would be very difficult, if not wholly impossible, to procure the execution by him of any deed, but required an affidavit showing an ineffectual application to him for the purpose (Re Murphy, 4 M. & G. 635; Re Clare, 49 L. J. C. P. 557). The affidavit as to mental condition should be by a medical man (Re Reeves, 24 W. R. 848; Re Clare, sup.)

Orders have been made in the following cases:-Where the husband had absconded after committing an act of bankruptcy, and had never been heard of since (Ex p. Gill, 1 Bing. N. R. 168; see Cruise's Dig. vol. vii. p. 1, 4th ed.) Where the husband had resided abroad for more than

c. 74, s. 91.

twenty years with another woman (Ex p. Shirley, 5 Bing. N. S. 226). 3 & 4 Will. 4, Where the husband had absconded from home, and had since sailed for a foreign port, and had been made a bankrupt (Ex p. Stone, 9 Dowl. P. C. 843). Where it appeared that the parties lived together only seventeen weeks after marriage, when the husband went away, and the wife after many inquiries was not able to find him (Anon., 2 Jur. 945). Where the affidavit stated that about two months previously the husband went to Australia with the intention of never returning (Re Kelsey, 16 C. B. 197). The court refused to dispense with the concurrence of a husband in the dispensation following cases :-Where the wife's affidavit merely stated that her husband refused. entered a government steamer in January, 1844, and that the last the wife had heard of him was, that in January, 1845, he was on board another government steamer at New Zealand; and that she believed it was his intention never to return (Ex p. Gilmore, 3 C. B. 967). Where it appeared that the husband was in correspondence with the wife, and remitting sums of money for her support, however small (Re Squires, 17 C. B. 176). Where, in 1852, the husband went to Australia and had not been heard of since 1857, and the wife deposed to her belief that he would never return to this country, it also appearing that no application had been made to him to concur (Re Eden, 5 C. B. N. S. 232). Upon the mere statement that the husband, a seaman, had gone abroad, and had not been heard of for some years, and that the wife had been informed that he was dead. The affidavit must show some reasonable ground for presuming the statement to be true (Ex p. Taylor, 7 C. B. 1).

Under the words of the section as to living apart, orders have been made Husband in the following cases:-Where she and her husband lived separate from and wife each other, and he had been found a lunatic by inquisition (Exp. Thomas, separated. 4 M. & Scott, 331). Where the husband left his wife, and she had never heard of him since, and his present residence was altogether unknown to her; and where, if the application were not granted, the wife would be liable to incur a forfeiture (Ex p. Shuttleworth, 4 M. & Scott, 332, n. (b); see Re Hart, 1882, W. N. 36). Where she held the property as trustee for sale, and they were living apart, and the husband contributed to her support, but refused to concur except on payment (Re Caine, 10 Q. B. D. 284). Where the husband had deserted the wife, but they were in communication (Ex p. Sutcliffe, 29 L. T. 747; see, however, Re Horsfall, 3 M. & G. 132). An order was refused where the wife had left her husband in consequence of his violence (Re Price, 13 C. B. N. S. 286). In addition to an affidavit that the parties were living apart, the court has required a further affidavit that the husband has refused to concur (Ex p. Trenery, 1 C. B. N. S. 187), and that he contributes nothing to the wife's support (Ex p. Fish, 9 C. B. N. S. 715; Re Carburton, 16 W. R. 84; Re Fletcher, 17 W. R. 319; Ex p. Robinson, L. R. 4 C. P. 205). An order having been made upon the usual affidavit that the husband and wife were living apart by mutual consent, the court refused to rescind the order after it had been acted upon, and the rights of third parties had intervened, upon the application of the husband, who swore that though he resided apart from his wife (upon an allowance made to him out of her separate estate) he occasionally visited and slept with her (Re Rogers, L. R. I C. P. 47).

In cases not within the M. W. P. Act, 1882, where there are no trustees Wife's of separate property, the husband is trustee of the legal estate (Bennet v. separate Davis, 2 P. Wms. 316). Orders under this section to enable a married property. woman to convey the legal estate in her separate property have been made in the following cases:-Where the husband was a minor (Re Haigh, 2 C. B. N. S. 198). Where he had absconded, and had not been heard of for eighteen years, although it also appeared that she had in the meantime married again (Exp. Yarnall, 17 C. B. 189). Where the husband lived separate from his wife and had refused to execute the deed (Re Perrin, 14 C. B. 420; Re Woodcock, 1 C. B. 437). As to conveyance of separate property by a married woman when living apart by a sentence of judicial separation without alimony, see Ex p. Andrews (19 C. B. N. S. 371). As to the equitable interest in a married woman's separate property, see ante, p. 297.

X

3 & 4 Will. 4, c. 74, s. 91. Affidavits.

Form of rule to dispense with hus

band's con

currence.

Final proviso.

The court will not dispense with the affidavit of the married woman herself (Ex p. Bruce, 9 Dowl. P. C. 840), and if speechless, she must be examined (Re Williams, 1 M. & G. 881). The affidavit is sufficient if sworn (where the party is residing abroad) before an officer, whom the certificate of a notary public certifies to be a person empowered by law to take affidavits (Re Schiff, 1 Dowl. & L. 911). The affidavit must describe the deponent as "the wife of, &c.," even though circumstances are disclosed showing a well-grounded belief that the husband is dead (Ex p. Sparrow, 12 C. B. 334; Re Noy, 7 Scott, N. R. 434; Re Anderson, 2 C. B. N. S. 811). The affidavit must contain the addition or description of the husband (Re Gardner, 1 C. B. N. S. 215; see also Re Firth, 1872, W. N. 220).

66

The following form of rule has been made to dispense with the husband's concurrence:- It is ordered that the said Ann Tanner Duffill be at liberty, by deed or surrender, to dispose of, release, surrender, or extinguish all her estate and interest of and in the hereditaments and premises in the said affidavit mentioned, to such person or persons as she may think fit, without the concurrence of her said husband, it appearing to the court, by the said affidavit, that the said Henry Holland Duffill is living apart from his said wife by sentence of divorce" (Ex p. Duffill, 5 M. & G. 378).

See, in connection with the final proviso in the above section, sects. 24, 33, and Re Wainwright (1 Phil. 258).

Ireland.

45 & 46 Vict.

by married

women.

XVIII. IRELAND.

92. This act shall not extend to Ireland, except where the same is expressly mentioned (g).

(g) By 4 & 5 Will. 4, c. 92, the provisions of this act have been extended to Ireland, with the omission of sects. 4, 5 and 6 (ante, pp. 246, 247, 248), relating to lands held by ancient demesne, and sects. 50-54 (ante, pp. 277-280), 66, 76, 90, relating to copyholds (see ante, pp. 286, 291, 303). The other variations between the two statutes have been already noticed (See ante, pp. 240, 253, 256, 270, 288, 291, 292).

The clauses in 4 & 5 Will. 4, c. 92, with respect to the disposition of estates tail under bankruptcies, are extended to proceedings under the Bankruptcy (Ireland) Amendment Act, 1872 (35 & 36 Vict. c. 58, s. 50).

This act applies to lands locally situate in the town of Berwick-uponTweed (6 & 7 Will. 4, c. 103, s. 6).

Section 7 of the Conveyancing Act, 1882, is as follows:

7.-(1.) In section seventy-nine of the Fines and Recoveries Act, and section seventy of the Fines and Recoveries (Ireland) Acknowledg- Act, there shall, by virtue of this act, be substituted for the ment of deeds words "two of the perpetual commissioners, or two special commissioners," the words "one of the perpetual commissioners, or one special commissioner"; and in section eighty-three of the Fines and Recoveries Act, and section seventy-four of the Fines and Recoveries (Ireland) Act, there shall, by virtue of this act, be substituted for the word "persons" the word "person," and for the word "commissioners" the words "a commissioner"; and all other provisions of those acts, and all other enactments having reference in any manner to the sections aforesaid, shall be read and have effect accordingly.

(2.) Where the memorandum of acknowledgment by a married

c. 39, s. 7.

woman of a deed purports to be signed by a person authorized 45 & 46 Vict. to take the acknowledgment, the deed shall, as regards the execution thereof by the married woman, take effect at the time of acknowledgment, and shall be conclusively taken to have been duly acknowledged.

(3.) A deed acknowledged before or after the commencement of this act by a married woman, before a judge of the High Court of Justice in England or Ireland, or before a judge of a county court in England, or before a chairman in Ireland, or before a perpetual commissioner or a special commissioner, shall not be impeached or impeachable by reason only that such judge, chairman, or commissioner was interested or concerned either as a party, or as solicitor, or clerk to the solicitor for one of the parties, or otherwise in the transaction giving occasion for the acknowledgment; and general rules shall be made for preventing any person interested or concerned as aforesaid from taking an acknowledgment; but no such rule shall make invalid any acknowledgment; and those rules shall, as regards England, be deemed rules of court within section seventeen of the Appellate Jurisdiction Act, 1876, as altered by section 39 & 40 Vict. nineteen of the Supreme Court of Judicature Act, 1881, and c. 59. shall, as regards Ireland, be deemed rules of court within the 44 & 45 Vict. Supreme Court of Judicature Act (Ireland), 1877, and may be 40 & 41 Vict. made accordingly, for England and Ireland respectively, at any c. 57. time after the passing of this act, to take effect on or after the commencement of this act.

(4.) The enactments described in the schedule to this act are hereby repealed.

(5.) The foregoing provisions of this section, including the repeal therein, apply only to the execution of deeds by married women after the commencement of this act.

(6) Notwithstanding the repeal or any other thing in this section, the certificate, if not lodged before the commencement of this act, of the taking of an acknowledgment by a married woman of a deed executed before the commencement of this act, with any affidavit relating thereto, shall be lodged, examined, and filed in the like manner and with the like effects and consequences as if this section had not been enacted.

(7.) There 'shall continue to be kept in the proper office of the Supreme Court of Judicature an index to all certificates of acknowledgments of deeds by married women lodged therein, before or after the commencement of this act, containing the names of the married women and their husbands, alphabetically arranged, and the dates of the certificates and of the deeds to which they respectively relate, and other particulars found convenient; and every such certificate lodged after the commencement of this act shall be entered in the index as soon as may be after the certificate is filed.

(8.) An office copy of any such certificate filed before or after the commencement of this act shall be delivered to any person

c. 68.