c. 18, s. 37. 40 & 41 Vict. such money to order that the same shall be laid out, invested, accumulated, and paid in such manner as the said court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may be (i). Court may exercise powers re may not exercise them if expressly negatived. (i) For an order as to the proceeds of leaseholds, see Re Walsh (7 L. R. Ir. 554). 38. The court shall be at liberty to exercise any of the powers conferred on it by this act, whether the court shall have already peatedly, but exercised any of the powers conferred by this act in respect of the same property or not; but no such powers shall be exercised if an express declaration that they shall not be exercised is contained in the settlement: Provided always, that the circumstance of the settlement containing powers to effect similar purposes shall not preclude the court from exercising any of the powers conferred by this act, if it shall think that the powers contained in the settlement ought to be extended (j). Court not to authorize (j) See Re Hurle (2 H. & M. 196); Re Cleveland (22 W. R. 818), decided under 19 & 20 Vict. c. 120, s. 26, which was in somewhat wider terms. 39. Nothing in this act shall be construed to empower the any act which court to authorize any lease, sale, or other act beyond the extent to which in the opinion of the court the same might have been authorized in and by the settlement by the settlor or settlors. could not have been authorized by the settlor. Acts of the court in professed pursuance of this act not to be invalidated. Costs. 40. After the completion of any lease or sale or other act under the authority of the court, and purporting to be in pursuance of this act, the same shall not be invalidated on the ground that the court was not hereby empowered to authorize the same, except that no such lease, sale, or other act shall have any effect against such person as herein mentioned whose concurrence or consent ought to be obtained, or who ought to be served with notice, or in respect of whom an order dispensing with such service ought to be obtained in the case where such concurrence or consent has not been obtained and such service has not been made or dispensed with (k). (k) Orders under this section are valid in favour of a purchaser, notwithstanding any want of jurisdiction, and notwithstanding the exception in this section (Conv. Act, 1881, s. 70, ante, p. 620); even if the irregularity appear on the face of the order (Re Hall Dure, 21 Ch. D. 41; see also Beioley v. Carter, 4 Ch. 232; Re Shepheard, 8 Eq. 571; Re Clough, 15 Eq. 284, decided under 19 & 20 Vict. c. 120, s. 28). 41. It shall be lawful for the court, if it shall think fit, to order that all or any costs or expenses of all or any parties of and incident to any application under this act shall be a charge on the hereditaments which are the subject of the application, or on any other hereditaments included in the same settlement and subject to the same limitations; and the court may also direct that such costs and expenses shall be raised by sale or mortgage of a sufficient part of such hereditaments, or out of the rents or profits thereof, such costs and expenses to be taxed as the court shall direct (1). (7) For form of order as to costs, see Seton, 4th ed., 1488, 1491, 1497, 1499, 1500, 1506; Re Tunstall (14 L. T. 352). 40 & 41 Vict. c. 18, s. 41. 42. General rules and orders of court for carrying into effect Rules and the purposes of this act, and for regulating the times and form orders. and mode of procedure, and generally the practice of the court in respect of the matters to which this act relates, and for regulating the fees and allowances to all officers and solicitors of the court in respect to such matters, shall be made so far as relates to proceedings in England by any three or more of the following persons, of whom the Lord Chancellor shall be one, namely, the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, and four other judges of the Supreme Court of Judicature to be from time to time appointed for the purpose by the Lord Chancellor in writing under his hand, such appointment to continue for such time as shall be specified therein, and so far as relates to proceedings in Ireland by any three or more of the following persons, of whom the Lord Chancellor of Ireland shall be one, namely, the Lord Chancellor of Ireland, the Lord Chief Justice of Ireland, the Master of the Rolls in Ireland, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron, and four other judges of the superior courts in Ireland to be from time to time appointed for the purpose by the Lord Chancellor of Ireland in writing under his hand, such appointment to continue for such time as shall be specified therein, and such rules and orders may from time to time be rescinded or altered by the like authorities respectively, and all such rules and orders shall take effect as general orders of the court (m). (m) See S. E. Act Orders (post, 665 et seq.) The part of this section relating to England has been repealed (42 & 43 Vict. c. 78, s. 29). laid before 43. All general rules and orders made as aforesaid shall be Rules and laid before each House of Parliament within forty days after orders to be the making thereof if parliament is then sitting, or if not, Parliament. within forty days after the commencement of the then next ensuing session, and if an address is presented to her Majesty by either House of Parliament within the next subsequent forty days on which the said house shall have sat, praying that any such rule or order may be annulled, her Majesty may thereupon by order in council annul the same, and the rule or order so annulled shall thenceforth become void and of no effect, but without prejudice to the validity of any proceedings which may in the meantime have been taken under the same. " 40 & 41 Vict. c. 18, s. 44. Concurrent jurisdiction of the Court of Chancery 44. The powers vested in the High Court of Justice by this act may, so far as relates to estates within the County Palatine of Lancaster, be exercised also by the Court of Chancery of the said County Palatine; and general rules and orders of court for the purposes aforesaid, so far as relates to proceedings in the of the County said court of the said County Palatine, shall be made by the Chancellor of the Duchy and County Palatine of Lancaster, with the advice and consent of any one or more of the persons authorized under this act to concur in the making of general rules and orders relating to proceedings in England, and also with the advice and consent of the Vice-Chancellor of the said County Palatine (n). Palatine of Application for lease or sale in Ire made to Landed Estates Court. (n) As to lands within the County Palatine of Durham, see 52 & 53 Vict. c. 47, s. 10. 45. It shall and may be lawful for any person who under the provisions of this act may make an application to the court of land may be Chancery in Ireland for the lease or sale of a settled estate, instead of making such application to the said Court of Chancery in Ireland to apply to the Landed Estates Court, Ireland, for the purpose of having the lease or sale of such settled estate under the said last-mentioned court; and thereupon it shall be lawful for the said Landed Estates Court, Ireland, to exercise all the powers conferred upon the Court of Chancery in Ireland in relation to leases or sales of such nature under the provisions of this act, save that the judge in the case of a sale shall himself execute the conveyance to the purchaser under such sale, and save that such conveyance shall have the like operation and effect, and confer such indefeasible title to the purchaser as if such sale had been made and such conveyance had been executed upon an application for the sale of an incumbered estate under the act of the twenty-first and twenty-second years of her Majesty, chapter seventy-two: Provided always, that the Landed Estates Court, Ireland, shall make such investigation of the title and circumstances of the said estates as shall appear expedient, and also in cases of sales as in other cases preliminary to sales conducted in the said Landed Estates Court, Ireland: Provided also, that every decision and order in the course of such proceedings shall be subject to appeal to the Court of Appeal in Chancery as in other cases under the said act (0). Tenants for life, &c. may grant leases for twentyone years. (0) The Landed Estates] Court jurisdiction is now transferred to the High Court of Justice of Ireland (40 & 41 Vict. c. 57, ss. 4, 7, 36). 46. It shall be lawful for any person entitled to the possession or to the receipt of the rents and profits of any settled estates for an estate for any life, or for a term of years determinable with any life or lives, or for any greater estate, either in his own right or in right of his wife, unless the settlement shall contain an express declaration that it shall not be lawful for such person to make such demise; and also for any person entitled to the possession or to the receipt of the rents and profits of any unsettled estates as tenant by the curtesy, or in dower, or in right of a wife who is seised in fee, without any application to the court, to demise the same or any part thereof, except the principal mansion house and the demesnes thereof, and other lands usually occupied therewith, from time to time, for any term not exceeding twenty-one years so far as relates to estates in England, and thirty-five years so far as relates to estates in Ireland, to take effect in possession at or within one year next after the making thereof; provided that every such demise be made by deed, and the best rent that can reasonably be obtained be thereby reserved, without any fine or other benefit in the nature of a fine, which rent shall be incident to the immediate reversion; and provided that such demise be not made without impeachment of waste, and do contain a covenant for payment of the rent, and such other usual and proper covenants as the lessor shall think fit, and also a condition of re-entry on nonpayment of the rent for a period of twenty-eight days after it becomes due, or for some less period to be specified in that behalf; and provided a counterpart of every deed of lease be executed by the lessee (p). (p) The above section is somewhat wider in terms than 19 & 20 Vict. c. 120, s. 32. Under the latter section it was held that a person entitled to part of the income of an estate absolutely, and to the rest after payment thereout of certain charges and expenses, was not "entitled to the receipt of the rents and profits" (Taylor v. Taylor, 20 Eq. 297). In a case under the present section, it was said that an improper motive would not invalidate à lease, if the terms of the section were strictly complied with (Davies v. Davies, 38 Ch. D. 502). The lessor has a discretion as to what are proper covenants, which cannot be controlled unless there be an outrageous omission in this respect (Ib.) A lease exempting the lessee from liability for 'fair wear and tear and damage by tempest," was void as "made without impeachment of waste" (Ib.) The appointment of a receiver will prevent the grant of a lease under this section, except with the leave of the court (Vine v. Raleigh, 24 Ch. D. 248). See, further, as to a tenant for life's power of leasing, S. L. Act, 1882, ss. 6 et seq. (post, p. 680 et seq.) 40 & 41 Vict. c. 18, s. 46. leases shall 47. Every demise authorized by the last preceding section Against shall be valid against the person granting the same, and all whom such other persons entitled to estates subsequent to the estate of such be valid. person, under or by virtue of the same settlement if the estates be settled, and in the case of unsettled estates against the wife of any husband granting such demise of estates to which he is entitled in right of such wife, and against all persons claiming through or under the wife or husband (as the case may be) of the person granting the same. Evidence of execution of counterpart lease by 48. The execution of any lease by the lessor or lessors shall be deemed sufficient evidence that a counterpart of such lease has been duly executed by the lessee as required by this act. 49. All powers given by this act, and all applications to the lessee. court under this act, and consents to and notifications respecting Provision as such applications, may be executed, made, or given by, and all to infants, lunatics, &c. 40 & 41 Vict. c. 18, s. 49. A married plying to the amined apart notices under this act may be given to guardians on behalf of infants, and by or to committees on behalf of lunatics, and by or to trustees or assignees of the property of bankrupts, debtors in liquidation, or insolvents: Provided nevertheless, that in the cases of infant or lunatic tenants-in-tail no application to the court or consent to or notification respecting any application may be made or given by any guardian or committee without the special direction of the court (q). (2) Under sect. 36 of 19 & 20 Vict. c. 120, which was in similar terms, but referred to consents only, and not to notifications, the following cases were decided: That the consent of the father of an infant was not sufficient (Re Chaddick, 7 W. R. 334; see Re Salisbury, 2 Ch. Div. 39), nor the consent of a testamentary guardian (Re James, 5 Eq. 334); that an infant petitioner who was a married woman, must be examined (Re Broadwood, 7 Ch. 323; see now sect. 52, post, p. 663); that the court could not appoint a guardian to consent for a person of unsound mind (Re Clough, 15 Eq. 284; see, however, Re Venner, 6 Eq. 249); that the committee of a lunatic must obtain leave before consenting (Re Woodcock, 3 Ch. 229; see R. S. C. Ord. 16, r. 21; 53 Vict. c. 5, s. 120). As to appointing a guardian to give consents, &c., under this section, see S. E. Act Orders, Nos. 5-12 (post, p. 665 et seq.) For form of order, see Seton, 1474, 1475, 4th ed. 50. Where a married woman shall apply to the court, or consent to an application to the court, under this act, she shall first be examined apart from her husband, touching her knowledge of the nature and effect of the application, and it shall be ascertained that she freely desires to make or consent to such application; and such examination shall be made whether the hereditaments which are the subject of the application shall be settled in trust for the separate use of such married woman independently of her husband or not; and no clause or provision in any settlement restraining anticipation shall prevent the court from exercising, if it shall think fit, any of the powers given by this act, and no such exercise shall occasion any forfeiture, anything in the settlement contained to the contrary notwithstanding (r). (r) This section is a re-enactment in similar terms of 19 & 20 Vict. c. 120, s. 37, the decisions under which appear to be applicable. The examination is necessary in the case of a married woman who is an infant (Re Broadwood, 7 Ch. 323). It was required where she was entitled to a jointure charged on the estate (Re Turbutt, 2 N. R. 487); or had out of her separate estate purchased the interest of her husband, who was tenant for life (Re Fowles, 1887, W. N. 208). But it was dispensed with where the married woman's interest was remote, and was represented by trustees (Re De Tabley, 11 W. R. 936; Re Tibbett, 17 W. R. 394; Re Kilmorey, 26 W. R. 54); where her interest was small (Re Cundee, 37 L. T. 271); where the court was satisfied that the order would be beneficial, and that the delay necessary for her examination would be prejudicial (Re Halliday, 12 Eq. 199; Re Thorne, 20 W. R. 587; but see Re Johnson, 1869, W. N. 87); where she was married between the presentation of the petition and the hearing (Re Marshall, 15 Eq. 66); where she was married after 31st December, 1882 (Riddell v. Errington, 26 Ch. D. 220); or, where she was married before that date, in respect of property acquired since that date (Re Harris, 28 Ch. D. 171); where she had given |