copyholds. By sec. 9, it is provided that there shall be no forfeiture of the copyhold lands on the nonappearing or refusing to pay the fines. And by sec. 10, fines not warranted by the custom, may be controverted.

By sec. 11, (a) femes covert (being first secretly examined) may appoint an attorney for the purpose of surrendering copyholds or lands in ancient demesne, of which a common recovery shall be proposed to be suffered, and do all other necessary acts for suffering the recovery. (b)

By sec. 12, (c) femes covert who shall become entitled to any lease or leases for lives, or any person on her behalf, may apply to the Court of Chancery by petition or motion in a summary way, and may be enabled, by the order of the court, by deed or deeds, to surrender such leases, and take a new lease or leases of the premises comprised therein, which lease or leases shall be held upon the same uses and trusts as the old lease or leases. (d)

By sec. 16, (e) where femes covert might, in pursuance of any covenant or agreement, if not under disability, be compelled to renew any lease, such feme covert may, by the direction of the Court of Chancery, to be signified by an order to be made in a summary way upon the petition of such feme covert, or of any person entitled to such renewal, accept of a surrender of such lease, and make a new lease of the premises comprised in such leases, for such term as the court

shall direct. And by sec. 21, all fines, premiums, and sums of money which shall be received or paid on account of the renewal of any lease, after a deduction of all expenses, shall be paid to such person or in such manner as the court shall direct, for the benefit of the feme covert.

By another act of the last session, (a) it is enacted, that where any feme covert would be a trustee, mortgagee, heir, or executor, within the provisions of this act, if she were an infant or lunatic, or out of the jurisdiction or not amenable to the process of the Court of Chancery or Exchequer, or had refused or neglected to execute or make such conveyance, transfer, receipt, or payment as thereinbefore is mentioned, and the concurrence of her husband shall be necessary in any conveyance, transfer, receipt, or payment, which ought to be made or executed by her as such trustee, mortgagee, heir or executor, then and in any such case such husband, whether under any disability or not, shall be and be deemed to be a trustee within the meaning of this act.

We may now make a few remarks on the title to a wife's separate property.

Where property is settled on a married woman without any restraint upon its alienation, she may convey it in equity in the same manner as if she were a feme sole; (b) but she cannot dispose of it by will, except under a power. (c) It was thought indeed, at

(a) 1 Will. IV. c. 60. s. 19. See ante, p. 164.

(b) Hulme v. Tenant, 1 B. C. C. 16. Essex v. Atkins, 14 Ves. 542. Francis v. Wigzell, 1 Madd. 261. Jackson v. Hobhouse, 2 Meriv. 487. Dean

v. Brown, 2 Carr. & Pay. 62. Acton v. White, 1 Sim. & Stu. 429. Glyn v. Baster, 1 Yo. & Jer. 329.

(c) Doe d. Stevens and Dumée v. Scott, 1 Moo. & Pay. 317; 4 Bing. 505. S. C.

one time, that a fine or recovery was necessary to convey the separate estate in fee of a married woman; (a) but it is now established, that neither is necessary; (b) for a right in a feme covert to dispose by deed or will is incident to a trust for her separate use. (c)

But the transaction must be a bona fide one, and no unfair advantage must be taken of her, or the transaction will be set aside; (d) and any circumstance by which it would appear that the husband has exercised any undue influence in the transaction, will vitiate it.

In conveying the property of a married woman, it will of course be proper to employ the particular instrument, if any, specified in the power; but if another instrument be employed, it will, it seems, bind her property in equity. (e) So also she may charge her separate estate by any written instrument. (f)

But of course where her power of alienation is restrained by the deed or will settling the property on her, she will have no power to convey it away or charge it. (g) But where property is settled to the se

(a) Fearne's Post. 330, Sand. Us. & Tr. 345; 2 Rop. Husb. & Wife,

184.

(b) Burnaby v. Griffin, 3 Ves. 266; and see Compton v. Collinson, 1 H. B. 334. Penne v. Peacock, Ca. temp. Talb. 41. Ripon v. Dawding, Amb. 565. Wright v. Cadogan, 2 Eden, 239. S. C.; Amb. 468. Driver v. Thompson, 4 Taunt. 244.

(c) Francis v. Wigzell, ubi sup. Peacock v. Monk, 2 Ves, 190. Roach V. Haynes, 8 Ves. 589.

(d) Parkes v. White, 11 Ves. 238. And see Grigby v. Cox, 1 Ves. 517. Dalbiac v. Dalbiac, 16 Ves. 116.

(e) Hulme v. Tenant, 1 Bro. C. C. 16; 2 Dick. 560, S. C. Socket v Wray, 4 B. C. C. 483. Heatly v Thomas, 15 Ves. 596. Stuart v. Ld. Kirkwall, 3 Madd. 387. But see Spirling v. Rochfort, 8 Ves. 175. Nantes v. Corrock, 9 Ves. 188. Francis v. Wigzell, ubi sup. Jackson v Hobhouse, 2 Meriv. 487.

(f) See Greatly v. Noble, 3 Madd.

79.94.

(g) Watson's case, 11 Ves. 221; 4 B. C. C. 483. Brandon v. Robinson, 18 Ves. 434. Jackson v. Hobhouse, 2 Meriv. 487. Ritchie v. Broadbent, 2 J. & W. 456.

parate use of a married woman, with a clause against anticipation, the restraint will cease on her husband's death. (a)

Where a feme covert, having separate property, joins in a security for money advanced to her husband, the court acts upon it, not as an agreement to charge her separate property, but as an equitable appointment under the settlement, to be satisfied from the rents and profits of that property, and not by sale or mortgage; and the death of the husband after the filing of the bill, and before the hearing, makes no difference. If in such a case the feme covert insists upon the increase of undue influence by the husband, she must prove it. (b)

III. TITLES UNDER IDIOTS, LUNATICS, AND PERSONS

OF UNSOUND MIND.

Idiots cannot make a valid deed, or pass any estate or interest in their property, and their deeds are absolutely void. (c)

Lunatics are equally disqualified as idiots while labouring under madness; but during their lucid intervals they may act as other persons. But a title derived through a lunatic is always to be received with great caution, because it will be incumbent on the person claiming under the deed to prove that it was executed during a lucid interval. (d)

If fines are levied or recoveries suffered by an

(a) Barton v. Briscoe, 1 Jac. 603. (b) Field v. Sowle, 4 Russ. 112. (c) Thomson v. Leach, 3 Mod. S. C. 301.

(d) Attorney General v. Parnther,

3 Bro. C. C. 441; 9 Ves. 611. Ex parte Holyland, 11 Ves. 10. White v. Wilson, 13 Ves. 88; Co. Litt. 246 b, n. 1.

idiot or a lunatic, and are levied or suffered by the idiot or lunatic, in person, they cannot be impeached. (a)

Persons who have not the usual inlets of understanding, as persons born deaf, dumb, and blind, are considered as incapable of conveying their property to another. (b)

By a late act, (1 Wm. IV. c. 60,) certain provisions are made respecting trust and mortgage estates being vested in lunatics; (c) and sec. 20 enacts, that the provisions thereinbefore contained for obtaining conveyances from any person being lunatic, shall extend to and include all persons being lunatic, who, by force of any law for payment of debts out of real estate, would or thereafter might be compellable to convey any land if of sound mind.

By the 29 Geo. II. c. 31, the committees of idiots and lunatics might make surrender of leases for the purpose of renewing the same; and by the 36 Geo. III. c. 90, stocks standing in the names of lunatic trustees might be transferred by their committees.

But before these acts could be called into operative force, there must have been a commission of lunacy sued out, and the person must have been found a lunatic; (d) and a person found a lunatic by the laws of a foreign state, is not a lunatic within this act. (e) By an act of the last session, (f) these acts, and several others on the same subject, are repealed, and many important provisions are made respecting the rights and powers of lunatics and persons of unsound mind.

(a) Mansfield's case, 12 Co. 124. Hugh Lewing's case, 10 Co. 42 b; 1 Prest. Abs. 331.

(b) Perk. Grant, 25. (c) See ante, p. 164.

(d) See 2 Ves. jun. 587.

(e) Sylva v. Da Costa, 8 Ves. 316; but see 2 Ves. jun. 588.

(f) 1 Wm. IV. c. 65.