3 & 4 Will. 4, c. 74, 8. 86.

On filing certiflcate, the deed, by relation, to take effect from time of acknowledgment.

Effect of filing Certificate, relation back.

86. When the certificate of the acknowledgment of a deed by a married woman shall be so filed of record as aforesaid, the deed so acknowledged shall, so far as regards the disposition, release, surrender or extinguishment thereby made by any married woman whose acknowledgment shall be so certified concerning any lands or money comprised in such deed, take effect from the time of its being acknowledged, and the subsequent filing of such certificate as aforesaid shall have relation to such acknowledgment (d).

(d) A deed executed by a married woman to pass real estate, and indorsed with a memorandum of acknowledgment before a judge, under the 84th section of this act, is not effectual unless a certificate of that acknowledgment be filed of record in the Court of Common Pleas as required by this section. (Jolly v. Handcock, 7 Exch. 820; 22 Law J., Exch. 38. See Sharpe v. Foy, L. R., 4 Ch. 35.)

The obvious meaning of this section is this: the certificate, when filed, is to have relation back to the date of the acknowledgment, when it shall itself take effect; but if the certificate be not filed, that then the acknowledgment shall not have any effect whatever. It is clear, that the legislature passed this statute for the purpose of enabling married women to perform certain acts which are to be considered as valid only when done in a certain prescribed manner; and further, that the fact of those acts having been done in the manner required is also to be recorded. (Jolly v. Handcock, 7 Exch, 824.)

The officer with

whom the certif

cates are lodged

to make an index

of the same.

Officer to deliver

a copy of certifilcate filled, which

Index of Certificates.

87. The officer of the Court of Common Pleas, with whom such certificates as aforesaid shall be lodged, shall make and keep an index of the same, and such index shall contain the names of the married women and their husbands alphabetically arranged, and the dates of such certificates and of the deeds to which the same shall respectively relate, and such other particulars as shall be found convenient; and every such certificate shall be entered in the index as soon as may be after such certificate shall have been filed.

Copies of Certificate-Evidence.

88. After the filing of any such certificate as aforesaid, the officer with whom the certificate shall be lodged shall at any shall be evidence. time deliver a copy, signed by him, of any such certificate to any person applying for such copy; and every such copy shall be received as evidence of the acknowledgment of the deed to which such certificate shall refer.

Chief Justice of

appoint the officer with whom the certificates shall

Power of Court of Common Pleas defined.

89. The Lord Chief Justice of the Court of Common Pleas Common Pleas to at Westminster shall from time to time appoint the person who shall be the officer with whom such certificates as aforesaid shall for the time being be lodged, and may remove him at the court to make pleasure; and the Court of Common Pleas at Westminster shall also from time to time make such orders and regulations

be lodged; and

orders touching

the examination,

davits, &c.

as the court shall think fit, touching the mode of examination 3 & 4 Will. 4, to be pursued by the commissioners to be appointed under this c. 74, s. 89. act, and touching the particular matters to be mentioned in memorandums, such memorandums and certificates as aforesaid, and the affi- certificates, affidavits verifying the certificates, and the time within which any of the aforesaid proceedings shall take place, and touching the amount of the fees or charges to be paid for the copies to be delivered by the clerks of the peace or their deputies, or by the officer of the said court, as herein before directed, and also of the fees or charges to be paid for taking acknowledgments of deeds and for examining married women, and for the proceedings, matters and things required by this act to be had, done, and executed for completing and giving effect to such acknowledgments and examinations.

25 & 26 Vict. c. 96.

Omcer to hold office during good

The 25 & 26 Vict. c. 96, enacts, that the officer appointed under the last section and his successors, shall respectively from and after the 7th of August, 1862, hold such office and appointment during good behaviour. 2. Provided always, that the said officer and his successors shall hold the behaviour; said office subject to any regulations which may be hereafter made by par- and subject to liament concerning the same or the duties thereof; and in the event of any regulations such office being abolished, or of the duties thereof being transferred or which may be altered by any act to be hereafter passed, or of any alteration being made hereafter made by competent authority in the fees, emoluments, or remuneration to be by Parliament. allowed to such officer, the said officer and his successors shall not be entitled to make any claim to compensation which he or they would not have been entitled to make if this act had not passed.

Disposition of Equitable Interests in Copyholds. 90. In every case in which a husband and wife shall, either in or out of court, surrender into the hands of the lord of the manor any lands held by copy of court roll, parcel of the manor, and in which she alone, or she and her husband in her right, may have an equitable estate, the wife shall, upon such surrender being made, be separately examined by the person taking the surrender in the same manner as she would have been if the estate to which she alone, or she and her husband in her right, 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 (e).

(e) 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 d. Berry v. Thompson, 4 Tannt. 293. See 1 Watk. on Cop. by Cov. 89.) A custom in a manor required that the consent of the husband to the surrender by his wife should be expressed in the surrender and admission. A surrender was made by the wife at a general court, and the husband was present at that court, but in the surrender his consent was not expressed; it was held, that the surrender was inoperative and that the court could not infer from circumstances that the husband's consent had been given. It seems that such a surrender would not be good

3 & 4 Will. 4, c. 74, s. 90.

Court of Common

Pleas, in the case of a husband

even if the husband were divested of all property at the time. (Doe d. Shelton v. Shelton, 4 Nev. & M. 857; 3 Ad. & Ell. 265; 1 Harr. & Wol. 287.)

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 d. Nethercote v. Bartle, 5 B. & Ald. 492.)

It was held, that a surrender of a copyhold estate, to which a feme covert was entitled, after secret examination by the steward, to the use of her husband, in his presence and with his consent, testified by his immediate admittance, was valid. (Scamon v. Maw, 3 Bing. 378; S. C., 11 Moore, 243.)

A surrender by the wife of a copyholder with his consent, and after having been separately examined, to the use of a purchaser from the assignees of the husband, who had become bankrupt, was held effectual to bar her right of freebench, if any such existed by special custom, although at the time of such surrender, the purchase not having been completed, the purchaser had not any legal estate in the premises. (Wood v. Lambirth, 1 Phill. C. C. 8.) See, further, Scriven on Copyholds, 108, 5th ed. As to whether, previously to this act, a married woman could have conveyed an equitable interest in copyholds by fine, see Scriven, 55, 5th ed.

Dispensation with Husband's Concurrence.

91. Provided always, and be it further enacted, that if a husband shall in consequence of being a lunatic, idiot, or of being lunatic, &c. unsound mind, and whether he shall have been found such by

may dispense

with his concurrence, except where the Lord Chancellor or other persons entrusted with lunatics, or the

shall be the pro

tector of a settlement in lieu of the husband.

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 residence shall not be known, or he shall be in prison, or shall be living apart from his wife, either by mutual consent or by sentence of divorce, or in consequence Court of Chancery, 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 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, and of unsound mind, or his Majesty's High

Court of Chancery, shall be the protector of a settlement in lieu 3 & 4 Will. 4, of her husband.

(f) This section gives no authority to the court to grant an order dispensing with the concurrence of a husband in the sale or conveyance of the wife's land, unless the land is actually contracted to be sold or conveyed. (Re Graham, 13 W. R. 782; 19 C. B., N. S. 370.)

c. 74, s. 91.

Upon a motion on the part of a married woman to convey her interest Husband of unin property without the concurrence of her husband, on the ground that he sound mind. 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 or other legal instrument, but required an affidavit showing an effectual application to him for the purpose. (Re Murphy, 5 Scott, N. R. 166; 4 Man. & G. 635.)

Upon the affidavit of a married woman that her husband had absconded Husband abroad. in 1831, after committing an act of bankruptcy, had never been heard of since, but was believed to be in America, leave was granted for her to pass her life interest in certain freehold property, pursuant to the 77th and 91st sections of this act. (Ex parte Mary Gill, 1 Bing. New Rep. 168. See Cruise's Dig. vol. vii. p. 1, 4th ed.) The Court of Common Pleas authorized a feme covert to convey her copyhold property, her husband having resided abroad for more than twenty years with another woman. (Ex parte Shirley, 5 Bing. N. S. 226; 7 Dowl. P. C. 258.) In support of an application for an order to dispense with the concurrence of the husband of a married woman to the deeds of conveyance of certain property, under this section, it was sworn that the husband had absconded from home, and had since sailed for Port Phillip; that since the departure of the ship, his wife had heard nothing of him, and that she believed him to be on his said voyage; that her husband had been made a bankrupt, and that her interest in the property in question passed to his assignees; and also, that, her husband having sold the property, she was desirous of completing the conveyance; held sufficient. (Ex parte Stone, 9 Dowl. P. C. 843.) The court granted leave to take the acknowledgment of a married woman without the concurrence of her husband, under sections 75 and 91 of this act, where it appeared that the parties lived together only seventeen weeks after marriage, in 1829, when the husband went away, and the wife after many inquiries was not able to find him. (Anon., 2 Jurist, 945, C. P.) The court refused, in 1847, to dispense with the concurrence of a husband, upon an affidavit merely stating that he 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 parte Gilmore, 3 Com. B. 967.) The court will not grant a rule to enable a married woman to execute a conveyance without her husband's concurrence, upon the mere statement that the husband, a seaman, has gone abroad, and has not been heard of for some years, and that the wife has been informed that he is dead. The affidavit must show some reasonable ground for presuming the statement to be true. (Ex parte Taylor, 7 C. B. 1.)

To warrant the court to make an order, under this section, to dispense with the concurrence of the husband in the conveyance of the wife's property, on the ground of his being beyond the seas, it must be shown that he has absented himself under such circumstances as to induce the court to infer that he has no intention to return to this country. (Re Squires, 17 C. B. 176.) An order will not be granted when it appears that the husband is in correspondence with the wife, and remitting sums of money for her support, however small. (Ib.)

By a marriage settlement made in 1844, the freehold property of the intended wife was conveyed to trustees upon trust to permit the husband to receive the rents during coverture, or until the wife should by writing

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

Husband and wife separated.

Wife's separate property.

Affidavits.

under her hand otherwise direct or appoint, and after such direction or appointment, upon trust for the separate use of the wife. The deed also contained a power of sale to be exercised by the trustees "at the request and by the direction of the husband and wife during their joint lives," in writing. The husband received the rents and profits down to 1851, when the wife exercised her power of appointment directing the trustees to receive the rents and profits, and to apply them to her separate use. In 1852, the husband went to Australia and had not been heard of since December, 1857, when he was at Geelong; and the wife deposed to her belief that he would never return to this country. The court refused to dispense with the concurrence of the husband in the conveyance of the property under this section, it also appearing that no application had been made to him to concur. (Re Eden, 5 C. B., N. S. 232; 28 Law J., C. P. 4.) The court made an order, under this section, upon an affidavit stating, that, having fallen into distressed circumstances, the husband, about two months before, left England for Australia, with the intention of never returning, and that he had ever since been living separate and apart from his said wife. (Re Kelsey, 16 C. B. 197.)

An order that a married woman might be at liberty to make, without the concurrence of her husband, a disposition of lands to which she was entitled as tenant in tail in possession, and tenant in fee simple, was made on affidavit that the wife was entitled to the property, that she and her husband lived separate from each other, and that he had been found a lunatic by inquisition in 1833. (Ex parte Thomas, 4 Moore & Scott, 331.) So an order for dispensing with the husband's concurrence was made on affidavit, stating the marriage in 1816; that, in 1820, the husband left his wife, and that she had never heard of or received any information respecting him since, and that his present residence was altogether unknown to her; that she was entitled in her own right to the entirety of certain copyhold premises, which she had been compelled to mortgage; and that, if the application were not granted, she would be liable to incur a forfeiture. (Ex parte Shuttleworth, 4 Moore & Scott, 332, n. (b).) An order having been made enabling a married woman to dispose of property without the concurrence of her husband, upon the usual affidavit by her that they 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., 1 C. P. 47.)

A husband being a minor the court granted a rule under this section to enable the wife to execute a conveyance of her separate property without his concurrence. (Re Haigh, 2 Č. B., N. S. 198; 3 Jur., N. S. 371; 26 Law J., C. P. 209.) The court granted an order to dispense with the concurrence of the husband in a conveyance by the wife of her separate property under this section, upon an affidavit showing that he had absconded and had not been heard of since the year 1837, although it also appeared that she had in the meantime married again. (Ex parte Yarnall, 17 C. B. 189.) The court dispensed with the concurrence of the husband (who was living separate from his wife) in the conveyance of property in which the wife had a separate interest under the will of her deceased father, where the husband had refused to execute the deed. (Re Perrin, 14 C. B. 420.) The concurrence of the husband, in the conveyance by his wife of her separate property, will be dispensed with, where the parties are living apart by mutual consent, and the husband refuses to join in the execution unless part of the purchase-money is paid to him. (Re Woodcock, 1 Man. & G., N. S. 437.) As to conveyance of separate property by a married woman when living apart by a sentence of judicial separation without alimony, see Ex parte Andrews, 19 C. B., N. S. 371. The equitable interest in her separate property can be disposed of by a married woman without her husband's concurrence. (See Taylor v. Meads, 13 W. R. 394.)

In support of an application for a married woman to be permitted to convey her interest in an estate, without the concurrence of her husband, an affidavit was produced, sworn by the sister of the married woman, who