money paid into court; but there being no request to invest left at the office, the money according to the practice of the office remained uninvested. A motion for leave to bring an action against the accountantgeneral, or to examine the precedents in the office, was refused with costs. (Re Woodcock, L. R., 13 Eq. 183.) For the practice as to the investment of money paid into court, see Dan. Ch. Pr. 1639 et seq., and Chancery Funds Rules, 1872, r. 24. (L. R., 7 Ch. xliii.) 26. The court shall be at liberty to exercise any of the powers conferred on it by this act, whether the court shall have already 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 or manifest intention that they shall not be exercised is contained in the settlement, or may reasonably be inferred therefrom, or from extrinsic circumstances or evidence: provided always, that the circumstances 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 (d). (d) See Re Thompson (Johns. 418) and Re Hurle (2 H. & M. 196), quoted under sect. 11, ante. 27. Nothing in this act shall be construed to empower the 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. 28. 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 any person whose concurrence in or consent to the application ought to have been obtained, and was not obtained (e). (e) It is competent to a purchaser under this act to object, at any time before completion, that the order for sale was in excess of the jurisdiction of the court. It seems, nevertheless, that the conveyance when completed will give an indefeasible title by virtue of this section, notwithstanding any excess of jurisdiction. (Re Thompson, Johns. 418; Re Shepheard, L. R., 8 Eq. 571; but see Re Burdin, 5 Jur., N. S. 1378.) 29. It shall be lawful for the court, if it shall think fit, to Costs. 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 (ƒ). (f) Where an agreement to demise settled estates was approved, and the costs directed to be a charge on the property, the court directed the name 19 & 20 Vict. c. 120, s. 29. Power to Lord Rules and orders to be laid before parliament. Tenants for life, of the person advancing the money, necessary for the payment of such costs, to be inserted in the order. (Re Tunstall, 14 L. T., N. S. 352.) For form of order as to costs, see Seton, 536. 30. The Lord Chancellor of Great Britain, with the advice and assistance of the English Master of the Rolls, the Lords Justices of the Court of Appeal in Chancery, and the ViceChancellors, or of any three of them, so far as relates to proceedings in England, and the Lord Chancellor of Ireland, with the advice and assistance of the Irish Master of the Rolls and of the Lord Justice of the Court of Appeal in Chancery in Ireland, or of any two of them, so far as relates to proceedings in Ireland, may, if he shall think fit, from time to time make general rules and orders for carrying the purposes of this act into effect, and for regulating the times and form 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; 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 (g). (g) See 21 & 22 Vict. c. 77, s. 7, and the orders made in pursuance of this act, post. 31. All general rules and orders made as aforesaid shall, immediately after the making and issuing thereof, be laid before both Houses of Parliament, if parliament be then sitting, or if parliament be not then sitting, within twenty-one days after the next meeting thereof; and it shall be lawful for either of the Houses of Parliament, by any resolution passed within thirty-six days after such rules or orders have been laid before it, to resolve that the same or any part thereof ought not to continue in force, and thereupon the same shall cease to be binding. 32. 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 life, or for a term of years determinable with his life, 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 to take effect in possession: 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 non-payment for a period not less than twenty-eight days of the rent thereby reserved, and on non-observance of any of the covenants or conditions therein contained; and provided a counterpart of every deed of lease be executed by the lessee (h). (h) As to this section, see 3 Davidson, Conv. 535, n. (p), 3rd ed. A form of lease by a tenant for life pursuant to this section is given in Woodfall, L. & T. 1022. 19 & 20 Vict. c. 120, s. 32. be valid. 33. Every demise authorized by the last preceding section Against whom shall be valid against the person granting the same, and all such leases shall other persons entitled to estates subsequent to the estate of such person under or by virtue of the same settlement, if the estates be settled, and in the case of unsettled estates against all persons claiming through or under the wife or husband (as the case may be) of the person granting the same (i). (i) See 21 & 22 Vict. c. 77, s. 8, post, p. 703. 34. The execution of any lease by the lessor or lessors shall Evidence of exebe deemed sufficient evidence that a counterpart of such lease cution of lease by has been duly executed by the lessee as required by this act. lessee. c. 28, and 10 (Ireland), except leases. Car. 1, sess. 3, c. 6 as to ecclesiastical 35. The act of the thirty-second year of King Henry the Repeal of 32 Hen. Eighth, chapter twenty-eight, intituled "Lessees to enjoy the Farm against the Tenants in Tail," and the act of the parliament of Ireland of the tenth year of King Charles the First, session three, chapter six, intituled "An Act that Lessees shall enjoy their Farms against Tenants in Tail or in Right of their Wives, &c.," are hereby repealed, except so far as relates to leases made by persons having an estate in the right of their churches. &c. 36. All powers given by this act, and all applications to the Provision as to court under this act, and consents to such applications, may be infants, lunatics, exercised, made or given by guardians on behalf of infants, and by committees on behalf of lunatics, and by assignees of bankrupts or insolvents: provided nevertheless, that in the cases of infant or lunatic tenants in tail no application to the court or consent to any application may be made or given by any guardian or committee without the special direction of the court (k). (k) See Cons. Ord. XLI., rule 23, and see Regul. 8 Aug. 1857, rules 21, 22, post, p. 707, as to the appointment of guardians. The consent of the father of infant petitioners is not sufficient, though he has not an adverse interest to the infants. (Re Caddick, 7 W. R. 334.) Nor is the consent of the testamentary guardian sufficient. (Re James, L. R., 5 Eq. 334.) Where a person whose consent was necessary to an application under the act was of unsound mind, not so found by inquisition, the Master of the Rolls, on an ex parte application, appointed a guardian to consent on his behalf. (Re Venner, L. R., 6 Eq. 249.) But where a purchaser objected that the consent of the guardian in such a case was invalid, 19 & 20 Vict. c. 120, s. 36. A married woman applying to the court to be examined apart James, L. J., held the objection well founded. (Re Clough, L. R., 15 The committee of a lunatic must obtain the permission of the Court of Lunacy before he consents to an application under this act. An application must be made to the Master in Lunacy, whose report must be approved by the Lords Justices. (Re Woodcock, L. R., 3 Ch. 229; see Re Wade, 1 H. & T. 202.) For forms of orders, see Seton, 528. 37. 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 knowfrom her husband. ledge 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 (1). No clause, &c. in settlement restraining anticipation to prevent court from exercising powers of this act. Time of examination. Such examination court or by a solicitor. (1) A married woman entitled to a jointure, charged on settled estates, must be examined under this section. (Re Turbutt, 2 N. R. 487.) And a married woman who is under age must be examined (Re Broadwood, L. R., 7 Ch. 323). But the examination of a married woman has been dispensed with where her interest was remote, and sufficiently represented by trustees who consented (Re Lord de Tabley, 11 W. R. 936; Re Tibbett, 17 W. R. 394); and where the court was satisfied that the order would be beneficial and that the delay necessary for the examination would be prejudicial. (Re Halliday, L. R., 12 Eq. 199; Re Thorne, 20 W. R. 587; but see Re Johnson, W. N. 1869, p. 87.) The examination of a married woman ought not to take place until the petition has been presented and answered, and carried into the chambers of the judge by whom it is to be heard; but it ought to take place before any judicial step has been taken by him upon it. The issuing of advertisements under the 20th section, before the examination, will not invalidate the proceedings; but, as a general rule, it is desirable that the examination should take place immediately after the petition has been carried into chambers. Re Foster, 24 Beav. 220; 1 De G. & J 386.) Where the married woman is herself a petitioner, her examination by the court may be taken at any time before an order is made. (Re Packer, 39 L. J., Ch. 220.) Her examination was ordered to be taken in court when the petition came on to be heard. (Re Taylor, L. R., 14 Eq. 557.) The examination of a married woman was allowed to be taken after the order was made on the petition, but before it was drawn up, the petition being ordered to be mentioned again after the examination. (Re Turbutt, 2 N. R. 487.) 38. The examination of such married woman shall be made to be either by the either by the court or by some solicitor duly appointed by the court for that purpose, who shall certify, under his hand, that he has examined her apart from her husband, and is satisfied that she is aware of the nature and effect of the intended application, and that she freely desires to make or consent to the same (m). (m) This section, in requiring the appointment of a solicitor to examine a married woman abroad, meant a solicitor of the Court of Chancery in England, and therefore the court refused to direct a commission to a barrister and solicitor of a court in Canada for that purpose. (Turner v. Turner, 2 De G. & J. 534.) But where the married woman is resident out of the jurisdiction, any person, whether a solicitor of the court or not, may now be appointed to take the examination. (21 & 22 Vict. c. 77, s. 6, post.) The solicitor appointed must be a solicitor in actual practice, and not the solicitor of the husband. (Re Noyes, 6 W. R. 7.) And he should be an independent solicitor, not one concerned in the proceeding. (Re Brealy, 24 Beav. 220.) 19 & 20 Vict. c. 120, s. 38. married women 39. Subject to such examination as aforesaid, married women As to consent of may make or consent to any applications, whether they be of full age or infants. 40. Nothing in this act shall be construed to create any obligation at law or in equity on any person to make or consent to any application to the court, or to exercise any power. 41. For the purposes of this act, a person shall be deemed to be entitled to the possession or to the receipt of the rents and profits of estates, although his estate may be charged or incumbered either by himself or by the settlor, or otherwise howsoever, to any extent; but the estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to the possession or to the receipt of the rents and profits as aforesaid, unless they shall concur therein. under age. No equity to compel any one to ap ply to the court. Tenants for life, &c. may exercise powers notwith standing incum brances. entails created by 42. Provided always, that nothing in this act shall authorize Exception as to any sale or lease beyond the term of twenty-one years of any acts of parliament. settled estates in which, under the act of the thirty-fourth and thirty-fifth years of King Henry the Eighth, chapter twenty, "To embar feigned Recovery of Lands wherein the King is in Reversion," or under any other act of parliament, the tenants in tail are restrained from barring or defeating their estates tail, or where the reversion is vested in the crown (n). (n) See ante, p. 323, n. lords of manors 43. Nothing in this act shall authorize the granting of a Saving rights of lease of any copyhold or customary hereditaments not warranted by the custom of the manor without the consent of the lord, nor otherwise prejudice or affect the rights of any lord of a manor. extend. 44. The provisions of this act shall extend to all settlements, To what settlewhether made before or after it shall come in force, except those ments this act to as to demises to be made without application to the court, which shall extend only to settlements made after this act shall come in force. 45. This act shall not extend to Scotland. Extent of act. 46. This act shall come in force on the first day of November, Commencement of one thousand eight hundred and fifty-six. act. |