Plaintiff to give notice to defendant of his ceed. after provided) shall be stayed until the end of the then next session of Parliament. Section 2. enacts that after the end of the then next session of Parliament, it shall be lawful for the plaintiff, in any action intention to pro- or suit, in which the defendant shall have caused the proceedings to be stayed, under the provision therein before contained, to give notice to the defendant of his intention to proceed in such action or suit, and to proceed therewith accordingly; and in every such case the defendant shall, immediately after such notice so given, be entitled to receive out of Court, the sum which such defendant shall have previously paid into Court on account of the costs of the plaintiff. Section 3 provides that if the plaintiff accepts the costs, all proceedings shall be abandoned. Section 4 extends the former provisions to the successors, heirs, executors, administrators, or assigns of any plaintiff, whose action or suit may be so stayed. Section 5 provides that the Judges may upon sufficient cause shown, permit actions to be proceeded with. Section 6 provides, that nothing in the act contained shall prevent the prosecution of any suit in law or equity for the recovery of tithes claimed or demanded previous to the passing of the said recited act, or for the recovery of the value thereof. 4 & 5 Will. 4. c. 92. FINES AND RECOVERIES. (Ireland.) Since the fifth volume of this work was printed the statute 4 & 5 Will. 4. c. 92. has been passed, for abolishing fines and recoveries in Ireland, and for the substitution of more simple modes of assurance. The stat. 3 & 4 Will. 4. c. 74. as observed in Vol. V. p. 63, did not extend to Ireland, except in some particulars there noticed. With a few alterations, the Irish is an echo of the English act, with the omission of those clauses in the latter which are not applicable to Ireland; such as those which relate to lands held by the tenure of ancient demesne (ss. 4,5,6.) and to copyholds (ss. 50, 51, 52, 53, 54. 66. 76. 90.), which tenures have no existence in Ireland. A doubt has been entertained in reference to the statute 3 & 4 Will. 4. c. 74., whether by virtue of s. 77. a married woman trustee can "disclaim," by a disposition duly acknowledged according to the act: and the Editor ventured to express his opinion in a former volume (IV. p. 19. note), that she might; and his reason for that opinion was, that although there might not be words in the clause, which technically and strictly applied to the interest of the feme covert trustee, which, until the trust is accepted, is a potential rather than an actual "estate,” yet that it would be in entire accordance with the spirit and intent of the act, to construe a disclaimer within the operation of the clause, as the act is intended to substitute assurances for fines and recoveries; and before the act a feme covert trustee might have disclaimed by fine. And by the glossary clause, s. 1. the word "estate" extends to any "interest" in, upon, or affecting lands, either at law or in equity. With respect to Ireland, this question is obviated by the introduction of the word "disclaim" into section 68., which corresponds with section 77 of the English act. The clauses relating to "money land" and to bankruptcy, which in the English act are made applicable to Ireland, are re-enacted in the Irish act. act. Section 22 is a new and important clause, not in the English Sec. 22. It empowers persons to dispose of contingent estates and interests in lands by any assurance, whether by deed or will or other instrument, by which they might dispose of the estate or interest if vested. The following are the words of the clause: "That from the 31st October, 1834, it shall be lawful for any person, either before or after he shall become entitled in any manner, except as expectant heir of a living person, or as ex pectant heir of the body of a living person, to an estate in lands, not being a vested estate, and whether he be or be not ascertained as the person, or one of the persons, in whom the same may become vested, to dispose of such lands, for the whole or any part of such estate therein, by any assurance, whether deed, will, or any other instrument, by which he could have made such disposition, if such estate were a vested estate in possession provided nevertheless that no such disposition shall be valid or have any effect, where the person making the same, shall not, at the time of the disposition, have become entitled to such estate, unless the deed, will, or other instrument, by virtue mon Pleas in the case of a hus band being lu natic, &c., may dispense with his concurrence, except where the band. of which he may become entitled, be existing and in operation at the time of the disposition." It has been considered doubtful whether, under the English act, a feme covert could, by deed, dispose of contingent estates and interests. The recent decision of ex parte Mary Gill, 1 Bing. N. S. 168., in the C. B., would, if law, seem to remove this doubt. In that case, upon an affidavit that the husband of the applicant had absconded in 1831, after committing an act of bankruptcy, had never been heard of since, but was believed to be in America, leave was obtained, under the 3 & 4 Will. 4. c. 74. ss. 77. 91., to pass her contingent life interest in certain freehold property. Court of Com- By section 91. it is enacted, that if a husband shall, in consequence of being a lunatic, idiot, or of unsound mind, and whether he 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 Lord Chancellor or other persons his residence shall not be known, or he shall be in prison, or intrusted with shall be living apart from his wife, either by mutual consent or lunatics, or the Court of Chan- by sentence of divorce, or in consequence of his being transcery shall be the protector of a ported beyond the seas, or from any other cause whatsoever, it settlement in lieu of the hus- 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 the 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. And it was thereby provided, that that clause shall not extend to the case of a married woman, where, under the act, the Lord 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 of her husband. Section 77 of the act will be found, Vol. IV. pp. 18, 19. That section authorises a married woman in conformity with the provisions of the act, to dispose of any estate in lands as fully as she could do if she were a feme sole. As a feme sole, independ- Vide supra, ently of the act, she could not at law by deed have conveyed a contingent interest; but it would seem that the Court of C. B. to s. 51. was of opinion that the act authorises such a disposition. As the application in the above case was ex parte, most probably the point was not pressed upon the attention of the Court, otherwise it is conceived it would have come to a different determination. (a) TRUST FOR THE SEPARATE USE OF A FEME A question has arisen whether the 77th section of the stat. 3 & 4 Will. 4. c. 74., will enable a fême coverte, with the concurrence of her husband, to convey or defeat her interest in real estate, settled to her separate use, in the usual form, restraining anticipation during coverture. This provision for the protection of married women originated with Lord Thurlow in Miss Watson's case, (18 Ves. 434.) and has ever since been fully recognised by the succeeding Judges in courts of equity, (2 Mer. 487, 488). The decisions of the present Chancellor (Woodmeston v. Walker, and Brown v. Pocock, 2 Rus. & Myl. 204-212) and Vice-Chancellor, (Newton v. Reid, 4 Sim. 141.), which show that the restraint is not effectual in the case of a féme sole, even as a provision for future marriage, generally, proceed upon, and fully confirm the distinction between that case, and the provisions made for coverture actually existing, or in immediate contemplation. The whole system both of private settlements, and still more of settlements by the Court of Chancery on its wards, proceeds upon the assumption that such restraint upon alienation is effectual; and the consequences would indeed be serious, if, by a side wind, the late act were allowed to subvert it. But it is conceived that the act will have no such operation. (a) See the observations on section 77 of the above act, in page 16 infra. Vol. VI. 1it. 38. c. 20. note The interest which a fême coverte derives from this trust of real estate for her separate use, is of a very peculiar nature; it is constructed by equity for an especial purpose; and it may be considered as conferring upon her a right to receive the rents and profits accruing de anno, in annum ; as being, in effect, not in her, until the yearly or other period of payment arrives; so that unless the assurances, under the recent statute, operate by estoppel, (which it seems clear they do not) it may be thought that on this ground alone, she would be disabled from passing more than the rent actually due. But the answer which more directly negatives the construction now under consideration, is that the power of alienation conferred on a married woman by the 77th section, is given by express reference to that which was possessed by a fême sole at the passing of the act: the words of the act are "as fully and effectually as she could do, if she were a fême sole." There is a parallelism (so to speak) established by the act, a conformity of ownership recognised, between the fême coverte and the fême sole; and a co-extensive power of alienation thereby conferred upon the former, in reference to that enjoyed by the latter, independently of the act. The obvious inference, therefore, is, that the legislature never intended to include an interest, which a fême sole can never have; an interest conferred by the trust for separate use, with a restraint upon alienation during coverture; an interest confessedly sui generis, which equity has constructed for the protection of a fême coverte only. The general scope of the act is also to be considered: it professes to provide a substitute for fines and recoveries: and it is quite clear that the power of alienation, supposed to result from the extensive wording of the 77th section, could not previously have been attained through the medium of a fine or recovery. It may be further urged in objection to this construction of the section, that, if it empowers the husband and wife to dispense with the restraint upon alienation, that uniformity will be henceforth destroyed, which has hitherto regulated the administration of equitable jurisdiction, regarding trusts for the separate use of married women. For as the act applies to dispositions of real estate only, the law, as to personalty, remains unaltered; so that the restraint upon alienation during coverture, which, when affecting the latter description of property, would be enforced in |