Upon a sale of copyholds, a surrender to the use of the purchaser, by the copyholder's wife, with his consent, after she has been privately examined, will bar her right to free-bench, if any exist by special custom; although, at the date of the surrender, the purchaser has no legal estate in the premises (a). Upon the sale of her copyhold property, if she have the legal estate, the conveyance must be by surrender: if her estate be merely equitable, a surrender by her and her husband, after she has been privately examined, is binding as if her estate were legal (b); or her equitable estate will pass by a mere deed acknowledged under the Act (c).

As to the Affidavit where acknowledgment is taken abroad.

Mode of assuring married woman's interest in copyholds.

(s) In re Foster, 7 C. B. 120.

(t) In re Crawford, 4 C. B. 626; and see In re Eady, 6 Dow. P. C. 615; In re Pearsall, 9 Dow. P. C. 46; Ex parte Shaw, ibid. 839; In re Schiff, 1 Dow. & L. 911; Ex parte Way, ibid. 950; In re Street, 2 C. B. 364.

(u) In re Barber, 4 Dow. P. C. 640, does not seem to be an authority for the general power of a Consul, see Ex parte Hutchinson, 5 C. B. 499.

(v) Davy v. Maltwood, 2 Man. & G. 424; Ex parte Daly, 9 Dow. P. C. 380.

(w;) In re Darling, 2 C. B. 347.

(x) In re Pickersgill, 6 Man. & G. 250.

(y) In re Stubbs, 5 Scott, N. R. 327.

(z) In re Dunsany, 7 C. B. 119.

(a) See Wood v. Lambirth, 1 Ph. 8.

So, also, an acknowledged deed will pass a married woman's reversionary interest in the proceeds of sale of real estate subject to a trust for sale but remaining unsold (d); or in money subject to an absolute trust for investment in land (e).

We have seen that an assignment, merely by the husband, of her legal terms for years, is sufficient; but that, as respects her equitable chattels real, it is prudent to require that she shall join in and acknowledge the assignment (f): and when the husband purports to convey, for the continuance of the coverture, his wife's freeholds, a like precaution seems to be requisite if the legal estate be outstanding, or in reversion expectant on a term of years created for a limited purpose (g).

By the 91st section of the Act, it is provided, that if a husband shall, in consequence of his 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 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 of 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 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 deeds, etc. by the wife, pursuant to such order, are to be executed, etc. by her as if a feme sole; and when executed, etc. shall, but without prejudice to the husband's rights as then existing independently of the Act, be as good and valid as they would have been if he had concurred: but the provision is not to extend to cases in which the Lord Chancellor, or other the persons intrusted with the Great Seal, or the Court of Chancery, shall be Protector of a Settlement in lieu of the husband. This clause has been held to extend to copyholds, over-riding the 77th section (h). The order has been made in cases where the husband, having committed an act of bankruptcy, has absconded and gone abroad, and has not since been heard of (i); so, where, although not a lunatic (j), he was in a state of complete imbecility (k); so where he was living apart from his wife, and refused to concur in conveying property vested in her as a trustee (l); or in conveying her own property, unless part of the purchase-money were paid to him (m): but the Court has refused an order in cases of, what appeared to be, his mere temporary absence from the country; as where the wife's affidavit stated that he had gone to New Zealand, and, when last heard of, was employed in a Government vessel, and that she believed that he never intended to return (n); so, when it stated, that the husband, a seaman, had gone abroad and that she had not heard of him for many years and believed him dead, no sufficient grounds for such belief being stated (o).

Acknowledged deed will pass her reversionary interest in proceeds of sale of real estate, or in money subject to be invested in real estate.

As to her Terms for years.

Concurrence of Husband, when dispensed with.

(b) 3 & 4 Will. IV. c. 74, s. 90.

(c) Sect. 77.

(d) See May v. Roper, 4 Sim. 360; 1 Jarm. on Wills, 537, n.

(e) 3 & 4 Will. IV. c. 74, s. 77.

(f) Supra, p. 5.

(g) Hanson v. Keating, 4 Ha. 1; Newenham v. Pemberton, 1 De G. & S. 644.

(h) Ex parte Shirley, 5 Bing. N. C. 226.

(?) Ex parte Gill, 1 Bing. N. C. 168; Ex parte Stone, 9 Dow. P. C. 843; the affidavit must be made by the wife herself; In re Bruce, 3 Scott, N. R. 592; 9 Dow. P. C. 840; In re Williams, ibid. 72.

(j) As to what evidence of existing Lunacy is sufficient, see In re Turner, 3 C. B. 166.

(k) In re Woodall, 3 C. B. 639.

(l) In re Mirfin, 4 Man. & G. 655.

(m) In re Woodcock, 1 C. B. 437. For form of order enabling wife to convey her own estate, see Ex parte Duffill, 6 Scott, N. R. 30; but the Court will not sanction any particular form of conveyance, but will only give a general authority to convey: In re Woodall, 3 C. B. 639.

And the disposing power of a married woman under the above Act, is, by the 8 & 9 Vict. c. 106, extended to contingent and other similar interests, and to rights of entry; and she is also thereby enabled to disclaim, by deed, executed and acknowledged under the 3 & 4 Will. IV. c. 74, any estate or interest in tenements or hereditaments in England, of any tenure (p).