CHAPTER V. no protector, or a protector consenting or non-consenting, (in which cases, the commissioner's disposition, there being no protector, or being a consenting protector, will pass the fee-simple, or, there being a non-consenting protector, will pass a base fee); thirdly, in case the bankrupt, entitled to a base fee arising as already mentioned, has left issue existing at the time of the disposition, which issue would have been inheritable, and there is either no protector or a consenting protector, (in which case the commissioner's disposition will pass the fee-simple (s. 65)). This clause appears, on a first perusal, to be somewhat obscure and complicated, but, when attentively considered, with reference to the previous clauses, it will be found correct. The act then gives to the commissioner's Copyholds. disposition of the copyhold lands of a bankrupt whose estate is not merely equitable, the effect of a surrender to the use of the disponee for the estate acquired by the disposition, and entitles the disponee to admittance, on payment of the fines and fees. The mesne rents and Mesne profits. profits of the lands over which the commissioner's power extends, until a disposition shall be made, or shall be ascertained to be necessary, are given to the assignees, who are armed with remedies for recovering arrears, enforcing covenants and conditions, and ejecting tenants (s. 67). The bankrupt clauses extend to lands in Ireland (s. 68), Ireland. but deeds of disposition and of consent relating to such lands must be inrolled in the Court of Chancery in Ireland, within six calendar months after the execution (s. 69) (i). (i) An infant tenant in tail is within the act of 1 Will. 4, c. 47, s. 11, (vide post, Illustrations, III. s. 1), and may be ordered to convey estates decreed to be sold for payment of debts, by such an as- Infant tenant in tail. CHAPTER V. VII. Modes of assurance respect to en VII. As to entailed money.-The provisions respecting entailed land are extended to entailed money, that is, to substituted with a money fund liable to be laid out in the purchase of land to be entailed, including land impressed with a trust for conversion into money to be so applied. tailed money. Progress of the law in regard ney. The history of the law relating to entailed money is to entailed mo- curious. Formerly, the person entitled to be tenant in tail of the land, with remainder or reversion to another, (for where the immediate remainder or reversion in fee was vested in himself, equity would decree payment of the fund to him (k)), was in this dilemma-he could not act upon the land, because, until ascertained, land could not be the subject of a recovery; he could not act upon the money, because money could never be the subject of a recovery. In this predicament, he had recourse either to an act of parliament, or to the expedient of a colourable investment in the purchase of an estate from a friend, who in fact merely lent the land till a recovery could be suffered. An act (1), which was intended to remedy this inconvenience, was passed, authorizing the Court of Chancery, on the petition of the person who would be tenant in tail of the land, to order the fund to be paid to him; the antecedent takers, if any, concurring. But when that act came to be carried into execution, it was thought proper that there should be a reference to the Master to inquire whether the petitioner was entitled to be tenant in tail, and whether he had incumbered the fund or not (m). The result of this practice, (k) Short v. Wood, 1 P. Wms. 471; 2 Atk. 454. (1) 39 & 40 Geo. 3, c. 56; reenacted, with alterations, by 7 Geo. 4, c. 45. See, In re Peyton, 5 Russ. 5. (m) 6 Ves. 116, 576. An order made in vacation was not effectual, unless the tenant in tail lived till the second day of the ensuing term, 5 Ves. 12, n. in a case which fell under the writer's observation, was, that a petitioner, with a clear title, as tenant in tail, to a fund of £400 consols, obtained, after deducting the costs of the proceedings, rather more than half that sum. Where the fund was small, even the old expedient of a fictitious purchase was the lesser grievance. Common sense dictated that the order of the court shall have the effect of unsettling the beneficial interest in the fund, to the extent of the power which the applicant would have had over the land, leaving him, when thus freed from the fetter of the entail, to obtain payment in the ordinary course from the trustee, who, unless there was some apparent reason for withholding the fund, would be advised, and, indeed, admonished at the peril of costs, to pay without the sanction of a decree. So, an equitable recovery unsettled the beneficial interest in land equitably entailed, and gave to the tenant in tail the right of calling for a conveyance of the legal fee-simple, which conveyance was made or refused, according as the title was clearly deduced or not. But the new law dispenses altogether with the slow and costly agency of the court, and, by adopting the principle just stated in its fullest extent, tacitly pronounces a well-merited censure on the former law. The act provides (s. 71), that, as well lands of every tenure, of which the produce by sale is applicable to the purchase of lands to be entailed, as money so applicable, shall, for the purposes of the act, be considered as the purchased lands, and be dealt with according to the disentailing provisions already stated. The fund, when constituted of land made saleable, not being copyhold, is to be dealt with as freehold, or being copyhold, as copyhold; and when constituted of money (see s. 1), is to be dealt with as freehold land. But leaseholds for years and money are CHAPTER V. Provisions of the new law as to entailed money. CHAPTER V. VIII. Mode of assurance substituted for binding the interests of married women in land; to be treated, as to the person in whose favour the disentailing provision is made, as personal estate, and to be assigned by deed, to be inrolled within six calendar months after the execution, except in the case of bankruptcy, when the disposition is to be made by the commissioner, and completed by inrolment, as before provided in regard to lands not being copyhold. With respect to bankrupts, the preceding provision is applied (s. 72) for the benefit of the creditors, to a fund consisting of lands in Ireland, or money under the control of any court of equity in Ireland, or held by any individuals as trustees in Ireland, where the bankrupt would be tenant in tail of the purchased lands; but the deed of any commissioner or protector is to be inrolled in the Court of Chancery in Ireland, within six calendar months after the execution, where the fund is land, otherwise in the Court of Chancery in England. VIII. As to alienation by married women.-The act substitutes, for passing the estates and extinguishing the rights (n) and powers of married women in, to, or over land, and money to be laid out in land, a deed (s. 77) to be acknowledged before a Judge or a Master in Chancery, or certain standing commissioners, (ss. 79, 80, 81, 82), or, in the case of absence abroad, &c., special commissioners (s. 83) to be appointed under the act, by whom the feme is to be examined in order to ascertain that her consent is freely and voluntarily given. The precautions superadded to the simple interrogatory of the old law, by a rule of the Court of Common Pleas (o), in regard to the examination of married women, before taking the (n) As to dower, vide post, 3 & 4 Will. 4, c. 105. (o) 4 Bing. 750. acknowledgment of fines, receive no countenance from the legislature, and there was reasonable ground to hope that the court would so exercise the discretionary power confided by the act (s. 89), as not to revive inquiries, which, in order to be effectual, must be dilatory and inquisitorial. But this hope has been disappointed. During the short space which has elapsed since the act came into operation, several sets of rules (p), or orders, have successively appeared, all leaning, apparently, to the principles and practice of the old law, rather than conceived in the spirit, or even deferring to the letter of the new statute (q). It is admitted, however, that the deed acknowledged so far differs in its nature from a fine, as not to be cognizable on the same grounds, the fine being a suit at law, but the deed acknowledged merely a statutory conveyance; and, therefore, a bill of costs for preparing and attending the acknowledgment is not taxable (r). The certificate of acknowledgment being filed of record, the deed takes effect by relation as from the time of the acknowledgment (s. 86). Where a married woman is tenant in tail, her assurance must, of course, also conform to the previous provisions of the act relative to estates tail, both acknowledgment and inrolment being then necessary. In every case the husband's concurrence is required (s. 77), but subject to a discretionary power, vested in the Court of Common Pleas (s. 91), of dispens 2. (p) See the Rules, post, Vol. (4) "In issuing the rules in question, the Judges of the Common Pleas have certainly put a most liberal interpretation upon the passages in the act which confer their regulating power; and in the exercise of that power, have fettered the taking of acknowledg- (r) In re Manson, 3 Bing. N. CHAPTER V. |