This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(1876) 2 Ch. D. 29 ; 45 L. J. Ch. 250.
(h) 0. V. As to the evidence necessary in support of the application, see 0. X.
(i) O. V.
(k) O. VIII.
(l) O. VI.
(m) 0. IX.
In the case of a lunatic, the committee must, before he can make or consent to any application, or give a notification under s. 26, obtain an authority from the Lords Justices to do so. Evidence of his having obtained this authority must be produced by him, and is sufficient evidence, unless the Court shall require something further, upon which the Court may direct the committee to act in conformity with such authority (o). But where the lunatic is tenant-in-tail, he must also get special directions from the Chancery Division (p), which are to be obtained, after the presentation of the petition, by the petitioner on summons in Chambers (q) ; and the summons must be served on the committee (r).
The Act does not expressly provide for the case of a person of unsound mind not so found by inquisition; but such a case falls within s. 26, and the notice to be given in such a case is prescribed in Ord. IV. (s).
Persons of unsound mind.
A married woman, whether of full age or an infant, is, by s. 52, competent to make, or consent to, any application under the Act; and s. 50 provides that a restraint on anticipation will not prevent her from exercising any of the powers given by the Act, and that such exercise of them will not occasion any forfeiture, notwithstanding any provisions in the settlement for that purpose (t). But before making or consenting to any application she must, by s. 50, whether the hereditaments are settled upon trust for her separate use or not (u), be separately examined as to her knowledge of, and free consent to, the application (x). If, however, she has been married since 1882, or if the settled property has become hers since that date, the M. W. P. Act, 1882, applies, and her separate examination is unnecessary (y), but the Act does not render her separate examination unnecessary in any other cases (z). But a married woman interested in a settled estate which is leased or sold under the Act, who has been served with notice under s. 26, and submits her rights to the Court, need not be separately examined (a). The Court has, too, in some cases of great inconvenience, or where her interest is small or remote, or where her interest is sufficiently represented by trustees, dispensed with the separate examination of a married woman (b). The examination may be taken at any time after the petition is presented and answered (c). Where the married woman is within the jurisdiction, her examination may, by s. 51, be made either by the Court, or by a solicitor duly appointed by the Court for that purpose. An examination by the Court may be made either in open Court, or in chambers. In the former case a note of it is made by the Registrar; in the latter, a minute of it will be indorsed on the petition, and signed by the
Master. If it is desired that the examination shall be made by a solicitor, a perpetual commissioner to take acknowledgments of deeds by married women may be appointed for the purpose by the judge at chambers, without summons or order, upon the request of the petitioner, and a certificate of his solicitor that the person nominated for appointment is not solicitor for the petitioner or for any party whose concurrence or consent is necessary (d). Where the married woman is out of the jurisdiction, her examination may, by s. 51, be made by any person appointed for that purpose by the Court, whether he is or is not a solicitor of the Court (e). In such cases - and also in special cases where, though the married woman is within the jurisdiction, an examination by a solicitor, who is a commissioner to take acknowledgments, would cause unreasonable expense, delay, or inconvenience - the petitioner may apply ex parte at chambers for the appointment of a solicitor, if she is within the jurisdiction, or, if she is outside it, of a person, whether a solicitor or not, to take her examination (f). In every case where the examination is not made by the Court, the person taking it must, by s. 51, certify the result of it (g) ; and there must also be an affidavit of an independent person verifying the examination and certificate (h).
(n) O. XII.
(o) O. XL, adopting the practice established by Re Woodcock, (1868) 3 Ch. 229.
(p) S. 49.
(q) O. VI.
(r) O. IX.
(s) See sup. p. 1122, and cases cited in n. (m). The Court itself had no jurisdiction to consent on behalf of such a person : Re Clough, (1873) 15 Eq. 284 ; 42 L. J. Ch. 293.
(t)Cf. S. L. Act, 1882, s. 61, Sub-s. C.
(u) Hence an affidavit of no settlement is unnecessary: Re Standish's S. E., (1876) 25 W. R. 8.
(x) The examination is necessary where she is only entitled to an interest, e.g., a jointure, in the settled property: Re Turbutt's S. E., (1863) 2 N. R. 487; and even if she is an infant: Re Broadwood's S. E., (1872) 7 Ch. 323 ; 41 L. J. Ch. 349.
(y) Riddell v. Errington, (1884) 26 Ch. D. 220; Re Batfs S. E., 1897, 2 Ch. 65 ; 66 L. J. Ch. 635.
(z) Re Karris' S. E., (1884) 28 Ch. D. 171; 54 L. J. Ch. 208; and on an application for the investment of money in Court under the S. E. Act, her separate examination was required, notwithstanding s. 32 of the S. L. Act, 1882 : Re Arab'm, (1885) 52 L. T. 728.
(a) Re Stanley's S. E., (1889) 59 L. J. Ch. 82.
(b) Re Lordde Tabley's S. E., (1863) 11 W. R. 936; Re Tibbett's S. E., (1869) 17 W. R. 394; Re Thorne's S. E., (1872) 20 W. R. 587; Re Halliday's S. E., (1871) 12 Eq. 199 ; 40 L. J. Ch. 687; Re Ward's S. E., (1895) W. 1ST. 41.
(e) O. XIII. In one case the Court allowed the examination to be taken after the order on the petition had been made, and ordered an application to be made after the examination to have the original order post-dated: Re Turbntt's S. E., (1863) 8 L. T. 657.