Effect of war on contracts made with aliens in time of peace.

Driefontein, etc, 1902, A. C. 484, 506; see Co. Litt. 129b, n. (3), and consider the pleading in Alcinous v. Nigreu, 4 E. & B. 217.

(k) See Antoine v. Morshead, 6 Taunt. 237; Danbuz v. Morshead. ib. 332; De Wahl v. Braune, 1 H. & N. 178; Pollock on Contract, 96, 7th ed.

(l) The Hoop, 1 C. Rob. 196; Potts v. Bell, 8 T. R. 548; Esposito v. Bowden, 7 E. & B. 763.

(m) See McConnell v. Hector, 3 B. & P. 113, 114; Willison v. Patteson, 7 Taunt. 439; Esposito v. Bowden, 7 E. & B. 763, 779; Janson v. Driefontein, etc, 1902, A. C. 484, 489, 502, 509; above, p. 773.

(n) See notes (i) (k), above.

(o) Esposito v. Bonden, 7 E. &

B. 763; Janson v. Driefontein, etc, 1902, A. C. 484, 509; above, p. 783.

(p) Far/ado v. Rodgers, 3B. & P. 191; Gamba v. Le Mesurier, 4 East, 407; Brandon v. Curling, ib. 410; Janson v. Driefontein, etc, 1902, A. C. 481, 493, 494, 499, 502, 506 sq.

(q) See cases cited in previous note; Expte. Boussmaker, 13 Ves. 71.

Performance by royal license or permission.

Every conveyancer must of course have a proper knowledge of the law concerning the relation of husband and wife in regard to property and contract. This is stated in other books, for which the writer is now responsible (s), and will not be fully repeated here. For our present purpose, the most important points are these: - By the common law, married women were enabled both to purchase (a) and to hold lands: but their estates in land were subject to the rights, which their husbands acquired therein (b); and they were incapable, as a rule, of alienating or affecting the same by their own act alone (c). They could only dispose of their freeholds by fine levied or recovery suffered with their husbands' concurrence, on which occasions they were examined apart to ascertain if their consent thereto were free (d). And a married woman could by a fine so levied by herself and her husband effectually assure, not only her legal but her equitable estates (e) in freehold lands, and also any interest which she might have in such lands either at law or in equity (f); for example, her interest in the proceeds of sale of lands settled on trust for sale (g). A wife's legal estates or interests in copyholds were alienable in like manner by surrender in which her husband must concur, she herself being separately examined as to her consent (h).

Married women.

(r) Above, p. 813.

(s) Above, pp. 506 - 508.

(t) It is thought that in such case the purchaser would have a lien on the land sold for repayment of his deposit, if any; see cases cited above, p. 783, n. (g).

(u) Rucker v. Ansleg, 5 M. & S. 25; Clemontson v. Blessig, 11 Ex. 135; see also, Nigel, etc. v. Hoade, 1901, 2 K. B. 819.

(x) Above, p. 783.

(g) Above, p. 813, n. (h).

Wife's copyholds.

(z) See Wins. Real Prop. 299 sq. (as to freeholds), 473, 479, 482 (as to copyholds), 510 (as to leaseholds), 19th ed.; Wms. Pers. Prop. 467 sq. (as to chattels personal and contracts), 15th ed.

(a) Co. Litt. 3a, 356b. But a wife's purchase of land was voidable either by her husband, who might effectually disagree thereto, or by herself after the determination of the coverture, and notwithstanding that her husband had agreed thereto; or by her heirs, if she died without having agreed thereto when free from coverture; Co. Litt. ubi sup.; 2 Black. Comm. 292, 293; 3 Prest. Abst. 104, 107; cf. above, p. 785.

(b) See note (s), above.

(c) 1 Black. Comm. 442 - 444; Wms. Real Prop. 299, 300, 302, 19th ed.

(d) Cruise on Fines and Recoveries,!. 107 sq., 199 sq., ii. 179, 3rd ed.; 1 Prest. Abst. 333, 2nd ed.; Wms. Real Prop. 302, 303, 19th ed.

(e) Goodrich v. Brown, 1 Ch. Ca. 49; Washbourn v. Downes, ib. 213; Clifford v. Ashley, ib. 268; Fenne v. Peacock, Ca. t. Talb. 41, 43; 1 Rop. Husb. & Wife, 140, 2nd ed.

(f) Goodrich v. Shotbolt, Prec. Ch. 333; May v. Roper, 4 Sim. 360; Forbes v. Adams, 9 Sim. 462; 1 Prest. Abst. 333, 2nd ed.; see also Vick v. Edwards, 3 P. W. 372; Helps v. Hereford, 2 B. & A. 242.

(g) May v. Roper, ubi sup.

(h) 1 Wat. Cop. 63; 1 Prest. Abst. 333, 2nd ed.; Wms. Real Prop. 473, 19th ed.

But it was doubtful in what maimer her equitable estates or interests in copyholds were alienable (i); for the disposition of copyholds by surrender is properly applicable only to legal interests therein (k), and it was a question whether a fine levied by husband and wife would be a valid assurance of her equitable estate in copyhold land(/). The husband alone might dispose of his wife's leaseholds for years by act inter vivos, though not by will (m). It was established that a married woman might well exercise any power, whether appendant, in gross or collateral, and whether in respect of real or of personal estate, by herself alone as effectually as if she were a feme sole; unless she were restrained by the terms of the instrument creating the power from exercising it during her coverture. And this is the case whether the power were conferred upon her during her coverture or whilst she was single (n).

Fines were abolished by the Fines and Recoveries Act, 1833 (o). This Act enabled (p) every married woman after that year, by deed executed with the concurrence of her husband and duly acknowledged by her as therein provided (q), to dispose of lands of any tenure, and money subject to be invested in the purchase of lands (r), and also to dispose of, release, surrender or extinguish any estate (s) which she alone, or she and her husband in her right, might have in any lands (r) of any tenure, or in any such money as aforesaid, and also to release or extinguish any power which might be vested in or limited or reserved to her in regard to any lands (r) of any tenure, or any such money as aforesaid, or in regard to any estate (s) in any lands (r) of any tenure, or in any such money as aforesaid, as fully and effectually as she could do if she were a feme sole. From the disposing power so conferred, a married woman's legal estates or interests alienable by surrender in copyhold lands (t) were alone excepted (u). The Act therefore enabled every married woman to dispose by deed executed with her husband's concurrence and duly acknowledged by her of any legal or equitable estate or interest to which she was entitled in freehold hereditaments and any equitable estate or interest to which she was entitled in copyhold hereditaments (x). And it has been held that a wife may by such a deed make a binding disposition by way of declaration of trust of the equitable estate in any copyholds, of which she is the legal tenant on the court rolls subject to the old law(y). A wife's power to dispose of her legal interests in copyholds by surrender, in which her husband joined and on which she was separately examined (z), remained unaffected by the Act. And the Act further introduced an alternative method of alienation by married women of their equitable interests in copyholds (a); providing that such interests might also be disposed of by surrender, in which the husband should concur, and on which the wife should be separately examined (b). It was held that under the Fines and Recoveries Act a married woman could effectually dispose of her interest in the proceeds of sale of lands held on trust for sale (c); of the charge created in her favour by a mortgage made to her when single by deposit of the title deeds of land (d); of her interest under a settlement of personalty in land improperly purchased therewith (e); and even of her equitable reversionary life interest in a sum of money invested pursuant to the trusts of the settlement, under which she was entitled, on a mortgage of land (f). The Fines and Recoveries Act did not interfere in any way with the husband's power of alienating his wife's leaseholds by his own act inter vivos alone (g).