where it is said that-" A limitation of real estate to the wife in fee, for her sole and separate use, without more, will not enable her to dispose of it during the marriage, otherwise than by fine and recovery; because no power having been given to her by the instrument to make any disposition of the property, she can only do so by the mode prescribed by law; and, if she omit to do so, her heir will take the estate." Doe d. Stephens v. Scott (a) is a clear authority to the same effect, so far as a Court of Law is concerned. Thus, as I have said, the current of authority is all the same way, respecting the power of a married woman over her real estate in fee-simple, without levying a fine, or executing a deed under the statute. There are, to be sure, general expressions respecting the powers of femes covert over property settled to their separate use; but, when they come to be examined, they are found to relate either to personal property, to estates for life, or to the operation of deeds during the life of the woman, or to cases where there was a specific power added to the limitation. Such are the cases referred to in the note to the general statement in 1 Sugden on Powers, p. 206, where the writer says:" When a married woman has property settled to her separate use, without any restraint on alienation, she is deemed a feme sole, and may dispose of it accordingly." For that proposition he refers to Bell v. Hyde (b); Norton v. Turvill (c); Grigby v. Cox (d), and Hulme v. Tennant (e); as to each of which some of the distinctions I have alluded to will be found to apply. So, in Pybus v. Smith (f), cited for the respondent, there were special powers of appointment of the estate reserved to the wife, and she was alive at the time; and, in Tullett v. Armstrong (g), the estates were only given to the lady for her life. The case of Power v. Bailey (h) was also much relied on by the Counsel for the respondent, as an express decision in their favour; but, on examination, it will be found to admit of the same distinc 1860. Chancery. ADAMS v. GAMBLE. Judgment. 1860. Chancery. ADAMS V. GAMBLE. Judgment. tion. The estates of the wife were vested in trustees, for her sole and separate use, and so that she should have full power and dominion over the same. The wife granted an annuity (reciting her power over the property); and it was held binding on her second husband, she herself, however, being alive at the date of the decree. Stead v. Wilson (a) was a case of a life estate only in the wife. The respondents, however, mainly relied on the case of Baggott v. Meux (b), as actually deciding and settling this question. The point decided in it was that, on a devise in fee to a feme covert, for her separate use, a restraint against alienation could be imposed during the coverture; and it was argued from this that the case imported that, without such a clause, an absolute right of alienation in fee would exist. The case decides no such proposition. The alienation actually made was held void as against the wife, who was living at the time of the decision; and the whole import of the decision is no more than this, that, so far as the devise gave her power to deal with the estate as a feme sole, so far a restriction on alienation might be imposed: but as by law, on all the authorities I have referred to, she could not dispose of such an estate in fee-simple as a feme sole, the restriction on alienation would be unnecessary or inapplicable, and would be limited to that which she had the power to do, though, within that range, it would be valid enough. The observations of Lord Lyndhurst, in giving judgment, may considered as implying that his opinion would be in favour of the respondent here; but the point was not strictly before him; and, whatever may be the tendency of modern decisions to enlarge the position or power of a feme covert, as to her separate estate, and the import of general expressions I have alluded to, I cannot consider the apparently settled doctrine to which I have adverted as shaken or overruled. If it is to be so dealt with, it must be by higher authority than mine. I must, accordingly, make a decree in favour of the petitioner; and, as this is a mere ejectment suit, the decree must be with costs. be (a) 2 Beav. 245. (b) 1 Col. 138; S. C., on appeal, 1 Phil. 627. Declare that the deed of the 23rd day of May 1835 was inoperative to pass any estate or interest in the premises therein comprised; and that the petitioner, as heir-at-law of Isabella Gamble, otherwise Adams, is now entitled to the premises demised by the lease of the 10th of April 1791; and let an injunction (if necessary) issue, to put the said petitioner into the possession thereof. Refer it to the Master to take an account of the rents and profits of the said premises in the said lease comprised, from the death of the said Isabella Gamble, in the month of February 1842, after all just credits and allowances; and let the respondent pay to the petitioner the amount which the Master shall so find due, within one month from the date of the Master's report, together with the costs of the suit, up to and including this hearing; and let the costs of the account in the Master's office be in the discretion of the said Master. General Hearing Book, 26, f. 347. 1860. Chancery. ADAMS บ. GAMBLE. Order. 1860. Ch. Appeal. April 24. Court of Appeal in Chancery. In re FITZGERALD'S ESTATE; In an affidavit FRANCIS FITZGERALD, who was possessed of certain leasehold iled under the rovisions of premises in the town of Galway, executed a bond and warrant, .he 6th sec ion of the 13 conditioned for the payment of £700, upon which a judgment and 14 Vic., urpose of 29, for the was entered in Hilary Term 1840. The judgment was registered in 1845, and re-registered on the 21st of July 1856, it having, Converting a udgment into in 1854, become vested in the appellant. a mortgage, a description of the defend- " In 1856, Patrick M. Lynch obtained a judgment against Francis ant's last Fitzgerald, in the Court of Common Pleas, for the sum of £894. known place 10s. 10d., besides £2. 2s. 8d. costs, and registered the same as a town of Gal- mortgage, under the provisions of the 13 & 14 Vic., c. 29. way, but now of abode, as "late of the of the county of Dublin,' was held in. sufficient, as being too vague. The same affi davit stated the amount of the judgment to be £894, and £3. 2s. 8d. for Francis Fitzgerald died in 1857; and, on the 8th of March 1859, Patrick M. Lynch filed a supplemental affidavit, under the provisions of the 21 & 22 Vic., c. 105. John Redington had obtained a judgment against Francis Fitzgerald, in Trinity Term 1855, and registered the same as a mortgage on the 25th of October 1855; but the affidavit was defective, in not containing a substantive statement of the plaintiff's last costs; whereas the sum menknown place of abode. The estate of Francis Fitzgerald was sold tioned for costs in the Incumbered Estates Court on the 8th of April 1859; and on the record was 8d., was £2.25. d. upon the settlement of the final schedule of incumbrances, Judge for registration Hargreave ruled that the supplemental affidavit filed by Patrick M. having been Lynch was invalid, having been sworn subsequently to the death of the conusor; but that his original affidavit was sufficient, and that added to the costs in the affidavit.Held, to be such a vari ance as invali dated the affi davit. Statement. his judgment was, therefore, entitled to be paid in priority to the judgment of the appellant. From that decision the present appeal was brought, upon the grounds, among others, that the affidavit originally filed by Patrick M. Lynch was defective: firstly; because it did not contain any "Common Pleas. '1 Patrick Mark Lynch, of Ren- "Patrick Mark Lynch, of Renmore-lodge, 1860. Ch. Appeal. In re FITZGER ALD'S ESTATE. Statement. |