which cannot be the subject of tenure, and to the complete absence of any authority for the proposition that an easement cannot be perpetually annexed to a fee simple dominant tenement without the words of limitation essential to the assurance of a fee simple estate, it is submitted that the practice of conveyancers in using words of limitation in the creation of easements de novo has been merely ex abundanti cautela.

ARTHUR UNDERHILL.

IN

ALIENATIONS BY MARRIED WOMEN WITHOUT
SEPARATE EXAMINATION.

N Johnson v. Clark [1908] 1 Ch. 303, 77 L. J. Ch. 127, Parker J. held that a custom 'that a married woman by her husband's consent could dispose of her hereditaments of burgage tenure by deed without separate examination' is bad. To this extent it is in direct conflict to the decision in Compton v. Collinson (1788–90) 2 Bro. C. C. 377, 1 H. Bl. 334, 2 R. R. 786, to which his Lordship's attention was not called. Compton v. Collinson was a suit in Chancery for the purpose of obtaining a surrender from the customary heir of a married woman. The main facts were that Michael Collinson and Jane Collinson executed a separation deed, in which the husband covenanted in effect with trustees that his wife should enjoy to her own use all such estates, real and personal, as should come to her during coverture, or that he should become entitled to in her right, and to assure them to such uses as she should appoint. Subsequently the wife became entitled to freehold and copyhold estates as heiress of her father, and thereupon another deed was executed, which contained a covenant by the husband in terms similar to that in the first deed. The wife surrendered copyhold estates descended to the uses of her will, and charged the property in favour of John Willis, who was her executor, to secure certain sums of money. The wife died, and John Willis proved her will. The plaintiff derived title under John Willis. At the hearing before Buller J., assisted by Masters Gravy and Eames, sitting for the Lord Chancellor, the Court directed a case to be made for the Court of Common Pleas whether John Willis took any and what estate under the surrender, will, and codicil of Jane Collinson. From the report of the proceedings at law, it is clear that the surrenders had been made without a separate examination of the wife, and without the concurrence of the husband. This is left in doubt in the report in Brown, and indeed in the Register Book (Reg. Lib. 1787 A. fo. 694). In the course of the argument for the customary heir (1 H. Bl. 338) the point is taken: It is also to be observed in this case that no special custom of the manors is stated to warrant the surrenders by the wife alone, nor that she was separately examined by the steward according to the general law of copyhold.' That this point was

present to the court is clear from the judgment of Lord Loughborough (1 H. Bl. 340; 2 R. R. 786). He says:

'The several surrenders on the face of them are the surrenders of Jane Collinson as a feme sole: for it is not stated that she was privately examined, nor is any notice taken of her being a feme covert, nor is there any assent, or evidence of assent, on the part of the husband accompanying the surrenders.'

The certificate returned was to the effect that the surrenderee from the wife took an estate to him and his heirs, according to the several customs of the manors.'

The foundation of the judgment of Parker J. in Johnson v. Clark is that the separate examination of a married woman was essential to the validity of her alienation at the common law, and that a custom dispensing with her separate examination was necessarily invalid, but this is a fallacy-see Hargrave's note (171) to I Inst. 121 a. It is true that in Compton v. Collinson Lord Loughborough does not appear to have dealt specifically with the point whether a separate examination was a necessary formality to the alienation by a married woman, but the authorities show that the practice of a separate examination was only to inform the conscience of the court that the married woman was acting as a free agent. Form CCCLVII (5 Rich. I) in Madox, Form. Angl. should, perhaps, be left out of account, for the practice of recording the separate examination on the roll may have arisen after 18 Ed. I; but in the extracts from two recorded fines in the same book (fo. xviii, Diss.) the husbands are stated to have appeared as attorneys for their wives, in which event a separate examination was probably dispensed with. From the Earl of Bedford's Case (1587) 7 Co. 6b, and other cases it appears that if a married woman levied a fine, concealing the fact of her marriage, and consequently without being separately examined, the fine bound her and her heirs, unless the husband entered or survived the wife (see note to Combe v. Mayo, Pollexfen, at p. 171). Apparently these cases were not cited in Johnson v. Clark. As pointed out by Lord Loughborough in Compton v. Collinson, the estate of husband and wife in customary lands differs materially from their common law rights in the lands belonging to either of them. At the common law, the wife's lands vested in husband and wife as tenants by entireties, and as is shown by Combe v. Mayo, Pollexfen, 164, the wife could not defeat the rights of the husband without his consent. So, too, the wife's right to dower could not be defeated at the common law without her consent, and only conditionally by a jointure under the Statute of Uses. In these respects, therefore, the reciprocal rights of husband and wife

in each other's lands recall the proprietary incidents following upon a French marriage 'avec communauté de biens'-see In re de Nicols, de Nicols v. Curlier [1900] 2 Ch. 410. In the case of customary lands, dower or free-bench could only be claimed if warranted by custom. According to the custom, it might extend to the entirety of the husband's lands: Co. Lit. 110; or might be defeated by the husband at his pleasure, Benson v. Scot (1693) 3 Lev. 385; or might be defeated conditionally, Fitzh. Ab. tit. Prescription, pl. 30. So, too, in the case of customary lands, the husband was only entitled to an estate by the curtesy, if there were a custom warranting it. In this connexion one cannot but feel the force of Lord Loughborough's comment (1 H. Bl. 343, 2 R. R. 789):

'It has always appeared to me somewhat arbitrary to condemn a custom because it is not conformable to the general law and policy of the nation. That estates should be holden in some manors by an heiress independent of her husband, is not more singular than in others that the estate should vest in the husband by the intermarriage, which is the case in some manors in Westmoreland.'

With regard to the cases referred to by Parker J., it is to be observed that Skipwith's case may be left out of account, for the reasons stated by the learned judge. The dictum in Needler v. Bishop of Winchester is inconsistent with the decision in Compton v. Collinson. In George v. Jew there had been no customary conveyance by surrender, so that the statement that a custom to bar without surrender or private examination is bad is only a dictum and inconsistent with Compton v. Collinson. In Doe v. Bartle the custom stated in the special case (5 B. & Ald. at p. 494) is a custom enabling a feme covert to pass by her will copyhold lands which have been surrendered to the use of the wife's will, by the husband and wife, the wife being examined by the steward, separate and apart from the husband, and consenting.' It is a pertinent fact that Lord Tenterden and Bayley and Holroyd JJ. rest their decision upon the provision in the custom requiring a separate examination to render the surrender of a married woman valid, and they carefully abstain from saying that Preston's Act could never apply to the will of a married woman; and Lord Wynford, who had recently been called to the bar when Compton v. Collinson was decided, apparently expressed a formal concurrence in the judgment.

That part of the judgment which appears in an abridged form within brackets at p. 319 of [1908] I Ch. is also open to comment. It is stated that his lordship held :

'that the mortgage of June 11, 1891, was never delivered to Clark otherwise than for the purpose of enabling him to raise

money for the benefit of the plaintiff's husband, and was not intended to operate until the money had been raised for this purpose, and therefore that the mortgage could not stand as any security to Clark.'

Now the weight of authority is certainly in favour of holding that a deed cannot be delivered as an escrow if handed over to a grantee see Thoroughgood's case (1612) 9 Co. 137, 1 Co. Lit. 36 a, and n. (3) and the cases there noted—and the qualification which it is suggested in London Freehold & Leasehold Property Co. v. Baron Suffield [1897] 2 Ch. 608 might exist, would have had no application in Johnson v. Clark.

A. E. RANdall.

[With great respect for our learned contributor's argument, there seems to be a material distinction between the present case and Compton v. Collinson. There the husband and wife were living apart under articles of separation, and therefore the Court had no need to be informed by separate examination that she was not acting under his influence.-F. P.]