The Act extends, by s. 57, to all matters existing on the 1st of November, 1877, whether proceedings were actually pending or not (x) ; and the Court may, by s. 38, exercise the powers conferred upon it repeatedly in respect of the same property, notwithstanding that the settlement contains similar powers (y), unless the exercise of them is expressly negatived by the settlement (z). But, by s. 39, its power to authorise a sale is limited to the extent to which such power might have been authorised by the settlement. The Court has, under s. 41, full jurisdiction as to costs, which may be charged upon the hereditaments which are the subject of the application, or upon any other hereditaments held under similar limitations, and may be ordered to be raised and paid by sale or mortgage, or out of rents and profits (a).

The Act retrospective.

Section 40 provided that a sale, purporting to be in pursuance of the Act, should not be invalidated, after completion, on the ground that the Court was not authorised to make it;

Purchaser acquires an indefeasible title.

(t) Re "Sexton Barns " S. E., (1862) 10 W. R. 416.

(u) Re Tessyman, (1897) 77 L. T. 484.

(x) See s. 61.

(y) See Re Thompson's S. E., (1859) John, at p. 423; Grey v. Jenkins, (1859) 26 Beav. 351.

(a) Re Peake's S. E., 1893, 3 Ch. 430; 63 L. J. Ch. 109.

(a) Cf. S. L. Act, 1882, s. 47.

But that it should have no effect as against any person whose consent or concurrence was necessary, and had not been obtained, or who ought to have been, and had not been, served, unless service upon him had been dispensed with. Subject to this qualification it would seem that a purchaser, having obtained his conveyance, had an unimpeachable title, notwithstanding formal irregularities, or an excess in the exercise of the jurisdiction (b); but the s. did not preclude him from raising the objection that the Court, in making the order, was exceeding its statutory powers (c). Now, however, under s. 70 of the Conv. Act, 1881, an order of the Court under any statutory or other jurisdiction cannot, as against a purchaser, be invalidated on the ground of want of jurisdiction, or of want of any concurrence, consent, notice, or service, whether the purchaser has notice of any such want or not; and it is especially provided that the s. shall apply to any sale under the 8. E. Act, 1877, notwithstanding the exception in s. 40, or under any of the Acts repealed by the Act of 1877, notwithstanding any exception in them (d).

From the sketch given above of the mode of procedure under the Act, it is obvious that, even in a simple case, it was not always an easy matter to obtain an order for the sale of a settled estate; but the difficulties and expense are greatly increased where, as must nearly always happen, some of the parties interested, whose concurrence or consent is necessary, are under disability. S. 49 of the Act makes provision for this by enacting that, in the case of infants, lunatics, and bankrupts or insolvents, the powers conferred by the Act, and the applications under it, and the consents to, and notifications respecting, such applications may be executed, made, or given by, and all notices under the Act may be given to, their guardians, committees, trustees, or assignees, as the case may be ; but that in the case of an infant, or lunatic tenant in tail, no such application is to be made, or consent or notification given by any guardian or committee, without the special direction of the Court. It has been held, contrary to what was the previous established practice (e), that a testamentary guardian of an infant is not a guardian within the meaning of this section (/) ; nor is the infant's father, although he has no adverse interest (g) ; so that in every such case a guardian must be specially appointed by the Court.

Mode of procedure in cases of disability.

(b) See Re Thompson's S. E., (1869) John. 418, 423; Re Woodcock's Tr, (1868) 3 Ch. at p. 230.

(c) Ib.

(d) See Re Hall-Dare's Contract, (1882) 21 Ch. D. 41 ; 51 L. J. Ch. 671 ; and further, as to the effect of s. 70 of the Conv. Act, 1881, p. 1172.

The practice under s. 49 is now regulated by the Orders of 1878, made under the Act, and is as follows: - The application for the appointment of a guardian must in all cases be made by the petitioner by summons in Chambers (h). If the infant is the petitioner, the petition may be presented by his next friend; and after the petition has been presented and answered, and a guardian appointed, the word "guardian " will be substituted for the words "next friend," and his name for that of the next friend (if they are not the same person); and the guardian will thenceforth carry on the proceedings (7). Where the infant is respondent, the petitioner must apply after presenting the petition for the appointment of a guardian. In either case, whether the infant is petitioner or respondent, the summons must be served on the infant's parent or testamentary or other guardian (if any), unless the Court dispenses with service (k).

As to infants.

Where infant petitioner.

Where respondent.

The special directions required in the case of an infant tenant-in-tail may be obtained by the petitioner on summons ; and the application for them may be combined with the application to appoint a guardian (I). The summons for special directions must be served on the guardian appointed or proposed to be appointed (m) ; and must on the hearing be supported by evidence that it is, and that the guardian believes it to be, proper and consistent with a due regard for the interest of the infant that the special direction shall be given (n).

Where infant tenant-in-tail.

(e) Dan. Ch. Pr. 4th ed. 1811.

(f) Re Robert James, (1868) 5 Eq. 334.

(g) Re Caddick, (1859) 7 W. R. 334. This rule does not seem to have been altered with regard to this Act in spite of the decision of the Court of Appeal in Re Marquis of Salisbury,