she intended to give up her interest in the estates in respect of which such acknowledgment was taken, without having any provision made for her in lieu of or in return for, or in consequence of her so giving up her interest in such estates, and that in answer to such inquiry the said [June] (the married woman) declared that she did intend to give up her interest in the said estates without having any provision made for her in lieu of or in return for, or in consequence of her so giving up such her interest; of which declaration of the said (the mar

ried woman) this deponent has no reason to doubt the truth, and verily believes the same to be true, or (34) declared that a provision was to be made for her in consequence of her giving up such her interest in the said estates. And this deponent lastly saith, that before her acknowledgment was so taken, he was satisfied, and does now verily believe that such provision has been made by deed or writing, or that the terms thereof have been reduced into writing, and that such deed or writing has been produced to the said judge, master or commissioners. And lastly this deponent saith, that it appears by the deed acknowledged by the said [Jane] (the married woman) that the premises wherein she is stated to be interested are described to be in the parish or place of [Dale], (or parishes or places of) [Lambeth] and [Camberwell], in the county of [Surrey] (or counties of [Kent, Surrey, &c.] as the case may be.)

Sworn, &c.

N. B. When the whole of the facts cannot be spoken to by one deponent, variations may be made to enable more than one deponent to state their respective parts of the affidavit.

REGULE GENERALES.

TRINITY TERM, 1834.

IT IS ORDERED, That from and after the last day of this term, where such parts of the affidavit verifying the certificate of acknowledgment taken in pursuance of the late act of Parliament respecting fines and recoveries as state " the deponent's knowledge of the party making the acknowledgment, and her being of full age," (35) cannot be deposed to by a commissioner, or by an attorney or solicitor, the same may be deposed to by some other person whom the person before whom the affidavit shall be made shall consider competent so to do.

EE

And it is further ordered, That where more than one married woman shall at the same time acknowledge the same deed respecting the same property, the fees directed by the said (a) rules to be taken shall be taken for the first acknowledgment only, and the fees to be taken for the other acknowledgment or acknowledgments, how many soever the same may be, shall be one-half of the original fees; and so also where the same married woman shall at the same time acknowledge more than one deed respecting the same property.

And where, in either of the above cases, there shall be more than one acknowledgment, all such acknowledgments may be included in one certificate and affidavit.

In every case, the acknowledgment of a lease and release shall be considered and paid for as one acknowledgment only.

(a) Sic.

NOTES

TO THE

RULES OF THE COURT OF COMMON PLEAS,

Concerning to the Acknowledgment of Deeds by Married

Women.

Michaelmas Term, 1833.

(1) The spaces inclosed within [ ] are left blank in the Acts and Rules. In other respects the Orders and Forms are given as they appear in the printed Act and Rules.

(2) Vide suprà, CHAP. V.

(3) The 84th section prescribes given forms of the memorandum and certificate, " subject to any alterations which may from time to time be directed by the Court of Common Pleas."

(4) See the Form, infrà, with the addition directed by this Order.

a

taking the acknowledgment of

married woman to certify the locality of the

lands.

(5) One of the practical advantages anticipated from the substitu- Remarks on the order requiring tion of a deed acknowledged for a fine or recovery, was the removal Commissioners of the necessity, which the technical forms of the abrogated assurances imposed, of ascertaining the localities of the lands. But though it was necessary to specify the vill, or parish, &c. yet in fact the parcels of a fine or recovery (" 100 messuages, 100 acres of land, &c. in the parish of," &c.) were worthless for the purpose of identification, especially as it was the common practice in the country for several parties to join in the same fine in respect of lands held under distinct titles. The parcels were in fact mere matter of form, errors in which were amendable, and so little importance did the legislature attach to them, that the Fine and Recovery Act, s. 7 and 8, has applied a general remedy to mistakes in parcels. The deed leading or declaring the uses of a fine, or making the tenant to the præcipe in a recovery, was the document resorted to for ascertaining the subject, as well as the object of the assurance. The law did not require the localities or other

The act intended the affidavit to be merely corrobo

ficate.

particulars to be specified in the deed; there a general description was sufficient. Nor does the Fine and Recovery Act contain any such requisition. The new Order, therefore, directing the commissioners to certify the localities, seems to aim at a degree of certainty not attained by the common law, nor contemplated by the legislature. The commissioners are to certify that the "premises" comprised in the "indenture," [the act requires a deed, but not an indenture,] are situate in certain specified parishes or places. Now, all that the commissioners can really certify is, either that they collect from the internal evidence of the deed, (which they must for that purpose peruse,) or that they have been informed that the lands intended to be passed are situate in a certain parish or district. The description in the deed may be general or referential, affording no light whatever upon the subject, rative of the certi and the commissioners have no authority to examine the parties or strangers upon oath, or otherwise, concerning "the premises," or indeed to institute any examination besides the separate examination of the feme covert. It is obvious that in framing this part of the Order several points have been overlooked or not duly considered. 1. The difficulty in many cases, and the impossibility in some, of defining the parish or place in which the premises are situate. Is the word place to be construed by analogy to the rules regarding the parcels of a fine or recovery in which it was requisite to specify the parish or vill, &c.? 2. The fact, that though the perpetual commissioners are appointed for a certain district, (s. 81,) their authority is expressly extended by the act (s. 82,) to women resident, and lands situate without that district, so that a deed for passing lands at Carlisle may be acknowledged by a woman resident in Ireland before commissioners for Truro, who are nevertheless required by the Order to certify the localities, whether the lands be described in the deed or not. 3. The fact that the premises may consist of money to be laid out in land, or of other subjects not having any locality. Such cases must be considered as tacitly excepted out of the order. 4. The fact that there will be no mode of placing on record the localities of the parcels in a disentailing deed, unless they appear upon the deed itself. Even a rigid revival of the forms of the abolished assurances, so far as relates to the parcels, would be preferable to the vagueness of this order.

Additions to the affidavit not warranted by the act.

(6) The act (s. 85,) directs the certificate with "an affidavit by some person verifying the same, and the signature thereof," to be lodged with some officer of the Court of Common Pleas, and it authorises the Court to make orders and regulations touching the matters to be mentioned in the memorandums and certificates, "and the affidavits verifying the certificate;" but it does not appear to authorise the Court to extend the affidavit beyond the verification of the certificate. It

should seem that the affidavit was intended to be a confirmatory, and not an independent document. This addition, therefore, to the affidavit is, in effect, a graft upon the act itself.

(7) It should seem that the acknowledgments of several married of joining several women of the same deed, at least, may be the subject of the same cer- in one certificate, acknowledgments tificate and affidavit; though the Act appears to contemplate a separate &c. memorandum, certificate and affidavit, in respect of every acknowledgment. (a)

be attorney of any

of the parties.

(8) i. e. " of any of the parties in the transaction giving occasion to One of the comthe taking [of] such acknowledgment." These words are a little missioners not to equivocal. The true construction, however, seems to be, that one, at least, of the commissioners must not be concerned as attorney, &c. in the particular transaction to which the deed relates, for any of the parties to that transaction. The fact that a commissioner is not the attorney, &c. can be positively deposed to only by himself.

the feme gives up an interest.

(9) This inquiry assumes that every deed executed by a married Commissioners to inquire whether woman, operates to deprive her of some interest; but the object of the deed may be to destroy an intail and vest the fee in herself, or to secure to her the separate enjoyment and dominion, or otherwise to benefit her; or it may be, and often is, to convey a dry legal estate. The commissioners must, therefore, it should seem, inform themselves, in the first place, whether the effect of the deed is the giving up of an interest or not. (Co. Litt. 353, b.)

(10) Quære," consideration?" The effect of the order is to render Provision, to be a the actual making of the provision a condition precedent to the taking of the acknowledgment.

condition prece. dent.

practicability, the

order directing the commissioners to inquire into marital promises, and

see them fulfilled.

(11) The efficacy of this order as a protection to married women is Considerations on questionable; while the practical inconvenience which must result from it is manifest. The old law contented itself with ascertaining that the act was freely and advisedly done. (18 Edw. I. stat. 4, 2 Inst. 515.) It wisely declined inquiring into private motives and family transactions. Suppose the feme to stand mute on the subject of a provision, or to answer that there was indeed some promise of a provision, but that she is content to rest on such promise, and desirous to acknowledge the deed;-the commissioners cannot, it seems, safely take the acknowledgment. But is there just ground in law or reason for refusing to take the acknowledgment? Is not this to defeat the

(a) But see Rules of Trin. T. 1834.