"AND WHEREAS it is necessary to make orders touching the amount of the reasonable fees and charges to be taken by the several persons appointed to carry the powers of the said act into execution; and it will be convenient that all the orders and regulations made by the Court under the said act should be contained in the same rule: "Now IT IS HEREBY ORDERED, that the said general rules be, and the same are hereby revoked: Provided that this present rule shall not be construed in any respect to invalidate any proceedings which before the first day of March next ensuing shall have been taken pursuant to the direction of the said rules of Michaelmas Term last. "AND IT IS HEREBY FURTHER ORDERED, that where any acknowledgment shall be made by any married woman of any deed under and by virtue of the said act, before commissioners appointed under the said act, one at least of the said commissioners shall be a person who is not in any manner interested in the transaction giving occasion for such acknowledgment, or concerned therein as attorney, solicitor, or agent, or as clerk to any attorney, solicitor, or agent so interested or concerned (231). "AND IT IS FURTHER ORDERED, that, before the commissioners shall receive such acknowledgment, they, or in case one of them shall be interested or concerned as aforesaid, then such one of them as shall not be so interested or concerned, do inquire of every married woman separately and apart from her husband, and from the attorney or solicitor concerned in the transaction, whether she intends to give up her interest in the estate to be passed by such deed, without having any provision made for her in lieu of, or in return for, or in consequence of her so giving up such interest; and where such married woman in answer to such inquiry shall declare that she intends to give up such her interest without any provision, and the said commissioners shall have no reason to doubt the truth of such declaration, and shall verily believe the same to be true, then they shall proceed to receive the said acknowledgment; but if it shall appear to them or REG. GEN. HIL. T. 1834. (231) The act empowers the Chief Justice to appoint perpetual commissioners, removable at his pleasure; but it is questionable whether, after the appointment of a commissioner, the Court has authority to abridge or qualify his competency to execute his office, by imposing the condition of his not being interested or concerned as attorney, &c. The commissioners are not the officers of the Court to execute its process, but public functionaries to fulfil the purposes of a legislative change in the general law. The commissioner, once appointed, must take his instructions from the statute, varied by such orders only of the Court of Common Pleas as are warranted by the statute. Competency duty, and respons ibility of perpetual commissioners. REG. GEN. to such one of them as aforesaid, that it is intended that provision is HIL. T. 1834. to be made for any such married woman, then the commissioners shall not take her acknowledgment until they are satisfied that such pro. vision has been actually made by some deed or writing produced to them, or if such provision shall not have been actually made before, then the commissioners shall require the terms of such intended provision to be shortly reduced into writing, and shall verify the same by their signatures in the margin, at the foot, or at the back thereof. "AND IT IS HEREBY FURTHER ORDERED, that the affidavit verifying the certificate to be made pursuant to the said act, and which certificate shall be in the form contained in the said act, shall (except in such cases where the acknowledgment shall be taken elsewhere than in England, Wales, or Berwick-upon-Tweed (232)), be made by some practising attorney or solicitor of one of the Courts at Westminster, or one of the Counties Palatine of Lancaster or Durham (233), and that in all cases it shall be deposed, in addition to the verification of the said certificate, that the deponent [or, if more than one person join in the affidavit, that one or more of the deponents] knew the person or persons making such acknowledgment; and that, at the time of making such acknowledgment, the person or persons making the same was or were of full age and competent understanding (234); and that one at least of the commissioners taking such Berwick-upon- Affidavit. Feme covert, infant, or non compos. (232) The writer has received a communication from an able provincial counsel, which contains the following passage: "In the borough of Berwick-upon-Tweed, they have never had fines or recoveries-married women have passed and barred their estates and rights by deeds acknowledged in their local courts, and estates tail have been barred by feoffment and re-enfeoffment, [So, in the Isle of Man, by sale and resale.] There was, in fact, no cursitor for Berwick-does the act apply to lands in Berwick? The chief justice has appointed commissioners, there being, I assume, a clerk of the peace. May a feme covert pass her lands in Scotland under the act? (see ss. 77, 82). Impossible!" (233) By a subsequent part of the rule, one of the commissioners is allowed to make the affidavit; but if the acknowledgment be taken before a judge or master, or if neither of the commissioners will swear, then a practising attorney or solicitor, who can and will swear, must be present. (234) Why should not the acknowledgment be taken without proof of full age and sound mind?-valeat quantum. The most serious injury and inconvenience may arise from requiring evidence of these facts, while none can arise from dispensing with such evidence; for if either fact be at any time disproved, the deed itself will be void. It is not enough that the married woman is of full age and competent understanding at the time of the acknowledgment; she must have been so at the time of the previous act of delivering the deed, unless the acknowledgment would amount to a delivery. (Vide post, n. 241). acknowledgment, to the best of his deponent's knowledge and belief, is not in any manner interested in the transaction giving occasion for the taking of such acknowledgment, or concerned therein as attorney, solicitor, or agent, or as clerk to any attorney, solicitor, or agent so interested or concerned; and that (235) the names and residences of the said commissioners, and also the place or places where such acknowledgment or acknowledgments shall be taken, shall be set forth in such affidavit; And that previously to such acknowledgment being taken, the deponent (236) had inquired of such married woman, (or, if more than one, of each of such married women), whether she intended to give up her interest in the estate to be passed? and also the answer given thereto; and where any such married woman, in answer to such inquiry, shall declare that she intends to give up her interest without any provision, the deponent shall state that he has no reason to doubt the truth of such declaration, and he verily believes the same to be true. And where any provision has been agreed to be made, the deponent shall state that the same has been made by deed or writing, or, if not actually made before, that the terms of the intended provision have been reduced into writing, which deed or writing he verily believes has been produced to the said (judge, master or) commissioner. "AND IT IS HEREBY FURTHER ORDERED, that the affidavit shall state the parish or several parishes, or place or several places, and the county or counties in which the several premises wherein any such married woman shall appear to be interested, shall by deed be described to be situate (237). REG. GEN. HIL. T. 1834. (235) The text reads as if the deponent were required to swear, "that the names &c. shall be set forth" &c. The sense or intention of the paragraph may be collected; but where so many facts are required to be positively sworn to, more than ordinary perspicuity and precision seem to have been demanded. Correction of the text of the new (236) This part of the rule supposes the affidavit to be made by an indifferent Affidavit. practising attorney or solicitor, and requires him to depose that he ("the deponent") has made the inquiry which the previous part of the same rule had expressly ordered to be made by the commissioners, or one of them. The error is repeated in the form of the affidavit. It should seem, that where the affidavit is not made by one of the commissioners, the parties must call in a practising attorney or solicitor, not concerned in the transaction, to hear the provision question put, and receive the answer. The certificate and affidavit should always be made at the time, lest any accident should befall the commissioner or the attorney. (237) In point of construction, this passage must, it is presumed, be confined to Parcels. the "premises," and the "deed” immediately in question, though its literal terms' are more comprehensive. The Court requires, in effect, that the parcels shall be set out in the deed. Consider the consequence! A. devises "all his real estates" to REG. GEN. HIL. T. 1834. "AND IT IS HEREBY FURTHER ORDERED, that the affidavit shall be in the form hereunto annexed, subject to such variations as the circumstances of the case shall render necessary; or such affidavit may be made, where it is found convenient, by one of the said commissioners, with such variation in the form thereof as shall be necessary in that behalf. "AND IT IS HEREBY FURTHER ORDERED, that the certificates and affidavits verifying the same shall, within one month (238) from the making [of] the acknowledgment, be delivered to the proper officer appointed under the said act; and that the officer shall not after that time receive the same without the direction of the Court or a judge. "AND IT IS HEREBY FURTHER ORDERED, that the fees or charges to be paid for the copies to be delivered by the clerks of the peace, or their deputies, or by the officer of the said Court, and for taking acknowledgments (239) of deeds, and for examining married women, and for the proceedings, matters, and things required by the said act to be had, done, and executed, for completing and giving effect to such acknowledgments and examinations, shall be as follows: To a judge or master for taking the acknowledgment of .... To each commissioner, when required to go more than To each commissioner, where the distance required shall £ s. d. 1 6 8 1 6 8 110 B., a married woman, and dies; B. is anxious to make an immediate settlement, but the localities of the estates must first be ascertained, and while this inquiry is going on, B. dies. (238) i. e. a lunar month. The act adopts calendar months. (239) See Rules of Trinity Term, 1834. To the clerk of the peace, or his deputy, for every search To the same, for every copy of a list of commissioners, provided such list shall not exceed the number of 100 names To the same, for every further complete number of 50 names, an additional .... To the officer, for every search.... To the same, for every official copy of the certificate To the same, for every further complete number of 50 To the same, for preparing every special commission, including a fee of 58. to the clerk of the chief justice or other judge for the fiat ..... To the same, for examining the certificate and affidavit, and filing and indexing the same, as required by the said act of the 3rd and 4th Will. 4, c. 74 22 "AND IT IS HEREBY FURTHER ORDERED, that the fees and charges to be paid for the entries of deeds, required by the said act to be entered on the court rolls of manors, and for the indorsements thereon, and for taking the consents of the protectors of settlements of land held by copy of court roll, where such consents shall not be given by deed, and for taking surrenders, by which dispositions shall be made under the said act by tenants in tail of lands held by copy of court roll, and for entries of such surrenders, or the memorandums thereof, on the court rolls, shall be as follows: For the indorsements on the deed of the memorandum of production and memorandum of entry on court For the entries on the court roll of deeds, and the in- For taking the surrender by each tenant in tail of lands.. |