entered on a declaration showing no cause of action; or of a conviction on an indictment that does not charge the commission of an offense. The proceedings fall for the want of a proper foundation to sustain them. The following cases are in point, if authorities are needed in support of so plain a proposition. In the case of The King v. Overseers of Mallet, 5 Mod. 421, the writ was held till after return made. In The King v. The Margate Pier Company, supra, the defendants were allowed to take advantage of a material defect in the writ, after their return was made. In Clarke v. The Company of Proprietors, supra, it was held by the court of exchequer, that, on demurrer to a traverse of the return to an alternative mandamus, the defendant might impeach the validity of the writ. In the case of The Commercial Bank v. The Canal Commissioners, supra, a demurrer to the return was carried back and sustained to the writ.

It is not necessary to express an opinion on the question whether the trustees are bound to construct and maintain bridges across the canal.

The judgment must be reversed, with costs, against the relators. Judgment reversed.

PETITIONER FOR MANDAMUS MUST SHOW CLEAR LEGAL RIGHT, and no other specific legal remedy: See Commonwealth v. Rosseter, 4 Am. Dec. 451; People v. Brooklyn, 19 Id. 502; King William Justices v. Munday, 21 Id. 604; Ex parte Trapnall, 42 Id. 676; Board of Police v. Grant, 47 Id. 102; Moody v. Fleming, 48 Id. 210; Reading v. Commonwealth, 51 Id. 534, and the notes to those decisions. The petition which takes the place of the alternative writ under the Illinois statutes must set forth all the material facts upon which the petitioner relies, and show a clear right to the relief demanded: School Inspectors v. People, 20 Ill. 531; Commissioners v. People, 66 Id. 342; People v. Glann, 70 Id. 234, all citing the principal case.

MASON V. BROCK.

[12 ILLINOIS, 273.]

MARRIED WOMAN CAN NOT BE Divested of heR REAL ESTATE, except in the mode prescribed by the statute.

CERTIFICATE OF ACKNOWLEDGMENT IS ESSENTIAL PART OF DUE EXECUTION of a deed by which a feme covert transfers her real estate, and unless such certificate is in substantial compliance with the statute, no title passes by the deed.

OFFICIAL SEAL OF NOTARY IS INDISPENSABLE PART OF HIS CERTIFICATE of acknowledgment of a deed, and unless such seal is added the certificate has no validity or efficacy.

NOTARY CAN NOT USE SCRAWL OR PRIVATE SEAL for the purpose of authenti. cating a certificate of acknowledgment. The provision of law permit.

ting certain officers to use their private seals, until they shall be provided with public seals, has no application to a notary. He has to provide himself with an official seal.

AGREED case presented to the court showed that the plaintiff sued on two notes given for the price of certain lots. The defendant relied, for defense, upon want of title at the time of the commencement of the suit. For replication the plaintiff relied upon the fact that a deed, the certificate of the acknowledgment of which is considered in the opinion, had been tendered to the defendant before the institution of the suit. The circuit court rendered judgment for the defendant. The other facts are stated in the opinion.

Henry H. Billings and Lewis B. Parsons, for the plaintiff in

error.

D. A. Smith, for the defendant in error.

By Court, TREAT, C. J. The only question in this case relates to the validity of a deed made by a husband and wife for the purpose of conveying the real estate of the latter. A married woman can only be divested of her real estate in the mode prescribed by statute. The certificate of acknowledgment is an essential part of the due execution of a deed, by which the real estate of a feme covert is to be transferred; and unless it is in substantial compliance with the statute, no title passes: Mariner v. Saunders, 5 Gilm. 113; Hughes v. Lane, 11 Ill. 123 [50 Am. Dec. 436].

The only objection taken to the deed in question is, that the certificate of acknowledgment is not properly authenticated. The conclusion of the certificate is as follows:

"In witness whereof, I have hereunto set my hand and private seal, at Grafton, Jersey county, this 17th May, A. D. 1842—no public seal having been furnished.

"[Seal.]

PARIS MASON, Notary Public." The seal was a mere scrawl. The statute in force when this certificate was made provides that deeds may be proved or acknowledged before "any clerk of a court of record, mayor of a city, or notary public; but when such proof or acknowledgment is made before a clerk, mayor, or notary public, it shall be certified by such officer, under his seal of office:" Rev. L., 1833, p. 138.

In our opinion, the certificate of the notary is fatally defective. The statute imperatively requires it to be under his official seal.

It makes the affixing of the official seal an indispensable part of the certificate. Without the seal, the certificate is incomplete and imperfect. It has no validity or efficacy, unless the seal is added. It might as well be insisted, that a writ of error issued from this court, which was not under the seal of the court, would be valid, as to say that a certificate of acknowledgment by a notary need not be evidenced by his notarial seal. The same authority that requires the process to be under the seal of the court, directs the certificate to be under the official seal of the notary. The courts have no more power to dispense with the requirements of the statute in the one case than in the other. It is only by force of the statute, that the certificate of a notary has any effect, as evidence of the execution of a deed; and the statute requires it to be under the official seal of the officer. A certificate, which is not verified by his seal of office, derives no force or efficacy from the statute.

We can not say that the seal is a mere formality that adds nothing to the dignity or solemnity of the instrument. It is enough that the law positively requires it. The propriety of the requisition rests with the legislature. A notary is empowered to take the acknowledgment of a deed and certify the same under his official seal. He has no power to do it in any other manner. If he has no notarial seal, with which to authenticate his official acts, he is destitute of any authority to certify the acknowledgment of a deed. He must procure an official seal, before the authority conferred on him to take the acknowledgment of deeds attaches. He can not make use of a scrawl or private seal for the purpose of authenticating a certificate of acknowledgment. The provision of law allowing certain officers to use their private seals until they should be provided with public seals, had no application to a notary. He has to provide himself with an official seal. It is not furnished him by the public. The statute is silent as to the form and character of the seal. He may adopt a seal, with such an inscription as his judgment may dictate or his fancy may suggest. It must, however, be capable of making a definite and uniform impression on the paper on which the certificate is written, or on some tenacious substance attached thereto, so that when a question arises as to the genuineness of an authentication, it may be determined by reference to the seal in the possession of the officer.

The judgment of the circuit court is affirmed, with costs.
Judgment affirmed.

SUBSTANTIAL COMPLIANCE WITH STATUTE AS TO FEME COVERT's Ac KNOWLEDGMENT is essential to pass title to her land: See the note to Livingston v. Kettelle, 41 Am. Dec. 179; Den v. Lewis, 47 Id. 338; Hughes v. Lane, 50 Id. 436, and other cases cited in the notes thereto. And generally a married woman's deed is valid only when executed according to statute: See Carr v. Williams, 36 Id. 87; Scott v. Purcell, 39 Id. 453; Purcell v. Goshorn, 49 Id. 448; Lindley v. Smith, 46 Ill. 527, citing Mason v. Brock. That the acknowledgment is an essential part of a married woman's deed, and that strict compliance with the statute relating to acknowledgments is necessary to divest her of her estate, is held, citing and approving the principal case, in Selover v. American Russia Commercial Co., 7 Cal. 275; Leonis v. Lazzarovich, 55 Id. 57; Canal and Dock Co. v. Russell, 68 Ill. 439. Up to the last moment she may retract the execution of the deed: Selover v. American Russia Commercial Co., supra.

OFFICER TAKING ACKNOWLEDGMENT MUST AFFIX OFFICIAL SEAL to give it validity: See the note to Livingston v. Kettelle, 41 Am. Dec. 173.

CASES

IN THE

SUPREME COURT

OF

INDIANA.

ENGLEMAN V. STATE.

[2 INDIANA, 91.]

PAPER IN CAUSE IS CONSIDERED FILED when it is delivered to the clerk of the court to be kept with the papers in the cause.

CAPTION OF INDICTMENT IS SUFFICIENTLY EXPLICIT where it states that the

indictment was found, at a term of the court, by certain men duly impaneled, sworn, and charged as grand jurors in and for the county at that term.

OMISSION OF WORDS "OF OUR LORD" AFTER YEAR NAMED IN INDICTMENT does not make the indictment bad. When a year is mentioned in legislative or judicial proceedings, without naming any other calendar, the Christian calendar is the one that is understood to be used.

INDICTMENT MAY CONTAIN SEVERAL COUNTS CHARGING SAME TRANSACTION in different modes, although the offense charged may amount to a felony; and the prosecutor may give evidence relating to that transaction, and apply it to whichever count of the indictment it will sustain.

PROSECUTOR IS NOT COMPELLED TO ELECT UPON WHAT COUNT HE WILL PROCEED, unless it appears that more than one offense is charged in the indictment.

DESCRIPTION IN INDICTMENT CHARGING LARCENY OF CERTAIN COUNTY ORDERS, which states the amount and value of each order, and that it was drawn by the county auditor on the county treasurer, is sufficient. INDICTMENT FOR LARCENY, WHICH CHARGES FELONIOUS TAKING and carry. ing away of the property, is good, although it does not contain the word "steal."

EVIDENCE THAT STOLEN PROPERTY WAS FOUND UPON DEFENDANT is always admissible in prosecutions for larceny. But the strength of the presumption which it raises against him depends upon all the circumstances surrounding the transaction.

STATE CAN NOT PROVE PARTICULAR ACTS OF BAD CONDUCT against the accused in a criminal prosecution. Proof of his general character only is admissible.