stated that the person on whose behalf the application was made was speechless; the court refused to grant the application without an affidavit that the married woman herself had been examined. (Re Williams, 2 Scott, N. R. 120; 1 Man. & G. 881; 9 Dowl. P. C. 72.) The court will not dispense with the affidavit of the married woman herself. (Ex parte Bruce, 9 Dowl. P. C. 840.) The court refused to act upon an affidavit merely stating that the parties were living apart by mutual consent, but required an affidavit showing that an application had been made to the husband to execute the deed, and that he had refused to do so. (Ex parte Trenery, 1 C. B., N. S. 187.) The court will not permit a married woman to execute a conveyance under this section without the concurrence of her husband, where he had refused to concur, upon an affidavit merely stating that the wife had left her husband in consequence of his violence, and was living apart from him. (Re Price, 13 C. B., N. S. 286.) In addition to an affidavit that the parties were living apart by mutual consent, and that the husband had been applied to but had refused to execute the conveyance, the court required an affidavit negativing the wife's receipt of any allowance from her husband. (Ex parte Fish, 9 C. B., N. S. 715; Re Carburton, 16 W. R. 84; Re Fletcher, 17 W. R. 319; Ex parte Robinson, L. R., 4 C. P. 205.) An order to enable a married woman to make a conveyance of her property without her husband's concurrence, cannot be made without an affidavit from her negativing any communication from him. But where a delay until the following term would have caused great inconvenience to the parties, the court gave directions for the order to be drawn up in vacation, on the production of an affidavit. (Re Horsfall, 3 Man. & G. 132.) The affidavit is sufficient if sworn (where the party is residing abroad) before an officer, whom the certificate of a notary public certifies to be a person empowered by law to take affidavits. (Re Schiff, 1 Dowl. & L. 911.) An affidavit describing the wife as "widow" is informal. (In re Noy, 7 Scott, N. R. 434.) The court declined to receive an affidavit in which she was described as "wife or widow." (Re Anderson, 2 C. B., N. S. 811.) The affidavit must describe the deponent " as the wife of, &c.," even though circumstances are disclosed, showing a well-grounded belief that the husband is dead. ( (Ex parte Sparrow, 12 C. B. 334.) Where the affidavit referred to an order of protection which the wife had obtained from a magistrate, and the original probate of the will under which she claimed, both of which were made "annexes" instead of exhibits, the court held (on an application for leave to disannex them before filing the affidavit) that the documents must be filed with the affidavit, or a fresh affidavit made and the application renewed. (Re Mary Firth, W. N. 1872, p. 220.) The affidavit must contain the addition or description of the husband. (Re Gardner, 1 C. B., N. S. 215.) The following form of rule to dispense with the husband's concurrence in the conveyance of property, to which the wife alone was entitled, was made in Ex parte Duffill, 5 Man. & G. 378; 6 Scott, N. R. 30:-"It is ordered that the said Ann Tanner Duffill be at liberty, by deed or surrender, to dispose of, release, surrender or extinguish all her estate and interest of and in the hereditaments and premises in the said affidavit mentioned, to such person or persons as she may think fit, without the concurrence of her said husband, it appearing to the court, by the said affidavit, that the said Henry Holland Duffill is living apart from his said wife by sentence of divorce." (Ib.) 3 & 4 Will. 4, c. 74, 8. 91. Form of rule to dispense with husband's concurrence. XVIII. IRELAND. 92. This act shall not extend to Ireland, except where the Ireland. same is expressly mentioned (g). (g) By 4 & 5 Will. 4, c. 92, the provisions of this act have been extended 3 & 4 Will. 4, c. 74, 8. 92. to Ireland, with the omission of sections 4, 5 and 6 (ante, pp. 309, 310), relating to lands held by ancient demesne, and sections 50, 51, 52, 53, 54 (ante, pp. 350-353), 66, 76, 90, relating to copyholds (see ante, pp. 361, 368, 395). The other variations between the two statutes have been already noticed. (See ante, pp. 297, 320, 325, 341, 363, 364, 367, 369.) The clauses in 4 & 5 Will. 4, c. 92, with respect to the disposition of estates tail under bankruptcies, are extended to proceedings under the Irish Bankrupt and Insolvent Act, 1857, 20 & 21 Vict. c. 60, s. 340. This act applies to lands locally situate in the town of Berwick-uponTweed. (6 & 7 Will. 4, c. 103, s. 6.) General Rules of Hilary Term, 1834. Rules of Michaelmas Term, 1833, revoked. One commissioner be interested in the transaction. ORDERS OF THE COURT OF COMMON PLEAS, MADE IN PUR- "WHEREAS it has been found expedient to make alterations in the General Rules made in Michaelmas term last by this Court, for the purpose of carrying into effect the statute passed in the 3rd and 4th years of the reign of his present Majesty, cap. 74, intituled An Act for the Abolition of Fines and Recoveries, and for the substitution of more simple modes of Assurance;' "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: I. "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 1st day of March next ensuing, shall have been taken, pursuant to the direction of the said Rules of Michaelmas term last (a). (a) For these rules, see 9 Bing. 443. II. "AND IT IS HEREBY FURTHER ORDERED, that, where any acknowat least must not ledgment 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 (b). Inquiry to be made of married woman separately (b) See the note to sect. 79, ante, p. 383. III. "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 to such one of them as aforesaid, that it is intended that provision is to be made for any such married woman, then the commissioners shall not take her acknowledgment until they are satisfied that such provision 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 3 & 4 Will. 4, foot or at the back thereof (c). (c) Where property is sold under the compulsory provisions of an act of parliament, this rule is inapplicable. (Re Foster, 7 C. B. 120.) Where the amount of the consideration which forms the inducement for a married woman to give up her interest in an estate was too small (407.) to form the subject of a settlement, and the arrangement was that the amount should be paid to the wife, the court allowed the acknowledgment to be registered. (Ex parte Webber, 5 C. B. 179.) Where the consideration money is to be paid into the hands of a married woman, the commissioner should distinctly ascertain from her that she wishes to pass her property without any provision being made for her. (Re Dowling, 18 C. B., N. S. 223.) The court refused to allow a certificate of acknowledgment by a feme covert to be filed, where it appeared from her answers to the inquiry of the commissioner as to whether she intended to give up her interest in the estate without any provision being made for her in lieu thereof, that the consideration for her consent was a provision made for her by her husband's will, although it was shown by another affidavit that she perfectly understood that to be no provision, inasmuch as the will was revocable. (Re Dixon, 4 C. B. 631.) The officer is justified in declining to receive and file an acknowledgment of a deed by a married woman, conveying her interest in property, where a provision is made for her in lieu of such her interest, and the commissioner merely certifies that the deed declaring the trusts of that provision "has been already engrossed, and was produced before him;" and the court will not make any order on the subject until they are satisfied that the deed has been duly executed. (Re Dallas, 10 C. B., N. S. 346; 30 L. J., C. P. 282.) IV. " 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) be made by some practising attorney or solicitor of one of the courts at Westminster, or of one of the counties palatine of Lancaster or Durham: 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; and that one at least of the commissioners taking such 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 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 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 had 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) commissioners (d). (d) The affidavit must state that the acknowledgment was made before two duly appointed commissioners, one of whom was not interested in the transaction for which the acknowledgment was required. (Re Kay, 19 L. T., N. S. 356.) The affidavit may be made by one of the commissioners S. D D c. 74. Contents of affldavit verifying the certificate. 3 & 4 Will. 4, who took the acknowledgment, if he be a practising attorney, and the other c. 74. commissioner has no interest in the matter. (Re Scholfield, 3 Bing. N. C. 293.) Where, however, one of two commissioners was interested and had taken no part in the examination of a married woman, and the other commissioner died without having made the affidavit, the court refused to allow the certificate of acknowledgment to be filed. (Ex parte Menhennett, L. R., 5 C. P. 16.) Affidavit must state parish, &c. Form of affidavit: Commissioner may make affldavit. Certificates and affidavits to be lodged with officer Where under the circumstances it was impossible to obtain affidavits in accordance with these rules, and the affidavits which had been obtained did comply with all the provisions of 3 & 4 Will. 4, c. 74, the court ordered the certificate of acknowedgment and the affidavits to be filed. (Re Parker, L. R., 5 C. P. 424.) V. "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. VI. " 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 variations in the form thereof as shall be necessary in that behalf (e). (e) Forms of affidavits will be found in the Appendix. See General Rules, Trin. T. 1834, Rule I., and General Order, 24 Nov. 1862, pp. 403, 404, post. VII. "AND IT IS HEREBY FURTHER ORDERED, that the certificates and affidavits verifying the same shall, within one month from the making the within one month, 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 (ƒ). Fees. (f) The court allowed a certificate and affidavit to be filed after a lapse of six years, where the failure to comply with this rule arose from inadvertency, and the property had been so dealt with in the interim that no one could be prejudiced thereby. (Re Edge, L. R., 1 C. P. 533; see also Re Warne, 15 C. B. 767, ante, p. 390.) VIII. " 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 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 (g). To a judge or master, for taking the acknowledgment of every To the two perpetual commissioners for taking the acknowledg £ s. d. 1 6 8 1 6 8 To each commissioner when required to go more than one mile, To each commissioner where the distance required shall exceed 1 1 0 220 0 1 0 .0 50 To the same for every further complete number of 50 names, an additional To the officer for every search £ 8. d. 3 & 4 Will. 4, 026 0 1 0 0 050 026 0 15 0 To the same for every official copy of the certificate c. 74. IX. "AND IT IS HEREBY FURTHER ORDERED, that the fees and charges Fees as to copyto be paid for the entries of deeds, required by the said act to be entered on holds. 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 pro- For taking the consent of each protector of settlement of lands General Rules of 1834. The following additional Rules were made in Trinity Term, 1834:I. "IT IS ORDERED, that from and after the last day of this term, where Trinity Term, 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,' 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. II. "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 rules to be taken shall be taken for the first acknowledgment only. III. "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. |