equity, might, when applied to the former, through the medium of the act, be rendered nugatory: and thus in the administration. of the same identical trust, one law would be established for real, and another for personal estate. The serious consequences which would result, from the adoption of such a construction of the 77th section of the act, as that above noticed, must serve as the Editor's apology for this prolonged discussion, which he now dismisses with the hope, if not with the conviction, that the construction suggested will not meet with any countenance from the profession or the bench. RECOVERY-Tenant to the Præcipe. It has long been an unsettled point whether the tenant to the præcipe in a prior recovery, defective on account of the actual freehold being outstanding, was a necessary party in a new recovery, either as being himself the tenant to the præcipe in such new recovery, or as concurring in the conveyance to a new tenant. The reader will find the subject discussed by Mr. Preston, in his Treatise on Conveyancing, vol. i. p. 90. et seq. He there observes (p. 92.) "But whenever it shall be necessary to support a title, on an adverse litigation, merely on account of the want of such conveyance, it may be contended, (and it would seem with great chance of success) that the former recovery was good, as between the parties; that the estate conveyed to the tenant was drawn out of him, by the operation of the recovery; and that the declaration of the uses governs the legal title as between the parties." 5 Sim. 283. This reasoning was adopted by Sir L. Shadwell, V. C. in a In re Debary, recent case. There estates in Kent had been conveyed unto and to the use of Thomas Charlton and John Charlton, and the heirs and assigns of Thomas; nevertheless as to the estate of John in trust for Thomas, his heirs and assigns. Thomas, by will in 1791, devised his real estates to his son Thomas in tail, and died in 1793. In 1800, Thomas, the son, (without the concurrence of John Charlton, the trustee, who was then living) conveyed the estates to Robert Debary, in fee to make him tenant to the pracipe, for suffering a recovery to enure to the use of Thomas, the son, in fee. Thomas afterwards sold portions of the estates. Richard Debary died in 1826, intestate, leaving four infant sons his co-heirs in gavelkind. Objections having been taken by the purchasers to the recovery in 1808, it was proposed that a new recovery should be suffered by Thomas, the son, (John, the trustee, being then dead.) On a petition by Thomas, the son, and the purchasers under the 11 Geo. 4. & 1 Will. 4. c. 60. a reference was made to the Master to enquire whether the sons of Debary were infant trustees under the Act, who certified his opinion in the negative. Upon a further petition the ViceChancellor concurred with the Master, and declared that no legal estate was vested in the infant co-heirs of Richard Debary, and refused to make any order on the petition: his honour observed, although the recovery did not bar the estate tail, it had the effect of drawing out the legal estate, which was vested in Debary, for the purpose of making him tenant to the præcipe. It may be observed, that this reasoning rests entirely on the proposition that the recovery is voidable, and not void; there seems some ground for contending that as the tenant to the writ had not the freehold, so nothing could be recovered against him, and he could have no recompense in value against the vouchee for what he had lost. It may therefore be urged that the recovery was nugatory, and that the legal fee remained in Debary. The point, however, would seem now to be one rather of speculation than of practical importance, for the 11th section of the 3 & 4 Will. 4. c. 74. remedies the defect above mentioned. See Vol. V. p. 353. (a) GENERAL ORDERS (a) Relating to the Acknowledgment of Dispositions by Married The following General Orders were made in Michaelmas Term, 1833; they are revoked by the orders made in the following Hilary Term, 1334; but as such revocation is with a proviso Infra, p. 23. that it shall not be construed to invalidate any proceedings, which, before the 1st day of March then next ensuing, (1834) shall have been taken pursuant to the direction of the said rules of Michaelmas Term, it was thought proper to insert them here, in reference to dispositions made in the interim between Michaelmas Term, 1833, and Hilary Term, 1834. The Orders of Michaelmas Term, 1833. (b) Whereas by the 48th section of the statute made in the 3d & Fines and reco4th years of the reign of his present Majesty, chapter 74, intituled veries. "An act for the abolition of fines and recoveries, and for the substitution of more simple modes of assurance," the Court of Common Pleas is authorised from time to time, to make alterations in the memorandums and certificates in the said section mentioned. And whereas, by the 89th section of the said act, it is enacted, "That the Lord Chief Justice of the Court of Common Pleas, at Westminster, shall from time to time appoint the person who shall be the officer, with whom, such certificates as in the said act are mentioned, shall, for the time being, be lodged, and may remove him at pleasure; and that the Court of Common Pleas, at Westminster, shall, also from time to time, make such orders and regulations as the said Court shall think fit, touching the mode of examination to be pursued by the Commissioners, to be appointed under the said act, and touching the particular matters to be mentioned in such memorandums and certificates: as therein mentioned, and the affidavits verifying the certificates, and the time within which any of the aforesaid proceedings (a) Referred to Vol. V. p. 117. note. (b) See Moore & Scott, Rep. vol. iii. p. 871. Certificate. One of the commissioners at the concerned for the parties. vit. shall take place." Now it is ordered that in addition to the form of the certificate mentioned in the 84th section of the said act, after stating the names of the parties and the words, “and acknowledge the same to be her act and deed," the following words should be inserted, “and I [or we] do further certify, that the several premises comprised in the said indenture, are situate in the parish [or several parishes] and place [or places] following, that is to say, in the parishes of [as the case may be], in the county of.” And it is further ordered, that, where the acknowledgment least not to be shall be made before Commissioners appointed under the said act, one at least of the said commissioners shall be a person who is not concerned as the attorney, solicitor, or agent, or clerk to the attorney, solicitor, or agent, of any of the parties in the transaction giving occasion to the taking such acknowledgment; and that, in the affidavit verifying the certificate, it shall be Form of affida- deposed, in addition to the verification thereof, that one or more of the persons making such affidavit, 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, is not the attorney, solicitor, or agent, or clerk to the attorney, solicitor, or agent, of any of the said parties; 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 mentioned in such affidavit. And it is further ordered, that the Commissioners do enquire of married women, whether they intend to give up their interest in the estate to be passed by such deed, without having any provision made for them in return for, or in consequence of their so giving up such interest; and if it appears that any provision is to be made for any such married woman, they shall not take her acknowledgment until they are satisfied that such provision has been actually made; and one of the said Commissioners shall state in the affidavit so to be made as aforesaid, that such inquiry was made, and also the answer given thereto; and where any such provision has been agreed to be made, that he the said Commissioner is satisfied that the same has been made; and where such married woman, in answer to such in quiry, shall declare that she intends to give up her interest without any provision, that he, the said Commissioner, has no reason to doubt the truth of such declaration, and verily believes the same to be true. And it is hereby further ordered that the affidavits verifying Affidavits verifysuch certificate, where the acknowledgment is taken by a Judge ing certificates. or Master in Chancery, be in the form hereunto annexed, marked A.; and where, before any of the Commissioners appointed in pursuance of the said act, in the form hereunto annexed, marked B., with such variations only as the circumstances of the case shall render necessary. Certificates and affidavits to be delivered within one month to the proper offi And it is hereby further ordered, that the certificates and the affidavits verifying the same, shall be delivered to the officer to be so appointed within one month from the making the acknowledgment, and that the officer shall not receive the same after cer. that time, without the direction of the Court or a Judge. A. Form of Affidavit verifying the certificate where the acknowledgment is taken before a Judge or Master in Chancery. A. B. of maketh oath and saith, that he knows, the wife of, in the certificate hereunto annexed, mentioned; and that the acknowledgment therein mentioned was made by the said, and the said certificate signed by the said [Judge or Master,] therein mentioned, in the presence of this deponent. And this deponent further saith, that the said was at the time of making such acknowledgment, of full age and competent understanding. B. Form of Affidavit verifying the certificate where the acknowledgment is taken by any of the Commissioners appointed in pursuance of the Act of Parliament. A. B. of, in the county of gentleman, one of the attorneys of his Majesty's Court of, at Westminster, |