Monday, Jan. 11th. An affidavit verifying the certificate of acknowledgment by a married woman under the 3 & 4 Will. 4, c. 74, cannot be received if sworn in Ire land before a commissioner for taking affidavits in the Common Pleas in Ireland: it must be sworn before a commissioner of this court. In re ANDERSON's Acknowledgment. By the 3 & 4 Will. 4, c. 42, s. 42, it is enacted “that the Lord High Chancellor, lord keeper, or lords commissioners of the great seal, the superior courts of law at Westminster, and the several judges of the same, shall have such and the same powers for granting commissions for taking and receiving affidavits in Scotland and Ireland to be used and read in the said courts respectively, as they now have in all and every the shires and counties within the kingdom of England, and dominion of Wales, and town of Berwick-upon-Tweed, and the Isle of Man, by virtue of the statutes now in force." By the act for the abolition of fines and recoveries, 3 & 4 Will. 4, c. 74, s. 79, it is enacted "that every deed to be executed by a married woman for any of the purposes of that act, except such as may be executed by her in the character of protector for the sole purpose of giving her consent to the disposition of a tenant in tail, shall, upon her executing the same, or afterwards, be produced or acknowledged by her as her act and deed before a judge of one of the superior courts at Westminster, or a master in chancery, or before two of the perpetual commissioners, or two special commissioners, to be respectively appointed as thereinafter provided." By section 81, it is enacted, "that, for the purpose of providing convenient means of taking acknowledgments by married women of the deeds. to be executed by them as aforesaid, the Lord Chief Jus tice of the court of Common Pleas at Westminster shall from time to time appoint such proper persons as he shall think fit, for every county, riding, division, soke, or place for which there may be a clerk of the peace, to be perpetual commissioners for taking such acknowledgments, and such commissioners shall be removeable at the pleasure of the said Lord Chief Justice; and lists of the names of such commissioners for the time being, with the names of their places of residence, and the counties, ridings, divisions, sokes, or places for which they shall be respectively appointed to act, shall from time to time be made out and kept by the officer of the court of Common Pleas at Westminster with whom the certificates of the acknowledgment of married women are to be lodged as thereinafter mentioned," &c. And by section 83, "that, in those cases where, by reason of residence beyond seas (a), or ill health, or any other sufficient cause, any married woman shall be prevented from making the acknowledgment required by this act before a judge or a master in Chancery, or any of the perpetual commissioners to be appointed as aforesaid, it shall be lawful for the court of Common Pleas at Westminster, or any judge of that court, to issue a commission specially appointing any persons therein named to be commissioners to take the acknowledgment by any married woman to be therein named of any such deed as aforesaid," &c. By section 84, the form is given of a memorandum and certificate of the taking of the acknowledgment to be signed by the person taking the acknowledgment (with power to this court from time to time to alter the form of the memorandum (b); which certificate, together (a) As to whether Ireland is for the purposes of this act beyond the seas, see the judgment of this court in Battersby v. Kirk, post. (b) The 89th section of the 3 & 4 Will. 4, c. 74, further enacts "That the court of Common Pleas at Westminster shall also 1836. In re ANDERSON. 1836. In re ANDERSON. with an affidavit by some person verifying the same and the signature thereof by the party by whom the same shall purport to be signed, is, by s. 85, required to be lodged with the proper officer of this court-" and such officer shall examine the certificate, and see that it is duly signed, either by some judge or master in Chancery, or by two commissioners appointed pursuant to this act, and duly verified by affidavit as aforesaid, and shall also see that it contains such statement of particulars as to the consent of the married woman as shall from time to time be required in that behalf; and, if all the requisites in this act in regard to the certificate shall have been complied with, then such officer shall cause the said certificate and the affidavit to be filed of record in the said court of Common Pleas." In this case the affidavit verifying the certificate of acknowledgment taken in pursuance of the act, was sworn in Ireland, not before a commissioner appointed for taking affidavits in this court, there having been no such commissioners appointed for Ireland under the 3 & 4 Will. 4, c. 42, s. 42; but before a commissioner for taking affidavits in the court of Common Pleas in Ireland (c). Mr. Sherwood, the officer appointed by the court to file the certificates and affidavits under the 89th section of the 3 & 4 Will. 4, c. 74, having declined to receive the certificate and affidavit in question, on the ground that the latter was not sworn before a person properly qualified particular matters to be men- of the affidavit of verification now in use, which is required to be made "by some practising attorney or solicitor, and to be sworn before a judge of the court of Common Pleas, or a commissioner appointed for taking affidavits in the said court." (c) See Sharp v. Johnston, ante, p. 405. Kaye moved that he might be directed to file them.-It appeared that the party resided at the distance of upwards of one hundred miles from Dublin. Kilby v. Stanton, 2 Y. & J. 75, where an affidavit sworn before a commissioner of the Court of Exchequer in Ireland was permitted to be read in the Exchequer Chamber here, was cited and relied on. TINDAL, C. J.-The statute and the rules of court made in pursuance thereof require the affidavit of the taking of the acknowledgment to be sworn before a judge of this court or a commissioner appointed for taking affidavits in this court. The affidavit in this case is a mere nullity: perjury could not be assigned upon it (d). If there is no commissioner for taking affidavits to be used in this court in the neighbourhood of the party's residence, any proper person who applies will have a commission granted to him. The rest of the court concurring (d) In Rex v. Verelst, 3 Camp. 432, it was held, that, upon an indictment for perjury before a surrogate, the fact of the person who administered the oath having Kaye took nothing. acted as a surrogate, is sufficient 1836. In re ANDERSON. J. S. being possessed of an equitable estate in certain property, by indenture dated in 1762, demised a portion thereof to K. for ninetyeight years at the yearly rent of 51., and by another inden ture of the same date demised other part of the premises to K. for the like term and at the like rent. J. S., having after WHITTON V. PEACOCK and Another. By order of the Master of the Rolls, the following case was submitted for the opinion of this court: The parcels of land, called Hornsey Lane Field, comprised in the leases hereinafter stated, were copyhold of inheritance of the manor of Hornsey in the county of Middlesex. Before the 15th of March, 1755, Elizabeth Benett, who held the said premises to her and her heirs, died seised thereof, having made her will dated the 18th of June, 1753, whereby she gave and devised all the residue of her estate of what nature or kind soever (under which devise the premises in question were included) unto her nephew Benett Garrard; but the said E. Benett did wards acquired not surrender the said premises to the use of her will, or the legal estate, make any surrender whatsoever. At a court holden for by indenture dated in 1773- the said manor on the 15th of March, 1755, the said reciting the two indentures of Benett Garrard was admitted tenant, to hold unto the said 1762, and that Benett Garrard, his heirs and assigns for ever, at the will the parties had come to a furof the lord, according to the custom of the said manor. ther agreement respecting the At the same court the said Benett Garrard, surrendered property wherethe same premises to the use of Bendall Martyn, his heirs by they had agreed that K. and assigns, according to the custom of the said manor; should have the whole of the and the said Bendall Martyn was admitted tenant and surpremises leased rendered the same to the use of his will. On the 11th of to him at the yearly rent of March, 1761, the lord of the said manor granted a licence to the said Bendall Martyn to demise the said premises from Christmas then last, for the term of ninety-nine years, less term. Before the 13th of April, 1762, the any should remain, said Bendall Martyn died, seised of the premises; and by 107. only; but, instead of cancelling the two several leases already granted of part, they and another lease be granted or for of the residue of the property at the ground-rent of 107., which rent should be considered the same as the two several rents of 57. each so reserved by the leases of 1762; and that notwithstanding such several réservations no more than 107. per annum in the whole should be payable for the entire premises-demised to K. the whole of the premises except such parts as had already been demised to him by the indentures of 1762, for the same term; K. covenanting for himself, his executors, administrators, and assigns, to pay the rent and keep the premises in repair:— Held, that the assignee of the reversion could not maintain an action of covenant against the assignees of K. for breach of the covenants contained in either of the leases of 1762. |