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COUNTRY ATTORNIES WITH RESPECT TO
In what Cases Deed executed by a married Woman must be acknowledged-Before whom-Enactment as to perpetual Commissioners-In what Places they may act-Special Commissioners-Examination of married Woman-Memorandum of Acknowledgment-Certificate of Acknowledgment, &c.-Affidavit thereof, and as to filing Certificate and Affidavit-Power of Court of Common Pleas to make Rules to regulate Mode of Examination, &c.-Rules made in persuance thereof-PRACTICAL DIRECTIONS-Memorandum on Deed-Certificate of Commissioners-Examination of the married Woman-Modes of Examination, and of taking the Acknowledgment under various Circumstances-As to the Affidavit of Acknowledgment, &c.—Within what Time Certificate and Affidavit must be filed-Special Commission to take Acknowledgment in England or Wales-The like where Acknowledgment to be taken out of the Kingdom-Fees payable to perpetual Commissioners-Other Fees payable under Rules of Court.
It is not within the object of this work to enlarge on the cases in which a deed executed by a married woman must be acknowledged under the provisions of the act for the abolition of fines and recoveries; but as one of the sections of the act sets them out comprehensively, it will not be improper to give the substance of that section here. The act is the 3 & 4 Will. 4, c. 74; and by section 77 it is enacted, that, after the 31st day of December, 1833, it shall be lawful for every married woman in every case,
except that of being tenant in tail, for which provision is made by a former part of the act (a), by deed to dispose of lands of any tenure, and money subject to be invested in the purchase of lands, and also to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband, in her right, may have in any lands of any tenure, or in any such money as aforesaid; and also to release or extinguish any power which may be vested in, or limited or reserved to her in regard to any lands of any tenure, or any such money as aforesaid, or in regard to any estate in any lands of any tenure, or in any such money as aforesaid, as fully and effectually as she could do if she were a feme sole; save and except that no such disposition, release, surrender, or extinguishment shall be valid and effectual unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as by the act afterwards directed and it is provided that the act shall not extend to lands held by copy of court roll, of or to which a married woman, or she and her husband in her right, may be seised or entitled for an estate at law, in any case in which any of the objects to be effected by that clause of the act could, before the passing of the act, have been effected by her in concurrence with her husband, by surrender into the hands of the lord of the manor, of which the lands may be parcel.
Where a deed must be acknowledged by a married woman under the act, it is required by sect. 79, that the deed shall, upon her executing the same, or afterwards, be produced and 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 re
(a) By sect. 40, a disposition of lands by a married woman, tenant in tail, must be by deed, with the concurrence of her husband; and the deed must be acknowledged under the act.
spectively appointed as afterwards provided by the
The judges of the superior Courts at Westminster, and the Masters in Chancery, are therefore (so to express it) commissioners ex officio; but the perpetual commissioners are, by virtue of sect. 81, appointed by the Lord Chief Justice of the Court of Common Pleas, and are appointed for every county, riding, division, soke, or place for which there is a clerk of the peace, and they are removable by and at the pleasure of the Lord Chief Justice. Lists of the names of the perpetual commissioners for the time being, with the names of their places of residence, and the counties, ridings, divisions, sokes, or places for which they are appointed to act, are from time to time to be made out and kept by the officer of the Court of Common Pleas, with whom the certificates of the acknowledgments are lodged; and he is from time to time to transmit to the clerk of the peace for each county, &c. or his deputy, a copy of the list of the county, &c. for which he is clerk of the peace, and any person applying for it is entitled to a signed copy of the list from the officer of the Court, or the clerk of the peace; for which, however, a fee of five shillings or more, according to the number of names, is payable.
The authority of the judges of the superior Courts, and of the Masters in Chancery, is conferred upon them by the act, and is not confined within any particular district; they may, therefore, receive acknowledgments wherever they may happen to be; but a perpetual commissioner is appointed only for a particular county or district, and he has no authority to take any acknowledgment out of the bounds of that county or district. reference to this subject, there is frequently a misapprehension of the meaning of the 82nd section of the act; which provides and enacts, that any person appointed commissioner for any particular county, riding, division, soke, or place, shall be competent P 2
to take the acknowledgment of any married woman wheresoever she may reside, and wheresoever the lands or money in respect of which the acknowledgment is to be taken may be. Now the object and meaning of this section is not (as is often supposed) that the commissioner is to have power to act in any other county, &c. than that for which he is appointed; but to empower him to act in that county, &c. though the residence of the married woman, and though the lands or money in respect of which she is acknowledging the deed, be in a different county, &c. The section seems to have been introduced with a view to meet any doubt which might have arisen, whether the commissioner would have had power to act if the residence of the married woman, or the lands in respect of which the acknowledgment was taken, were not in the county, &c. for which he was appointed.
I believe the perpetual commissioners are all in practice appointed from the legal profession; but there is no restriction in this respect in the act; the Lord Chief Justice being empowered to appoint "such proper persons as he shall think fit;" and therefore such circumstances of inconvenience might possibly exist, as would induce the Lord Chief Justice to appoint a person not of the legal profession a commissioner.
Where, by reason of residence out of England, or ill health, or any other sufficient cause, a married woman is prevented from making the acknowledgment before a Judge, or Master in Chancery, or any of the perpetual commissioners, sect. 83 empowers 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; the commission is to be made returnable within such time to be expressed in it, as the Court or Judge shall think fit.
By sect. 80, it is enacted, that the judge, master, or commissioners, before he or they shall receive
the acknowledgment, shall examine the married woman apart from her husband, touching her knowledge of the deed, and shall ascertain whether she freely and voluntarily consents to the deed; and unless she freely and voluntarily consent to the deed, shall not permit her to acknowledge it; and in that case the deed shall, so far as relates to the execution thereof by the married woman, be void.
By sect. 84, it is enacted, that when the deed is acknowledged, the judge, master, or commissioners taking the acknowledgment shall sign a memorandum (the form of which is given by the act), to be indorsed on or written at the foot, or in the margin of the deed; and shall also sign a certificate (the form of which is also given by the act), of the taking of the acknowledgment, written or engrossed on a separate piece of parchment.
By sect. 85, it is enacted, that this certificate, together with an affidavit by some person, verifying the same, and the signature thereof, shall be lodged with the officer of the Court of Common Pleas, appointed for the purpose, who is to see that the certificate is duly signed and duly verified by affidavit, and is correct in other respects; and if it is, he is to cause the certificate and affidavit to be filed of record in the Court of Common Pleas. By sect. 87, the officer is directed to keep an index of the certificates; and the index is to contain the names of the married women and their husbands, alphabetically arranged, and the dates of the certificates, and the deeds to which they relate, and such other particulars as shall be found convenient; and by section 88, he is at any time to deliver a copy, signed by him, of any such certificate, to any person applying for such copy, and every such copy shall be received as evidence of the acknowledgment of the deed to which it shall refer.
By section 89, the Court of Common Pleas is directed, from time to time, to make such orders as it shall think fit, touching the mode of examination to be pursued by the commissioners appointed un