3 & 4 Will. 4, heard of him since, and his present residence was altogether unknown to c. 74, s. 91. her; and where, if the application were not granted, the wife would be liable to incur a forfeiture (Ex p. Shuttleworth, 4 M. & Scott, 332, n. (b); see Re Hart, 1882, W. N. 36). Where she held the property as trustee for sale, and they were living apart, and the husband contributed to her support, but refused to concur except on payment (Re Caine, 10 Q. B. D. 284). Where the husband had deserted the wife, but they were in communication (Ex p. Sutcliffe, 29 L. T. 747; see, however, Re Horsfall, 3 M. & G. 132). An order was refused where the wife had left her husband in consequence of his violence (Re Price, 13 C. B. N. S. 286). In addition to an affidavit that the parties were living apart, the court has required a further affidavit that the husband has refused to concur (Ex p. Trenery, 1 C. B. N. S. 187), and that he contributes nothing to the wife's support (Ex p. Fish, 9 C. B. N. S. 715; Re Carburton, 16 W. R. 84; Re Fletcher, 17 W. R. 319; Ex p. Robinson, L. R. 4 C. P. 205). An order having been made upon the usual affidavit that the husband and wife were living apart by mutual consent, the court refused to rescind the order after it had been acted upon, and the rights of third parties had intervened, upon the application of the husband, who swore that though he resided apart from his wife (upon an allowance made to him out of her separate estate) he occasionally visited and slept with her (Re Rogers, L. R. í C. P. 47). Wife's separate property. Affidavits. Form of rule to dispense with hus band's concurrence. Final proviso. In cases not within the M. W. P. Act, 1882, where there are no trustees of separate property, the husband is trustee of the legal estate (Bennet v. Davis, 2 P. Wms. 316). Orders under this section to enable à married woman to convey the legal estate in her separate property have been made in the following cases:-Where the husband was a minor (Re Haigh, 2 C. B. N. S. 198). Where he had absconded, and had not been heard of for eighteen years, although it also appeared that she had in the meantime married again (Ex p. Yarnall, 17 C. B. 189). Where the husband lived separate from his wife and had refused to execute the deed (Re Perrin, 14 C. B. 420; Re Woodcock, 1 C. B. 437). As to conveyance of separate property by a married woman when living apart by a sentence of judicial separation without alimony, see Ex p. Andrews (19 C. B. N. S. 371). As to the equitable interest in a married woman's separate property, see ante, p. 319. The court will not dispense with the affidavit of the married woman herself (Ex p. Bruce, 9 Dowl. P. C. 840), and if speechless, she must be examined (Re Williams, 1 M. & G. 881). 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). 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 (Er p. Sparrow, 12 C. B. 334; Re Noy, 7 Scott, N. R. 434; Re Anderson, 2 C. B. N. S. 811). The affidavit must contain the addition or description of the husband (Re Gardner, 1 C. B. N. S. 215; see also Re Firth, 1872, W. N. 220). An order under this section was made in the following form:-"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" (Ex p. Duffill, 5 M. & G. 378). See, in connection with the final proviso in the above section, sects. 24, 33, and Re Wainwright (1 Phil. 258). II. THE CONVEYANCING ACT, 1882, s. 7. 45 & 46 Vict. c. 39, s. 7. by married women. 7-(1.) In section seventy-nine of the Fines and Recoveries Acknowledg Act, and section seventy of the Fines and Recoveries (Ireland) ment of deeds Act, there shall, by virtue of this act, be substituted for the words "two of the perpetual commissioners, or two special commissioners," the words "one of the perpetual commissioners, or one special commissioner "; and in section eighty-three of the Fines and Recoveries Act, and section seventy-four of the Fines and Recoveries (Ireland) Act, there shall, by virtue of this act, be substituted for the word "persons" the word "person," and for the word "commissioners" the words " a commissioner"; and all other provisions of those acts, and all other enactments having reference in any manner to the sections aforesaid, shall be read and have effect accordingly. (2.) Where the memorandum of acknowledgment by a married woman of a deed purports to be signed by a person authorized to take the acknowledgment, the deed shall, as regards the execution thereof by the married woman, take effect at the time of acknowledgment, and shall be conclusively taken to have been duly acknowledged. (3.) A deed acknowledged before or after the commencement of this act by a married woman, before a judge of the High Court of Justice in England or Ireland, or before a judge of a county court in England, or before a chairman in Ireland, or before a perpetual commissioner or a special commissioner, shall not be impeached or impeachable by reason only that such judge, chairman, or commissioner was interested or concerned either as a party, or as solicitor, or clerk to the solicitor for one of the parties, or otherwise in the transaction giving occasion for the acknowledgment; and general rules shall be made for preventing any person interested or concerned as aforesaid from taking an acknowledgment; but no such rule shall make invalid any acknowledgment; and those rules shall, as regards England, be deemed rules of court within section seventeen of the Appellate Jurisdiction Act, 1876, as altered by section 39 & 40 Vict. nineteen of the Supreme Court of Judicature Act, 1881, and c. 59. shall, as regards Ireland, be deemed rules of court within the 44 & 45 Vict. Supreme Court of Judicature Act (Ireland), 1877, and may be made accordingly, for England and Ireland respectively, at any c. 57. time after the passing of this act, to take effect on or after the commencement of this act. (4.) The enactments described in the schedule to this act are hereby repealed. (5.) The foregoing provisions of this section, including the repeal therein, apply only to the execution of deeds by married women after the commencement of this act. (6.) Notwithstanding the repeal or any other thing in this section, the certificate, if not lodged before the commencement of this act, of the taking of an acknowledgment by a married c. 68. 40 & 41 Vict. c. 39, s. 7. 45 & 46 Vict. woman of a deed executed before the commencement of this act, with any affidavit relating thereto, shall be lodged, examined, and filed in the like manner and with the like effects and consequences as if this section had not been enacted. (7.) There shall continue to be kept in the proper office of the Supreme Court of Judicature an index to all certificates of acknowledgments of deeds by married women lodged therein, before or after the commencement of this act, containing the names of the married women and their husbands, alphabetically arranged, and the dates of the certificates and of the deeds to which they respectively relate, and other particulars found convenient; and every such certificate lodged after the commencement of this act shall be entered in the index as soon as may be after the certificate is filed. (8.) An office copy of any such certificate filed before or after the commencement of this act shall be delivered to any person applying for the same; and every such office copy shall be received as evidence of the acknowledgment of the deed to which the certificate refers. Sect. 7 (4). Rules as to acknowledg ments. SCHEDULE. REPEALS. 3 & 4 Will. 4, c. 74... | The Fines and Recoveries Act-in part; namely,— in part. 4 & 5 Will. 4, c. 92... Section eighty-four, from and including the words" and the same judge," to the end of that section. Sections eighty-five to eighty-eight inclusive. The Fines and Recoveries (Ireland) Act Section seventy-five, from and including the words" and the same judge," to the end of that section. Sections seventy-six to seventy-nine, inclusive. 17 & 18 Vict. c. 75... An Act to remove doubts concerning the due acknowledgments of deeds by married women in certain cases. 41 & 42 Vict. c. 23... The Acknowledgment of deeds by Married Women (Ireland) Act, 1878. Under the above section and sect. 89 of Fines and Recoveries Act, 1833, the following rules have been made : RULES UNDER THE ACT FOR THE ABOLITION OF FINES AND RECOVERIES, 1. No person authorised or appointed under the act 3 & 4 Will. 4, c. 74 (in these rules referred to as the Fines and Recoveries Act), to take the acknowledgments of deeds by married women shall take any such acknowledgment if he is interested or concerned either as a party or as solicitor or clerk to the solicitor for one of the parties or otherwise in the transaction giving occasion for the acknowledgment. 2. Before a commissioner shall receive an acknowledgment, he shall inquire of the married woman separately and apart from her husband and from the solicitor concerned in the transaction whether she intends to give up her interest in the estate to be passed by the deed without having any provision made for her; and where the married woman answers in the affirmative and the commissioner shall have no reason to doubt the truth of her answer, he shall proceed to receive the acknowledgment (c); but if it shall appear to him that it is intended that provision is to be made for the married woman, then the commissioner shall not take her acknowledgment until he is satisfied that such provision has been actually made by some deed or writing produced to him; or if such provision shall not have been actually made before, then the commissioner shall require the terms of the intended provision to be shortly reduced into writing, and shall verify the same by his signature in the margin, at the foot, or at the back thereof. (c) If the married woman answers in the affirmative, the purchase-money becomes the absolute property of the husband, even though it is never reduced into possession by him, but remains outstanding for any purpose (Tennant v. Welch, 37 Ch. D. 622). The examination of a married woman was taken into consideration on a question affecting her equity to a settlement (Roberts v. Cooper, 1891, 2 Ch. 335). See also as to the importance of her examination, Cahill v. Cahill, 8 App. Cas. 428. The following cases were decided on the old rule for which the above has been substituted, viz., Re Foster (7 C. B. 120); Ex parte Webber (5 C. B. 179); Re Dowling (18 C. B. N. S. 223); Re Dixon (4 C. B. 631);_ Re Dallas (10 C. B. N. S. 346). See the statement of these cases in Shelf. R. P. Stat. 8th ed. 401. 3. The memorandum to be indorsed on or written at the foot or in the margin of a deed acknowledged by a married woman shall be in the following form in lieu of the form set forth in section 84 of the Fines and Recoveries Act: This deed was this day produced before me and acknowledged by therein named to be her act and deed [or their several acts and deeds] previous to which acknowledgment [or acknowledgments] the said was [or were] examined by me separately and apart from her husband [or their respective husbands] touching her [or their] knowledge of the contents of the said deed and her [or their] consent thereto and [each of them] declared the same to be freely and voluntarily executed by her. 4. When an acknowledgment is taken by any person other than a judge, the following declaration shall be added to the memorandum of acknowledgment: And I declare that I am not interested or concerned either as a party or as a solicitor or clerk to the solicitor for one of the parties or otherwise in the transaction giving occasion for the said acknowledgment. 5. A memorandum of acknowledgment purporting to be signed according to any of the following forms shall be deemed to be a memo Rules. Rules. randum purporting to be signed by a person authorised to take the acknowledgment: or A perpetual Commissioner for taking acknowledgments of deeds by married women, or The special Commissioner appointed to take the aforesaid acknowledgment. But this rule is not to derogate from the effect of any memorandum purporting to be signed by a person authorised to take the acknowledgment, though not signed in accordance with any of the above forms. 6. Nothing in the five preceding rules contained shall make invalid any acknowledgment which would have been valid if these rules had not been enacted. 7. Every commission appointing a special commissioner to take an acknowledgment by a married woman shall be returned to the office of the registrar of certificates of acknowledgments of deeds by married women, and shall be there filed. An index shall be prepared and kept in the said office, giving the names and addresses of the married women named in all such commissions filed in the said office after the 31st December, 1882. The same rules shall apply to searches in the index so to be prepared as to searches in the other indexes and registers kept in the Central Office. 8. The costs to be allowed to solicitors in respect of the matters hereinafter mentioned, when not otherwise regulated by the general orders in force for the time being under the Solicitors' Remuneration Act, 1881, or by special agreement, shall be as follows; anything in the Rules of the Supreme Court as to costs, dated the 12th August, 1875, to the contrary notwithstanding: Charges under the Act 3 & 4 Will. 4, c. 74 (The Fines and Recoveries Act). For the entries on the court rolls of deeds and the indorse- For taking the consent of each protector of settlement of For taking the surrender by each tenant in tail of lands 0 10 0 0 0 6 9. The following rules and orders are hereby repealed, except as to certificates not lodged before the 1st January, 1883, of acknowledgments by married women of deeds executed before the 1st January, 1883, and the affidavits relating thereto : The General Rules of the Court of Common Pleas, Hil. Term, 1834. |