*In the Matter of the Acknowledgment of ANN, the Wife of JAMES TIERNEY. Jan. 29.

[*761

The jurat of an affidavit of the due taking of an acknowledgment at Sydney, had an interlineation in the body of it, and an erasure in the jurat:-The court refused to allow it to be filed.

They also refused to enlarge the time for returning the commission, in order to get the defects remedied, the time for the return having expired.

AN acknowledgment of the execution of a deed by Mrs. Tierney was taken by special commissioners at Sydney, under the 3 & 4 W. 4, c. 74, s. 83. The registrar had declined to register it, on the ground of an erasure in the jurat, and the interlineation of the word "pecuniarily" in that part of the affidavit of verification which negatived the interest of the commissioners.

Milward now moved that the officer might be directed to receive and file it. He submitted that the erasure did not invalidate the affidavit,citing Jacob v. Hungate, 3 Dowl. 456;(a) and that the interlineation was immaterial, inasmuch as it did not in any degree alter the sense of the affidavit..

JERVIS, C. J.-The 140th rule of Hilary Term, 1853, is express.(b) The forms prescribed by the court ought to be adhered to: parties have no right to put their own construction upon them. It must go back.

Milward then prayed that the time for returning the commission might be enlarged.

*JERVIS, C. J.-We cannot enlarge the time after it has expired and after the commission has been returned.

obtain a fresh one.

The rest of the court concurring,

You must

[*762

Rule refused. (c)

(a) Where it was held, that the alteration of a figure in the date of an affidavit in the jurat, by writing one figure over another, does not constitute an erasure or interlineation within the meaning of the old rule.

(b) "No affidavit shall be read or made use of in any matter depending in court, in the jurat of which there shall be any interlineation or erasure."

(c) See In re Fagan, 5 C. B. 436 (E. C. L. R. vol. 57), and In re Mary Ann Worthington, 5 C. B. 511 (E. C. L. R. vol. 57), where interlineations in the jurat and in the body of the affidavit, respectively, were held fatal.

In the Matter of the Acknowledgment of MARIANNE, the Wife of FREDERIC CLERICETTI. Jan. 29.

Where an acknowledgment of a married woman, under the 3 & 4 W. 4, c. 74, was taken at Milan, the court allowed a certified copy of an act of The Imperial Royal Civil Tribunal of that city to be received and filed in lieu of the affidavit verifying the certificate of the commissioners,-upon the production of an affidavit from a competent party, showing, that, by the law of that country, depositions on oath are always deposited amongst the records of the court, and office or certified copies only delivered out to the parties.

BARSTOW, on a former day in this term, moved for an order that the

registrar under the 3 & 4 W. 4, c. 74, might receive and file the certificate of the acknowledgment of a deed by Marianne, the wife of Frederic Clericetti, taken at Milan. In lieu of the ordinary affidavit of verification, there was annexed to the certificate an act of court in the Italian language, accompanied by a translation duly certified by a notary, of which the following is a copy :

"In the Imperial Royal Civil Tribunal of the city of Milan, 15 September, 1854. With the intervention of Giacomo Maggioni, assistant judge, Luigi Riva, clerk.

"Appeared spontaneously the notary Dr. Giulio Caimi, residing here, who presented for the hereinafter mentioned declarations Henry Malone, gentleman, domiciled here, at No. 2553, Santa Maria Folcorina, and Marianne Baker, wife of Frederic Clericetti, of the Contrada San Maurilio, No. 3418, in Milan.

*763] "Mr. Malone requested that his following deposition should be received:

666

Being duly appointed by the Court of Common Pleas in London, jointly with Mr. Philip Box, to interrogate the above-mentioned Mrs. Marianne, by marriage Clericetti, whether it were really her intention to sell her estates in England, I have executed that commission, and delivered the analogous certificate thereof under date the 14th instant, which certificate I here present in the English language, signed by the above-mentioned Box and by myself.'

"In effect, he exhibited a parchment written in the English language, having the aforesaid date, and bearing the signatures Philip Box and Henry Malone, which having been seen was returned to him. He afterwards added,

"With reference to the said certificate, and under the obligation of my own oath, I attest and certify that I personally know Mrs. Marianne Clericetti, here present, wife of Frederic Clericetti, and that the declaration relating to her set forth in the certificate by me delivered, was by her really made to me: that the said certificate was signed by me, and by the other commissioner Philip Box, who has possessions in Milan, on the day and year set forth by the same, in the statement of both: that the said Mrs. Marianne Clericetti, at the time she made such declaration, was of full age and sound mind, and that she knew such declaration was made for the purpose of passing her interest in the estate to which the said declaration refers: that I am not in any manner interested in this business; nor have I taken part therein as advocate, attorney, or agent, clerk, or otherwise: that, previous to receiving the declaration, I inquired of the said Mrs. Marianne *Clericetti whether it was her *764] intention to give up her interest in the said estate, without taking any provision in consideration thereof, to which she replied that she wished to give up voluntarily the said interest, without having any provision in lieu thereof; and I further add that I have no reason to doubt

the truth, and that I really believe everything true of what is stated in the said certificate, and that the estate of the said Mrs. Marianne Clericetti which is mentioned in the certificate, is situate in the parish of Cannington, in the county of Somerset.

"He added that he makes this deposition in order to comply with the prescription of the English law for making valid the sale above mentioned.

"Mrs. Marianne Clericetti, appearer as above, repeated here, being present, that she voluntarily gave up her interest which is decribed in the aforesaid certificate, without wishing for any provision in lieu thereof. "The notary, Dr. Caimi, demanded an authentic copy of the present minute, in order to make use thereof in concert with the other appearers in the successive acts of the said date.

"Read, confirmed, and subscribed.

Subscribed

HENRY MALONE.

"MARIA ANNA CLERICETTI.
“Dr. GIULIO CAIMI, Notary.
"GIACOMO MAGGIONI.

"LUIGI RIVA.

"The foregoing copy agrees with the original existing in these archives under No. 40653.

"Drawn up on a stamp for 75 centimes.

"Milan, from the Imperial Civil Tribunal of this city, 16 September, 1854.

"The Imperial Royal Counsellor and Director,

"ROGNONI "CRESPI, Registrar."

*CRESSWELL, J.-Can we dispense with the original affidavit, [*765 and receive a certified copy,-which this purports to be,-without some substantial reason being assigned for the non-production of the original?

Barstow. The court has upon occasions admitted affidavits not strictly complying with its rules. Thus, in a case of In re Birch and Bell, 6 Scott, 185, 4 N. C. 394 (E. C. L. R. vol. 33), an affidavit sworn at Hamburg was received, though not signed by the deponent,-it being sworn, that, by the practice of that place, the affidavit is never signed by the deponent.

JERVIS, C. J.-You must produce an affidavit, as was done in that case, showing that the document you produce is the only evidence which the law of the country enables you to produce, in order to authenticate the oath of the commissioner. "We must," as Tindal, C. J., observes, "be satisfied that the oath has been administered according to the proper form of the place where it is taken."

Barstow now produced the following affidavit,-" Adolphus Bach, of, &c., foreign jurist consult, maketh oath and saith that he, this deponent,

is German counsel to the Austrian legation at the court of St. James's, London, and that he is well acquainted with the laws of Austria, as administered in the judicial courts of the kingdom of Lombardy, in the empire of Austria: And this deponent further saith that depositions on oath made and signed by deponents before the judges of such courts respectively, are never delivered or given to the deponents or to any other person or persons whomsoever, but that the same by an inflexible rule are always deposited amongst the records of the said courts respectively, and office-copies thereof are delivered to the *depo*766] nents or parties requiring the same, which office-copies are signed by the judge for the time being of such courts respectively, and are similar in form to the document or paper in writing in the Italian language produced and shown to this deponent at the time of swearing this his affidavit, and marked, &c.: And this deponent further saith, that, by virtue of a resolution of the Supreme Court of the Austrian empire, bearing date the 7th of October, 1793, and of an order of the Supreme Council of the empire, bearing date the 6th of April, 1797, every such office-copy has the same validity and effect as the original so deposited amongst the records of the said courts would have in case. the same were produced: And this deponent further saith that the aforesaid judicial courts are the only courts in the kingdom of Lombardy which are qualified to administer oaths."

Per Curiam.-The documents may be received.

Fiat.

*767]

*In the Matter of the Acknowleagment of ELIZA BARBARA WARNE, the Wife of PETER WARNE (now ELIZA BARBARA GARDNER, the Wife of WILLIAM HENRY GARDNER). Jan. 24.

An acknowledgment of a deed by a married woman, under the 3 & 4 W. 4, c. 74, was taken in the year 1842, and the certificate and memorandum thereof duly signed by the commissioners; but, by some inadvertence on the part of the solicitor employed in the transaction, there was no affidavit of verification, and the documents were not filed:After the lapse of thirteen years, the court allowed the certificate to be received and filed, upon an affidavit by the surviving commissioner, stating that it had always been his practice, and, as he believed, that of his co-commissioner, to make all requisite inquiries of the married woman before taking her acknowledgment, and that, from the circumstance of his having signed the certificate and memorandum, he verily believed that all proper inquiries had been made on this occasion, though, from the lapse of time, he was unable positively to state what the answers were.

CERTAIN freehold premises in Bristol, the separate property of Mrs. Warne, were conveyed by her by an indenture bearing date the 21st of July, 1842, which indenture was duly acknowledged by Mrs. Warne, before two commissioners, pursuant to the 3 & 4 W. 4, c. 74, and such acknowledgment duly certified by them, on the 29th of the same month; but by some inadvertence or oversight on the part of the attorney con

cerned in the transaction, the certificate was not filed at the time, nor was any affidavit made verifying the same.

Lush, on a former day in this term, moved that the certificate and affidavit might now be received and filed. The motion was founded upon (amongst others) an affidavit of George Edward Taylor, the solicitor who acted on the occasion, who deposed, that, on the 29th of July, 1842, the said Eliza Barbara Warne attended at the office of William Tanner the younger, at Bristol, for the purpose of executing the said deed, and acknowledging the same pursuant to the statute, before John Bush (since deceased) and the said William Tanner the younger, who were then two of the perpetual commissioners for taking the acknowledgments of deeds by married women; and the said Eliza Barbara *Warne then duly executed the said indenture, and her execution [*768 thereof was attested by the said John Bush and William Tanner the younger, and she was then examined by the said commissioners separate and apart from her then husband, and they the said commissioners duly signed the usual memorandum endorsed on the said indenture, and they also signed and delivered to the deponent the certificate of such examination, and of the acknowledgment of the said deed by the said Eliza Barbara Warne, and which said memorandum and certificate were respectively dated on the said 29th of July, 1842: that Mrs. Taylor, the party beneficially entitled under the conveyance, on the completion of the purchase, took possession of the deeds with the aforesaid certificate of acknowledgment by the said Eliza Barbara Warne, and locked them up and retained them in her own possession to the time of her decease, which happened on the 25th of August, 1850, and the said certificate was thus omitted to be enrolled, and the necessity of such enrolment was overlooked and forgotten, and the omission was not discovered until after the deponent,-to whom the premises were demised or appointed by the will or testamentary appointment of his said wife, upon trusts for sale for payment of debts,-had entered into an agreement for the sale of the said premises: that Warne is dead, and his wife married again to one William Henry Gardner, and that, after the discovery by the deponent that the said certificate had not been enrolled, he caused application to be made to her to confirm the aforesaid conveyance by a new deed to be executed by her and her present husband, and to be acknowledged by her pursuant to the said act; that such deed was accordingly prepared, and executed by Mr. and Mrs. Gardner, and the latter was examined by William Tanner and Edward Burges, two commissioners, when she declined to declare that *she [*769 freely and voluntarily consented to the said deed, so that the proceeding was rendered abortive. Mr. William Tanner, the surviving commissioner before whom the acknowledgment was taken, also made an affidavit stating that he took the acknowledgment, but that, owing to the lapse of time, he was unable to swear that the necessary ques