1852.

TAMBISCO

v.

PACIFICO.

the authorities are not consistent: Oliva v. Johnson is in the defendant's favour; and in Naylor v. Joseph (a) the Court held that, if the plaintiff be not actually domiciled in England, he is bound to give the defendant security for costs.

POLLOCK, C. B.—I am of opinion that this rule ought to be discharged. It was decided, as recently as the year 1840, by this Court, in the case of Dowling v. Harman (b), that where a plaintiff, who is a foreigner, is actually in this country, the Court will not impose upon him the condition of giving security for costs. The rule is a reasonable one, which requires a foreigner, who comes here, brings his action, and then leaves the country, to give security for costs, that the Court may be sure that, in case of a decision against him, the judgment may have some effect. The plaintiff states, that he came from Greece for the purpose of bringing this action, and that he is here now, and that he fully intends to remain here until judgment is obtained in it. It has been urged, that the plaintiff's affidavit is not sufficient, and that the course of practice relied upon by his counsel would lead to much inconvenience. I, however, think that it is by far more convenient to adhere to the express decision of this Court in the case of Dowling v. Harman, which is in accordance with the cases in the Court of Common Pleas. It is very true that Oliva v. Johnson was not cited there; but, on the other hand, no reference was made to the older cases relied upon by Mr. Willes. I therefore think that we are bound by the more recent decision of this Court.

ALDERSON, B.-I am of the same opinion. It is requisite that the plaintiff should state in his affidavit that he is resident in this country, to prevent a stay of proceedings

(a) 10 Moo. 522.

(b) 6 M. & W. 131.

1

until he shall have given security for costs. The plaintiff's affidavit does state that. It is suggested that he ought to go further, and to state that he intends to take up his permanent residence here; but such a statement would be of very little avail, for he might change his intention the moment judgment had been given. The fact of his being actually resident here is the true criterion by which the question is to be settled.

PLATT, B.-I always thought that, by the rule which prevails in this Court, security for costs is not exacted of a plaintiff who is a foreigner, except he be out of the jurisdiction of the Court. But here he states that he is

within it.

MARTIN, B.-I think that the true principle is to be found in the judgment of my Brother Parke in the case of Dowling v. Harman; and it is to be observed, that although he was engaged as counsel in the case of Oliva v. Johnson, he does not advert to it in his judgment in that of Dowling v. Harman.

Rule discharged, with costs.

1852.

TAMBISCO

v.

PACIFICO.

1852.

May 29.

A deed, exe

cuted by a married woman, to pass real estate, and indorsed with a memorandum of ac

knowledgment before a Judge, &c., under the

84th section of

the 3 & 4 Will.

4, c. 74, is not

effectual, unless

a certificate of

that acknowledgment be filed of record in the Court of

Common Pleas, as required by

the 85th section.

JOLLY v. HANDCOCK.

ASSUMPSIT for money had and received, money paid, &c.-Plea, non assumpsit; and issue thereon.

At the trial, before Wightman, J., at the last Stafford Assizes, it appeared that the action was brought by the plaintiff as purchaser, against the defendant as vendor, of a certain real estate, for the recovery of the deposit money on the sale thereof. In the course of the cause, it became necessary for the defendant, in order to establish a good title to the property in question, to shew that the interest of one Mary Handcock, a married woman, had been duly barred by a deed of mortgage executed by her. The deed was produced, and had indorsed thereon a memorandum of acknowledgment before Commissioners, as required by the 3 & 4 Will. 4, c. 74, s. 84. It was then objected on the part of the plaintiff, that this memorandum of itself was insufficient; and that it ought to be shewn that a certificate of that acknowledgment had been filed of record in the Court of Common Pleas under the 85th section.

A verdict was found for the plaintiff for the amount claimed, with leave to the defendant to move to set that verdict aside, and to enter a verdict for him.

Alexander, in last Term, obtained a rule nisi in pursuance of the leave reserved.

Keating and Pigott shewed cause.-The question is simply, whether the memorandum of acknowledgment on this deed, without proof of a certificate having been duly filed, is sufficient to bar the title of the married woman who executed the deed, within the true meaning of the 3 & 4 Will. 4, c. 74. The question turns upon several sections of that Act, and more especially upon the 85th and 86th. The Act was passed for "the abolition of fines

and recoveries, and the substitution of more simple modes of assurance." By section 77 a married woman may, with her husband's concurrence, by deed dispose of lands (with certain exceptions) as freely and effectually as she could do if she were a femme sole. By section 79, every deed executed under the Act (except in a specified case) must be acknowledged by her before a Judge of one of the Superior Courts, or a Master in Chancery, or two commissioners, &c. And by section 80, the Judge &c., before receiving such acknowledgment, must examine her apart from her husband. Section 81 provides for the due appointment of the commissioners. And by section 84, when the married woman acknowledges the deed, the person who takes the acknowledgment is required to sign a memorandum to the effect of the form there given, and also a certificate of the taking of such acknowledgment. And by section 85 it is enacted, that "every such certificate as aforesaid of the taking of an acknowledgment by a married woman of any such deed as aforesaid, together 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, shall be lodged with some officer of the Court of Common Pleas at Westminster, to be appointed as hereinafter mentioned; 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." Next follows the 86th section, which enacts, that "when the certificate of the acknowledgment of a deed

1852.

JOLLY

v.

HANDCOCK.

1852.

JOLLY

v.

HANDCOCK,

by a married woman shall be so filed of record as aforesaid, the deed so acknowledged shall, so far as regards the disposition, release, surrender, or extinguishment thereby made by any married woman, whose acknowledgment shall be so certified concerning any lands or money comprised in such deed, take effect from the time of its being acknowledged, and the subsequent filing of such certificate as aforesaid shall have relation to such acknowledg ment." By section 88, "after the filing of any such certificate as aforesaid, the officer with whom the certificate shall be lodged shall at any time 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 such certificate shall refer." By section 89, the Lord Chief Justice of the Court of Common Pleas is to appoint the officer with whom the certificates shall be lodged; and the Court is to make orders touching the examination, memorandums, certificates, affidavits, and various other matters. It is clear, from the language of the Act, that the mere memorandum, without the certificate having been duly enrolled, is not sufficient to bar the right of a married woman; for, until that be done, the execution of the conveyance is an inchoate and ineffectual act. If a title, so professed to be transferred, and without such enrolment, were held to be good, it would not be to the advantage either of the purchaser or of the disposer of an estate to see that the statute had been carried out, by hav ing the certificate duly filed. The 86th section, which states that the filing of the certificate shall have relation to the acknowledgment, shews that the concurrence of both acts is necessary to render the transfer complete. The object of the filing of the certificate is to give the officer who files it an opportunity of ascertaining whether the several requisites of the statute have been duly observed, and, in case they should not have been, to refuse