APRIL TERM, 1723.

#### William Robins’s Lessee *against*John Bush.

THIS was an ejectment for part of several tracts of land lying in *Talbot*County.

The lessor of the plaintiff claimed title from the heirs of *Judith*Stanley. The defendant, at the trial of the cause, offered evidence, that *Judith Stanley*was seised in fee of the land in question, and intermarried with *Robert*Grundy, and they being seised of the land, joined in a deed dated the 2d February, 1702, conveying the land to *Robert Un~ gle,*which deed was acknowledged in the following manner, viz. “ Memorandum: That upon the 23d day of *Fe-*“ *bruary, Anno Dorn.*1702, before us the subscribers, two “ of her Majesty’s Justices of the Peace for *Talbot*County, “ came the within written *Robert*Grundy, and Judith, his “ wife, which said *Judith, being by us first examined as u the law*requires, they both acknowledged the within “ written deed, and the premises therein contained, unto-*51the within written *Robert*Ungle, his heirs and assigns “ for ever, as that which he hath of the gift of the said *Robert*and *Judith*his wife,” &c.

“ R. Goldsborough.

“ M. T. Ward.”

And also offered in evidence a deed dated 23d of *February,*1702, from *Robert Ungle*and *Frances*his wife, conveying the same land to *Robert*Grundy, which deed is acknowledged by *Ungle*and his wife, in the same words as the preceding; that *Robert Grundy*devised the same land to *James Lloyd*and *Ann*his wife, under whom the defendant makes title.

. The plaintiff also produced witnesses at the trial to prove, that the acknowledgments of the deeds were made, without a knowledge of their contents, by the wife, and that the acknowledgment was obtained by fraud.

The defendant then prayed the justices to inform the jurors, that the aforesaid deed from *Robert Grundy*and *Judith*his wife, to *Robert*Ungle, and the acknowledgment thereon was full and conclusive evidence to prove the said *Judith*and *Robert*had divested themselves of it; and that the deed from *Ungle*and wife to Grundy, and the acknowledgment thereon, and the will of said Grundy, were conclusive evidence to prove the issue in the cause on the part of the defendant, the act of Assembly for quieting possessions notwithstanding.

*D.*Dulany, for defendant.

*Robert*Grundy, and *Judith*his wife, in whom was the estate, conveyed by bargain and sale to *Robert Ungle*and his wife, and they reconveyed to *Grundy.*The words of the acknowledgment are, “ *being by us first examined as*“ *the law*requires.” This is said not to be an acknowledgment agreeable to the words of the act of Assembly of 1699, c. 42. which declares, that the persons taking the acknowledgment of the *feme*covert, “ shall examine her “ privately, out of the hearing of her husband, whether *52“ she do make her acknowledgment of the same willingly “ and freely, and without being induced thereunto by fear “ or threats of ill usage by her husband, or fear of his dis- “ pleasure ? and the person or persons, so examining her, *u*shall, in a note or certificate of the said caption of the “ said acknowledgment, certify her examination and ac- “ knowledgment.” The essential thing in the acknowledgment is the examination of the *feme covert*apart from her husband, and if that appear to be done so that it can be collected from the words of the certificate that there was such an examination, it is sufficient. That plainly appears here; for, it is expressly and particularly set forth, that the examination was “ *as the law*requires.” It is declared, that they both acknowledged. It shall be intended, then, that they both acknowledged, according to law; for *Benigne faciendce sunt*interpretations, *ut res magis valeat quam pereat.*It being certified, that there was an acknowledgment, .it must be intended tobe according, and not contrary to law. Such is universal justice. *Reddendo singula singulis. Ley est plus favorable a sauver que damner.*18 *Ed.*II. The efficacy of statutes consists not only in the words, but in the intent; which intent ought always to be considered and made agreeable to the words. *Plowd.*82. The manner of taking acknowledgments has not generally been so formal as directed by the act of Assembly, and there is great inconvenience in overthronging estates with nice formalities. *Argumentum ab inconveniente plurimum valet in lege. Co. Litt.*66 *a. Nihil quod est inconveniens est licitum. Co. Litt.*97 *b. Lex citius tolerare vult privatum damnum quam publicum malum. Co. Litt.*sect. 231. 269. It cannot be presumed that this acknowledgment was obtained improperly, for fraud is not to be presumed unless it be expressly found. 10 *Co. Rep.*56 *b.*In the case of a fine, the examination must be “ *solely and*secretly,” and the effect thereof is whether she u *be content of her own free good*will, *without any menace u or threatf*2 *Co. Inst.*515. And if the fine be once re*53seived and recorded the *feme covert*or her heirs shall not be received to aver, that she was not examined, nor assented to it. *Ib.*By stat. 18 *H.*VI. c. 1. it was enacted» that if every warrant thereafter to the Chancellor of *England,*directing the day of the delivery of the same to the Chancellor should be entered of record in the Chancery, and that the Chancellor should make letters patent upon the same warrants, bearing date the day of the delivery of them into the Chancery, and not before in any *manner;*and if any letters patent should be thereafter made to the contrary, they should be null and void, and of no effect. It was decided, *Plow.*491, 492. that letters patent are good, although the day of the delivery of the warrant whereupon they are made, is never entered of record; but such a non-entry is a contempt of the Chancellor, for which he is punishable, as being contrary to the express direction of the act. That the intent of the statute had been complied with. If the intent of a statute is complied with, it is sufficient, and the variance in a form prescribed by act must be a substantial and not a verbal variance. 10 *Rep.*100. *Beawfage’s*Case. 8 *Rep.*114. *Hob.*299. Where the statute required the coroner of the County, together with the coroner of the King’s household, to act in the case of the death of a man ,* although the act was done by one coroner, who acted both as coroner of the County and of the King’s household, it was held sufficient, because the intent and meaning of the act was performed, and the mischief was avoided as well when one acted as two, as if there were two several persons. 4 Rep. 46 *a.*It has been objected, that this statute was made in favour of *femes coverts*and ought not to be construed so as to prejudice them, and that it was not in the power of the Court to act contrary to the provisions of the act. *Plow.*465, 466. To this it is answered, that this act is made to favour purchasers, and ought to be construed to that intent. It is stated in the certificate of the justices, that the *examination*was *as the h;w*requires, and that *Judith*acknowledged. The words *54“ as the law requires” shall have relation to the whole, to the acknowledgment as well as to the examination. It is so in pleading; *a*fortiori, it must be so in a deed.

*Thomas*Bordley, for plaintiff.

The counsel for the defendant divides his arguments into many points. Sometimes insists, that all that the law requires has been complied with. Sometimes it is said, that the intent is performed, and at other times, that only form and not substance is wanting. The construction of the certificate is the main, but not the only point, because all circumstances of circumvention are to be considered. Laws must be construed strongly in favour of those whom they are intended to protect. This law is for the protection of *femes*coverts, and ought to be construed strictly in their favour. If the certificate had stated, that the examination and acknowledgment had been taken according to the act of Assembly, he would have had nothing to say against it. But the case at bar shews, that the *acknowledgment*has been made dissonant from the act of Assembly. It is admitted, that *according to law*goes to all parts of the law; but it is no where stated, that the *acknotuledgment*was made “ according to law.” But it says, “ Being first *exau mined*as the law requires.” She acknowledged, but not that she *acknowledged as the law requires.*It must be presumed, that there were some reasons for this variance from the directions of the act of Assembly. It is necessary as a guard for *femes*coverts, that certain ceremonies should be prescribed and strictly observed. For this may be assimilated to the acknowledgment of the *feme covert*in the levying of a fine. When a married woman is to be divested of her inheritance, a great deal of caution ought to be used; therefore it is, that the Legislature have been so particular in prescribing the manner of the examination and acknowledgment, and yet all these precautions are not effectual to prevent the mischief intended to be remedied. *55The examination in the case of a fine, (2 *Inst.*515.) operates against the defendant, for the justices have not followed even the mode that is prescribed in that case. In objecting to these acknowledgments, no averment is made against the record. It is only averred, that certain things do not appear on record. There ought to be a liberty of inquiry into the proceedings of magistrates, and the people ought not to be under their yoke. The certificate states, that the *examination*was *as the latv*requires, but not the *acknowledgment;*and the certificates state the acknowledgment to be “ *as of the gift off*&c. when the deed is a bargain and sale. So that neither the intent nor the letter of the law has been complied with. This case is distinguishable from the case in Plowden, 492. for there it was held, the letters patent did not vary from the warrant, and was not contrary to the directions of the statute, because no warrant had ever been entered upon record. No one is to be disinherited by intendment. It is harder that the heirs at law should be disinherited, than that the devisees, who are obliged to support their title, should by intendment fail. Great regard ought to be paid to the proceedings of the magistrate. He believes they are agreeable to the truth. That he examined according to the act of Assembly, and when the wife was asked whether she acknowledged that deed *as a*sale, she said, *no;*but as *a*gift. Intendment is not to be used contrary to the expressions. Had these lands been really sold for a valuable consideration, it would have added to the wife’s fortune and plenty; but the deed being no more than a gift, it was natural for her to deny it as a sale, and acknowledge it as a gift. The act of Assembly intends the acknowledgments only to make a deed effectual where a valuable consideration was received. This case shews how subject women are to be imposed upon, and how necessary it is to give a strict construction to the provisions made to guard them against imposition and Undue influence. This acknowledgment is said to be' *56agreeable to the statute for levying fines; but the fine shall be presumed to be for the conusor’s use, unless a deed is made to lend the uses. This shews an essential difference between the acknowledgments of a *feme covert*in the case of a bargain and sale. It has also been contended, that this acknowledgment is agreeable to the act of *4¡Hen.*VII. and 1 *Rich.*III. *c. 7.*But neither of these acts direct any form of acknowledgment. As to inconvenience, there can be none in being obliged to pursue the directions of the act. The defendant claims under a particular act which he has not complied with, and because a few of his neighbours may be under like circumstances, an adherence to the law is not to be required. An inconvenience in a law is not to be altered or corrected by the Judges. The act of Assembly was not intended to secure gifts or devises, but purchasers; for where it is said in the act, if any *feme covert*be named as a party in any *such deed in~ dented,*&c. a deed of bargain and sale is meant. It is not in the power of the Court to act against a statute ; and it is not to be construed to the prejudice of those for whose, benefit it was enacted. *Plow.*466. As to how far a Court-can controul a fine gained by subtlety, *Dyer,*221. there is no comparison between that case and the present one; for it is apparent, that, while the fine was still depending in Court, they discovered some úndue practices. Much deference is paid to the opinion of *Dyer,*who thought the 1 Court could, on discovery of fraud, arrest the engrossing and delivery of a fine. But the Court were of opinion that they could not intermeddle. There would be no occasion to pass acts of Parliament to remove inconveniences, if the Courts of Law could, do it.

*The Court*were of opinion, that the matters offered in evidence on the part of the defendant, were not sufficient to defeat the heirs at law; and that the indorsements op the deeds aforesaid, and the acknowledgements thereon, were not according to law.

*57To this opinion the defendant excepted, and the Court of Appeals, at *July Term.,*1724, reversed the judgment of the Provincial Court. An appeal was prayed and granted to the Loi'd Proprietary.

Vide P. L. No. 7. fol. 249. and H. D. fol. 614.