West Virginia freeman. (Parkersburg, W. Va.) 1881-1886, 1881-06-22

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her title in fee. It was necessary
that she should be examined apart
from her husband, to ascertain
whether she joined in the fine of
her own free will or was compelled
to it by the threats and menaces
of her husband.
The history of this branch of the
law proves that the more simple
and inexpensive procedure, now
generally followed in this country,
originated in the Colonies; and is
one of the legal forms the Mother
Country derived in substance from
them.
The statutes of Virginia and
West Virginia in relation to this
subject, use terms which convey
the form if not the substance of a
judicial act, in prescribing the du-
ties to be performed and the inqui-
ries to be made by the official who
is authorized to take and certify
the privy examination and ac-
acknowledgement of married women
to conveyances. In Pennsylvania,
Illinois and other States lit is set
tied that the act Of the officer tax
ing the acknowledgment is a judi
cial act"
In this case it does not appear af-
Tentatively, that the wife whose
acknowledgement was sought, an
swered the heterogeneous of the
notary in such manner as justified
any other certificate than that made
We do not know what answers she
made, if any. We only know what
passed at that private examination
by the letter of the certificate and
the testimony of the notary. Nei-
ther is impeached nor in any way
contradicted. Required to act in a
qnasi judicial capacity for the pro-
lection of the rights of the married
woman, in the absence Of proof
tending to show that she gave such
replies to his questions, as would
haze justified him in certifying the
acknowledgment in the statutory
form, would it be just to charge the
defects of this certificate 70 the
carelessness or gross negligence Of
the notary, rather than to his fail
ure to obtain suitable answers to
his questions, or the inability or
refusal of the wife tobe examined =?
! If the wife properly acknowledged
the deed, the facts necessary to
prove this must first be shown, be-
fore negligence can be imputed to
the officer in failing to make a prop
err certificate, 1t may have been
the fault Of the wife or Of the no
tary, or both, that this imperfect
act was performed. But before
the defendant can be made to an
swer in damages on a charge of
negligence of official duty, in the
matter in question, it must be
made out by a clear preponderance
of evidence that the privy exam
ination he made Of the married wo-
man, did in fact result in her
free and voluntary acknoWl-
acknowledgment of this deed that
she willingly executed the same,
and did not wish to retract it. I'm
fortunately, the wife was the only
other person present except the
notary, and she is now non compos.
We have no right to presume that
the interview between the notary
and the woman justified him in GER
tifying an acknowledgment, which
would divest her of her title.
We have his official act, imper-
feet as it is, before us. 1t is not
shown that it contains less than
the truth Of the transaction. Its
insufficiency may have been caused
by the unskillfulness Of the notary,
but this must be made to appear
from the evidence. 1t may have
been caused by the ignorance, obsti-
macy or design Of the woman.
The duty of the notary was per-
formed if he explained to the wife
the nature of the instrument, and
propounded the pertinent CUES
lions. If she did not properly and
sufficiently respond, it was no part
of his official duty to command, en-
treat, or persuade her to do so. The
acknowledgment must be her ''free
and voluntary act"
To charrn him with havino omit