
    OCTOBER TERM, 1782.
    Edward Flanagan and Wife’s Lessee against John Tully Young. 
    
    EJECTMENT for a tract of land, called United Inheritance, lying in Baltimore county.
    By the bill of exceptions taken at the trial of this cause, it appears, that the plaintiff, to prove his title, offered to read in evidence a deed of conveyance from William Jones and Ann his wife, to William Sligh, dated the 29th June, 1741, for the land in question, to which deed was an acknowledgment in the words following, viz. “ Memorandum, that on the 29th of June, 1741, came the within named William Jones and Ann Jones, parties to the within deed, and acknowledged the land and premises therein mentioned, to be the right, title and estate of the Within named William Sligh, his heirs and assigns for ever, according to the true intent and meaning of the same deed, and the act of assembly in that case made and provided: acknowledged before the subscribers, ttvo of his Lordship’s Justices of Baltimore county,” ike.
    To which the defendant, by his counsel, objected, alleging that the said acknowledgment, and the certificate of the magistrates thereon, was not sufficient in law, as not being pursuant to the directions of the act of assembly, made in the year 1715.
    
      And the Court (Harrison, Ch. J. and Hanson, J.) accordingly determined, that the said deed, on account of the defect in the said acknowledgment, was void; and therefore ruled that the same should not be read in evidence. To which opinion of the Court, the plaintiff’ excepted.
    
      yenings and Chase, for plaintiff.
    
      Hall and J. T. Chase, for defendant.
    The plaintiff appealed to the Court of Appeals, when* die cause was argued at May term, 1789.
    Jenings, for the appellant.
    The deed ought to be supported, if possible, and the Court will give operation to the deed, if it can be done consistent with law.
    Learning and ingenuity ought to he used to support deeds, and not to defeat them. 2 Burr. 714. It must: be made appear that the deed is not sufficient, anti. Judges are astute in construing deeds, co that they take effect according to the intent of the parties to them. 2 Wils. 22. 78. And the act of 1715, c. 47. s. 10. directs., that deeds shall be construed most favourably for the grantee, and most strongly against the grantor.
    By a deed, every thing is comprehended which Is necessary to give it effect, the acknowledgment on well' as anv othe5* ontt of the deed. The ordv section 10. of the act, was to prevent parol proof being given of the acknowledgment.
    Every thing which was necessary to have been done may be inferred from the certificate given by the Justices. As, where indenting is necessary, every deed of bargain and sale is supposed to be indented, till the contrary appears. Co. Litt. 229. The Justices act under oath, and it is for them to take care that what the law requires should be done. In their certificate, they say they have taken the acknowledgment according to law, and refer the Court to the act of assembly, by which it may be ascertained. But it may be said, that the Justices might be mistaken; and if they should merely say in their certificate, that the wife was “ privately examined,” it might be urged, that all the circumstances should be set forth in the certificate of the Justices, in order that the Court might draw the inference, that the examination was in private.
    The land records now produced in Court, show various acknowledgments by feme coverts, similar to the one in question, and shows that these kinds of acknowledgments have been the universal practice for many years, and if this objection should prevail, many deeds will be destroyed. [Here Mr. Jenings turned to several deeds in various records for a series of years, to show that the acknowledgments of feme coverts had been certified in the manner the deed in question had been certified.]
    Where the legislature has given a power, the Court will presume the Justices have pursued that power, unless the contrary appear. 1 Stra. 46. 475, 476. 631. 117. 264. 2 Raym. 1375, 1376. Plowd. 485. Salk. 441. pl. 3. 442. pl. 5. 484.pl. 40. Fitzg. 254. Holt, 215. 1 Burr. 246, 247.
    In the case of a conviction for obstructing an excise officer, in coming to weigh candles, under the act of 8 Ann. c. 9. which empowered the officer to enter by day or night, and if by night, then in the resence of a constable, it was objected, that the conviction did not say whether it was by day or by night; that it might be by night without a constable, in which case it was lawful to obstruct. The Court said it was enough that the conviction did not appear to be wrong. 1 Stra. 608,
    Where the legislature intend that a precise form should be pursued, they prescribe it. Usage will overturn an act of parliament. They will presume that a Judge has always done his duty. 18 Edw. I. c. 4. s. 7. 5 Mod 321,
    In the case of fines, the feme covert must be examined j and the common law directs that fines should be certified, and requires every thing which the act of assembly requires.
    The General Court, in the case of Sim and Lee’s Lessee v. Deakins, decided at October term, 1782,
      
       gave a liberal construction to the deed objected to in that case, and their decision in that case is inconsistent with their determination in this.
    This case is similar to the case of a fine. If the legislature intended that the form was to be pursued, why did they not insert the words in the subsequent part of the law ? A question is directed to be propounded to the wife in certain words. If the act intended to prescribe a certain formula, they would not only have prescribed the words to be used for the question, but also for the answer which a feme covert must give before she could be barred of her estate. There is nothing in the whole section of the act, which requires that there should be a certificate of the very words directed to be put to the feme covert on her examination. Admits, that if a set form 'of words had been prescribed, this acknowledgment would not be good.
    
      
      F. T. Chase, for the appellee.
    The certificate of the Justices endorsed on the deed is, “ That on the 29th June, 1741, came the within named William Jones and Ann Jones, parties to the within deed, and acknowledged the land and premises therein mentioned, to be the right, title and estate' of William Sligh, within named, his heirs and assigns, according to the true intent and meaning of the same deed, and the act of assembly in that case made and provided.”
    The question is, whether such certificate of such an acknowledgment will bar a feme covert of her right to the lands in dispute ?
    The General Court determined, that such certificate of such acknowledgment was not sufficient to bar a feme covert of her right to lands. To which opinion an exception has been taken, and an appeal to this Court.
    All deeds executed, and acts done, by a feme covert during her coverture, to pass lands, are void, unless it be a fine, or the like matter of record. 1 Bl. 444. 2 j31. 293. Perkins, 154. 1 Sid. 120.
    As to the wife’s real estate, no act of the husband shall prejudice her or her heirs, unless she join with him by some matter of record, and, on examination, testify her assent to such disposition. 2 Bac. Abr. 527. 10 Co. 42. b. 43. a.
    The examination of a feme covert ought to be secret, and whether she is content to levy a fine of such lands, naming them particularly, of her own free will, and not by threats or any other compulsion. Co. Lift 353. a.
    If a wife joins with her husband in a bargain and sale, by deed indented and enrolled, of her lands, it shall not bind her. 1 Bac. Abr. 275. 2 Inst. 673.
    Whatever legal defects may be in the conusor, if the' Judge admits the conusance, the fine shall stand in all cases, except that of an infant. 2 Bac. Abr. 526. An infant may avoid a fine at any time during his minority, but not afterwards. 2 Bac. Abr. 526. Co. Litt. 380. Matters in pais are avoidable by him at any time. Co. Litt. 380. a.
    A fine is not like a deed enrolled. Infancy, coverture, and not lettered, may be averred and proved in avoidance of a deed enrolled. 10 Vin. 421.
    The act of 1715, c. 47. s. 10. prescribes the mode by which va feme covert may be barred of her right to lands. To bar a feme covert or her heirs of her land, the deed must be in writing, indented and acknowledged; and the person or persons taking such her acknowledgment, shall examine her privately, out of the hearing of her husband, “ whether she doth make her acknowledgment of the same willingly and freely, and without being induced thereto by fear or threats of, or ill usage by, her husband, or fear of his displeasureand that the person or persons so examining her, shall (in a note or certificate of the taking of the said acknowledgment) certify her examination and acknowledgment thereupon, and that such certificate be likewise enrolled on record. In which case, and by such acknoxoledgments and certificates, feme coverts shall be barred, and not otherwise.
    
    To make then a deed valid and effectual to transfer the interest of a feme covert, it must appear by it that the several circumstances required by the act of assembly have been complied with.
    The act points out the duty of the person or persons who take the acknowledgment, and directs a private examination, and a certificate of the same, and the acknoxoledgment thereupon, and that the certificate be enrolled on record. The Justices act ministerially and not judicially ; the power is a delegated one, and in derogation of the common law; and it must appear that, in taking the acknowledgment, they have pursued the directions of the act, or the deed will be of no validity to bar a feme covert.
    
      The private examination and certificate is directed the security of the wife, who is subject to the coercion of the husband, and is intended to prevent any ’ J undue or improper influence being used by the husband, . *• 1 to induce her to part with her estate, A feme covert cannot convey away her estate in lands, unless she is privately examined to know if she consents. If she levies a fine, she is privately examined. 1 Bac. Abr. 301. Inst. 515.
    
    The requisites prescribed by the act of assembly, to pass the lands of a feme covert, cannot be dispensed with by a Court of Law or Equity. The act requires a private examination, and a certificate of it, and the aci knowledgment thereupon. The private examination and certificate cannot be dispensed with in a Court of Law or Equity,
    An agreement to convey lands since the statute of frauds and perjuries, is not valid, unless it be in writings and signed by the party, or some one authorized by him. If the agreement is in the hand-writing of the party, and not signed by him, it is not good; for the statute requires signing by the party, to give validity to the agreement, and signing cannot be dispensed with by a Court of Law or Equity. 1 P. Wms. 770. Hawkins v. Holmes.
    
    ■ The Justices have power and authority to examine and certify. In this they act ministerially and not judicially. They have not jurisdiction to decide .whether the acknowledgment is according to law, and a certificate that the acknowledgment was according to law, is of no avail. It is the province and jurisdiction of the Courts, to determine the validity and efficacy of deeds, and those solemnities, ceremonies and requisites on which their validity depends. But if this certificate is adjudged to be sufficient, it will transfer the jurisdiction and power pf the Courts to two Justices out pf do.ors.
    
      If an affirmative statute, introductive of a new law, direct a thing to be done in a certain manner, it shall be done in no other, although there be no negative words. 4 Bac. Abr. 641. Plowd. 206. In this act of assembly there are negative words, á fortiori the mode prescribed must be pursued.
    Where a statute directs a complaint to be in writing, and the order is on complaint generally, it is not good, for it ought to say in writing, 1 Stra. 264. The reason is, that when a statute creates jurisdiction, or gives a power, and prescribes a mode for the exercise of it, by the proceedings it must appear that the mode has been pursued. As where an order of bastardy was quashed, because it did not appear the child was born in the parish to which relief was ordered. 1 Stra. 437. 1 Burr. 193. Stat. 18 Eliz. c. 3. In 1 Stra. 497. the Court would not presume anything to support a conviction. 2 Burr. 681, 682.
    Where Justices are empowered to take cognisance, in a summary way, of particular offences created by act of parliament, it must appear by the conviction, that the several circumstances necessary to give jurisdiction did concur. 1 Burr. 148.
    If a special authority is delegated by act of parliament to particular persons, to take away a man’s property and estate against his will, it must be strictly pursued, and must appear to be so upon the face of the order. Coxvp, 29. So if a particular form of notice be prescribed, it must be fully set out and precisely pursued, and an allegation that due notice was given not being sufficient, all inferior jurisdictions ought to show they have proceeded according to that power which they have by law. Coxvp. 30.
    Whenever a statute requires a thing to be done, to give Justices jurisdiction, it must appear by the order that such essential was complied with. Adjudged Cases% 92.
    
    
      It must appear by the order of adjudication of the reputed father of a bastard, that one of the Justices was Suorum? and that the examination was by them both. 12 Mod. 393. 2 Salk. 478. Vide stat. 18 Eliz. c. 3. The reputed father of the bastard must be in Court, otherwise the order will not be quashed. 2 Salk. 475. 1 Burn’s Fust. 191.
    
      
      б) See the case of Robins’s Lessee v. Bush, «April term, 1723, oí. 1. p. 50. And the case of Webster’s Lessee v. Rali, ante, p. 19.
    
    
      
      
        See post, 46
    
   The Court of Appeals

affirmed the judgment of the General Court.  