
    OCTOBER TERM, 1782.
    John Lee Webster’s Lessee, against William Hall,
    EJECTMENT for a tract of land called Goldsmith’s Rest, in Harford county.
    The following points were saved for the opinion of the court.
    
      Susannah Heath, seised in fee tail of the tract of land' for which this ejectment was brought for the purpose of barring the estate tail, on the 1st of September, 1767, ex» ecuted a deed to Benjamin Rumsey, for the purpose of suffering a common recovery, which deed was duly re» corded, but was not acknowledged. In October term, 1767, the common recovery was suffered, and afterwards, in September, 1768, the said Susannah married the lessor of the plaintiff, and on the _ 11 th of December, 1769» the said John Lee Webster and wife, being in the actual seisin and possession of the said land, executed a deed to Joseph Waters, reciting, that Susannah Webster was seised in fee ; and, that John Lee Webster and Susannah his wife were resolved to settle the land to the use of him and his wife for the term of their natural lives, with re» mainder to the use of the heirs of the body of Susannah Webster, and for default of such issue, to the use of the said John I.ec Webster. And sets forth, that John Lee Webster and wife, “ in consideration of the sum of five shillings, have granted, bargained and sold, &c. unto Joseph Waters, his heirs and assigns, all that tract of land, &c. to have and to hold, See. unto the said Joseph Waters, his heirs and assigns, to the intent that the said Joseph Walters may be seised of the said lands, and may be entitled, to reconvey the said lands to the said John Lee Webster andSusannah his wife, in such manner and form as in the recital herein before is mentioned,” &c. which deed was acknowledged in the form following, viz.
    “ Maryland, ss. Be it remembered, that on the 11th of December, 1769, personally appeared before us, two of his lordship’s justices of the peace for Baltimore county, John Lee Webster and Susannah Webster his wife, and acknowledged the within instrument of writing to be their act and deed, and the land and premises therein described to be the estate of the within named Joseph Waters, his heirs and assigns for ever, agreeably to the intent, and for the purposes within mentioned: and at the same time the said Susannah Webster, being by us privately examined, did declare, that she made the same acknowledgment free and willingly of her own accord and consent, without being induced thereto by the fears, threats or ill usage of her husband, his menaces or abuse.”
    And which deed was duly enrolled, according to the act of assembly, in such case made and provided. And the said Joseph Waters, on the 12th of December, 1769, executed a deed of reconveyance to the said John Lee Webster and wife, agreeably to the intent of the deed from Webster and wife to Joseph Waters. Which deed was duly acknowledged and enrolled according to the act of assembly in such case made and provided.
    The defendant objected, that the deed by Susannah Heath to Benjamin Ricmsey was void by the act of assembly, 1766, entitled, “ an additional supplementary act to the act, entitled an act for quieting possessions, enrolling conveyances, and securing the estate of purchasers,” for the want of an acknowledgment; and, that the common recovery vested a fee in Benjamin Rumsey ; and that the said deed and recovery did not vest a fee-simple in the said Susannah Heath.
    
    The defendant also objected, that the acknowledgment by Susannah Webster on the deed of the 11th December, 1769, from John Lee Webster and Susannah his wife to Jo-
      
      5eph Waters, was defecüv', because not made agreeably to the act of 1715, c. 47. entitled, “ an act for quieting possessions, and enrolling conveyances, and securing the estates of purchasers ;” and that for such defect the estate of the said Susannah did not pass to Joseph Waters. The consideration of which points is reserved for the opinion of the' court, 
    
    
      S. Chase, T. Chase, and Marlin, (attorney-general,) for the plaintiff.
    
      J. Iiall and A. Hall, for the defendant.
    
      J. T. Chase, for the plaintiff.
    
      Objection. That the acknowledgment by Mrs. Webster, as appears by the certificate of the justices is defective, being variant from the form prescribed by the act of 1715, c. 47. sect. 7. and 11.
    The form prescribed by the act of 1715 c. 47. s. 11. is, that the feme covert being privately examined 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 511 usage by, her husband, or fear of his displeasure ?”
    The certificate on the deed is, that Webster and wife acknowledged the deed: “ That she being privately examined did declare, that she made the same acknowledgment free and willingly of her own accord and consent, without being induced thereto by the fears, threats, or ill usage of her husband, his menaces or abuse.” The objection made to this certificate is, that it does not express that she was examined “ out of the hearing of her husbandbut only says, she was privately examined; and it might have been in private, and yet within the hearing of her husband, so that he could have heard her if she had spoken loud or cried out. That it was the intention of the act of assembly, that the husband should be at such a distance that he could not hear what his wife said.
    
      Answer. 1. This part of the act of assembly is only-declaratory.
    2. Privately comprehends every thing necessary. No persons can be said to be in private, if another can hear and know their conversation.
    The certificate omits that she did not make the acknowledgment “ for fear of her husband’s displeasure.” It contains all the other expressions mentioned in the act of assembly, with the addition of the words, “ of her own accord and consent, and without being induced by fear of her husband’s menaces or abuse.”
    The words in the act of assembly, u for fear of her husband’s displeasure,” are superfluous, because every thing meant or intended by them is comprehended in the words free and willingly, for her acknowledgment could not be free and willing if she was induced to make it for fear of her husband’s displeasure.
    Although the words or letter of the act is not strictly pursued, the intent, spirit and substance is complied with b3>- using words synonymous and of the same import and signification as those mentioned in the act of assemblv. The intention of the act of assembly is, that a feme covert should not be barred of her land but by her own voluntary act; and the private examination is used to discover, whether she made the deed of her own accord or by the coercion of her husband.
    It appears by the certificate, that the feme covert was examined, and that the examination was private, or out of her husband’s hearing, and that she made her acknowledgment willingly and of her own accord; so that every thing required by the act of assembly has been substan tially complied with.
    The mode of examination prescribed by our act of assembly, corresponds with the form observed in En- ^ gland, when a fane covert levies a fine of her land. She Is privately examined, whether she acknowledges willingly and freely, or by compulsion of her husband. 2 Black. Comm. 351. The words privately, solely, and secretly, are synonymous terms, and are used as such by Blackstone. 2 Black. Comm. 351. 1 Black. Comm. 444.
    It is a maxim in law that quoties in verbis nulla est •ambigmtas ibi nidia expositio contra verba expressafenda est. Wingate, 24. Also, verba intentioni debent inservire.
    
    In 1 Black. Comm. 444. it is said, that all deeds executed, and acts done by a feme covert during her coverture are void except it be by fine or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary. The following authorities were also cited : Dyer, 339. 2 Black. Comm. 348. 3 Black. Comm. 156. 3 Bac. Abr. 143. 1 Eq. Abr. 61 pl. 1. Baron and Feme, 170. 182. 4 Fin. Baron and Feme, 66. 134. Vin. Fine, 237. Stat. 18 Edw. 1. st. 4. Fin. Fine, 212. 1 Wood’s Conv. 553, 554. 558. 560. 12 Co. 122. Dyer, 220. Shep. Touch. 18. 34 & 38 Hen. VIII. c. 22. Hob. 225. Gilb. Uses, 109. 2 Vez. 191. 2 P. Wms. 127. Gilb. Uses, 244. 39. 3 Atk. 712. Treat, of Fines, 22, 23. 69, 70. 74. Pig. on Recoveries, 7. 66. 1 Wood’s Convey. 596. 607, 608. 10 Co. 43. Plow. 515.
    If the acknowledgment be good, and similar to the acknowledgment to a fine, and the deed should be bad on the first point, is it not good against the plaintiff, the heir of the feme covert by estoppel í A fine by a feme covert is good against her heir by estoppel though it passes nq asíate. 1 Wood’s Conv. 576. 2 Eq. Abr, 473. pl, 6,
    
      
      Objection. That the deed by Susannah Heath to Benjamin Rumsey was void by the act of 1766, c. 14. an additional supplementary act to the act of 1715, c. 47. for quieting possessions, for want of an acknowledgment ; and that the common recovery vested a fee in Benjamin Rumsey, the recoveror; and that the deed did not transfer the fee to Susannah Heath.
    
    
      Answer. If a common recovery be suffered without any good consideration or deed leading or declaring the uses, it will enure to the use of him who suffers it. 2 Black. Comm. 363. Vin. Uses, 214. Pigott, 52. 1 Wood's Com. 623. 631. 637. 641. 5 Bac. Abr. 358. 363. Common recoveries are now considered as mere conveyances, and the recoveror is a mere instrument and creature of the tenant in tail. 2 Burr. 704. Cro. Jac. 643.
    Chase, for the plaintiff.
    At common law no act of the husband shall prejudice the wife or her heirs as to her real estate, unless she. join with him by some matter of record, and on examination testify her assent to such disposition. 2 Bac. Abr. 527. 1 Bac. Abr. 275. 2 Inst. 673. 1 Black. 144. Co. Litt. sect. 669, 670. If a wife alone or with her husband, bargain and sell her lands by deed indented and enrolled, it shall not bind her. 1 Bac. Abr. 302. 2 Inst. 673.
    The act of assembly points out the mode by which feme coverts are to convey. To make the deed valid, it must appear by the deed that the several circumstances prescribed by the act of assembly are complied with. The acts point out the duty of the justices, and direct a certificate of what they are to do, to be made and enrolled. In making the examination, and taking the acknowledgment, the justices act in a ministerial and not in a judicial capacity, in the same manner as commissioners for taking acknowledgments on common recoveries or fines. The power to the justices being a delegated one and in derogation of the common law, it ought to appear by the deed that it had been pursued. It is similar to the case of justices being empowered to take cognisance of offences in a summary way. 2 Burr. 681, 682. 1 Burr. 155. 1 Stra. 264. 437.
    When the legislature gives a power, the court will presume, that the justices have pursued the power, unless the contrary appears. 1 Stra. 46. 475, 476. 631. 117. 264. 2 Raym. 1375. Plozu. 485. Salk. 441. pl. 3. 442. pl. 5. 484. pl. 10. Fitzg. 254. Holt, 215. 1 Stra. 608. It is not contended that the very words must be used, but the substantial part must be complied with. In the case of a fine, the examination by the judges or commissioners must be in private. 1 Wood's Conv. 553. All conveyances offeme coverts are void, except it be by record. 2 Black. 293. 1 Black. 444. And she must be examined in private, to see if her act be voluntary. Co. Lift. sect. 669, 670. 2 Bac. Abr. 527. 10 Co. 42. 1 Bac. Abr. 300, 301. 2 Inst. 518. Vin. Infancy, 407.
    
      
       See the case of Robin's Lessee v. Bush, April 1723, Mar. Rep. vol. 1. p. 50.
    
   The General Court gave judgment for the plaintiff on the points saved.

The defendant appealed, and at May term, 1786, the Court of Appeals affirmed dm judgment of the General Court.  