Lord and Woodcock, signed a certificate of their having taken such acknowledgment, in the form pointed out by the statute; and such certificate, accompanied by the affidavit required for verifying the same, was duly filed of record,-the affidavit being made by Woodcock, and being in the form prescribed by the rules of Hilary Term, 1834, as to the want of such interest or concern as aforesaid in the transaction by Woodcock.

Upon the argument of the special case,-see Bancks v. Ollerton, 10 Exch. 168,t-it was objected, on the part of the plaintiff, that, the acknowledgment of the deed by Mary Ollerton not having been taken in the manner prescribed by the statute, the deed was void: but the *court were of opinion, that, so long as the certificate and affi*802] davit remained filed of record, they were conclusive evidence that the acknowledgment was duly taken, and that, "if the certificate was not warranted by the act, and ought not to have been given, the remedy was by application by the party aggrieved to the Court of Common Pleas to quash the certificate and take it off the file, as having been improperly or irregularly made."

Knowles, in Trinity Term last, upon an affidavit disclosing the above facts, moved for a rule calling upon John Ollerton, and upon John Lord and W. Ackerley, the two commissioners, to show cause why the certificate and affidavit verifying the same should not be taken off the files of the court, and the certificate quashed, for irregularity. He submitted that the practice founded upon the rules of court, was not warranted by the provisions of the statute; and that it was contrary to the first principles of justice that a man should be permitted to act judicially in a matter in which he is directly and pecuniarily interested. JERVIS, C. J.-The construction generally put upon these rules in the country, especially since the case of In re Ann Scholefield, 3 Scott, 657, 3 N. C. 293 (E. C. L. R. vol. 33),—has been, that, if one of the commissioners taking the acknowledgment is a disinterested person, that will suffice. The rule may go, and notice should be served upon the registrar, and upon Woodcock, the co-commissioner of John Lord.

Atherton and Hutton, on a subsequent day, showed cause.-This is an application to the discretion of the court; and, considering the lapse of time which has taken place (the party having died in the mean time), and the absence of any suggestion of fraud, the court will not interfere. [JERVIS, C. J.-You must not assume *that it is *803] matter of discretion. MAULE, J.-The circumstance of the commissioner's being interested as attorney in the transaction, is a violation of the rule of court; but that which is now complained of is a violation of the statute, or something more. I presume nobody will suggest that the Court of Common Pleas could make a judge competent who by the common law is not so. The fact of a judge being interested

was held in a recent case to be ground of error. (a) JERVIS, C. J.-The rules are clearly not in accordance with the act of parliament.] Assuming that the court exceeded its authority in framing these rules, it would be most inconvenient and unjust that the titles of parties who have acted in obedience to them should be thereby placed in peril. Besides, the effect of the statute, is, to make the certificate when filed conclusive evidence. It has all the force of a record, and cannot be avoided by any irregularity in the conduct of the judge. See 18 Edw. 1, stat. 4; 2 Inst. 515, 516; Coke's Seventh Reading on Fines; (b) *Sheppard's Touchstone, 6; 1 Cruise on Fines, 38; (c) Argenton [*804 v. Westover, Cro. Eliz. 275, cited Cruise Dig. tit. xxxv., ch. iv. § 26; Hungate's Case, 12 Co. Rep. 122; (d) Mansfield's Case, 12 Co. Rep. 124; (e) Warcombe and Carrel's Case, 12 Co. Rep. 124 b;(g) Eddlestone v. Collins, 3 De Gex, M'N. & G. 1.

Knowles and Mellish, in support of the rule.-The applicant having his title barred by a record of this court, which, though regular upon the face of it, is shown to be in its creation a violation not only of the statute upon which it professes to be founded, but also of one of the first principles of justice, and being without other remedy, is clearly entitled to call upon the court for relief in this way. That which is complained of would, in the case of a fine, for which the proceeding

(a) Dimes v. The Grand Junction Canal Company, 3 House of Lords Cases, 759. A public company, which was incorporated, filed a bill in equity against a landowner, in a matter largely involving the interests of the company: the Lord Chancellor had an interest as a shareholder in the company to the amount of several thousand pounds,- -a fact which was unknown to Dimes (the defendant in the suit). The cause was heard before the Vice-Chancellor, who granted the relief sought by the company. The Lord Chancellor, on appeal, affirmed the order of the ViceChancellor. It was held, by the House of Lords, that the Lord Chancellor was disqualified, on the ground of interest, from sitting as judge in the cause, and that his decree was therefore voidable, and must consequently be reversed; but that he was not disqualified from performing the ministerial act of enrolment, which is required before a decree of the Vice-Chancellor can be appealed against. It was further held, that the disqualification did not affect the decree of the Vice-Chancellor, who, though by the 53 G. 3, c. 24, subordinate to, is not dependent on, the Lord Chancellor.

(b) Coke's Law Tracts, p. 245.

(c) "It is a principle of the common law, that the evidence of a record is of so high and certain a nature, that its authenticity is never permitted to be called in question; so that no averment can be made against any fact which is once upon record; and therefore, when the foot or chirographum of a fine is recorded, no averinent can be made as to the caption or time of its acknowledgment, but it must be considered as a fine of that term in which it is recorded; nor can it be falsified, until it is vacated or reversed by the Court of Common Pleas,”—that is, by writ of error.

(d) "If an infant is permitted to levy a fine, and such fine is not reversed during his minority, it will for ever afterwards stand good." 1 Roll. Rep. 113. And it was resolved, "that, forasmuch as no corruption and circumvention was proved in the commissioners, or in any of the parties, of which they may be indicted at the suit of the King, or punished in this court, the fine shall stand."

(e) "A fine levied by an idiot is unavoidable, although his idiotcy is apparent; and although, after the fine levied, he has been found by inquisition an idiot a nativitate. The indentures executed by such infant are sufficient to direct the uses of the fine."

(g) "A mau persuaded his wife, an infant, to levy a fine of her inheritance, and cognisance was taken by dedimus potestatem, there being several judges who might have examined her :-Held, such fine is good."

*in question is substituted, have been set right by writ of error: *805] Com. Dig. Fine, (H. 3); Charnock and Worsley's Case, 1 Leonard, 114. No doubt, as Lord Coke observes, a man cannot be permitted to aver against a record: but Lord Coke could not have meant to say that a fine would be held good, if the judge before whom the acknowledgment was taken was himself the conusee; for, in such a case, the fine is void,-Wilson on Fines, 35. This court had no power, under the statute 3 & 4 W. 4, c. 74, to frame rules which should operate in contravention of the common law, as the rules in question clearly do. The statute requires that the acknowledgment shall be taken before two commissioners, and that the two shall examine the married woman, and both shall certify that they have done so. The memorandum required by the 84th section to be endorsed or written on the deed, shows that. [JERVIS, C. J.-There can be no doubt about that. The difficulty is as to what the court is to do with it, this being a record.] They can only take it off the file. [MAULE, J.--The framers of this act certainly could not have lost sight of the fact that a fine was reversible on error. It may be suggested, that, inasmuch as they have made no provision for an irregularity of this sort, the legislature intended that the proceeding should be irreversible. The answer to that is, that it is not possible to conceive that they could have intended that the estates of strangers should be affected, and that there should be no remedy. Many instances are put in Wilson on Fines, pp. 16 et seq., where fines improperly levied have notwithstanding been held not to be avoidable. Mansfield's Case is certainly a very strong one.] There, the party taking the acknowledgment, though highly censurable, was not guilty of fraud: he was not a party interested in the transaction. Here, the court has had imposed upon it a false and fraudulent record: surely it cannot be permitted to remain upon its files. [JERVIS, *806] C. J.-In the old cases referred to, the party who took the acknowledgment was properly constituted: here, the commissioner Lord was not. MAULE, J.-The filing of the certificate is an ex parte proceeding. It would be hard if such a wrong should be without remedy.] In Nokes, plaintiff, Styles, deforciant, 3 Taunt. 49, the court refused to allow the acknowledgment of a fine to be amended, where it was taken, in Westminster, before commissioners other than a judge or a serjeant. The fine," they said, "was irregularly taken, being in direct contradiction to a standing rule of the court, and the parties sought to cure it by requesting the court to sanction a fraud on their own rule." No great hardship will be done by making this rule absolute; for, it does not appear that there has been any subsequent conveyance of the property and it would be equally hard upon the applicant to be deprived of his legal rights by an irregular and unauthorized proceeding of this sort. Where a party has another remedy, the court will sometimes decline on a summary application to exercise its discretion in his

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favour: but, where the party would otherwise be without remedy, the exercise of its discretion by the court is ex debito justitiæ. [MAULE, J.-If the court sees reason to believe that great injustice or inconvenience would arise from the exercise of its discretion, it usually abstains from exercising it. But I must confess I do not see that any great inconvenience is likely to arise here: it is not necessary to say,-Fiat justitia, ruat cœlo.] Cur. adv. vult.

In the course of the vacation, an act of parliament was passed for the express purpose of meeting the difficulty suggested by the above case. That act, 17 & 18 Vict. c. 75, which is intituled "An act to remove *doubts concerning the due acknowledgment of deeds by married women in certain cases," after reciting, that, by the 3 [*807 & 4 W. 4, c. 74, "it is provided that every deed to be executed by a married woman for any of the purposes thereof, except such as may be executed by her in the character of protector for the sole purpose of giving her consent to the disposition of a tenant-in-tail, shall, upon her executing the same, or afterwards, be produced and acknowledged by her as her act and deed before a judge of one of the superior courts at Westminster, or a master in Chancery, or before two of the perpetual commissioners or two special commissioners to be respectively appointed as therein provided, and a certificate of the taking of such acknowledgment is thereby directed to be lodged with some officer of the Court of Common Pleas at Westminster, who is directed, after satisfying himself that the requisitions of the said act have been complied with in manner therein mentioned, to cause the said certificate to be filed of record in the said Court of Common Pleas : and whereas it is apprehended that deeds executed by married women under the provisions of the said act may be liable to be invalidated by the circumstance that the judge, or master in Chancery, or one or both of the commissioners, taking the acknowledgment, may be or may have been interested or concerned, either as a party or otherwise, in the transaction giving occasion for such acknowledgment, and it is not expedient that deeds executed in good faith under such circumstances should be invalidated," -in s. 1 enacts, that "no deed which has been acknowledged, or which shall hereafter be acknowledged, by a married woman before a judge of one of the superior courts of Westminster, or a master in Chancery, or before two of the perpetual commissioners or two special commissioners appointed as by the said *act is required, shall be im[*808 peached or impeachable at any time after the certificate of such acknowledgment has been filed of record in the Court of Common Pleas at Westminster, by reason only that such judge or master in Chancery, or such commissioners, or either of them, was or were interested or concerned, either as a party or parties, or as attorney or solicitor or clerk to the attorney or solicitor of one of the parties, or otherwise, in the transaction giving occasion for such acknowledgment."

And s. 2 provides, "that, if any proceeding instituted before the 13th of July, 1854, in the said Court of Common Pleas, for the purpose of quashing or taking off the file of records of the said court any certificate of an acknowledgment of a deed by a married woman, on the ground that such judge or master in Chancery, or either of such commissioners, was interested or concerned as aforesaid, shall be pending at the passing of this act, it shall be lawful for the said court to proceed with and dispose of the same as if this act had not passed, except that, if the said court shall be satisfied that any person or persons acting bonâ fide has or have been induced by the terms of the orders. made by the said court in Hilary Term, 1834, to acknowledge or to accept a title depending on the acknowledgment of, any deed or deeds before commissioners, one of whom may have been interested or concerned as aforesaid, the said court may refuse to permit the certificate to be quashed or taken off the file, on such terms as to the payment of costs and expenses as the said court shall think fit to make."

And the 3d section empowers the court from time to time to make any rules which to them may seem fit for preventing any commissioners interested or concerned as aforesaid from taking any acknowledgment under the said recited act, anything therein contained to the *809] *contrary notwithstanding; so, nevertheless, that no such rule shall make invalid any acknowledgment after the certificate shall have been filed of record as aforesaid.

Atherton, in the following term, referring to the statute, submitted that this case was within the saving provisions of the 2d section, and accordingly prayed that the rule might be discharged.

No opposition being offered on the other side,

JERVIS, C. J., said: We think we may avail ourselves of the provision contained in the second section, and discharge this rule with costs. Rule discharged, with costs.

END OF HILARY TERM.