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By the 18th section of an act passed in the 5th and 6th years of the reign of his late Majesty, c. 62, for the suppression of voluntary and extrajudicial oaths and affidavits, which repealed a previous act passed in the same session, for the same object, after reciting, that it might be necessary and proper, in many cases not therein specified, to require confirmation of written instruments, or allegations, or proof of debts, or of the execution of deeds, or other matters, it is enacted, "That it shall and may be lawful for any justice of the peace, notary-public, or other officer now by law authorized to administer an oath, to take and receive the declaration of any person voluntarily making the same before him, in the form in the schedule to this act annexed; and if any declaration so made shall be false or untrue in any material particular, the person wilfully making such false declaration shall be deemed guilty of a misdemeanor."
The 19th section of the act authorizes the persons taking such declarations to receive the same fees they would have been entitled to for administering an oath in a similar case prior to the statute.
Under this statute, which declares all voluntary oaths and affidavits to be illegal, the various facts
and statements which require proof in support of a title, or in other similar circumstances, may be verified by means of a declaration before a magistrate, master in chancery, notary, or any other person entitled to administer an oath, which, though not possessing the same religious sanction as an oath, has an advantage which does not belong to voluntary oaths; namely, the fear of civil punishment, which, with those who did not fear to assert that which was false, may have as much, if not greater, influence than was supplied by the peculiar nature of an oath; for though persons were not punishable for false swearing, if the oath was extrajudicial and voluntary, the act has declared all persons wilfully making declarations under its provisions, whether voluntary or not, which are false in any material particular, to be guilty of a misdemeanor.
The following form is prescribed in the schedule to the act, and must always be followed :I, A. B., That
do solemnly and sincerely declare,
and I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an act made and passed in the 5th and 6th years of the reign of his late Majesty, intituled, "An act to repeal an act of the present session of Parliament, intituled, 'An act for the more effectual abolition of oaths and affirmations taken and made in various departments of the state, and to substitute declarations in lieu thereof, and for the more entire suppression of voluntary and extrajudicial oaths and affidavits,' and to make other provisions for the abo lition of unnecessary oaths."
This declaration should be subscribed by the declarant, and verified by the magistrate or other person before whom it is made, for which the following form may be used:-Declared at this day of
A Master Extraordinary in the
Surrender of a Mortgage-term to merge in the Inheritance on paying off the Mortgage-money.† THIS indenture, &c., between (mortgagee) of the one part, and (mortgagor) of the other part. [Recite the mortgage creating the term.] And whereas the said Recital. sum of L. still remains due and owing upon the said recited security, all interest for the same having been paid up to the day of the date of these presents. And whereas the said (mortgagor) hath requested the said (mortgagee) to accept payment of the said sum of L. so due and owing as
aforesaid, and to assign and surrender the said mortgage term created by the said in part recited indenture of, &c., to the intent that the same may become merged and extinguished in the freehold and inheritance of the said premises. Now, this indenture witnesseth, that, in consideration of the sum of Witnesseth. L. in hand, &c., in full satisfaction and discharge of all principal money and interest now due and owing upon or by virtue of the said recited security, the receipt, &c., he, the said (mortgagee,) at the request and by the desire of the said (mortgagor,)
For the surrender of a life estate, see p. 380.
testified, &c., hath assigned, surrendered, and yielded up, and, &c., unto the said (mortgagor,) his heirs, [executors, administrators,] and assigns, all and singular the said messuage, &c., hereinbefore particularly described, and which, in and by the said indenture of, &c., were granted and demised unto the said (mortgagee,) his executors, administrators, and assigns, for the term of five hundred years, as hereinbefore mentioned, with the several rights, members, and appurtenances, and all the estate, right, title, term of years yet to come and unexpired, of him, the said (mortgagee,) in and to the said premises; to the intent that the now residue of the said term of five hundred years may be merged and extinguished in the reversion, freehold, and inheritance of the same premises, now vested in the said (mortgagor,) or otherwise cease, determine, and become void, to all intents and purposes whatsoever. [Add covenant from mortgagee that he had not incumbered. See p. 89.] In witness, &c.
Surrender of a term by Indorsement.
This indenture, made, &c., between, &c. Whereas, &c., [recitals,] and whereas the said A. B. hath requested the said C. D. to surrender to him the said messuage, &c., for all the residue and remainder of the said term of years, by the within-written indenture granted therein, to the intent that the same residue may merge and be extinguished in the freehold and inheritance of and in the same premises, which he the said C. D. hath consented and agreed to do in manner hereinafter mentioned. Now, this indenture witnesseth, that, in pursuance of the said recited agreement in this behalf, and in consideration
For the reason why the word assign is used, see p. 391. b If one term is merged in another, the conclusion from this place would be, "said term of years, created by the said in part recited indenture of immediately expec
tant and reversionary thereon, or otherwise," &c.
of the sum of L. of lawful, &c., to the said C. D. paid, &c., the receipt, &c., he the said C. D. hath assigned, surrendered, and yielded up, and, &c., unto the said A. B., his heirs, executors, administrators, and assigns, all those the messuages, lands, and premises within described, with their several rights, members, and appurtenances, and all the estate, &c.; to the intent and purpose that the residue of the said term of years therein may be merged and extinguished in the reversion, freehold, and inheritance of the same hereditaments and premises. In witness, &c.
OBSERVATIONS ON SURRENDERS.
A surrender is defined by Sir Edward Coke to be a yielding up of an estate for life or years to him who hath the immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual consent." -Co. Litt. 337 b.
From Sir Edward Coke's definition, it will appear that a deed, or other written instrument, though framed as a surrender, will not have that operation, unless the estate of the person to whom the surrender is made has the next immediate estate in reversion or remainder to the one proposed to be surrendered; for if there should be any intervening vested estate, whether chattel or freehold, the instrument will be entirely inoperative as a surrender or destruction of the estate, though it may take effect as a conveyance or assignment, if executed in the manner required for passing such estate; and, on the other hand, an instrument, purporting to be a conveyance with the intention of preserving the estate, will have the operation of a surrender, in those cases in which a surrender, if made, would have taken effect.
In considering how far a defective surrender may
• Doe v. Pickard, 1 Williams Saund. 236 d. Shep. T. 308.