Hill v. Norris

| Ala. | Jun 15, 1841

COLLIER, C. J.

— There can be no question, but it was competent for the Clerk of the Circuit Court to determine in the first instance upon the genuineness of the release, and if satisfied that it was mady by Taylor, issue an execution. But the certificate of a notary, or other public officer, would not be indispensable to enlighten his understanding — he might, had he thought proper, have acted upon his own knowledge of Taylor’s hand-writing, without proof; or he might have received as sufficient, the representation of the plaintiff below, or other third person,as to the genuine ness .of the paper. The decision ■of tire Clerk, however, could not conclude the plaintiff in error.; but it would be competent for him to show, that the writing filed as a release was not a compliance with the stipulation in the judgment.

The scire facias called upon the defendant to shew cause why the plaintiff should not have execution of his judgment; and the cause shown is, that a paper agreed to be filed as a condition on which execution was to issue, though filed, is not genuine. The question then is, did the Court err in its requisition as to the proof by which the release was to be disproved. This makes it necessary to consider to some extent the nature of the office, duties and powers of a notary public.

' The office of a notary is of very ancient origin, and perhaps is recognized in all civilized countries as intimately connected with commerce. Independent of any statutory regulation expending the powers of a notary., his certificate is only evidence .of such acts as he does under the lex mercataria. And under the influence of .this principle, it has been held, that a deed of partition made and acknowledged in Alabama, before a notary, was not proved in Louisiana by such acknowledgement. (Phillips v. Flint, S Miller’s Lou. Rep. 146.) And in ex parte Church et al., 1 Dowl. & Ryl. Rep. 324, the certificate .of an American notary under his seal, that a power .of attorney had been executed in his presence, which certificate was attested by the British Consul, was held in England to be no evidence of the execution of the power. There was a subscribing witness to the power, the Court said, “ Probably in a Court of civil law, the notarial certificate would be sufficient; but in a Court of cprnmon law, we .can only act upon the affidavit of a subscribing witness. We know of no instance in which the Courts have dispensed with such evidence of the execution of such an instrument.” And in Maryland, it has been held, that the protest of a master of a vessel, made before a notary, is not evidence. (Patterson v. Maryland, Ins. Co., 3 Har. & Johns. Rep. 71.) .

A consideration of the office of .a notary, together with the decisions which have been made touching his duties, will show very satisfactorily that, in taking the acknowledgement or probate of instruments, so as to dispense with formal proof of execution in other States or countries, he has no more authority than any private individual. His certificate as to foreign protests, it is said, is accredited upon general principles of commercial policy and convenience; but even the lex mercatoria, does nut recognize him as possessing authority to certify the execution of instruments, either upon acknowledement of the facts, proof by witnesses, or otherwise. (3 Phill. Ev. 1259, C. & H.’s ed.)

But it is argued, that the third section of the act of 1803, “ concerning notaries public,” [Aik. Dig. 330,] has extended the powers of notaries, and that enactment made the certificate offered in the case at bar, evidence of the genuineness of the release. The section referred to is in these words: “ The said notaries and each of them shall have power to receive the proof or acknowledgement of all instruments of writing relating to commerce or navigation, such as bills of sale, bottomries, mortgages and hypothecations of ships, vessels or boats, charter parties of affreightment, letters of attorney, and such other writings as are commonly proved or acknowledged before notaries in the United Stat.es; and also to make declarations and testify the truth thereof under their seal of office, concerning all matters by them done in their respective offices.”

It is very clear, that .a mere acquittance or release from the payment of a debt or some unliquidated liability, is not an instrument relating to commerce or navigation within the meaning of ine act cited; and we think that it'is not such a writing, as is “commonly proved or acknowledged■ before notaries within the United States.” At- least, the statutes of the different States, or perhaps a single one of them, show no such extension of notarial authority; and if there exists a custom in the States of the Union, which makes the proof or acknowledgement of such a paper, by the certificate of a notary evidence in a Court of justice, it was incumbent upon the plaintiff below to have shown it. Such a departure from the common law mode of proof cannot be presumed.

The certificate of the notary then, imparted no additional validity to the paper filed as a release; but the proof of its genuineness should have been adduced at the trial. It will therefore follow, that the Circuit Court erred in requiring the defendant “to impeach the notary as well as the signature of Taylor5’; and the judgment is consequently reversed, and the cause remanded.