120 Ga. 418 | Ga. | 1904
From the act of 1792, therefore, it seems evident that the legislature assumed that notaries had the power to administer oaths by virtue of their office. It was a power not there granted but recognized as inherent in notaries the world over. That such was the practice appears from Soloman v. Lacey, Dudley, 82, when “the bare certificate of a notary public of New Jersey to the oath ” was received here in 1831. And therefore, whatever the conflict elsewhere, there was fair room to contend that in this State there was a legislative recognition 'that they had the power by virtue of their appointment. If so, it was not necessary to produce a foreign statute to show that they could do what was here recognized as a power inherent in the office. Still the doubt continued, and in 1870 the legislature passed an act now contained in the Civil Code, § 5060, authorizing pleas, answers, and defenses to be sworn to before certain officers including notaries public; and as the greater includes the less, it was no doubt argued that if they had the right to make such answer which could be used as evidence on hearings for injunction, parties could likewise use in the same case affidavits attested by the same notary. This view, however, was not adopted in Brunswick Co. v. Bingham, 107 Ga. 273. Then came the act of 1899, by which the General Assembly
From the legislation generally, from their supposed customary powers, and from the language of the act of 1899, it is clear that foreign notaries are authorized to attest affidavits, and that the same may be received in legal proceedings here, with the same effect and under the same circumstances as if made in Georgia. The act of 1899 is, however, silent on the subject of what shall be sufficient evidence of their official character and power to administer oaths. It does not say whether a statement to that effect in the jurat will be sufficient; nor whether there must be attached a certificate from the secretary of State, or of the court making the appointment, or a copy of the statute conferring the power. It is evident that, so far as notaries are concerned, the silence in the statute must mean that the usual authentication by his seal of office is sufficient. Otherwise who can say what else is necessary, or how it is to appear that he is what he claims to be or has the authority to do what he actually does ? The decision in Shockley v. Turnell, 114 Ga. 378, related to an affidavit before a clerk of a county court, with nothing to show that he was a clerk. He was not one of the officers named in the act of 1899, and there was no evidence that he had authority under the laws of Texas to administer oaths. We conclude that in the present case the affidavit in forma pauperis, attested as it was by a notary under his seal, is