By the Court,
Cowen, J.The certificate is clearly defective, nor is it aided by the statute of April 23d, 1835, p. 152, § 1, dispensing with the necessity of sending and certifying notice to any particular post-office, unless the endorser direct where. That statute was passed long after this *385notice was served; and, besides, the statute expressly excepts notes dated anterior to its passage. 1 he note in this case bears date in 1832.
The only question, therefore, is, whether the objection was taken in season. I think it was. Had the objection been preliminary, in other words, addressed to the competency of the certificate, as upon some points of form in its execution, the objection should have been to the reading of it; but not so where the certificate itself is insufficient to make out due notice. It comes in place of the notary’s personal oath or deposition. If he were on the stand, but incompetent, as through interest, you must object before summing up ; but if, being sworn, he fails to prove notice, that is the very place to object. So if his deposition be presented, but informally taken, you must point out the defect, or the court may, after the testimony is closed, disregard the objection. But if the deposition come short, either by itself, or in connection with the other proof in the case, of establishing notice, you go to the jury. It is true that, in either case, you may raise the objection by motion for a non-suit, or to stop the cause, if before referees ; but you are not bound to this course. You may insist on the defect by way of summing up after all the testimony shall have been given on both sides.
Nothing is clearer, than that where proofs by certificate and the like, are by statute substituted for common law evidence, all the forms directed by the statute, whether preliminary or substantial, must be strictly complied with.
Motion granted.