The .facts in this case being found by the jury, there remains but two questions which have been argued at law upon which I am called to decide. First, whether the plaintiff can recover against the Notary who is defendant; and secondly, what are the proper damages, if he should recover.
On the trial it appeared that the defective certificate of acknowledgement was made on a printed form, accompanying the mortgage, and the filling in of that certificate, even including the words “ Notary Public” at the foot, was in the hand-writing of Gr. J. Hubert Sanders, the certificate being apparently prepared, so that all that the Notary had to do was to sign his name and affix his seal after taking the acknowledgment. It was also in proof that the plaintiff had employed *61Sanders as his attorney and agent in making this loan, and that Sanders had taken Dupuy to Finlay’s office, where the acknowledgment was made. It also appeared that the prior mortgage to Wolf had precisely the same defect in the acknowledgment as this of Fogarty’s. Under these circumstances I should hesitate somewhat in allowing the plaintiff to recover damages from the Notary for making as it appeared just such an acknowledgment as was prepared and delivered by the plaintiff through his attorney and agent. I also have some doubt whether, under the circumstances of the prior mortgage to Wolf, the plaintiff by his mortgage had anything pledged beyond the equity of redemption; and I hardly think, presuming the plaintiff have any right to such damages as he claimed, whether he would be entitled to anything more. than the difference between the value of the property and the amount rendered necessary to satisfy the first mortgage; but inasmuch as the decision will betaken to a higher Court for review, I shall not base my opinion upon this ground alone but will pass to another and more important point.
It has been argued strenuously by the plaintiff that the Notary held himself out as competent, and contracted to give such a certificate as would entitle the instrument to be placed upon record, and that consequently, if he failed he was liable for all loss. I think the liability does not extend so far. Indeed, looking at this case throughout, I think the County Recorder is more directly the cause of the loss of the plaintiff than the Notary. A certificate might be required and be used for other purposes than that of recording; that was only one of the objects of acknowledging deeds. It might be simply to prove a signature when a record of it would not imply any notice or be of any possible avail. The Notary only contracted to give a certificate, not to put it on'record. But it is the County Recorder’s duty only to place on record such deeds as were properly acknowledged. Had he, when the plaintiff took the deed to him for record, pointed out the ■defective certificate, the plaintiff’s attention would have been directed to it then, supposing him previously to have been ignorant, or not to have noticed the peculiarity of the acknowledgment. The case seemed to him to resemble very much the one which had been cited in the argument, where a Postmaster was sued for loss alleged to have been sustained by delay in the delivery of a letter. The plaintiff in *62that suit, had he known (as he was presumed to know,) the law and his rights, and that he could have fixed the liability of a prior endorser, by sending a special messenger the same day he received the letter, and not waiting until the next day’s mail, he would not have sustained any loss. The Postmaster therefore, was held not to be responsible for loss sustained in consequence of the plaintiff not sending notice by special messenger after the departure of the mail, although he had detained the letter to plaintiff giving him notice of nonpayment of the note, so that he could not send notice by mail as the law required. So in this ease, had the plaintiff not slept on his rights, or had he been been awakened to them by the Recorder, pointing out the defect in the certificate, he could have had the defect supplied or remedied by a new acknowledgment; and it was nearly a year after the making of his mortgage before the one which was foreclosed and took precedence of his Avas made and recorded. I must therefore hold that plaintiff is not entitled to recover more in any case than the cost of the certificate; and as proof was not made by the plaintiff of the value, and it appeared that no new certificate was made, and the plaintiff did not desire a judgment if that Avas all he could get, as it Avould not carry costs, I must give judgment for the defendant.