The opinion of the court was delivered by
Prout, J.This case shows that, on the trial before the auditor, certain papers were received in evidence, under a stipulation of the parties, in lieu of the deposition of one Geo. S. Rawson, who .measured a quantity of bark, the amount of which was in contro*98versy on that bearing. These papers were conceded to be the - certificates of Rawson, and as evidence of the contested fact, if admissible, are material and weighty. They were admitted under the stipulation, but subject to the question reserved, whether they were not “ defective as certificatesthat is, as we understand the report of the auditor, whether they were the executed certificates of Rawson, and should have effect as such, he not having signed them in the' customary way.
Four of these papers are annexed to the report, Rawson’s name appearing at the foot of one, and his name being found in the beginning of the other three. As evidence, having a legal effect and' operation under the stipulation of the parties, they stand upon the principle applicable to any other written instrument used for purposes of proof. When their authenticity is manifest and clear, they are effective, and it is immaterial in what part of the paper the name of the party executing it, is found. But when this is not apparent, the question arises whether it was intended that they should take effect according to their import and terms, and this question is one of fact to be found. Any other rule is mischievous, and can not be sustained either upon grounds of policy or principle. Johnson et al. v. Jodgson, 2 M. & W., 653 ; Hubert v. Treherne et al., 42 E. C. L., 388 ; Adams v. Field, 21 Vt., 256.
In this case it appears, as already intimated, that one of the certificates was signed by Rawson at the foot and as customary, indicating that he did not regard his name appearing in the beginning of it, as a signing or complete execution of it by him. The others, not thus executed, are affected by the principle alluded'to and, the auditor not having found that Rawson regarded them as perfected or duly executed, nor that he even delivered them, they were not of themselves evidence of the fact they severally purport to certify.
The judgment of the county court is reversed, and case remanded.