Dissenting opinion of
Johnson, J.No additional points are presented by appellant’s counsel in their petition for a rehearing in this case, and after a reexamination of the questions to be reviewed, I can discover no sufficient reason why I should not adhere to the views expressed by me in the former dissenting opinion, so far as they may apply to this appeal.
The point wherein I differ with the majority of the Court is now especially contained in that portion of the dissenting opinion as follows: “ Opposed to the views of a majority of the Court on this point, I think that the Court below should have excluded the deposition on one of the grounds of objection interposed by plaintiff’s *274counsel — that the official character which Thibault represented in taking the deposition was not properly authenticated. The recitals contained in his own certificate, the name and notarial seal appended to the deposition, is, as I conceive, the only evidence we have that he was by proper authority acting as a Notary Public when he performed this service. These of themselves were clearly insufficient for such a purpose.” Furthermore, “ that to receive such certificate, seal, and signature, without further authentication, would be a construction utterly opposed to the universal practice of Courts, except where the statute, as it does not in this State, makesJ the certificate and seal a sufficient authentication.”
Let us ascertain how far this proposition is overthrown by the authorities cited. (Dean v. Taggert, 1 A. K. Marshall, 172.) One of the grounds of objection to the deposition (it being taken out of the State) was “ that the persons before whom it was taken were not shown to be Justices of the Peace.” The Court says: “ We are perfectly satisfied that the certificate of the persons before whom the deposition was taken sufficiently shows them to be Justices of the Peace. It does not, it is true, expressly state them to be Justices of the Peace, but as by the caption of the deposition it purports to be taken by persons to whom a dedimus had been issued for that purpose; and as by the dedimus those persons taking the deposition are described to be Justices of the Peace, there cannot be a doubt but that these circumstances, under the Act of this county [evidently intending State] for that purpose, are sufficient to show that the persons by whom the deposition is certified to have been taken are Justices of the Peace.”
The objection which was passed upon by the Court in that case was not that the certificate of the Justices officiating would be insufficient to show their official character; but it would seem from the opinion that by the law of that State such certificate was made sufficient without other proof, and the Court merely held that the absence of an express averment showing the fact of their official character was supplied by matter contained in the dedimus and the caption of the deposition.
In 5 Maine, (Greenleaf) Clement v. Durgin, 9, the question was “whether a deposition taken under a commission by a person *275styling himself as a Judge of the St. Lawrence Court of Common Pleas, in the State of New York, which was objected to by'the counsel for the complainant, could be received without proof of the official character of the Judge.” In that State, by Chapter 85 of the revised laws, prescribing the mode of taking depositions, Sec. 6, which in this particular the Court says “ is a reenactment of the old law,” it is provided “ that all depositions taken out of this State, before any Justice of the Peace, public notary, or other person legally empowered to take depositions in the State or county where such deposition shall be taken- and certified, may be admitted as evidence in any civil action, or rejected at the discretion of the Court.” The Court, in pursuance of this statute, adopted a rule to the effect “ that in all cases of depositions taken out of the State without commission, it shall be incumbent on the party producing such deposition to prove that it was taken and certified by a person legally empowered thereto;” “ thereby,” says the Court, “ plainly implying that no such evidence would be required in the ease of depositions taken under commission.” And the Court held that under these circumstances the deposition was properly admitted in evidence.
In Bullen v. Arnold, 31 Maine, 583, there is nothing in the report of the case showing whether the deposition was taken within or without the State. The opinion of the Court was delivered orally, and the statement of the case is altogether too meagre to entitle it to any considerable weight as authority under any circumstances. The decision of the Court clearly related to the question presented by the facts before it; and without an understanding of these facts it cannot properly be claimed as authority in support of the more general proposition. A later case than either of those referred to, decided by the Appellate Court of that State, furnishes in some measure an explanation of the grounds of the decision in the case last cited.
In Palmer v. Fogg, 35 Maine, 368, depositions purporting to have been taken before a Commissioner in Wisconsin, appointed by the Governor of Maine, were objected to by defendant’s counsel— claiming “ that it was incumbent on the plaintiffs to prove that they were taken and certified by a person legally empowered,” etc. *276The Court, in response, says: “ By the Revised Statutes, Chapter 134, such commissioners and their official acts are placed upon the same footing with Justices of the Peace and their official acts within this State. Hence, authentication aliunde is not required.” And cites in support of its ruling the case as above (Bullen v. Arnold). So that it would appear to have been understood by the Court that the official act questioned in 31 Maine, 583, was performed by a magistrate of that State.
In 1 Hill, 249, ( Williams v. Eldridge) a commission to take the deposition of a witness in Canada was issued by one of the New York Courts, directed to certain commissioners by name, one of whom was Solomon Y. Chesley. Upon return of the deposition, signed by S. Y. Chesley, it was objected to for the reason “ that it should have been attested by his first name at length.” The Court on appeal held “ that commissioners under the Act are quoad hoc officers of the Court. Their return of evidence is, in effect, like any office copy made by the Clerk of the very Court to which he belongs. The Court, knowing the real name of its officer, is every day in the habit of recognizing his signature as valid, though his first name be denoted only by initials.” I am at a loss to discover any analogy between the points made in that ease and the one before us. Nor can I perceive wherein a single expression contained in the opinion of the learned Judge militates against the position contended for here.
In 5 Peters, 604, (The Patapsco Insurance Co. v. Southgate et al.) the only point decided having any bearing on this question is sufficiently stated in the syllabus of the case as reported.
“ In the caption of a deposition, taken before the Mayor of Norfolk, to be used in a cause depending, and afterwards tried in the Circuit Court of the. United States held in Baltimore, the Mayor stated the witness ‘to be a resident in Norfolkand in his certificate he states that the reason for taking the deposition is ‘ that the witness lives at a greater distance than one hundred miles from the place of trial, to wit: in the borough of Norfolk.’ It was sufficiently shown by the certificate, at least prima facie, that the witness lived at a greater distance than one hundred'miles from the place of trial.”
*277The Court furthermore says: “ This was a fact proper for inquiry by the officer who took the deposition, and he has certified that such is the residence of the witness.” Also cites the case of Bell v. Morrison, 1 Peters, 356, as deciding “that the certificate of the magistrate is good evidence of the facts therein stated, so as to entitle the deposition to be read to the jury.”
The decision of the United States Court in both these cases turns upon a construction given to the Act of Congress of the fourth of September, 1789, chapter twenty, under the authority of which the deposition purported to have been taken, in reference to which the Court (1 Peters, 355) says: “ The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly, and therefore it is necessary to establish that all the requisites of the law have been complied with, before such testimony is admissible.”
The Act of Congress referred to provides “ that every person deposing as aforesaid shall be carefully examined, and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the deposition so taken shall be retained by such magistrate until he deliver the same with his own hand into the Court for which they are taken, or shall, together with a certificate of the reasons as aforesaid of their being taken, and of the notice, if any was given to the adverse party, be by him, the said magistrate, sealed up and directed to such Court, and remain under his seal until opened in Court.”
The Court then proceeds: “ Without doubt, the certificate of the magistrate is good evidence of the facts therein stated, so as to entitle the deposition to be read to the jury if all the necessary facts are there sufficiently disclosed. It is not denied that the reducing the deposition to writing in the presence of the magistrate is a fact made material by the statute, and that proof of it is a necessary preliminary to the right of introducing it at the trial. But it is supposed that sufficient may be gathered by intendment from the certificate of the magistrate to justify the presumption that it was done. The certificate was in these words: ‘ State of Ten*278nessee, Dickson County, ss. At Charlotte, in said county, on the fourth day of July, 1822, before me, James M. Ross, Justice of the Peace and one of the Judges of the County Court of Dickson County, came personally John Mockbee, being about the age of fifty-one years, and after being carefully examined, and cautioned and sworn to testify the whole truth, did subscribe the foregoing and annexed deposition, after the same was reduced to writing by him in his own proper hand.’ The certificate then proceeds to state the reason for taking the deposition, etc., in the usual form. It is remarkable that the certificate follows throughout, with great exactness of terms, every requisition in the statute, with the exception as to the deposition being reduced to writing in the presence of the magistrate, and it is scarcely presumable that this was accidentally omitted. At all events, every word in the certificate may be perfectly true, and yet the deposition may not have been reduced to writing in the magistrate’s presence. If this be so, then there can arise no just presumption in favor of it. And we think, in a case of this nature, where evidence is sought to be admitted contrary to the rules of the common law, something more than a mere presumption should exist that it was rightly taken. There ought to be direct proof that the requisitions of the statute have been fully complied with. We are therefore of opinion that the deposition was properly rejected.”
In 11 Howard, 375, Fowler v. Merrill, the Court disposes of the objection made to a deposition on the authority of these two cases, and furthermore holds that a Probate Judge is a County Judge within the description of the law. 1 Greenleaf on Evidence, Sec. 323, is also referred to as authority on this point. I cannot perceive that the text lays down any broader rule than is furnished by these three decisions of the Supreme Court; indeed, the author’s notes refer to. the ease in 1st Peters in support of the text, and states the rules in precisely the same language: “ That the magistrate’s certificate will be good evidence of all the facts therein stated, so as to entitle the deposition to be read, if the necessary facts are therein sufficiently disclosed.” Certainly there is nothing in this to authorize us to extend the rule to other incidental facts, but which are equally essential to the validity of evi*279dence presented in such form: such for instance as the point now being considered, of proving the official character of the Notary who took this deposition. This preliminary fact being established by proper proof, then the certificate of the officer becomes evidence, at least prima facie, that the statutory requirements have been observed, if the necessary facts are disclosed in the certificate. In my judgment these authorities go no further.
The other authorities cited — 2 C. C. R., 5 McLean, and 1 Paine — are not contained in our libraries, and as to the controlling facts upon which these decisions are founded, the only knowledge we have is such as can be gathered from the Digest; and I can see nothing contained in the synopsis of such cases that in any manner distinguishes them from the rule already stated from the Supreme Court decisions.
Both in this and the former .dissenting opinion, in stating what I conceived to be the proper rule, I must be understood as applying it to the facts shown in the case now before us. I do not propose at this time to extend the inquiry further, or suggest what should be held sufficient proof of authorized or official character of the person taking a deposition, if the circumstances were different. It undoubtedly has in some instances been held, that when a deposition has been taken pursuant to a commission issued by judicial authority, the Court will regard the certificate of the commissioner to that effect as sufficient proof of identity, treating the act as done by an officer of the Court. Another exceptional case would probably be, where the party objecting was present when the deposition was taken. And the class .of exceptions might be further extended to the uttermost limits which precedent has gone, and yet, as I believe, in no respect conflict with the rule insisted upon in this instance.
The statute in force in this State regulating the manner of taking depositions out of the State provides but the one method, to wit: the issuance of a commission by the authority of the Court or a Judge. A Notary is not one of the officers named to which a commission can be issued, although the parties may agree upon the person to whom it may be issued; and giving to the foregoing decisions all the force which is claimed for them, it would simply *280amount to this, that if a commission had been issued by proper authority to take the deposition of Collins, the person so agreed upon as commissioner, or otherwise, the officer designated in the commission might by his own certificate authenticate his official action. Such a case is not before us.
It is not necessary to again refer to the terms of the agreement made by counsel. It is shown that no commission was issued, and the officer who took the deposition is not empowered so to do by our statute, and therefore, according to my understanding, it falls not within either the letter or spirit of any rule which is recognized by any of the foregoing authorities.
Let us briefly refer to some other decisions affecting this question, after having considered the statutory provisions bearing upon it. The officers who are authorized by our laws to take depositions out of the State are “ Judges', Justices of the Peace, and Commissioners of Deeds appointed by the Governor of this State.” "We have no statute which makes a certificate under the signature and seal, or either, of a Judge or Justice, in such a proceeding, sufficient authentication of official character; but on the contrary, the law does provide that an official act performed by a Commissioner of Deeds may be shown by the certificate and seal of such Commissioner. (Acts 1864-5, ISO; Territorial Acts, 1864, 47.)
Under the authority of Clement v. Durgin, 5 Maine, 9, before cited, the signature and seal of any officer except a Commissioner of Deeds would be rejected as even prima facie proof of their official character; the statute here, like a rule of court in Maine, having confined such mode of authentication to a specified class of officers.
The Revised Statutes of Connecticut, p. 89, Sec. 115, provides that “ depositions may be taken in any other State or county by a Notary Public, Commissioner appointed by the Governor of this State, or any magistrate having power to administer oaths, and the witness * * * shall subscribe his deposition and make oath to it before such authority, who shall attest the same, and certify that the adverse party or his agent was present, (if so) or that he was notified; and shall also certify the reason of taking such deposition, *281shall seal it up, direct it to the Court where it is to be used, and deliver it if desired to the party at whose request it was taken.”
The reference notes to this section cite Thompson v. Stewart, 3 Conn. R. 171, wherein a deposition taken in another State was accompanied by a certificate of the County Clerk, authenticated under the seal of the county that such person was a Justice of the Peace, was held sufficient.
In Allen v. Perkins, 17 Pickering, 369, objections were made to a deposition taken before Searle, a Justice of the Peace in Rhode Island, unless the fact that Searle was at the time a Justice of the Peace should be proved by the record of his appointment and qualification. But it ivas ruled that “ it might be proved by evidence that he was at the time acting in the capacity, and in fact exercising the office of Justice of the Peace.” The Court say: “ Here it was proved to the satisfaction of the Court, that the Justice taking the deposition was an acting Justice of the Peace. This kind of proof has always been held good prima facie evidence of the appointment and qualification of a magistrate so as to authorize him to take depositions.” In this case the deposition appears to have been taken without a commission — merely upon notice. In Adams v. Graves, 18 Pick. 355, it was held “ that by a rule of court where a deposition is taken under a commission directed to any Justice, etc., the certificate of execution on the return of such commission by a person professing to act as such magistrate shall be prima facie evidence of his official character, and the burden of proof shall lie on the objecting party.”
The inference to be derived from these decisions is, that the statutes of that State were silent in respect to the authentication necessary in such cases, and the Court by rule supplied the omission in part by providing that when a deposition w-as taken in conformity with a commission, the certificate of the magistrate was to be deemed prima facie evidence of his official character; whereas proof aliunde such certificate was requisite when the deposition was taken merely upon notice.
In New Hampshire, (see Shepherd v. Thompson, 4 N. H. 215) it seems the Court by rule prescribed that “ the Clerk of the Court in the county where the action is pending may issue a commission *282to take depositions in the vacation, which commission shall be directed to any Justice of the Peace, Notary Public, or other officer legally empowered to take depositions or affidavits in the State or County where the deposition is to be taken.”
A deposition taken in New York, by commission, under the aforesaid rule, was objected to because “ it did not appear that the person who took the deposition had any authority to take depositions, or that he was a Justice of the Peace or Notary Public.” The Court said: “ We think this objection is well founded. It has always been the uniform practice of the Court to require evidence that the person who took the deposition was duly qualified, whether it were taken under our statute or under a commission. Slight evidence has often been deemed sufficient, but no deposition taken abroad has ever been received, unless by consent of the opposite party, without such proof.”
The same Court (opinion by Parker, J.) in Dunlap v. Waldo, 6 N. H. 450, had further occasion to consider the question as to the measure of evidence necessary to show the official character of the officer taking a deposition in another State. A deposition was taken before a Justice of the Peace in Madison County, New York, and to show that “ Chapman, before whom it was taken, was a Justice,” a certificate was offered, purporting to be “ signed by the Clerk of said Madison County, and to have the seal of the county affixed to it; that Chapman was, at the time of taking said deposition, one of the Justices of the Peace for said county, duly elected and qualified; and that the Clerk was acquainted with his handwriting, and believed the signature to the caption to be his proper handwriting and signature.”
The deposition was received, and upon appeal the Court says: “ In holding that the certificate of the County Clerk is competent evidence of such appointment, we do not mean to be understood that other evidence is to be excluded. ■ Evidence that the individual is an acting magistrate has uniformly been held to be sufficient prima facie for such purpose.”
Again, in-the case of the State v. Stone, 12 N. H. 90, the same Court distinctly approves of the rulings in the last two cases, and reaffirms the construction given to the rule. The rule of court *283commented on in these cases, it will he noted, did not prescribe what form of evidence was necessary to show the official character of the officer; but in this particular it stands on an equal footing with our statutes. Under these authorities, the certificate of Thibault would be clearly insufficient.
In Louisiana (14 La. Ar. 795) it was held that “ the capacity and signature of a Justice of the Peace, who has taken a deposition under a commission in another State, must be established by the certificate of the Governor, under the great seal of the State.” (20 U. S. Digest, 363, Sec. 35.)
In Vermont (1 Chip. 176) the Court ruled that “ a deposition taken by a Notary Public in another State does not authenticate itself.” (2 U. S. Digest, 210, Sec. 57.)
In Illinois (2 Scam. 348) it is stated that “ if a commission to take depositions in another State is not directed to commissioners, and the depositions are taken by a Justice of the Peace, his official character should be certified under the seal of a Court of Record, or the great seal of the State where the depositions are taken.” (4 U. S. Digest, 660, Sec. 12.)
A similar rule prevails in Indiana with reference to affidavits. (Hagaman v. Stafford, 2 Blackf. 176; Doughton v. Tillay, 4 Blackf. 433.) Also, respecting an answer to a bill of discovery as evidence, Id. The manner of authenticating depositions in the last named State is regulated by statute, and the authorities which in given cases recognize a certificate of the officers to be sufficient proof are within the terms of the statute. (See 2 Indiana Revised Statutes, Secs. 260-1.)
And so far as we have the facilities at our command for ascertaining the facts, it will be seen, with scarce an exception, that wherever it has been held that a certificate or seal proves itself for the purposes stated, such holding is in pursuance of the express commands of the statute or a rule of the Court.
The points considered in each of the foregoing cases involved the proceedings of officers who, by force of the law, were empowered to take depositions. Notaries Public not being within the description, the same presumptions of law do not attach to their official acts. In treating of certificates as evidence, (1 Starkie on Evi*284dence, 382) it is stated that “ a protest as to the presentment and nonacceptance of a foreign bill of exchange, attested by a Notary Public, is evidence of those facts in an action upon a bill. This is a relaxation of the strict rule from a principle of great convenience.” The doctrine of the text is illustrated by numerous authorities referred to in the notes; and that the effect of such a certificate as evidence is limited to this, the one matter, (except when enlarged by statute) is abundantly shown by the same authorities. On this point, in Louisiana, (Phillips v. Flint, 3 Mill’s Lou. Rep. 146, 149) it is said: “ These notarial acts may be considered as an exception to the general rule that the acts of a person assuming power of an officer of a foreign State — when contested in a Court of justice— can have no weight until his capacity be proven.” To the same purport has it been held in Pennsylvania, (10 Sergeant & Ball, 160) also in Maryland, (3 Harr. & John. 71, 74) and the annotator concludes, that “ a Notary’s certificate is in general only evidence of such acts as he does under the lex mereatoria, has been recognized in several cases.” (Part 2, Cowen & Hill’s Notes, 1,053.)
Since writing the foregoing, my attention has been called to an additional clause embodied in the prevailing opinion in this case. It is true, in 1 Greenleaf, Sec. 5, p. 7, the rule is thus broadly stated, that “ the seal of a Notary Public is also judicially taken notice of by the Courts, he being an officer recognized by the whole commercial world.” But when we weigh the language, in connection with the context in which it occurs, and more especially observe the points embraced in the decision referred to by the acconqoanying notes, it cannot be doubted that the rule, as stated in the text, was designed to apply only to the official acts of such officer falling within the range of the lex mereatoria. This inference is strengthened by Sec. 183, p. 197, second volume of the same work, where the subject matter is more fully considered. And here I hesitate not to add, that the general terms in which the rule is stated in the section first quoted, is but one of the many instances found in this treatise, which, if accepted in its literal and unqualified sense, would differ widely from the prescriptions of the law, as given us by the most eminent jurists; thus serving oftentimes to mislead the inquirer *285concerning questions of the first importance. These defects, which in so great a degree detract from its general merit and usefulness, are so well understood by the legal profession and the Courts as to render unnecessary any extended criticism.
In Ohitty on Bills, 655, the rule there stated relates to protests only; and the case referred to in the accompanying notes of the same work are of similar character.
The case in 6 Serg. & Rawle is alluded to. By an Act of the Pennsylvania Legislature, second January, 1815, “the official acts, protests, and attestations of Notaries Public, certified according to law, under their respective hands and seals of office, may be received as evidence, provided any party may contradict by other evidence any such certificate.” Under a construction of this Act, in the case referred to, (Brown v. Philadelphia Bank, 6 Serg. & Rawle, 484) the question arising from a protest of commercial paper, by a Notary acting under authority of that commonwealth, the Court held that “ notice to the indorser of the nonpayment of a promissory note is an official act, and the protest is prima facie evidence thereof,” and “ the certificate of the Notary under such seal is prima facie evidence that such person is a Notary Public.”
The authority of Mott v. Smith, 16 Cal. 538, I cannot perceive in any respect affects the question under discussion. One of the points made in that case was, that “the Court below erred in admitting a deed in evidence, when the only proof of its execution was the certificate of acknowledgment of Albert.B. Bates, principal Notary Public of the Hawaiian Islands, and George A. Lathrop, United States Vice-Consul for Honolulu, Hawaiian Islands. On appeal the ruling of the lower Court was sustained, and I do not propose to question either the reasoning or conclusions of the learned Judge [Field] who therein pronounced the opinion of the Court. But we must not confound a question, decided upon a construction of the statute regulating conveyances, with the totally different one, governed by the provisions of our civil code, in respect to depositions. In the California Act, to which in certain particulars a construction was given in the case last cited, Secs. 4, 29, and 31, are in all respects identical with ours. (See new Act concerning Conveyances, Statutes 1861, p. 11.) Says the Court, (page 552) *286in the case of Mott v. Smith, “ the fourth section of the Act of April 16th, 1850, concerning Conveyances, specifies the officers by whom the proof or acknowledgment of any conveyance affecting real estate may be taken, and provides that when the conveyance is acknowledged or proved without the United States, it may be taken by any £ Judge or Clerk „of any Court of any State, kingdom or empire having a seal, or by any Notary Public therein, or by any Minister, Commissioner, or Consul of the United States appointed to reside therein.’ The twenty-ninth section of the Act provides that £ every conveyance or other instrument conveying or affecting real estate, which shall be acknowledged or proved and certified as hereinafter prescribed, may, together with the certificate of acknowledgment or proof, be read in evidence without further proof.’ And the thirty-first section declares that £ neither the acknowledgment, nor the proof of any such conveyance or instrument, nor the record, nor the transcript of the record of such conveyance or instrument, shall be conclusive, but the same may be rebutted.’
“ The Avord £ hereafter,’ says the distinguished jurist, ££ in the tAventy-ninth section, is evidently a misprint or a mistake in the enrollment of the Act for £ herein,’ as the provisions to Avhich it refers precede the section.”
On a construction of this statute, the Court holds that ££ the certificates were prima facie evidence of the official character of the persons by whom they were given.” And I cannot see how it could have been .decided otherwise, when the statute distinctly makes the certificate, primarily, evidence of the facts stated therein, Avhich are connected Avith such acknoAvledgment, but liable to be rebutted by opposing evidence. This is all, so far as I can see, that the Court assumed to decide in that case; and if any casual expression contained in the opinion Avarrants a more extended construction, it is mere obiter, as the point presented to the Court was simply ££ whether or not the certificates of the officers named were prima facie sufficient, under the statute, to entitle the conveyance to be admitted in evidence.” Inasmuch, therefore, as the conclusion of the Court depended upon a construction of the statute, it would naturally folloAV that the authorities cited in support of its ruling were also governed by the statutes of the respective States *287in which the question arose; and indeed, such is true with respect to all of the cases referred to, so far as I have the means of ascertaining. Some of them I have already noticed in a former part of this opinion. In these, as well as in Freeman v. Cameron, 24 Wend. 87; Morris v. Wadsworth, 17 Id. 103; St. John v. Croel, 5 Hill, 574; and Livingston v. McDonald, 9 Ohio, 169, the questions raised which are at all pertinent here, rested upon the certificates of acknowledgment appended to the conveyance and the statute there passed upon, and are not materially different in the one particular — that is, as to the effect of the certificate as evidence— from the law as defined both here and in California. And if this were an inquiry growing out of the statute concerning conveyances, I should not hesitate to pronounce a notarial certificate possessing the statutory requisites as a sufficient prima facie showing of official character. But does this excuse, much less justify, the absence of other proof in a totally different matter, 'and allow the same credibility to be given it when it is seen that the statute In relation to depositions has not, as in the former instance, provided that “ the certificate may be read in evidence without further proof?”
The simple statement of the proposition carries with it its own refutation. Hence I conclude that the authorities last considered, if they have any possible bearing upon the question at issue, only present in a more forcible light the correctness of the rule I have urged in this case; and for a reason before stated in á somewhat different form, that “ as the statute does in express terms impart to a notarial certificate in a given case the force of prima facie evidence, the legal presumption arises that such effect of the certificate must be confined to the particular thing expressed.” This, of course, subject to the exceptions covered by the law merchant. In response to the suggestions contained in the last paragraph of the opinion of my associate, I will merely say this: the question of authority to take the deposition is one thing, the evidence of the execution of that authority is another. So far as the acknowledgment of conveyance is concerned, the statute is the Notary’s authority; whilst in the deposition taken in this case this authority is contained in the agreement of the parties. But here the analogy between the two cases ends; because in the former instance, the *288statute waives other proof as to official character for the time being; at least, by declaring the officer’s certificate prima facie evidence; whereas in respect to the depositions the parties have not consented to such waiver, nor has the statute done so, as in the other case.
No such legal effect is given to the certificate as in the matter of conveyances.
It is desirable at all times to observe the rules of construction most generally recognized by the highest Courts of other States, under similar circumstances; and it seems to me after a somewhat careful examination of decisions within our reach, that at least the weight of authority is opposed to the ruling made in the Court below, in receiving the deposition as evidence, under the attending circumstances. I am therefore compelled to dissent from the conclusion of my brother Judges, so far as it concerns the one point herein discussed.