Reading v. Mullen , 31 Cal. 104 ( 1866 )

Opinion by Shafter, J.:

The Act of 1852 relating to sole traders does not require that the declaration provided for therein should be in writing, signed by the declarant; but simply that the declaration shall be “ made ” before a Notary Public or other person authorized to take the acknowledgments of deeds. In the absence of all statute direction as to mode and manner, it follows that the declaration may be made to the officer either orally or in writing. If in writing, it is not made necessary that the instrument should be acknowledged in the way required by the Act relating to the rights of husband and wife for the acknowledgment of deeds made by her; nor does the Act require an acknowledgment of any kind. The officer before whom the declaration is made or to whom it is exhibited, is neither required nor authorized expressly to do anything. It may be inferred, however, from the circumstance that the declaration is to be recorded in the office of the County Recorder, that it was the intention that the Notary or magistrate should reduce the declaration to writing if made orally, giving the name of the declarant, and that he should certify officially to the truth of the paper; and if made in writing, then that a like certifícate should be made upon or be appended to the document, covering the question of authenticity.

We do not consider it essential under the Act that the declaration should be published in order that a married woman may be enabled to do business in her own name.

These views dispose of the two principal objections urged by the defendant as grounds for reversal.

The burden of proving that the defendant was a sole trader at the time she executed the note and mortgage counted on was upon the plaintiff; and to establish the fact it was necessary for him to prove first, that, she made a declaration before a Notary or magistrate, as above explained; second, that the declaration so made was duly recorded in the office of the County Recorder. For the purpose of proving both these propositions of fact, the plaintiff offered in evidence a document certified by the Recorder and purporting to be a copy of a declaration made by the defendant before a Justice of the Peace on the 28th of June, 1853, with a view to become a sole trader. The document was objected to, but the objection was overruled and the defendant excepted.

The copy may have been admissible for the purpose of showing that a declaration had been recorded, but it was clearly inadmissible as primary evidence of either the existence or contents of an original. (Macy v. Goodwin, 6 Cal. 579; 2 Hitt. Dig. Art. 6,079; Acts 1857, p. 317.) Without undertaking to decide in advance as to the particular course the plaintiff should pursue in proving that the defendant was a sole trader, it may not be improper to suggest that the safer course would be to prove all the facts upon which the question depends, according to the course of the common law.

Judgment reversed and new trial ordered.

By the Court, Rhodes, J.:

I concur in the judgment, and also in the opinion, except in so far as it holds that the declaration may be made orally before the officer. I think a fair construction of the statute requires the declaration to be made in writing.