Wright v. Waters ( 1859 )

The opinion of the court was delivered by

Strong, J. —

The certificate is doubtless very imperfect. And it is not without some hesitation that we hold it to furnish sufficient evidence, that the deposition was taken before competent authority. In civil proceedings, the official character of one who acts as a public officer, is presumed from his so acting. On this principle, it is always held, that the certificate of a person that he has received the acknowledgment of a deed, is sufficient, if he styles himself a justice of the peace. Ills assertion of his own official character, in connection with an official act, is received as affording a presumption, that he is, what he claims to be. So, if G. I-I. Starr, before whom this deposition was taken, had with his certificate avowed his official character; if he had styled himself “justice of the peace,” undeniably, it must have been presumed, that he was such. Yet, if he had signed a letter, “ G. H. Starr, justice of the peace,” it would not have been even primd facie evidence, between other parties, that he was a magistrate; because, in that case, the signature would not have been in connection with an official act. Now, the person who took this deposition and who certified it, performed an act official in character; an act which could lawfully be done only by one who had competent authority to administer oaths and take a deposition. The caption and certificate state that it is the deposition of a witness, sworn and examined in obedience to the rule of court and notice, at the time and place stated in the caption, and subscribed, in the presence of the certifier, G. H. Starr, J. P. The notice was to take the deposition before Paul A. Way, or some other competent authority. If, as certified, the deposition was taken at the time and place designated, and the witness was produced, sworn, and examined, “in obedience to the rule of court and notice,” it would seem that it must have been taken before competent authority; and Mr. Starr’s certificate may perhaps be considered as an averment that he had competent, authority to administer oaths and take a deposition. But this is not all. He signs the certificate G. H. Starr, J. P. It is said, that the court could not presume from the initials J. P., that the examiner was a justice of the peace; that they may have meant something else. But do they not furnish ground for a reasonable intendment that Mr. Starr was a justice ? We cannot close our eyes to the fact, that such is the common mode by which justices of the peace are designated. In Thompson v. Stewart, 3 Conn. 171, it was held, that when the person before whom a deposition was taken in another state, subscribed his name to the certificate, annexing thereto the letters J. P., and the deposition 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, such certificate and the official character of the magistrate were sufficiently authenticated. Ch. J. Hosmer, in delivering the opinion of the court, remarked: “ The letters J. P. subjoined to the name of the person who took the deposition, when coupled with the accompanying certificate of the clerk, most obviously denote his official capacity, and so evidently were intended for the words justice of the peace, that no person would hesitate to decipher them by this expression.” It is true, that here there was a certificate of a county clerk, but it is not perceived, that it was any better on that account. Such a certificate was no evidence of the fact certified. So, in Pollard v. Lively, 2 Gratt. 216, where a person taking a deposition under a regular commission and notice, certified that the deposition was taken before him, and signed his name to the certificate with the addition of the letters J. P., it was held that it sufficiently appeared, that he was a justice of the peace. The same thing was ruled in Hobbs v. Shumates, 11 Gratt. 516. We have no decision in Pennsylvania directly upon the question. In Waugh v. Shunk, 8 Harris 130, a deposition was rejected because it nowhere appeared on its face, or by the accompanying certificate, that it was taken by a person qualified to administer oaths. No official character was claimed by the certifier, and the deposition was not even certified to have been taken in pursuance of the notice. The case, therefore, bears no resemblance to the present. Here the record does exhibit enough to warrant a reasonable intendment that Mr. Starr had competent authority.

The judgment is affirmed.

Woodward, J., dissented.