
    John H. McDonald vs. Caroline H. Willis.
    Middlesex.
    January 18. — 24, 1887.
    Holmes & Gardner, JJ., absent.
    It is no objection to the validity of a certificate of account, offered in evidence at the trial of a petition to enforce a mechanic’s lien, that the oath to the certificate was administered by a magistrate, who was at the time the attorney of the petitioner.
    Petition to enforce a mechanic’s lien.
    At the trial in the Superior Court, before Mason, J., the petitioner offered a certificate of his account, duly filed in the registry of deeds; but it appeared, from the evidence of the petitioner, that the certificate was sworn to before a magistrate who was at the time the attorney of the petitioner in said matter. The respondent objected to the certificate, on the ground that the justice administering the oath was at that time the attorney of the party in relation to the cause involved in said oath; but the judge overruled the objection, and admitted the certificate.
    The respondent also requested the judge' to instruct the jury, “ that, the oath to the certificate having been administered by. the attorney of the party in relation to a cause for which he was employed as such attorney, the same was void and of no effect.” But the judge refused so to instruct the jury, and on this point gave no instruction.
    The jury found for the petitioner; and the respondent alleged exceptions.
    
      L. H. Wakefield, for the respondent.
    
      P. S. Cooney, for the petitioner, was not called upon.
   By the Court.

It is true that a man cannot be a judge and an attorney for one of the parties in the same cause. But it has always been the uniform usage for attorneys for either party to administer oaths, as justices of the peace, to their clients or others, when the necessity for voluntary affidavits arises in a case; and there is no sound objection to this where the oaths are voluntary, and the act of the justice is substantially ministerial, and not judicial.

In the case before us, the act of the attorney of the petitioner, in administering to him the oath to his certificate, was substantially ministerial, and did not involve or require any hearing, decision, or adjudication. The act of the attorney was no more judicial than the taking an acknowledgment to a deed; and the Superior Court rightly held that the oath was sufficient.

Exceptions overruled.  