
    Alexander Duncan vs. James Grant.
    Knox.
    Opinion December 5, 1893.
    
      Writ. Arrest. Notary. Justice. Revision of Statutes. Exceptions. Waiver. R. S., a.32, §3-, c. 113,12.
    
    Statutes relating to the same subj ect matter, like the power to administer oaths by notaries and justices of the peace may be left standing independently of each other, in a general revision of the laws.
    
      By R. S., c. 32, § 3, a notary public is authorized to administer oaths in all cases where a justice of the peace can act.
    
      Meld ; that a creditor desiring to arrest his debtor upon mesne process, in an action of assumpsit as provided by 11. S., c. 113, may make the oath and have it certified as therein required before a notary public instead of before a justice of the peace.
    Irregularities in the premature presentation of exceptions may be waived at the argument by permission of the court.
    On exceptions.
    This was an action of assumpsit on account annexed begun by a capias writ, on which the defendant was arrested. The defendant, on motion day, moved to dismiss the action, because the certificate and oath, upon which the plaintiff relied as a foundation for the arrest, was not made before and certified by a justice of the peace, and because the service was illegal.
    The oath on the writ and the certificate of it appeared to bo made before a notary public.
    The presiding justice overruled the motion and the defendant took exceptions.
    
      C. JE. and A. S. Littlefield, for plaintiff.
    These exceptions are premature.
    Counsel cited: R. S., c. 32, § 3; Day v. Chandler, 65 Maine, 366.
    M. A. Beaton and II. It. Ulmer, for defendant.
    The justice named in R. S., c. 113, § 2, is required to make a certificate of the oath on the writ. No authority is given to a notary to do so. Statute authority given to justices only. Winslow v. Mosher, 19 Maine, 151. Legislature did not intend to extend power of notaries so as to increase the liability of debtors to be arrested on mesne process. Hathaway v. Johnson, 55 N. Y. 93 ; Bennett v. Ward, 3 Caines, 259 ; Newell v. Wheeler, 48 N. Y. 486 ; Jones v. Jones, 18 Maine, 308 ; State v. Perkins, 4Zab. 409 ; State v. Hayes, 61 N. H. 264 ; Staniels v. 'Raymond, 4 Cush. 316 and cases. Murray v. R. R. Co. 4 Keyes, 274; People v. Blackwelder, 21 111. App. 254.
    Stat. of 18 75, gi vi ng women power to admi nister oaths, and sf at. of 1883, giving notaries same power have not been consolidated! with R. S., o. 113, § 2, which is the only statute authorizing arrest on mesne process.
    Sitting: Peters, C. J., Walton, Libbey, Haskell, Wiswell, JJ.
   Peters, C. J.

A creditor, desiring the arrest of his debtor upon mense process in an action of assumpsit, made an affidavit upon the back of the writ in the usual form which authorizes such an arrest, and made oath to the same before a notary public instead of before a justice of the peace. By R. S., c. 113, § 2, such an oath is required to be taken before and be certified by a justice of the peace. By R. 8., o. 32, § 3, a notary public is authorized to administer oaths in all cases where a justice of the peace can act.

It is objected against the authority of the notary in the present case that, inasmuch as there has been a revision of the general statutes since the authority above named was conferred upon notaries, and in such revision such authority was not expressly incorporated into the section authorizing arrest upon mesne process, the authority does not now in such cases exist. This point cannot be sustained. There was no occasion for any such particularity in revising the statutes. The provision authorizing notaries thus to act is as general and broad as language can make it, and is found in a chapter of the statutes which especially enumerates the powers and duties of notaries. This power of a notary public is as apropos to the present case as it can be in any other, and if it cannot be exercised in this instance it will be because it must be rejected altogether. ¡Such an interpretation would render the act in question entirely nugatory and wholly defeat the clear purpose and intention of the legislature.

No othe;r .question is presented by the exceptions. Any irregularity fin the presentation of the exceptions prematurely was waived at the argument by the permission of the court.

Exceptions overruled.  