
    No. 3138.
    McDonald & Co. v. J. Wells, Curator, etc.
    The testimony of a witness residing out of the State, when taken before a notary public of the place where the witness resides, under a commission from the court directed to any notary public in said county where the witness rosides, is inadmissible in evidence until the capacity of the notary who takes it is? duly shown in the mode provided by law. The certificate of the county clerk of the county, where the notary resides, is not sufficient attestation of his capacity as notary to authorize the courts of Louisiana to receive the testimony taken under a commission which does not name the commissioner.
    APPEAL from tbe Ninth District Court, parish of Rapides.
    
      Osborn, J. K. B. hosee, for plaintiffs and appellants.
    
      JRyan & White, for defendant and appellant.
   Howe, J.

This suit was brought to recover from the curator of Mrs. Martha L. Wells, an interdicted person, a bill for board, medical attendance and clothing furnished to her as an inmate of a private asylum for the insane. Upon the trial of the .case and of a rule to show cause why the commission issued to take testimony in Flushing, Queens county, New York, should not be used on such trial, the defendant made several objections to tbe use of tbe testimony thus-taken. Tbe objections were in time, for tbe rule was returnable on tbe day of trial. Tbe only objection wbicb had any merit was that tbe official character of tbe person before whom tbe testimony was taken, was not properly established, be being ostensibly á notary public in Queens county, New York, and tbe certificate of this fact being made only by tbe clerk of that county. This certificate was not sufficient as evidence in Louisiana, tbe commission having been directed “to any notary ” and not to tbe notary in question by name. 5 N. S. 460; 4 La. 119; 5 La. 265; 13 La. 362; 4 An. 557. A simple method of authentication in such a case (wbicb is entirely governed by tbe law of tbe State) is provided by statute. R. S., 1870, sec. 598.

The case for plaintiffs is not fully made out without tbe testimony thus erroneously admitted, and tbe judgment in their favor must be reversed.

It is therefore ordered that tbe judgment appealed from be reversed and tbe cause remanded for a new trial, and that plaintiffs pay costs, of appeal.  