
    Harris et al. v. Heberton et al.
    
    The oath of the notary to the truth of his record to the lest of his knowledge and lelief is sufficient to adnjit it as evidence under the statute.
    ERROR from the circuit court of the county of Jefferson.
    This was an action of assumpsit against the drawers and endorsers of a promissory note. , On the trial for the purpose of charging the endorsers, the plaintiff offered in evidence the notarial record of the notary, sworn to under the statute. It was objected to on the ground that the certificate of oath of the notary was not sufficient. It was in these words: “Personally appeared before the undersigned, justice of the peace in and for said county, James R. Cook, (the notary,) who made oath that the within certificate of record contains the truth to the best of his knowledge and belief/’ The judge overruled the objection, which is assigned for error.
    Wilcox, for plaintiff in error.
    . The error assigned, is, that the court below erred in permitting the notary’s certificate of demand and notice, set forth in the bill of exceptions, to go to the jury upon the trial in the circuit court.
    It is presumed no doubt exists as to the necessity of verifying such transcript of a notary’s record, by oath: and that such verification should be in the form of deposition, and taken upon due notice given to the adverse party. In this case, however, notice, and the fact of the verification being in form of affidavit, and not of a- deposition, appear to have been waived, and the only ground of objection to the verification, left to the plaintiffs in error, is the insufficiency, in substance, of the affidavit of the notary.
    Is, then, the affidavit sufficient in substance to admit the notary’s transcript to the jury? It contains the simple averment, that “ the within certificate of record contains the truth to the best of his (the notary’s) knowledge and belief.” It may well be conceived that this averment may be true, and still the certificate of record not admissible in evidence to the jury.
    It is believed that nothing short of the usual form of affidavit, that the certificate of record contained “the. truth, the whole truth, and nothing hut the truth or the usual form of verifying a plea by affidavit, “ that the same with the matters and things therein contained is true in substance and in fact,” could properly have admitted this certificate of record.
    It was not necessary for the defendant in the court below to have denied that the certificate of record contained “the truth.” It might well contain the truth, and still not contain enough truth to charge the parties to the note sued on. For instance, it may be true that the notary made the demand at the time and place, and protested the note in manner and form, as set forth in the certificate of record, and still not true that he gave the notices to the endorsers of the note at the time and in the manner stated in the certificate. Indeed, all these things may be true, and still the liability of the endorsers not fixed; for the notary may have removed the notices from the post office, before they were mailed, and destroyed them; for he does not pretend to say, in his affidavit, that the certificate contains “ the whole truth.”
    These propositions seem not only self-evident, but to have been universally so considered; for it is believed no case can be found in the books where a verification by oath less definite in its terms than those of the two forms above quoted has .been held sufficient. In'the older reports, where the pleadings and proceedings are set forth at length, they are believed to be, in every instance, in one of the forms above recognized as good. Neither upon principle or precedent, can any thing less definite and full in its terms than one of those forms be. deemed a sufficient verification.
    If it be contended that no verification by affidavit is required, but that a certified copy of the notary’s record may be given in evidence, that argument will fall to the ground in this case ; as the certificate of the notary’s record does not even purport to be under seal.
    Clark, for defendant.
    The evidence excepted to is the certified copy of the record of the demand, protest, and notice upon the promissory note sued on. This was a record of a justice of the peace. By our statutes, L. 557, all the powers of notaries public were vested in justices of the peace, and they were authorized to authenticate all their acts by their common seal of office. By a previous statute, passed in 1833, L. 456, a notary public was required, whenever he protests a bill or note, to make and certify, on oath, a full and true record of what had been done by him* in regard to the demand and notice, and the manner thereof, which certificate was made evidence. The first statute above referred to passed in 1836, and only requires that justices of the peace should authenticate their acts by their common seal of office, and as a justice of the peace was a sworn officer, there was no greater necessity for a verification of his acts in his official capacity than there would be for a verification to a return of a sheriff, or the certificate of a clerk. If any doubt could have existed as to this point under those statutes, it is entirely removed by the statute of 1837, L. 762, which declares that in all suits touching promissory notes, &c. the official acts of any justice of the peace or notary public, “certified under his hand and attested by his seal of office,” shall be competent and conclusive evidence. The act of 1833 makes the demand, protest, and notice on a promissory note as much the official acts of a notary public, as the protest of a bill of exchange; and he was required to note the facts and manner thereof upon his official record. The certified copy of this record, attested in the manner prescribed by law, was therefore properly admitted as evidence in this case. But this record is also certified under oath, and the sufficiency of the affidavit attached to the record is the only part objected to in the bill of exceptions. The form of an affidavit is nowhere prescribed. The affidavit is as to the contents of the certificate that it “ contains the truth.” What does it contain ? “ The allegation of presentment, demand, protest, notice,” &c. If these things are not true, then it does not “contain the truth.” There can be no difference between the allegations that a certificate “ is true,” and that it “ contains the truth.”
   Per Curiam.

It appears from the bill of exceptions taken on the trial in this case, that the plaintiffs in the court below offered in evidence the record of the notary who protested the note, and gave the notices, to prove the liability of the defendants. It was objected to, on the single ground that the affidavit which accompanied the certificate of the notary was not sufficient. It is in these words: personally appeared before the undersigned, justice of the peace in and for said county, James R. Cook, (the notary,) who made oath that the written certificate of record contains the truth, to the best of his knowledge and belief.” The court admitted the record, and we do not think there was any error in so doing. We have no doubt that perjury may well be assigned on this affidavit, and that if the facts set forth in the record are. not true, the notary would not be permitted to evade the consequences, by the form of his oath. It is too well settled to need the aid of authority, that if a witness swears falsely hp may be convicted of perjury, notwithstanding the statement is made under his belief of the fact. The guilt is the same both in the forum of conscience, and in the eye of the law. It is the corrupt intent which is the criterion of guilt; and it determines the question whether it is made a positive statement or according to belief.

The judgment must be affirmed.  