
    Johnson, &c. vs. Fowler.
    
      Dec. 9, 1816.
    
    A power of attorney proved and admi tid to record if Virgin eia, and atteft-ed by a clerk* without the cec tificate ol the judge, chief juf tice or prefiding nlagiltraie, i§ inadmisible e« vidence in this date, uniefa its execution is proved
    The execo* tion may be proved by one of the fubicrib* ing witneffes.
    To read a de. portion taken dtbtntejje, proof of the abfence of the witnefa from the date* Or his inability to attend,(hould be made — Void 3> *°4
    A commiffion ⅛ unnccefliuy to authorite a dU<tlfHnns'ake
   OPINION of the Court, by

Judge fhvsi.r.Y.-

In the consideration of this cause we shall only inquire whether the court below decided correctly in permitting to be used as evidence a power of attorney introduced by Fowler, who was plaintiff in that court ?

The power appears to have been executed in the state of Virginia ; and whether it be considered in relation either to the laws of congress or this country, we are equally clear it should not have been used.

Upon proof being made in the county court of Powhatan, in the state of Virginia,-of the execution of the power, it was admitted to record ; but as the attestation of the clerk of the court is not certified, either by the judge, chief justice, or presiding magistrate, to be in due form, the authentication does not conform to the act of congress of 1790 ; and it is perfectly clear the act of 1804 does not embrace the case.

When the power was given, the act of the legislature of this country of 1798, (2 Litt. 76) concerning the authentication of foreign writings, had not passed; but as that act was taken from the laws of Virginia in force at the separation, it is proper we should inquire whether the authentication conforms to its provisions ?

By that act it is provided, that all policies of insurance, charter parties, powers of attorney, foreign judg-merits, specialties on record, registers of births or mat** as have been, or shall be made, executed, entered into, given, ¡«registered in due form according, to the laws of any state, kingdom, nation, province, island or rH*0,|y» a,)d attested by a notary public, with atestimo-nlid It-om the proper officer of the city, county, corpora-t.ion or borough where such notary public shall reside, ,,r f|ie great seal of the state, kingdom, province, island, ' °‘‘ P-a< i‘ beyond sea, shall be evidence in all the 'courts of record within this commonwealth, as if the same had been proven in said courts.

April 22, 1817.

*⅛ or notice need nut ri cite tionL '.ken ¿í tun eft.

According to the clear and obvious meaning of this act, ti e power of attorney, to have been legitimate evident e, without oilier proof of its execution, should have been attested by a notary public, together with cither a testimonial such as the act requires, or the great seal of the state, &c. as directed by the act.

The power in question, as it does not, however, either conform to the requisitions of this act or that of congress, ought not to have been used as evidence; and for that cause the judgment must be reversed w;ith costs, the cause remanded to the court below and a new trial directed.

A petition for a rehearing was presented, and the follow i 11 ⅜; opinion delivered.

Upon the supposition that the court below erred in admitting as evidence tile power of attorney introduced by Fowler, this court at a former term delivered an opinion reversing the judgment of that court.

The opinion then given was predicated upon the supposition that no other evidence than the authentication of the power was introduced to prove its execution ; but upon further examination it is perceived that the execution was prov en by the deposition of one of the subscribing witnesses ; and hence it now7 becomes necessary to examine the objections taken in the court below to th« using of that deposition as evidence.

The objections arc, 1st, that no commission to take the deposition dc bene esse bad been previously awarded ; and 2dly, that neither the notice nor the deposition show it to have been taken de bene esse.

Although the witness may in fact be a resident of another country, yet as he appears to have been in this state when his deposition was taken, that deposition ought ⅜0⅜, so long as he remained within the limits of this conn-try, to be used as evitlenre. Hence, before the deposition could have been regularly admitted, the absence of the Witness from the. state ought to have been proven ; but as the exceptions contain no suggestion of the failure of such proof, we cannot infer it was not made.

With respect to the objections taken to the deposition, they cannot prevail.

By the act of 1812 (4 Litt. 337) no comnrssion was necessary to authorise the justice to take the deposition. And although proof of the witness’s absence ought to be made before the ('¡‘position could be used, it is not necessary that either the notice or deposition should recite the contingencies upon which it was to be used.

As, therefore, the execution of the power was proven by competent evidence on the trial, the decision of this court formerly given, reversing the judgment of the court below, must be set aside, and the judgment of that Qpurt affirmed with costs.  