Duncan v. Grant

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.