William H. Washington vs. Thomas Hodgskin, Garnishee of J. T. Boteler, 12 G. & J. 353

Stephen, J. delivered the opinion of this court. The appeal in this case was, we think, properly taken from the judgment of the court belowq quashing the attachment, and not from the refusal of the court to grant a re-hearing. There is but one question in the case, which it is necessary to decide, and that relates to the sufficiency of the Governor’s certificate, as to the power of the judge to administer the oath, which was taken before him by the attaching creditor.

The judge, after stating that the oath was taken before him, attaches to the foot of his certificate the following attestation •. “Sworn to before me, this 2nd June, 1841. I. R.

Nicholson, Judge, &c.” The Governor certified that he was a judge of the State of Mississippi on that day, and “that his attestation to the annexed certificate is in due form of law, and made by the proper officer, and that full faith and credit are due to all his official acts.” The act of 1795, chap. 56, sec. 2, provides, that the oath shall not be good and sufficient evidence when made before a judge of any other of the United States, unless there be thereto annexed a certificate of the clerk of the court of which he is a judge, or certificate of the Governor, Chief Magistrate or Notary Public of such State, “that the said judge hath authority to administer such oath.” The question therefore is, whether the certificate of the Governor has substantially complied with the requisition of the act of Assembly, as to the capacity of the judge to administer the oath in this case; for it is not understood that a literal compliance with the law is necessary, if the certificate is substantially sufficient, the case of Shivers vs.

Wilson, in 5 H. & Johns. Rep. 130, having decided that a substantial conformity to the requirements of the law is all that is necessary. A few years after the passage of the act of Assembly under which this proceeding was had, a similar question arose before the late General Court, and was decided by that tribunal; it occurred in the year seventeen hundred and ninety-nine, very recently after the passage of the law, and before a court of acknowledged legal learning and ability. In that case the court, speaking of the Governor’s certificate, say, “it does appear to the court that the certificate is sufficient.

The Governor certifies to the affidavit of the justice of the Court of Common Pleas, that full faith and credit is to be given to his attestation.” He has attested that Smith was sworn, and this shows that he could administer an oath. 4 Harr. & McHenry’s Rep. 294. The certificate in the case now before this court, seems to be of equivalent import, and entitled to the same construction. The Governor certifies that the judge’s attestation to his certificate, is in due form of law, and made by the proper officer, and that full faith and credit are due to all his official acts.

The judge attests and certifies that he administered the oath; that the attaching creditor was sworn by him, and the Governor certifies that the attestation or certificate of the judge, stating that the oath was administered by him, was made by the proper officer.

The inference seems to be not only fair, but irresistible, that if he was the proper officer to make such a certificate, he must have had authority to administer the oath; for if he had not the power to administer the oath, which he states tie did administer, his certificate that he did administer it, could not be said, with propriety, to have been made by the proper officer. He was not the proper officer to certify the fact. Instead of being an official act, or one appertaining to his office, to which full faith and credit ought to be given, it would have been an illicit and unwarrantable usurpation of power.

The case in 4 Harr. & John. 192, referred to in the argument, does not, when properly considered, conflict with this view of the question.

The clerk in that case only certified that he was a judge, “and that full faith and credit ought to be given to his legal attestations in court, and not in his said capacity,” but as was argued by the counsel, he did not certify that the particular act in question was a legal one, to which full faith and credit ought to be given, if he had, the certificate would have been full and sufficient, and have been sustained by the case decided in 4 H. & McHenry, 294, above referred to.

The court, in 4 H. & John. 192, do not require the certificate to state in express terms, that the judge had authority to administer an oath; they only say, that as it did not appear by the certificate of the clerk, that the judge had authority to administer an oath, the proceedings were defective. Considering the certificate of the Governor in this case, as to the power of the judge to administer an oath to be sufficient, we think that there was error in the judgment of the court below, quashing the attachment upon that ground, and that the same ought to be reversed.' JUDGMENT REVERSED AND PROCEDENDO ORDERED.