Ex parte Carpenter

McKee, J. The petitioner is held in custody by an order of commitment holding him to answer upon a charge of perjury. He complains that his imprisonment is illegal, because there was no evidence before the committing magistrate to sustain the charge, and no sufficient cause to believe him guilty.

The evidence upon which the order ivas made showed that between the hours of eight and nine o'clock on the night of the 21st of April, 1883, the petitioner appeared before a notary public in Solano County, to acknowledge the execution of a deed, which he then exhibited to the notary, signed by one E. Bouchard as the grantor therein named. The notary, having had no personal knowledge of the petitioner, administered to him an oath, as a witness in his own behalf, for the purpose of determining whether he was the person who had signed the deed which he wished to acknowledge; and the petitioner on oath testified that he was E. Bouchard, the person named in and who executed, the deed. Upon that evidence the notary took the acknowledgment,' certified to it, and returned the deed with his certificate annexed to the petitioner.

The identity of a party acknowledging the execution of an instrument is an essential fact to be found by the officer taking the acknowledgment; and it must be found by him from his personal knowledge of the person, or from satisfactory evidence of a witness; and when found it must be stated in the certificate of acknowledgment. In the proceeding before the notary the testimony given by the petitioner was therefore material, and the evidence before the committing magistrate showed that it was false. Being false, the act of taking the oath was an act coupled with an intent prejudicial to one or the other or both of the parties named in the deed, and the evidence made a sufficient cause to hold the petitioner to answer upon the charge of perjury, if the notary had authority to administer the oath.

There is no question that the notary was an officer legally authorized to take and certify acknowledgments to written [269]instruments, and to administer oaths and take testimony for that purpose. (§ 1181, Civ. Code, and § 2093, Code Civ. Proc.) His jurisdiction, it is true, is limited by law to cases in which he personally knows, or has satisfactory evidence on the oath or affirmation of a credible witness, that the person making the acknowledgment is the person who executed the instrument.

In the proceeding commenced by the petitioner the notary had jurisdiction; and, as the petitioner was unknown to him, he had authority to administer an oath to any credible witness for the purpose of ascertaining and determining the fact of the petitioner’s identity with the grantor named in the deed before talcing his acknowledgment; the question, therefore, arises, whether under such circumstances the petitioner was a competent witness, in his own behalf, to prove that he was the person described in and who had executed the deed.