Malloye v. Coubrough

Temple, C. — Appeal by defendant from a judgment, and from an order refusing a new trial.

The action is upon a foreign judgment, which it is averred “ Abel Rey & Co., a copartnership doing business in London,” before the commencement of this action, assigned to plaintiff.

The assignment is denied in the answer. The court found on this issue against the defendant, and it is now contended that the evidence is insufficient to support the finding.

It is not alleged who composed the firm of Abel Rey & Co., nor is there any proof upon that subject, except the certificate of the notary in the acknowledgment of a power of attorney under which the alleged assignment was made.

Objection was made to the admission of the power of attorney as evidence, on the ground that the proof of its execution by Abel Rey & Co. was insufficient, and that the instrument did not confer the power upon the attorney to make the assignment. A like objection was made to the instrument itself when offered. All the objections were overruled, and exceptions to the ruling noted. These rulings are here assigned as errors, and urged in connection with the same points made under specifications as to the insufficiency of the evidence.

Harris, a notary public of London, England, certified in the acknowledgment " that the annexed power of attorney was this day signed, sealed, delivered, and acknowledged by the therein-named Abel Rey & Co., by Fernand Rey (personally known to me), a member of [651]that firm, as and for the free and voluntary act of himself and his said firm, in my presence, and in that of the other subscribing witnesses; further, that the signatures of ‘ Abel Rey & Co.’ and ‘ Fernand Rey,’ subscribed opposite the seal at foot of the said power of attorney, are the own proper handwriting of Fernand Rev,’’ etc.

Section 1185 of the Civil Code provides that the officer taking the acknowledgment must know or have satisfactory evidence that the person making the acknowledgment is the individual who is described in and who executed the instrument, or if executed by a corporation, that he is the president or secretary of such corporation.

In this case, the person making the acknowledgment was not Abel Rey & Co., and the statute does not impose upon the notary the duty of knowing who composed that firm, nor does he in fact certify that he knew him to be a member of the firm. He certifies that Fernand Rey was personally known to him, and in his presence executed the instrument as his voluntary act, and that of his firm.