be so is the precise question we are required to decide.

We are reminded, at the outset of the argument, by the counsel for the appellants, that being sureties, they are favorites of the law; that their contract is strictissimi juris; and that nothing is to be taken against them by intendment or construction. It is quite true that "the extent of the liability to be incurred must be expressed by the surety, or necessarily comprised in the terms used in the obligation or contract; that is, "the obligation is not to be extended to any other subject, to any other person, or to any other period of time than is expressed or necessarily included in it." "In this sense only," continues Mr. Burge, Law of Suretyship (1st Am. ed.), 40, "must be understood the expression that the contract of the surety is to be construed strictly. It is subject to the same rules of construction and interpretation as every other contract." Besides the rule of construction applies only to the contract itself, and not to matters collateral and incidental, or which arises in execution of it, which are to be governed by the same rules that apply in like circumstances, whatever the relation of the parties. So that the fact that the appellants occupy the relation of sureties cannot control the determination of the question whether the agreement, extending the time of payment of the mortgage debt, and the continuance of the mortgage as an incumbrance upon the estate, was a valid execution of the powers conferred by the will of the testratrix. That question must be answered according to its own rules.

It is further said however on the part of the appellants, that the agreement of February 24, 1874, cannot be sustained in support of a continuation of the mortgage lien, as an execution of the powers conferred by the will of Mary Beers, because it does not appear that it was so intended by Cyrenius Beers, the donee of those powers. It is argued that the agreement of extension makes no reference either to the power or to the property of the testatrix, which is the subject of the power; that every provision contained in it can have its full operation and effect; that is, all that it professes to do or provide for can be done, according to its full tenor, without referring the act to the power, and by referring it solely to the individual interest of Cyrenius Beers, as the debtor of the appellee.

This however on an examination, of its terms will appear to be an erroneous view of the true meaning and legal effect of the agreement of extension. It recites the indebtedness of Cyrenius Beers to the appellee, as then due and unpaid; that he had applied to them to extend the time for the payment of the principal sum; that Cyrenius Beers and Mary, his wife, had executed and delivered their deed of mortgage to secure the payment thereof; it is thereupon witnessed that the Connecticut Mutual Life Insurance Company doth thereby extend and postpone the time of payment of the principal sum until February 24, 1879, interest to be paid thereon at the rate of nine per cent per annum; and in consideration thereof Cyrenius Beers agrees to pay the principal sum on the day named therefor, and the interest thereon as stipulated, it being understood that a failure to pay installment of interest, the whole of the principal sum shall thereupon become due, and may be collected without notice, together with all arrearages of interest. It is also understood and agreed between the parties, that nothing in the agreement shall operate to discharge or release Cyrenius Beers from his liability upon the bond originally given for the payment of the debt, "but it is expressly understood that this instrument is to be taken as collateral and additional security for the payment of said bond." It is also expressly under

stood and agreed between the parties that in the event of failure on the part of Cyrenius Beers, "to fulfill, keep, and promptly perform, as well in spirit as in letter, the covenants in said mortgage contained, given by said Cyrenius Beers to said company, then at the election of the said company, "the whole of said principal sum in the condition of said bond mentioned shall thereupon at once become due and payable, and may be collected without notice, together with all accrued interest thereon at said rate of nine per cent per annum, any thing herein before contained to the contrary notwithstanding."

Taking the instrument in all its parts and looking at its entire scope and purpose, it must be admitted that notwithstanding its omission of any direct and express stipulation of that character, its meaning and legal effect are, to continue in force, so far as the parties to it had lawful authority to do so, the covenants and lien of the mortgage as security for the payment of the original debt, with the interest reserved at the increased rate until the expiration of the extended time of payment. This effect was undoubtedly intended by the parties, and this intention could not take effect except by virtue of the powers contained in the will of Mary Beers. Cyrenius Beers, as debtor, had no power to continue the mortgage in force, nor as tenant for life to renew it as a mortgage in fee. This is a demonstration therefore that the instrument must be treated as an execution of those powers, because if it cannot otherwise operate according to the intention of the parties, it must be referred to the power which alone can make it effectual in all its provisions.

The rule applicable in such cases, it is claimed, is that deduced as the doctrine of Sir Edward Clere's case, 6 Rep. 17 b, as stated by 1 Sugden on Powers, 417 (7th London ed.), that "where the disposition, however general it may be, will be absolutely void if it do not inure as an execution of the power, effect will be given to it by that construction." Mr. Chance however says: "There are indeed in the case dicta apparently to this effect, that if the instrument refer not to the power and can have some effect by means of the interest of the party, though not all the effect which the words seem to import, still the instrument shall not operate as an execution of the power, the intention being thus contravened. It appears quite clear however at this day, and a reference to the authorities will, it is apprehended, show that it has been considered clear for nearly two centuries that the rule is not thus confined; indeed it may well be asked why, admitting that the intention can be discovered to pass all, the intention should not prevail in the one case as well as in the other? What rule of law or construction would be thereby violated?" Chance on Fowers, § 1597, vol. 2, p. 72 (London ed.), 1831. And Sir Edward Sugden said: "And notwithstanding Sir Edward Clere's case, an intent, apparent upon the face of the instrument, to dispose of all the estate, would be deemed a sufficient reference to the power to make the instrument operate as an execution of it, inasmuch as the words of the instrument could not otherwise be satisfied. 2 Sugden on Powers, ch. 6, § 8, p. 412 (7th London ed.). In the present case, as we have seen, the legal effect and meaning of the instrument cannot be satisfied without treating it as an execution of the powers under the will, for Cyrenius Beers, merely as debtor, as mortgagor, and as owner of the life estate under the will of his wife, could not lawfully agree to keep in force and renew a mortgage upon the estate of which the appellants were devisees in remainder in fee.

The Supreme Court of Illinois in the case of Funk v. Eggleston, 92 Ill. 515, had the question under consideration, and in a learned opinion, in which a large number of authorities, both English and American, is

reviewed, discarded even the modified English rule of later date, and adopted that formulated by Mr. Justice Story in Blagge v. Miles, 1 Story, 427, as follows: "The main point is to arrive at the intention and object of the donee of the power in the instrument of execution, and that being once ascertained, effect is given to it accordingly. If the donee of the power intends to execute, and the mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. If it be doubtful, under all the circumstances, then that doubt will prevent it from being deemed an execution of the power. All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it should appear by words, acts, or deeds demonstrating the intention."

The rule as adopted by this court was tersely stated by Mr. Justice Strong in delivering its opinion in Blake v. Hawkins, 98 U. S. 315-326, in this form: "If the will contains no expressed intent to exert the power, yet if it may reasonably be gathered from the gifts and directions made that their purpose and object were to execute it, the will must be regarded as an execution. After all, an appointment under a power is an intent to appoint carried out, and if made by will the intent and its execution are to be sought for through the whole instrument."

In the case of Munson v. Berdan, 35 N. J. Eq. 376, it is said: "It is sufficient if the act shows that the donee had in view the subject of the power."

And in White v. Hicks, 33 N. Y. 383-392, Denio, C. J., said: "This doctrine proceeds upon the argument that by doing a thing which, independently of the power would be nugatory, she (the donee of the power) conclusively evinced her intention to execute the power."

And in Sewall v. Wilmer, 132 Mass. 131-134, the Supreme Judicial Court of Massachusetts, in reference to a will made in Maryland, which was the domicile of the testatrix, but the provisions of which related to both real and personal estate situated in Mass. achusetts, held it to be a valid execution of a power contained in the will of her father, whose domicile was in that State, although it would have been otherwise held in Maryland. Gray, C. J., said: "But in this Commonwealth the decisions in England since our Revolution, and before the St. of 7 Will. IV, and 1 Vict., ch. 26, § 27, have not been followed; the court has leaned toward the adoption of the rule enacted by that statute as to wills thereafter made in England, namely, that a general devise or bequest should be construed to include any real or personal estate of which the testator has a general power of appointment, unless a contrary intention should appear by his will; and it has been adjudged that the mere facts that the will relied on as an execution of the power does not refer to the power, nor designate the property subject to it, and that the donee of the power has other property of his own upon which his will may operate, are not conclusive against the validity of the execution of the power; but that the question is in every case a question of the intention of the donee of the power, taking into consideration not only the terms of his will, but the circumstances surrounding him at the time of its execution, such as the source of the power, the terms of the instrument creating it, and the extent of his present or past interest in the property subject to it."

We cannot doubt that Cyrenius Beers, in the agreement of February 24, 1874, intended to exert whatever

power had been conferred upon him by the will of his wife to continue in force the mortgage to the appeller. as an incumbrance upon her estate, for the reason that it is upon that supposition alone that it can have its due legal effect, ut res magis valeat quam pereat; and by force of the rules which we have seen ought to gov. ern in such cases, we hold that if the agreement, as made, is within the scope of the power, it must be regarded as a valid execution of it.

The question next to be considered therefore is, whether Cyrenius Beers was empowered by the will of his wife to consent to an extension of the time of payment of the mortgage debt, and a continuance thereby of the lien on the mortgaged estate.

It is to be observed, in the first place, that he is made executor of the will, tenant for life for his own use of all the property of the testatrix, and trustee of the legal title. Whether his title as trustee is to be considered as a fee simple or for life, or a chattel interest only, it is not necessary to decide. Its duration is to be measured by the nature of the purposes for which it was created, and they include the power to mortgage, to sell, and to reinvest in his own name as trustee. And it is not without significance, although of how much importance is not material, that the remainder in fee limited to the children of the testatrix, and which is described as a limitation of all the estate, of which the testatrix should die seised or possessed. is subsequently referred to, as what shall remain after the death of the tenant for life, and after the exercise by him of the power of mortgaging or selling and reinvesting has been exercised for the purpose of paying the indebtedness upon the property. It is further to be noticed that the powers to mortgage and to sell are authorized to be exercised by him for the purpose specified, "as though he held an absolute estate in said property." The specific power given is to "incumber the same by way of mortgage or trust deed or otherwise, and renew the same for the purpose of raising money to pay off any and all incumbrances now on said property," and the additional power to "sell and dispose of any or all the real estate of which I may die seised or possessed, as though he held an absolute estate to the same, and out of the proceeds pay any of the incumbrances upon any of the property of which I may die seised and possessed," and "the remainder over and above what may be required to pay the indebtedness upon said property, the same now being incumbered, to reinvest in such way as he may see proper, and from time to time sell and reinvest, such reinvestment to continue to be held in trust the same as the estate of which I may die possessed."

It is too plain to admit of dispute that under these ample powers Cyrenius Beers might have secured, by a new mortgage, a loan of the sum of money, at the stipulated rate of interest, necessary to pay his indebtedness to the appellee, and that he might, by a new loan from the appellee itself, secured by a new mortgage, upon the same terms and for the same time as granted by the agreement of extension, have raised the money and discharged the mortgage now in suit. Such a transaction would have been strictly within the letter of the authority. And yet it would, in fact, have been nothing but what was accomplished by the agreement of extension, namely, a continuance of the old loan, secured by the old mortgage for a new term, and at a higher rate of interest. The two transactions, though not the same in form, are so in substance, and a substantial execution of the power is all that is required. In the case of Bullock v. Fladgate, 1 Ves. & Bea. 471, where the power was to convert an estate into money and to purchase other lands, which were the subject of the appointment, the master of the rolls, Sir Wm. Grant, no conversion having taken place, but the original estate having been appointed,

said: "I apprehend that equity will uphold an appointment of the estate itself as amounting substantially to the same thing; on which principle it is that appointments deviating considerably from the title of the powers under which they were made have frequently been supported."

The power to incumber the estate "by way of mortgage or trust deed or otherwise, and renew the same," is broad enough to include the renewal and extension of an existing incumbrance as well as the creation of a new one; and this is not inconsistent with the declaration that it is to be "for the purpose of raising money to pay off any and all iucumbrances now on said property." The object clearly was to meet the demand of the existing mortgagee for punctual payment of the debt secured, and to prevent the possible sacrifice of a forced sale to satisfy the demand, if not complied with; an object which could as well be accomplished by extending the existing mortgage, as by substituting a new one in its place. The power to renew a mortgage given for the purpose of raising money to pay off an existing incumbrance is expressly given; to renew an existing one, to avoid the necessity of creating a new incumbrance, is we think reasonably and fairly to be implied, as equally within the intention of the testatrix, and within the scope of the powers created by the will. The extension of a mortgage debt, and continuance of a mortgage lien, is one mode of incumbering the property, and may be a step, and possibly, under some circumstances, a very important and necessary one, in preparing for its payment and extinguishment. Indeed it might well be as the transaction shows the parties to it so understood, that Cyrenius Beers, uniting in himself the various characters of principal debtor and joint mortgagor, and of executor of his wife's will, tenant for life of the estate devised, and trustee with the ample powers conferred upon him of dealing with the incumbrance, was in reality constituted by the testatrix as the representative of all the interests created by the will, fully authorized, as if he were absolute owner of the estate, even as she could have done in her life-time, to consent to the extension of the time of payment of the mortgage debt without prejudice to the mortgage security.

There is no error in the record, and the decree of the Circuit Court is affirmed.

BROOKLYN BRIDGE TRUSTEES NOT LIABLE
FOR INJURY TO ONE CROSSING
BRIDGE CAUSED BY
PANIC.

NEW YORK CITY COURT, NOVEMBER 20, 1883

HANNON V. AGNEW.

The trustees of Brooklyn Bridge held not liable for injury to one crossing the bridge, caused by a panic among those travelling thereon, either on the ground of permitting the bridge to be overcrowded, or on that of not appointing an adequate police force to prevent such an accident. CTION against the trustees of the Brooklyn bridge

the bridge on Decoration day, 1883. The accident took place during a panic among those travelling upon the bridge upon the day mentioned. The court dismissed the complaint.

James M. Lyddy, for plaintiff.

Bergen & Dyckman and A. J. Vanderpoel, for defendants.

MCADAM, J. While it is true that when an individual sustains an injury by the misfeasance or non

feasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an appropriate action (Adsit v. Brady, 4 Hill, 630; Shepherd v. Lincoln, 17 Wend. 250; Smith v. Wright, 24 Barb. 306; Robinson v. Chamberlain, 34 N. Y. 391; Hover v. Barkhoof, 44 id. 122: Connors v. Adams, 13 Hun, 429), yet public officers are not liable for the misconduct or malfeasance of such persons as they are obliged to employ, the maxim respondeat superior having no application to such officials. Murphy v. Commissioners, 28 N. Y. 134; Donovan v. McAlpin, 85 id. 185; 1 Dillon Mun. Corp. 298, note. In other words, public officers while liable to a civil action for willful and capricious omission of duty resulting in injury to the party complaining, are not liable for mere neglect not personal. In the present case no personal neglect has been proven against any of the defendants. The negligence charged against the defendants consists:

First. In allowing the bridge under their management to be overcrowded on the day the accident occurred.

The evidence proves that there were 87,000 people upon it on the day of the accident, and that 183,000 had crossed it in safety on a previous day; that the arrangements were alike on both days.

Second. In not appointing an adequate police force as required by the act under which the defendants were appointed.

The superintendent, by and with the approval of the chairman of the committee on organization appointed by the board of trustees, selected and appointed what they regarded as an adequate police force, which proved sufficient on all occasions prior to the one on which the plaintiff received her injuries. The evidence fails to show that the alleged irregularity of such appointment in any way contributed to the accident, or that it would have been avoided if double the force had been appointed. The crowd upon the bridge became panic-stricken and unmanageable, and it does not appear that any personal or individual act of the defendants could have prevented such a result. The injury which the plaintiff received was caused by the surging crowd, and no personal act of the defendants has been shown to have been the proximate cause of it.

The trustees acting individually have no powers or functions. The act authorizing the appointment of the trustees provides that they shall have power to make all needful rules and regulations for the government of their board; to appoint one of their number president, and also a secretary and treasurer, and such other officers and subordinates as may be necessary for the performance of their duties. Laws 1875, ch. 300, § 6. The trustees are therefore to meet and act as a board, in which a majority of the trustees governs (Angell & Ames, Corp., § 501); and in which the minority has no practical control. To hold the trustees of a public work, under such circumstances, personally and individually liable for acts such as the complaint charges, would entail a dangerous responsibility that few would be willing to assume. It would be responsibility without control.

The trustees have no pecuniary interest in the bridge or its income. Their office is one of honor, without emolument. The title to the bridge is vested in the cities of New York and Brooklyn, and the income therefrom is by the terms of the act to be applied toward the payment of the principal and interest of all bonds of the said cities in proportion to the amount issued by the said cities respectively. The office held by the trustees was created by the State, which by legislative enactment formed in effect a new district, composed of part of two cities, and directed the number of trustees who were to have the manage

ment and control of the bridge, which was declared to be a public work. The act provides the mode of appointment of the trustees, defined their powers aud prescribed their duties. The act provides that the persons appointed, together with the mayors and comptrollers of said two cities, shall constitute the "Board of Trustees" of said bridge, so that in the performance of their duties the trustees are not to act on their individual judgment, but only after a concerted plan of action deliberately agreed upon at a regular meeting of the board, at which, after mutual consultation and advice, the majority is to determine what shall or shall not be done for the public good.

Under the circumstances, no personal, individual liability attaches to the trustees for the acts imputed to them by the plaintiff.

No personal negligence has been proved against the superintendent, and he being a public officer, is not liable for the negligent acts of the subordinates under his direction.

If the accident of which the plaintiff complains had happened upon a turnpike or bridge conducted by a private corporation for gain, a different question might arise; but under the circumstances disclosed by the evidence, the defendants are not personally and individually liable, and the complaint must be dismissed.

A

CTION of ejectment. Sufficient facts appear in the opinion. Plaintiff appealed from a judgment for defendant below.

J. M. Crutchfield, for appellant.

O. L. Houts, for respondent.

WINSLOW, Com. This is an action of ejectment for an undivided interest in 160 acres of land in Johnson county, Mo., commenced in the Circuit Court of that county January 21, 1879. The petition is in the usual form, and the answer is a general denial, except the admission that defendant was in possession. The trial was before a jury, and the verdict and judgment were for defendant, to reverse which the plaintiff brings the case here by appeal.

It was admitted on the trial that George Reiter was the common source of title; that plaintiff is one of the only five equal heirs of one G. F. Maus, who died intestate before the commencement of this suit; that plaintiff was a married woman at the time, but her husband was dead before the commencement of this suit; that defendant holds the possession; that the damage shall be one dollar, the rent and profits two dollars per month.

Plaintiff next read in evidence a deed from George Reiter and wife to George F. Maus for the entire land, dated December 14, 1864, which was in all respects sufScient to vest the legal title in him. This made out a

prima facie case for plaintiff, and entitled her to the verdict and judgment.

For the purpose of showing this prima facie title out of plaintiff and in himself, defendant offered in evidence a deed from the admitted heirs of G. F. Maus to Ursula Reiter, embracing the land in controversy, dated July 7, 1866 and purporting to be acknowledged before C. M. Gordon, clerk of Probate of Moniteau county, Mo., on the day of its date. This deed is signed by plaintiff and her then husband, whose name appears on the face of the deed and in the certificate of acknowledgment, but the certificate of the notary entirely omits the privy examination of the plaintiff, thus rendering the deed void as to her.

To remedy this defect the deed was sent to Gordon, who on April 5, 1871, indorsed a proper certificate upon it, containing the privy examination of plaintiff.

This certificate recites the appearance of the parties as the date of the deed. In the body he describes himself as clerk of the Probate Court, but the testimonium is as follows: "In testimony whereof I have hereunto set my hand and affixed the seal of said court this 5th day of April, 1871. C. M. Gordon, late clerk of Probate Court."

This deed was objected to by plaintiff, because not properly acknowledged. The objections were overruled and the deed admitted. Defendant then introduced a deed from Ursula Reiter and her husband to himself, dated October 22, 1874, for the land in controversy. No acknowledgment or certificate of record appear, but plaintiff saved no exceptions on these grounds.

Plaintiff in rebuttal offered evidence to show that she never was at any time subjected to a privy examination by Gordon. Defendant also offered parol evidence tending to show that the facts stated in the certificate of April 5, 1871, were true.

An agreed statement of facts was read in evidence showing that Gordon was not clerk of Moniteau Probate Court at the time he attached the amended certificate to the deed in controversy, and did not pretend to be acting in any official character whatever in performing said act, but that he was such clerk at the date of the deed, and when he took the first acknowledgment.

The only question in this case relates to the validity of the amended certificate of acknowledgment, placed upon the deed from the heirs of G. F. Maus to Ursula Reiter, by Gordon, the former clerk of the Moniteau Probate Court, long after his official term had expired, and when he had no official authority nor any right to the custody or use of the seal. The facts surrounding this question are very plainly stated above, just as the record shows them, and need not be stated here-in fact, there is no dispute about them.

Respondent relies on the case of Wannall v. Kem, 51 Mo. 150, and 57 id. 478. A critical examination of these cases will disclose that they do not satisfactorily decide the question in the form there presented. The case first cited was a bill in equity to foreclose a mortgage, executed by Kem and his wife, on lauds belonging to the wife in fee, to secure a note alleged to have been executed by them to plaintiff's indorser, and to correct a mistake in the mortgage, the alleged mistake being the omission of the notary to insert in his certificate of acknowledgment the privy examination of Mrs. Kem, although he had actually taken the same. The notary was made a party. The relief asked was a decree of the court correcting the alleged mistake. There was no amended certificate on the mortgage, and no prayer for a mandamus ou the notary to put one there, and no such questions were before the court. There was a demurrer to the bill, because of its insufficiency, and because the notary was not a proper or necessary party to the suit. The

real question in judgment was whether a court of equity possessed the power to correct a mistake in the acknowledgment of the deed of a married woman for her fee simple lands; and this was the only question the court could legitimately decide under the issues. But Adams, J., in writing the opinion of the court, after holding that a court of equity possessed no such power, because it was a statutory power conferred upon the officer, departed from the case before him, and remarked, somewhat obiter: "The officer may voluntarily correct his certificate, or make out a proper certificate when he has given a defective one, if the facts really exist to warrant such action. If the officer refuses to make a proper certificate he may be compelled to do so by mandamus." It will be observed that no authorities are cited or reasons given why this should be so, and the remarks of the learned judge who wrote the opinion may be fairly classed as obiter dictum.

The second case cited between these same parties was an action on the note secured by the mortgage, which was given to one Brolaski, the plaintiff's indorser, for certificates of stock in a gas-works company. One defense was that the note was procured by fraudulent representations as to the stock. Mrs. Kem interposed a separate defense to the effect that she never was, in fact, subjected to a privy examination by the notary. These issues were tried by a jury, who found for the desendant Napton, J., in disposing of some questions put to Mrs. Kem while on the witness stand, tending to prove that she really knew the contents of the deed and really executed it voluntarily, etc., having been informed by her husband, comments on and explains the policy of our statute in requiring these facts to be ascertained and certified by an officer, rather than proven before the trial courts, but does not mention the power of these officers to grant amended certificates where they have made defective ones. 57 Mo. 482. In explaining the verdict of the jury on Mrs. Kem's defense, the learned judge alludes to the history of these acknowledgments and the previous proceedings in the case, and then alludes to the amended certificate thus: "This court however on a review of the case decided that the courts had no power over such mistakes, but intimated that the notary-the officer who took the acknowledgmentmight correct the certificate, if in point of fact this privy examination, explanation, etc., had in fact been made." Wannell v. Kem, 51 Mo. 150. It is a little remarkable that the real point in issue in the first case is classed as decision, while the point as to the power of the officer to grant the amended certificate is merely classed as an intimation. After stating the fact that a perfect certificate was substituted for the original, which was erased long after the acknowledgment, he remarks: "If we assume this last certificate as true, and stating the facts as they occurred, it is plain that the notary, at the date of his examination and certificate, was perfectly aware of what was required by the statute."

The effect this strange conduct of the notary might have had on the minds of the jury, in producing a verdict for Mrs. Kem, is then commented on. The defense was finally disposed of on ground that there were no improper instructions, and the verdict was conclusive on the facts. 57 Mo. 483, 4. The sixth instruction given by the courts explains the probative force of the amended certificate as prima facie true, and tells the jury to find a verdict against Mrs. Kem on it, provided they also find a verdict against Kem on his defense of fraud, and she has not disproven the certificate. 57 Mo. 487. The remainder of the case con. tains a learned discussion of Kem's defense of fraud, which is finally disposed of on the strength of the jury,

These cases certainly furnish the only foundation in this State for the doctrine that an officer,even while yet an officer, may amend his certificate of acknowledgment to the deed of a married woman for her fee simple lands, after he has delivered it to the grantees with a defective certificate indorsed. It is not difficult to perceive that the doctrine rests on a slim foundation, so far as direct adjudication is concerned, when so eminent a jurist as Judge Napton could only speak of it as having been intimated by this court. Counsel for respondent have been unable to furnish us any other authority on the subject, and we presume they are possessed of no more.

These cases certainly furnish no authority for extending the doctrine, sought to be maintained by them, to a person who was an officer when he made the defective certificate, but had long ceased to be such officer, and was acting in a strictly private capacity, when he made the amended certificate, as was the fact in the case at bar. In the Kem cases, the notary was still in office, surrounded by the sanctity of his official oath, deterred by the penalty of his official bond, and resting under the fear of punishment for official misconduct. These are the safeguards which the statute has, in the wisdom of its policy, thrown round the estates of married women, and the courts have jealously guarded and protected them in the construction and enforcement of the statute, as the adjudicated cases will very plainly demonstrate. These facts were not present in this case when Gordon attached his amended certificate. He made no pretense of any official capacity, but only assumed to act as a private individual in performing an act which should have been done under the seal of official sanctity. What right had he to imprint the official seal of the court, which had passed into the custody of another, who was alone empowered to imprint it on any legal document? Suppose he had made a false certificate, as it is alleged he did, where is the protection to the plaintiff on his official boud, or her right to subject him to criminal punishment for official misconduct? What becomes of the policy of the statute, and the entire system inaugurated by the Legislature in the laws requiring the execution of deeds to be established under the official protection of officers and courts designated for the purpose, if "late" officers, after they have become private individuals, may perform these functions, imprinting official seals to which they have no longer any right, invading offices over which they have no official control to procure them for use, and acting without any legal sanctity whatever? We have carefully examined this question, and are all decidedly of the opinion, that to extend the doctrine intimated in the Kem cases, beyond the official term of the officer performing the original act, so as to sustain the certificate before us, would result in the utter subversion of our entire system for the execution and proof of deeds, especially with reference to the fee simple lands of married women, and establish a precedent that would prove pernicious in its results.

All the cases in other courts which we have examined are strongly opposed to the doctrine in any form. See Bours v. Zachariah, 11 Cal. 281; Silliman v. Cummins, 13 Ohio, 116; Merritt v. Yates, 71 Ill. 637; Ellwood v. Clock, 13 Barb. 50; Jourdan v. Jourdan, 9 Serg. & R. 268.

For the reasons stated, the judgment should be reversed and the cause remanded. All concur.

Per Curiam. For the reasons given in the foregoing opinion the judgment of the Circuit Court is reversed and the cause remanded.