QforttpU ICam Btl^oal 2ItbrarH Cornell University Library KFN5985.N6S62 A handbook for notaries public and comml 3 1924 022 875 284 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022875284 COPYEIGHT, 1912, BT JOSEPH OSMtfN SKINNER. PREFi^OE My apology for writing this book may be summed up princi- pally in tbe following: First: In this State tibe law relating to no officer or subject is so scattered through the statutes as the law pertaining to notaries public and commissioners of deeds. The writer believes the reason for this condition of the law in relation to these officers to be the comparative neglect of them because of a want of appreciation of their importance. Few are aware of the broad powers of notaries, and commissioners of deeds and therefore the confidence placed in them by the public ; fewer still appreciate their liabilities and the many times they lay themselves open to suits for damages be- cause of a lack of knowledge of the duties of the office. It will be a surprise to most readers to know 'that the statutes, etc., which govern these officers comprise the following: Executive Law, Pub- lic Officers Law, General 'Construction Law, Code of Civil Pro- cedure, Penal Law, Code of Criminal Procedure, Negotiable In- struments Law, United States Revised 'Statutes, United States •Constitution, 'New York Constitution, Domestic Relations Law, Real Property Law, Decedent Estate Law, Judiciary Law, No- taries Public and Commissioners of Deeds, Greater New York 'Charter, Banking Law, Insurance Law, Second Class Cities Law, General Business Law, Bankruptcy Act, General Orders in Bank- ruptcy, General Rules of Practice, Municipal Court Act, Court of Claims Rules. Merely reading these statutes, however, does not, in many instances, give one the law. To explain the meaning of many of the statutes' referred to it was necessary to study, apply and quote from the opinions of judges in more than three himdred cases selected from a reading of many hundred cases. Few appreciate the fact that 'there are three classes of commis- sioners of deeds in the state of New York ; that each class is gov- erned by its ovsm law and that the members of each class are in many respects different officers with distinct powers, duties and ■responsibilities. The classes are as follows: (1) 'Commissioners of Deeds in cities of the State except New York City. (2) 'Commissioners of Deeds in New York City. (3) Commissioners of Deeds for New York residing in foreign state's or countries. (iii); IV Preface. Likewise, few know that a notary is both a State and a local officer, that as to some powers he may act anywhere within the state while as to others he can act only in the county for which he is appointed or in some other county in which he has filed his certificate. And many do not know that as a state officer he is required to have a seal. It is very doubtful if more than half ■of the seals of notaries in the state of New York comply with the legal requirements. The following is believed to be the legal seal of a nota,ry of this state: lAl though notaries and commissioners of deeds are generally chosen as officers to take depositions no work on notaries has ever contained in concise form the general rules governing their powers and duties in taking depositions in New York. That the law gathered from statutes and oases which an officer might want at a moment's notice) when taking a deposition should be in a form to be of use 13 considered an important feature of a work on notaries and commissioners of deeds. The powers and duties of notaries under the insurance law has never before been discussed in a hand-book for notaries. This is a very important power that has been delegated to notaries and should be more widely understood. The relation of a bank and its notary is another subject which has never been discussed in a book on notaries. This also is an important question which belongs logically in such a work. J. o. s. 22 William Street, New York City. SUMMARY OF CONTENTS. NOTARY PUBLIC. Chaptee I. / SECS. History of the Notary Public 1-8 'Chaptee II. i Purpose of the Office of Notary 9^ Definition 1ft Nature of the Office 11-12 Eligibility and Qualifications 13-15 Appointment 16-2(V Oath of Office 21 Procedure to Compel Public Officer to Administer Oath to On© Appointed Notary Public 22 Pee to the State 23 Notary's Bond 24 Notary's Official Seal 25-28 Notary's Name 29 Term of Office 30 Jurisdiction of a Notary 31 Chapter III. Functions and Powers: 32-39 Under International Law 33 Under the Law Merchant 34 Under Federal Statutes. 35 Under Laws of Other States 36 Under Laws of New York 37-39 Procedure on Refusal of Public Officer to Accept Certificate of No- tary Public 40 Chaptee IV. Disqualifications 41-45 Duties and Liabilities 46-51 Notary May Be Compelled to Act r 2 Records 53-55 Fees 56-5T Vacancy in Office 5S Resignation 59 Removal 60 Reappointment 61 Notaries De Facto 62-63 Nfrtaries Ex Officio 64 (v) vi Table of Contents. SEC3. Validating Acts 65 Delegation of Authority ^^ Authentication of Notary's Certificate 67 Sunday 68 OOMMISSIOKTEES OF DEEDS. Chaptee v. History of Commissioners of Deeds 69 Classes of Commissioners of Deeds 70 Purpose of the Office 71 Definition 72 Nature of the Office 73-74 Eligibility and Qualifications 75-76 Appointment 77-79 Oath of Office 80 Procedure to Compel Public Officer to Administer Oath to One Appointed Commissioner of Deeds 81 Fee Payable on Appointment 82 Commissioner's Bond 83 Commissioner's Name 84 Term of Office 85 Official Seal. 86-87 Jurisdiction of Commissioner 88 Functions and Powers 89-90 Disqualifications. . 91 Duties and Civil Liabilities 92 Criminal Liabilities. 93 Commissioners May be Compelled to Act 94 Records. . 95 Fees 96 Vacancy in Office. 97 Resignation 98 Removal 99 Reappointment 100 Commissioners De Facto 101 Commissioners Ex Officio 102 Validating Acts 103 Delegation of Authority 104 Sunday. . 105 Authentication of Certificate lOfi Fees for Certificate of Authentication 107 OATHS. 'Chaptee VI. History 108 Psl^nitions 109-110 A'^ministration, What Constitutes Ill V;:io May Take An Oath 112 Table of Contents. vn Who May Affirm Notaries or Commissioners May Administer Oatti or Affirmation . . Special Oaths Administration of Oath a Ministerial Act: Disqualification o£ Officer Delegation of Authority to Administer Evidence of Administration Forms of Oaths and Affirmations Fees for Administering Civil Liability of Officer Criminal Liability of Officer Palse Oaths ArFIDAVITS. 'Chaptee VII. Definition Importance of Affidavits Who May Make The Oath Notaries and Commissioners of Deeds May Take Taking of Oath a Ministerial Act: When Officer Disqualified.. Delegation of Authority to take Parts of An Affidavit Title Venue " SS " Date. Body Signature Names. Seal of Affiant Jurat Seal of Officer Witnesses. Porms Fees Authentication. . . Civil Liability of Officer Criminal Liability of Officer Palse Affidavits: Liability of Affiant or Affirmant. ACKNOWLEDGMENT AND PBOOF. 'Chapter VIII. ■Object of Acknowledgment and Proof Importance of Acknowledgment and Proof Definitions. . . What May Be Acknowledged or Proved SECS. 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 .129-130 131 .132-146 133 134 135 136 .137-138 139 140 141 .142-144 145 146 147 148 149 150 151 152 153 154 155 15® ■^111 Table of Contents. SKOa. Nature . of the Act of Taking 157 Notary and Commissioner of Deeds May Take 158 Officer Disqualified, Wlien 159 Jurisdiction of Officer to Take 160 Who May Make Acknowledgment. . 161-165 Who may Make Proof 166 Time of Taking Acknowledgment or Proof 167 Acknowledgment, How Taken. . . . 168-171 Proof, How taken 172 Contents of Certificate of Acknowledgment 173-174 Contents of Certificate of Proof. . . 175-176 Certificate of Acknowledgment or Proof 177-179 Delivery of An Instrument: In Escrow 180-181 Miscellaneous Statutes " 182 Conveyances and Mortgages 183-18& Certificate of Authenticity 186 Amendment of Certificate of Acknowledgment or Proof 187 Certificate : Evidence 188 Recording Laws 189 Civil Liability of Officer 190 Criminal Liability of Officer 191 Miscellaneous Statutes 192 Compelling Witness to Prove Conveyance 193-194 Powers of Attorney 19& DEPOSITIONS. 'Chapter IX. History 196 Definition 197 When Deposition May Be Taken 198 Notary or Commissioner of Deeds May Take: When Disqualified. 199-200 Notary or Commissioner May Employ Attorney 201 Compelling Witness to Conveyance to Testify 202 Whose Deposition May Be Taken 203-204 New York Statutes : 205-209 Deposition "On Order" 207 "On Stipulation" 208 "On Commission" 209 Criminal 210 Criminal Statutes of Other States 211 Criminal Law 212 Interrogatories: Oral Examination 21? Open Commission 214 Time of Taking 215^ Witnesses: Subpoenas: Refusal to Attend and Testify 216-220 Deposition: How Taken 221-224 How Returned 225-229 Fees of Commissioner 230 Table of Contents. ix PEOTESTING. sec^.. Chaptee X. History of Bills and Notes 231 Notary's Powers and Duties 232 Definitions 233 Presentment for Acceptance 234-24S Presentment for Payment 247-25T Protest for Non-acceptance or Non-payment 258-278' Protest for Better Security 271 Acceptance for Honor 272-277 Payment for Honor 278-280 Notice of Dishonor 281-290 Referee in Case of Need 291 Records 292-293 Civil Liability of Notary 294 Criminal Liability of Notary 295 Miscellaneous Statutes 296-297 BANKS AND NOTAKIES. 'Chaptee XI. Liability of Bank for Default of Notary : Two Doctrines 298 Bank Liable only for Care in Selection of Notary 299 Bank Liable 300 Is the Notary Liable? 301 Measure of Damages 302 Agreement as to Fees Illegal 303 NOTAKIES AND INSUEAWOE. 'Chapter XIL Standard Fire Policy 304 Proof of Loss to be Sworn to 305 Certificate by Nearest Notary 306 When Disqualified to Make Certificate 307 Notary's Certificate 30S WILLS. Chapter XIII. Purpose of Chapter 309 Who May Make a Will 310 Who May Take by Will 311 Child Born After Will is Made 312 What May be Disposed of by Will 313 Devise or Bequest to Societies 314 Devise or Bequest to Subscribing Witness 315 How Will is Made 31ff Form of Will 317 How Will May be Revoked or Cancelled 318 Who May be Named as Executor 319 Ti?LBLE OF CASES. [The references are to pages.] A. Page. -Aborn V. Bosworth 251 Achley's Case . 28, 96 -Adams v. Leland 260 Adams V. Mills 1S3 Agnew V. Latham 142 Alabama Nat. Bank v. Chattanooga Door Company 8, 3l Albany Co, Savings Bank v. McCarty.. 20, 161, 162, 173, 199 Allen V. Merchants' Bank.... 18, 54, 61, 120, 285, 292, 297, 202, 303 Allen V Meyer 143 Allen V. Suydam v 302 American Exchange Nat. Bank v. American Hotel Victoria Co 292 Amsinck v. Rogers 275 Anderson v. Drake 265, 266 Anonymous (N. T.) 133 -Armstrong v. Combs 57, 161 -Arnold v. Dresser 266 Arnold v. Klnloch 293 Ashcraft V. Chapman 18 Atwell V. Grant 261 AJ'mar v. Sheldon 292 Ayrault v. The PaciHc Bank.... 269, 302, 304 B. Babcock v. Kuntzsch 138, 139 Bacon V. Bacon 233 Bacon v. Magee 129 Bailey v. County of Buphanan 267 Baldwin v. State Bank 300 Balfour V. Hopkins 194 Eakeman v. Pooler 267 Ballah, In re 143 Bank V. Hopkins 304 Bank V. "White 267 Bank of Cooperstown v. Woods 261, 293 Bank of Ijindsborg v. Ober 303 Bank of Port Jefferson v. Darling 283 Bank of Rochester v. Gray 30, 297 Bank of Syracuse v. Hollister 262 Bank of United States v. Davis 286 Bank of Utlca v. Bender 283, 285 Bank of Utica V. Childs 61, 297 Bank of Utlca V Davidson 285 Bank of Utica v. De Mott 286 Bank of Utica v. McKinster 302 Bank of Utica v. smedes 302 Bank of Utlca v. Smith 262 Bank of Vergennes v. Cameron 266, 296 Bankers' Money Order Ass'n v. Nachod, Z34 Banta v. Banta 236 Barnard v. Darling 137 Barnard V. Schuler 165, 173 Barnet v. Smith 257 Barr v. Marsh 285 Barry V. Crowley 139 -Bartels v People 200 Bartlett v. Robinson 2S9 Bates V. Plmsteln 130 Page. Baumeister v. Demuth 133 Bayonne Knife Co. v. Umbenhauer...8, 31 Beach v. Workman 232 Bealo V Parrish 2S3 Beals V. Perk 293 Bean v. Quinby 58, 217 Beckwith v. Smith 294 Bedford V. Tupper 199 Bell V. Chicago First Nat. Bank 2 3 Bellemire v. United States Bank 300 Bellinger v. Gray ]2.'f Beman v. Whitney 57 Benedict v. Hall r.| Beneventano's WW, In re 31& Benjamin v. City of New York 76 Biber v. Schmidt 274 Bidwell V. Sullivan 173 Biglow V. Eiglow 189, 199 Bilordaux v. H. Bencke Lithog. Co 85 Bird V. Bank 301 Black V. Garfield 268 Blewitt V. Boonim VJ3 Bliss V. Molter 133 Bodwell V. Webster 195 Bolton V. Amsler 267 Bolton V. Jacks lit; Bookman v. City of New York... 76, 113. 114, 127 Booth V. Cook 8, 3i Bowen v. Mulford ]46 Bowen V. Stillwell 16, 20, 51 Bowling V. Arthur 31)1 Boyd V. Boyd 162, 163 Boyd V. State 147 Boynton v. Paige 84 Brackett v. Nikirk 216 Bradley v. Walker dfy Braidsford v. Williams 2S6 Breitling v. Chester 175 Brink V. Stratton ?o. lia, I '6 Britton v. Nichols 300 Brom wich v. Loyd 247 Brooks V. Hunt lus Brown V. Butchers' and Drovers' Bank. 145, 248 Brown v. Kimball 235 Brown V. Russel 34:1 Brown v. State 23 Browne v. Dolan 200 Browne v. Phila. Bank 33 Bruce v. Gibson so BrumskuU v. Jamea 240 Bryant v. Ingraham 58, 217 Buell v. Van Camp 142 Buhl V. Ball 130 BuUer V. Cripps 245 Burgess v. SMtt jst Burke v. Shreve 274 Burlington First Nat. Bank v. Hatch.. 255 Burnet v. Amer. Ins. Co 309 Butler v, Flanders 236 Butler V. Wright 70 Buttex'worth v, Boutilier lis Table of Cases, XI [The references are to pages.] Page. <:;abot Bank v. Warner 293 Call V. Pike 58 Cameron v. Calkins 200 Camp V. Buxton 198 Campbell v. Hough 167 Canandarqua Academy v. M'cKechnie.. 164, 177, ISfl Canter, In re 223 Carey v. Reilly 2'i7 Carlyle v. Plumer 9.16 Cardan v. Yoran 177, 178, 179 Carr V. Prudential Ins, Co lOS Cary v. State 79 Case V. Burt 2r,f> Case V. People 113, 149 Catsklll Bank v. Stall 285 Cayon v. Dwelling House Ins. Co 310 Cayuga Co. Bank v. Hunt 274 Cliunolne v. Fowler 286 Cljase Nat. Bank v. Faurot 250 ' itizons' Bank v. Howell 300 City Bank v. Lumley 334 Claflln V. Chicago 346 Claflin V. Smith '.... 177 Clark V. Miller 137 Clement v. Fernback 137 J.lerke v. Martin 245 CUckman v. Clickman 136 Coddington v. Davis 269 • ""ole V. , Jessup 70, S3, 172 Coleman v. Colgate 241 Collins. Matter ot 21 Collyer, In re 268 Commercial Bank v. Union Bank... 236, 302 Commercial Bank v, Zimmerman 262 Commercial Bank of Kentucky v. Barksdale . . , 84, 261 Commercial Bank of Kentucky v. Var- num . . . 83, 270, 297 v^ommercial Bank of Penna. v. Union Bank of New York 236, 240, 302 riommonwealth v, Haines 200 Commonwealth v. Johnson 165 Commonwealth v. Pyle 8 < ook V. Litchfield 293 Cook V. Staats 137 Coppock V, Smith i45 Cox V. New York Nat. Bank 252 Craighton v. Agricultural Ins. Co 309 Cream City Furniture Co. v. Squire..., 158 Creamer V, Jackson 223, 234, 236, 238 Crenshaw v. McKiernan 261 Creteau v. Foote and Thorn Glass Co.. 262 Cribben v. Schillinger 130 Cribbs V. Adams 271 Crompton v. Dobbs 229 Cross, Jacob, In the Matter of 133 Crowley v, Barry 275 Cuming v. Roderick 284 Cummings v, Fisher 70 Curtis V. Leavltt 302 Cutler V. Maker 58 D. Dana v. Sawyer 254 Davey v. Jones 286, 303 David V. Williamsburgh Co 145 Davis. In re 38 Davis V. Beazley ^ Davis V. Rich 137 Deans v. Pate ; 35 De Graw v. King 34 Page. Delninger v. MlUef 289 Dennlstoun v. Stewart 272; 273, 274, 275 DoBhoDg v. City of New York 71 De Weerth v. Feldner 342 Dike v. Drexel 268 Dlttman, Matter of 229, 231, 234 Dodd V. Northrop 58 Dolan V. Mayor iig Dolliver v. St, Joseph F. & M. Jns. Co. 310 Donegan v. Wood 271, 291 Downer v. The Madison County Bank. 302, 304 Downes v. Church 25,'j Douglas v. State 8 Droge V. Cree 39a Duanesburgh. Town of v. Jenkins 141 Dudley v. McCord 129 Dumont v. McCracken 216 Dunham v. Sherman 228 Dunn V. Parsons 70 Dykman v. Northridge 59, 266, 271 E. E. J. Dupont-De Nemour Powder Co. V. Rooney . . 285 Eason v. Isbell 59, 271 Eastham v. York State Tel. Co 330 Ebling Brewing Co. v. Reinheimer 289 Eisenlord V. Dlllenback 262 Eldridge. In the Matter of .' 236 Ellis V. Commercial Bank 73 Elwood V, Klock 198 Ennis v. Federal Brewing Co 345 Espy V. Cincinnati Bank 257 Euberweg v. La Compagnie Generale 251 34 Transatlantique . Evans v. Smith Exchange National Bank v. tional Bank Ex parte Fiske. 302 239 Ex parte Wackerbath 278 Faith v. Ulster & Del. R. R 2?4 Fall River Union Bank v. Willard 2;>7i Findlay v. Thorn 21. 79 First Nat. Bank v. Fourth Nat. Bank, 2a7 First Nat. Bank of Manning v. German Nat. Bank of Carroll Co 301 Fish V. Jackman 291 Fisher v. Beckwith 2^5 Fisher v. Bloomberg i:'8 Fisk, Ex parte 2i9 Fitzpatrick v. Graham 170 Fleming v. Richardson 30 Floyd V. Rice 58 Flynn v. Union Surety and Guaranty Co ; 172 Fogarty v. Finlay 8, 200 Ford v, Cheever 233 Ford V. Williams 2123 Ford Dearborn Nat. Bank v. Security Bank of Renville 303 Fortenheim v. Claflin 331, 145 Poster V. Bullock 234 Foster v. Julien 200 Franklin v. Judson 2-9 Franklin V. Smith 61, 297 Freas v. Jones 139, 149- Fred v. Fred l')4 Freedman v. Oppenheim 177, 17S Frees v. Blyth 13X Xll Table of Cases. [The references are to pages.] Page. rryatt v. Lindo 110, 149, 233 Fryer V. Rockefeller ,. 162, 1T7, 178 Fuller Buggy Co. v. Waldron 281 G. Gage V. D. & P. R. R. Co Gale V, 'I'appan Gale V. Walsh Gallego, The 31), 70, Gallipolis First Nat. Bank v. Butler — Gardner v. People Garvey, Matter of 231, Gates V. Beecher 252, Gawtry v. Doane 70, 83, 272, German American Ins. Co. v. Norris... Genet v. Lawyer Gessner v. Smith Gibbons v. San Luis Mining Co Gibson V. Amer. Life Ins. Co Gibson V. National Park Bank Gllobrlst V. Donnell Gilleland v. Drake GiUigan v. Comnaercial Fire Ins. Co — Gilmore v. Hempstead Gilpin V. Savage Glazer v. Home Ins. Co Goddard v. Schmoll 51, 158, Golloday v. Union Bank Goodhue v. Berrien 57, 171, 173, Goodhue v. Cameron 164, Goodnow V. Litchfield Goodwin v, Roberts Gould V. Howe Graham v. Carleton Grant v. Leopold Grant v. Spencer Granite Bank v. Ayers Greenbury v. Wilkins Greenleaf-Johnson Lumber Company v. Leonard . , Greenwich Bank v. De Groot 283, Gribbon v. Bock Gribbon v. Ganss Griffin v. Goff Grissen v. Southworth ^ — Griswold V. Waddington Groesbeck v. Seeley Gross V. Rowley 172, 175. Guess, In re Gulssy V. Schneider 33 252 273 71 300 117 218 261 271 229 116 20 290 80 309 133 266 307 177 18 174 167 33 245 162 236 229 282 265 84 165 284 143 130 263 235 260 57 177 141 H. Haff V Splcer 144 Haggitt V. Iniff 38 Hall V. Lay 216 Hallenbeck v. Whitaker 133 Halleran v. Field 216, 233 Halllday v. Martinet 70, 296 Halliday V. MoDougall 270 Hanks Dental Co. v. Tooth Crown Co.. 219 Hanson v. Cochran 150 Harmon v. Magee 165 Harper, In the Matter of 114, 116, 174 Harris v. Durkee 151 Hart V. Wilson 70 Hart V. Smith 252 Hathaway V. Payne 194 Hathaway v. Scott 144 Hattan V. Holmes 200 Hawkins v. Pakas 142 Hayden V. Meeks 195 Haynes v. Powell 148 Hebron v. Work 227 Page. Heller, Matter of 231 Henderson v Smith 20O Henry v. Brooklyn Heights R. R. Co.. 141 Henry & Co. v. Talcott 130 Herbert v. Serviri 290 Herkimer County Bank v. Cox 271, 296 Herrman Lumber Co. v. Bjurstrom..290, 291, 292 Hewitt V. Morgan 33 High Palls Sulphite Pulp and Mining Co., In re 162 Hill V. Norris 2 Hill V Varrell 290 Hills V. Place 282 Hinckley v. Cooper 123 Hinsdale v. Miles 265 Hitchcock V. Bank of Suspension Bridge . . . 302, 301 Hoard v. Garner 302 Holbrook v. N. J. Zinc Co 171 Home Ins. Co. v. Green 293 Hornby v. Cramer 267 Howard v. Bank of Metropohs 302, 304 Howard v. Van Gieson '. 288 Hudson V. State Bank 272 Hughes V. Long 79 Hughes V. Mayor of New York 76 Hulbert Bros, and Co., In re 177 Humphrey v. Cande 134 Hunt V. Maybee 83, 261, 271, 284, 285 Huse-Loomis Ice Co. v. Wielar 305 Hutcheon v. Mannlngton S In re Ballah 143 In re Benevantano's Will 31& In re Canter 223 In re Collyer . 268 In re Davis , 38 In re Guess 141 In re Hifeh Falls Sulphite Pulp and Mining Co . . 162 In re Hulbert Bros. & Co 177 In re Iredale's Will 313 In re Kimball 20, 119, 133 In re Kindt. Charles . . 133 In re Kivlin's Will . 311 In re Lee '. 229 In re Livingston . 130 In re Pancoast . 158 In re Phillips . . . 33 In re Randall . . 234 In re Roubilin Fils and Co 131 In re Roy . . 166, 168 In re South Beaver Township Road..5S, 119 In re Sugenheimer 58 In re Thompson . 114, 118, 123 In re Tifft's Will . 235 In re Town of Lafayette 142 In re Vastbinder 130, 141 In re Waterman 229 Iredale's Will, In re 313 Ironclad Mfg. Co. v. Sackln 265 Irroy v. Nathan 134 Irving v. Campbell 172, 176, 177, 178, 188, 199 J. Jackson v. Gumaer 150 Jackson v, Livingston " 175 Jackson v. Stiles 14» Jackson v. Tatebo 174 Jackson V, Virgil 144 Table of Cases. xm [The references are to pages.] Page. Jamison v. Beecher , — Kl Jennings v, Menaugh 213 Johnson v. Clark 258 Johnson v. Perry 227 Jones V. Bach 173 Jones V. Howard Ins. Co 309, 311 Jones V. Hoyt 134, 129 Joost V, Craig 173 Jordan v. Hazard 227 K. Kane v. City of Brooklyn 126 Keefer V. Mason 129 Keene Guaranty Savings Bank v. Law- rence . . 1*15 Kellam v. McKoon 276 Kelley V. Weber , 240 Kelly V. Theiss 282, 289 Keyes V. Fernstermaker 263 Kimball, In re 20, 119, 133 Kimball v. Davis 235 Kindt, In re Charles 133 King V, Clark 14C King V. Scriveners Co 41 King v. Stow 79 Klrby v. Gates 147 Kirksey v. Bates 2, 4, 6, 30, 33 Kivlin's Will, In re 313 Kleber v. Block 150 Klotz v. Silver 266, 282, 286, 288, 290 Klumpp v. Gardner 168 Knickerbocker Ice Co. v. Gray 58, 2J7 Knox V. City of New Tork 76. 84 Kranichf elt v. Slattery 173, 199 Kuh V, Barnet 133 Ladow V. Groom 149 Lafayette, In re Town of 142 Laflin Powder Co. v. Steytler 147 Lake Geneva Ice Co. v. Selvage 305 Lambert V. Ghiselin 290 Lambert v. People 20, 78 Lamchick v. Ackerman 223 Lampkin v. Douglass 131) Lamkin v. Oppenheim... 138 Lane V. Morse 137, 138, MS, Lang V. Brailsford 271 Lang V. Eagle Fire Ins. Co 309, 310 Lawrence v. Miller 285, 286. 297 Lee. In re 229 Lee v. Buford 2fl Lee V. Selleck 292 Leetch v. Atlantic Mutual Ins. Co.. 114, 115 Legg V. Vinal 266 Lemmer v. Morison 162 Lenox v. Leverett 289 Leonhard v. Flood 57 Leveille v. Kauntz 8 Levingston, In re 130 Lindenberger v. Beall 71 Littlefield v. Gansevoort Bank 229 Livingston v. Bank of N. T 142 Lockwood V. Crawford 263 Loney v. Bailey 150 Louisiana Nat. Bank v. Schuchardt 258 Lowrj' V. Scott 285 Lutcher V. United States 237 Lutz V. Kinney 150 Lynch v. Livingston 20, 58 Lyons v. Van Riper 174 M. Pa.se. Mallory v. Klrwan 272 Manheimer v. Dosh 158 Maniscalco v. Slamowltz 145 Mangum v. Ball 215 Manning First Nat, Bank v, German Bank . . . 300 Marston v. Forward ; 213 Matter of Collins . 21 Matter of Dittman 229, 231. 234 Matter of Eldridge 236 Matter of Garvey , 218, 231 Matter of Harper 114, 115. 174 Matter of Heller . . 231 Matter of Jacob Cross 133 Matter of McLean . , 14i Matter of Searls 220 Matter of Utica, etc., R. R, Co. v. Stewart 63, 117 Matter of Wisner 51 Matteson v. Moulton 25S Maury v. Van Arnum 135 May V. Jones 300, 301 Mayer v. Boyle 290 Mayor v. Furze 117 McAndrew v. Radway 18, 83, 120, 271, 289 McBride v. Illinois Nat. Bank 302, 303 McCabe v. City of New Tork 7S McCord Mer. Co. v. Glenn 139 McCulIoch V. Aeby & Co 141 McCutchen v. Lagins 223 McDonald v. Garrison 233 McDowell V. St. Paul Fire and Marine Ins. Co. . . 307 McDowell V. United States 79 McKellar v. Peck 30 McLean, Matter of 141 McLean v. Adams 58, 217 McLean V. Ryan 286, 294 McManus v. Western Assur. Co 137, 138, 311 McNally v. Phenix Ins. Co 309, 310 Meadville First Nat. Bank v. N. T. Fourth Nat. Bank 252 Mechanics and Traders* Bank v. Crow, 29i Mechanics and Traders' Bank v. Lou- cheim . . . 142 Meise v, Newman . . 286 Mellviile v. McAvoy 158 Merchants' Bank v. Elderkin 266 Merchants' Ins, Co. v. Gibbs 309 Merritt v, Barle 84 Kerzbach v. Mayor 18, 22, 76, 120 Meyer v. Beardsley 257 Meyer v. Hibsher 265. 266 Midland Steel Co. v. Citizens Nat. Bank . . . 216 Miller v. Oppenheimer 141 Milliken v, Selye 134 Minton v. State 115 Missouri, etc, R, R. Co, v. Johnson — 115 Molson's Bank v, Howard 2.18 Monongahela Bank v. Porter 271 Montgomery County Bank v. Albany City Bank , 302, 303 Montlllet V. U. R. Bank 303 Moore v. Alexander 260, 2S2 Morar. V. Stader 177 Morel V, Stearns 172 Moreland v: Citizens Bank.,., 271 Morgan v. City of New York 7S Morgan v. Van Ingen 297 Morris v. People 118. Morris Canal ads. v. The State 91 3I1V Table of Cases. [The references are to pages.] Page. "Morris v. Husson 289 Morris v. Union Nat. Bank 297 Morrison v. Watson 140 Morton v. Witte 164 Mosher v. Heydrlck 150 Mowry v. Sanborn 142 Murphy v. Jack j_ 142 Murray v. Great Western Ins.. Co 235 Murray v. HeiTeran 133 Mutual Life Ins. Co. v. Corey 154, 171 Mutual Life Ins. Co. v. Dake 199 Mutual Life Ins. Co. v. Rabison..." 212 Mutual Loan Ass'n v. Lesser No. 1 130 Mundy v. Strong 2 Murphy v. Jack 130 Murray v. Tulare Irr. Co 57 N. Naser v. First National Bank 302 Nathan v. Rehkopf 195 National Bank v. Scriven 198 National Revere pank v. National Bank of Republic 302 Neal V. Taylor 297 Neese v. Farmers' Insurance Company. 33 Nelson V. Baruch 130 Nelson V. Fotterall 261 Nelson v. Killingley First Nat. Bank.. 59, 271 Newell V. Newell 217 Newman v. Newman 112 Niagara Dist. Bank v. Fairman 256 Niblack v. Park Nat. Bank 261 Nicholas Bank v. State National Bank. 302 NichoUs V. Webb 41 Nicholson v. Gloucester Charity School. 165 Noble V. United States 150 Ivordlinger v. Anderson 236 Norman v. Horn 131, 145 Norris v. Deapard .^ 289 Norton v. Knapp .* 257 Nottbeck v. Wllks 194 Noyes v. Wyckoff 267 0. O'Connell v. Sutherland 140 Ocean Nat. Bank v. Williams.. .84, 260, 271 Ocean Nat. Bank of N. T. v. Fant 266 Odell V. Durant 197 Olcott V. Tioga R. R. Co 34 Onondaga County Bank v. Bates — S3, 271 Omychund v. Barker , 110, 112 Opinion of Atty.-Gen'l (N. T. 1899) 22 Opinion of Atty.-Gen'l (N. Y. 1895) 22 Opinion of Justices (Mass.) 2 O'Reilly v. People 112, 113, 114 Orr V. Lacey 30, 33 Osterhout V. Shoemaker 172 P. Packard v. Lyon 260 Palmer v. Holland 302 Paltrovltch v. Phenix Ins, Co 309 Pancoast, in re 158 Paolillo V. Faber 177, 178 Parker v. Baker 87, 150 Parker v State 115 Patterson v. Patterson 21B Payne v, Toung 141 Peabody v. Satterlee 305 Peck V. People 59 Pendegrast's Case . 150 Page- People V. Bartels . 20, 165 People V. Becker 141 People V. Board of R, R. Com'rs 57 People V. Brennen , US People V. Brooks 117 People V. Brown ^ 199 People V. Burden 225 People V. Butler . 61 People V. Cady 14J People V. Canvassers 137 People V. Clements , . . 12ft People V. Cook . . , 113 People V. De Camp 137, 13S People V. Dean . . . 20, 11& People V. Dowdigan 236 People V. Fowler . . . 123 People V. Globe Mutual Life Ins, Co... 36 People V. Haggerty 55 People V. Jackson 112 People V, Kempner . 20, 69 People V. Keyser . , 197 People V. Martin 126 People V. McNair 114 People V. Most , 116 People V. Noltes 113, 12? People V. Nostrand . 18 People V. O'Reilly 113 People V. Peck 70 People V. Piatt . . . 21 People V. Railroad Com'rs . 154, 171 People V. Rathbone..7, 16, 18, 19, 41, 67, 120 People V. Spaulding . . . 133 People V. Schooiey 173 People V. Sutherland 128, 129, 134, 140 People V. Tieman llg People V. Tioga C. P...^...^ 117 People V. Travis . 7. 41, 117 People V. Wadhams 18, 67, 120 People V, Walker . 217 People's Bank of Greenville v. Aetna Ins. Co . 311 Persons v, Kruger No. ? 286 Peterson v. Hubbard 257 Phillips, In re 33 Pindar v. Black 134 Piper V. Hay ward 262 Plato V. Reynolds 252 Porter v. Thorn 266, 295 Post V. Coleman 133 Pres. Manhattan Co. v. Laimbeer 199 Price v. McGoldrlck 291 Pridgen v. Cox 257 Produce Bank v. Baldwin 35] 129 Q. Quinlan v. P. W. Ins. Co R. R, and G. Valley R. v. Clarke Nat. Bank 30S 7S Railroad Co. v. Stewart 53 Raley v. Warrenton ' 145 Randall, In re ,'.'....'. 234 Randall v. Baker 145 Ransom v. Mack [ ]' 2S3 Raymond v. Smith 194. Read v. Commonwealtn Bank. '. 271 Reed v. Newcomb 5^ Reed v. Spear 282 Reichel v. N. Y. C. & H. R.R.R.'ca T, J „ '3, 242 Reid V. Town o£ Long Lake igj Remington Paper Co. v. O'Dougherty.. 6& Table of Oases. XV [The references are to pages.] Page. Kennie v. Bean 143 Rex V. Morgan 109 Rexford v. Rexford 173 Reynolds v. Parkes "; 234 Rice V. Hogan 270 Richard v. Boiler 30 Riddle V. Keller 165 Rlsley V, Harlow 241 Robb V. McDonald 129 Robinson v. Cooper 137, 149 Robinson v. Mauldin 167 Rochester Bank v. Gray 30, 269 Rogers V. Pell 137, 163, 190 Rogers v. Stevens 273 Rolker V. Gonzalez 130, 142 Rome, Watertown, etc., R. Co. v. City of Rochester . . 142 Roosvelt V, Bulls Head Bank 267, 268 Boss V. Bedell 275 Ross V. "Wigg 51 Eoubilln Fils and Co., In re 131 Rourke v. City of New Tork 76 Roy, In re 166, 168 S. Sacrlder V. Brown 82, 271 Salt Springs Nat. Bank v. Burton 262 Sandland v. Adams 137, 146 Saril V. Payne 137 Schiff V. Leipziger Bank 79, 128, 138 Schlesinger V. Shultz 266 Schmidt V. Thomas 146 Schofleld V. Bayard 260 Schofleld V. Palmer 161 Searls, Matter of 220 Selden v, Benham 83 Shattuck V. Bascom 114, 123 Shaw V. Merchants' Nat. Bank 299 Shaw V. N. T, C. & H. R. R. R. Co.. 137, 138 Sheegog v. James 261 Sheldon v. Benham 271 Shuler V. Birdsall Mfg. Co... 130 Shumway, Ex parte 141 Shute V. Bobbins 254 Slcard v. Davis 162 Siegel V. Dubinsky 282, 284 Sill Stove Works v. Scott 143 Simmons v, Craig 141 Simonson v. Falihee 199 Sims v. Hundley 275 Slater v. Schock 85 Slaughter v. Cunningham 168 Smith V Boyd. , 188 Smith V. Collier 137, 138 Smith V. Griffith 232 Smith V. Home Ins. Co 309 Smith V. Miller 297 Smith V. Smith 68 Smith V. Tim . . . 177 Smith V. Westerfleld 223 Smith V. Wilcox 85 Smith Company v. American-Europe Company , 290 Snyder v. Olmsted 137 Sonfield v. Thompson ,.... 6 Soule V. Chase 144, 146 South Beaver Township Road, In re.. 69, 119 Spear and Patten v. Pratt 267 Spencer v. Bell 145 Spencer v. Fort Orange Paper Co 158 St, Louis R. R, Co. v. Fowler 131 Stacy V. Dane County Bank 300 Page. Stacy V, Farnham ,,,,,■ 13* Stanbro v. Hopkins 116 Stanton v. Miller 194 Stanton v. U. S. Pipe Line Co 51 Staples V. FalrchUd 141 State V. Dudley . 146" State V. Hughes . . 146 State V. Chyo Chiagk 110' State V. Glbbs 146 State V. Gin Pong 110 State V. Green . . 12* State V, Meyer 200 State V. Ryland . 17 J State V. Scanlon ^ 11& State V. Theard , . . 70' State of New York Nat. Bank v. Ken- nedy . . 261, 263, 266, 26T Stearns v. Chlnault 3i Stehlin V. Golding 17r Stephens v. Williams 31 Sterrick V. Pugsley 134, 13S Stetson and Post Mill Co. v. McDonald. 151 Steuben Co. Bank v. Alberger 143" Stevens V. Phoenix Ins. Co 310 StonehiU v. Hastings 19t Stork V. American Surety Co 8, 61 Strong V. Blake 267 Sullivan v. Flatonia First Nat. Bank. 113 Summers v. McKim 236 Sun Ass'n v. Tribune Ass'n 84 Sugenheimer, In re 68" Susquehanna Co. v. Quick 240 Swayze V. Britton 26» T. Tacoma Grocery Co. v. Draham 132, 147 Taillif er v. Tailliter 8 Tanenbaum v, Landheim 143 Taylor v. Hatch 133 Taylor V, State 131 Terry v. McNeal 223 Teutonia Loan Co., etc. v. Turrell 2, 6- Tevis V. Randall 285 Thompson, In re 114, 118, 123 Thompson V. Alden 229' Thompson v. Burhans ,137, 138 Thompson v. State Bank 303 The Gallego . . 30, 70, 71 Thorn v. Rice 290 Thurman v. Cameron 160' Tiernan v. Commercial Bank 300- Tifft's Will, In re 235 Townsend v. Auld 274, 291 Townsley v. Sumrall 262' Treadwell v. Sackett....^ 173" Trevls v. Randall 61 Troy City Bank v. Lauman 256 Trustees v. McKechnie 164, 177, 188 Tully V. Lewitz 165 Tunno V. Lague 260, '89 Turley v. North America Fire Ins. Co.. 309, 311 Turtle V. Turtle 61 Tuttle V. People 112, 119i U. Underhill v. Van Cortlandt 236 Utlca Bank v. Bender 290' Union Bank v. Morgan 266 Union Bank of Sandusky v. Torrey..226, 234, 235 U. S. V, Bailey . . 47 U. S. V. Barker 2SZ 371' Table of Oases. [The references are to pages.] Page. United States V. Bixby 7 United States v. Curtis M United States v. Hall . . ' 44 United States v. Mallard .' . 144 United States v. Manlon . . , 44 United States v. McDermott '. 160 United States v. Upham . . . .* 146 United States v, Winchester 47 Utioa, etc., R. R. Co. v. Stewart, Mat- ter of 53, 117 V. "Van Rensselaer V. Whltbeck 123 "Vary V. Godfrey 133 Vastblnder, In re 130, 14i Veach V. Bailiff 227 Vincent v. People 138 Vreeland v. Penna. Tanning Co 133 w. "Waclterbath, Ex parte 278 Wade V. Roberts 131 Waldron V, St. Paul 223 TValker v. Phenlx Ins. Co 310 Walker v. Spencer 113, 127 Walker v. State Bank.. 252, 257, 258, 297, 302 Wallace V. Agry 254 Walsh y. Blatchley 254 Ward V. Allen 257 Waring V. Betts 261 Warnick v. Crane 83 Warren V, Oilman 285 Warren Bank v. Suffolk Bank 300 Washburn v. People 115 "Wasson v. Connor 57 Waterman, In re 229 Watson V, Campbell 173 Weehauken Wharf Co. v. Knlck. Coal Co. . . , .V 130 "Wells V. Hub Pub. Co 241 Wendell V. Reves 20, 59, 119 West River Bank v. Taylor 286 Page. W^estfall V. Preston 123 Westlnghouse v. Remington 13fl Wetmore v. Laird 1^^ Wetterer v. Sonblrous 171 Wheeler v. Lozee 228 Wheeler v. State 61. 285 Wheeling V, Black 131 Whlcher v. Whicher 58 White V. Hess 135 Whltf ord V. Scott and Blssell 117 Whltlock V, Roth 142 Whitney v. Wyncoop 114 Whlttler V. Graffam 266 Wilbur V. Selden 70 Wilcox V. Smith 79, IIS "WlUard v. Judd 133 Williams v. Parks 300 Williams V. Niagara Fire Ins. Co 310 Williamson v. Banning 108 Wilson V. Peck 291 Wilson V. Senier.- 290 Winans v. Davis , 290 Wisner, Matter of 51 Wolf V. Burgess 290 Wood V. Bach 173 Wood V. Jefferson County Ba^k 117 Wood V, St. Paul City Ry. Co 6 TVoodland Bank v. Oberhaus 165 Woods v. Wilder 560 Wright V. Cabot 240 Wright V. Ilartford Ins. Co 311 Wronkow v. Oakley 169 Wynen v. Shappert 291 Y. Tates V. North 143 Young- V. Mackall 227 Zaloom V. Ganim 263 Zlckerman v. Wohlstadter 123 LAWS RELATING TO Maries Public and Coininissioners of Deeds OF NEW YORK. CHAPTER I. History of the Notary Pttblio.. ■ ■5 1. The Origin of the Notary Public: Tabularius. § 2. The Notarius. § 3. The Notary in Western Europe. § 4. The Notary in England. § 5. The Appointment of Notaries. I 6. The Notary Public in International Law. § 7. Notaries Public in the United States. I S. The Notary Public in the State of New York. § I. The Origin of the Notary Public: Tabularius. — In tracing out the beginnings of the notary ^ of to-day one is led backi to England, thence to the nations of Western Europe and from there on back to the Eomans, from whom we inherited the principles of all our law. We not only find that it was the Eomans who orignated the idea of appointing persons as officers of the government to draw up legal documents and to certify to them, but also that they coined the original of our word " notary." We learn that the notary public of modern times has about the same powers and duties as the tabularius of Old Rome; but that he goes by the name of an altogether different Roman officer, the 1. The plural form of " Notary Pub- is not allowable as " Use is the law of lie" is properly "Notaries Public;'' language." but the form " Notary Publics " has The word " Notary " is equivalent been often used and it might be said to the words " Notary Public." Va. to be an open question whether its use Code (1904), § 5; W. Va. Code (1906), § 293. 2 NOTAEIES AND CoMMISSIONEES OF DeEDS. notarius,^ How old the notary is, it is impossible to determine ; but we know that he existed in Eome during the republic/ and was then known as tabularius. His employment consisted in the drawing up of legal documents. In that he occupied to some extent the position that an attorney at law now fills.* In the canon law the tabularius was a person of great importance; it was a maxim of that law that his evidence was worth that of two xmskilled witnesses.^ § 2. The Notarius. — While the modern notary gets his name from the old Eoman notarius he is, in fact, of very little rela- tion to him. The notarius was originally a slave or freedman who took notes of judicial proceedings in shorthand or cipher,* particularly one who took notes in the Senate. In other words he was a stenographer of modem times. Later on he became the secretary of some public authority and we can imagine it was no great change for him to grow into a public official. The word itself has not changed in appearance so that it is an easy matter to accept the explanations of the historians. They tell us that " notarius " came from nota, meaning a mark or sign ; and that a notarius was one who made marks or signs.' § 3. The Notary in Western Europe. — The duties of the tabularius and the name notarius merged at some time in the history of the nations of Western Europe long before the modern notary was introduced into England as an officer with about the same powers and duties he now has. In the transformation the notary was left with more power than he now has in England. 2. Bouv. Law Diet. (Eawle's Rev.), of Justices, 150 Mass. 586, 23 N. E. tit. "Notary Public;" 17 Ency. Brit- 850, 6 L. R. A. 842; Brooke's Notary, anuica, tit. "Notary Public." 6th ed., 1 et seq. 3. The republic lasted from 509 B. 6. A notary was anciently a scribe ^ C. to 31 B. C. that only took notes or minutes, and 4. " The office of attorney did not made short draughts of writings, and come into legal existence until a later other instruments, both public and date, under the statute of Westmin- private: Burn, Eceles. Law, vol. 3, ster II (1285):" Mundy v. Strong, p. 1. 52 N. J. Eq. 833, 31 Atl. 611. 7. 5 Century Diet. & Cyc, tit. " No- 5. See note 2; Hill v. Norris, 2 tary;" 17 Ency. Britannica, tit. "No- Ala. 640; Kirksey v. Bates, 7 Port, tary." ^(Ala.) 529, 31 Am. Dec. 722; Opinion^ ^ History of the Notaet Public. 3 lAnd this power is still his in France where the importance of the notary was and still is greater than anywhere else. He is not only a public witness for everyone who wishes his testimony, but he is also the great witness of the government. He makes all contracts, mortgages, and other deeds and conveyances where the property in question amounts to more than one hundred and fifty francs.^ In France a document attested by a notary is said to be " legalized," a term much too strong to express the effect o£ such attestation in England, where the notary public, in spite of his name, is not recognized as a public officer to the same degree the notary is in other countries.^ The following is an excerpt from an article on the " French, Lawyer," written for "Law ISTotes," ISTovember, 1910, by Mr.. 'Charles F. Beach, the well-known legal author, who is now pracr- ticing in Paris : .-...ci ,^,j " The notary is a functionary of far greater importance than with us, and, especially in Paris and the other great cities of the country, is in a way the elite of the profession. He also usually takes the degree of Licencie en droit as part of his qualification, but no diploma is demanded from him. He is merely required to have preliminary experience in the etude of a notary, and to pass a formal examination prescribed by the Chambre des ISTo- taires. He may then acquire an etude in succession to a deceased or retiring notary. The notaries succeed one another and take over the records of the office they acquire, and their number is also limited by law. It is necessary, therefore, in order to become a notary, to buy the business of a retiring member of that branch of the profession, and to be accepted by the Minister of Justice. Deeds and mortgages of real estale, marriage contracts and settle- ments, wills, articles of incorporation, and many sorts of the more formal and important contracts must be drawn and attested by him. In these and certain other respects he has a monoply. There are but one hundred and twenty-two notaries in Paris." § 4. The Notary in England. — The office of notary in Eng- land is a very ancient one; it was known before the Conquest (1066 A. D.), and is mentioned in statute law as early as the 1. One hundred and fifty franca 2. 17 Ency. Britannica, tit. "Nb- cquals about twenty-nine dollars. tary Public." 4 JS'OTARIES AND COMMISSIONERS OF DeE©S. Statute of Provisors, which was passed in 1352 A. D., in the twenty-fifth year of the reign of Edward III.^ But we know that even before we find a notary mentioned by statute law, as early as 1300 A. D., during the reign of Edward I, notaries were clerks for the chancellor. The chancellor was then the head of what has since developed into our court of chancery, but which was then. " a great secretarial bureau, a home office, a foreign office and a ministry of justice.'*^ We also know that as early as the thir- teenth century two witnesses with the tabularius or notary were enough for a bond.^ While it is true that the office of notary is a very ancient one in England, we must also remember that in the early days that Eoman institution, the notarial system, never took deep root. The English kings did not assume the imperial privilege of appointing notaries ; for one reason, because the laws did not require that deeds or wills or other instruments in com- mon use should be prepared or attested by professional experts. Now and again when some document was to be drawn up which would demand the credence of foreigners, a papal notary would be employed.* With the development of the commerce of Eng- land and the " law merchant," however, the office of notary pub- lic increased in importance very rapidly. !N"otaries were em- ployed to protest commercial paper, to witness certain papers under the maritime law, and were gradually vested with the pow- ders which they exercise generally to-day.^ The English notary ;ig a skilled person appointed to secure evidence as to the attesta- tion of important documents. The general functions of a notary consist in receiving all acts and contracts which must or are wished to be clothed with an authentic form ; in conferring on such docu- ments the required authenticity; in establishing their date; in preserving originals or minutes of them which, when prepared in the style and with the seal of the notary, obtain the name of 1. TeutOHia Loan, etc., Co. v. Tur- 3. 1 Poll, and Mait. Hist, of Eng. rell, 19 Ind. App. 469, 65 Am. St. Rep. Law, 2d. ed., p. 218. 419, 49 N. E. 852; Brooke's Notary, 4. See note 3. It was a papal no- 6th ed., 10; Statute of Provisors, 25 tary who framed a most magnificent Edward III, Stat. 4. record of the suit in which the crown 2. 1 Stubb's Const. Hist., p. 381; of Scotland was at stake. 1 Poll, and Mait. Hist, of Eng. Law, 5. 14 New International Ency., tit. 2d ed., p. 193. "Notary Public;" Kirksey v. Bates, 7 Port. (Ala.) 529, 31 Am. Dec. 722. History of the lioTAKY Public. 5 " original acts " ; and in giving authentic copies of such acts.^ The most important part of an English notary's duty at the present day is the noting and protesting of foreign bills of exchange in case of nonacceptance or nonpayment.' § 5. The Appointment of Notaries. — In tracing back the dif- ferent ways in which the notaries of all times have been appointed we arrive at last in Rome within the church walls. The first no- taries were appointed by the popes of Rome and acted as oflBcials in ecclesiastical courts, ' in addition to exercising certain secular powers.^ The popes held the power of appointment for centuries, although they would also, during the latter part of the period, delegate the power to certain rulers under certain conditions. We know that as early as 803 A. D. notaries were appointed by the Frankish kings, and also that up to the fifteenth century the Roman See appointed all the notaries for England.^ Some time before 1500 the Roman See delegated the power of appointment to the Archbishop of Canterbury and after the Refor- mation (1534 A. D.), a statute was enacted confirming the right in the archbishop as a high prelate in the English church.^ Later on such appointments were considered as being made by the Arch- bishop of Canterbury, though through the master of the facul- ties who at the present time is the judge of the provincial courts of Canterbury and York. The office is nominally an ecclesiastical one, but its duties are mainly of a secular character.* In Scotland before the reign of James III (1460-1488) the notaries were appointed by the pope and also by the king through ©ne of his church officials. In the year 1469 an act was passed declaring that notaries should be made by the king; but for some time afterward there were in Scotland two kinds of notaries, cleri- cal and legal. In the year 1555, however, an act was passed which took the power away from every notary, " by whatsoever power he be created," except he present himself before the lords and be admitted by them; and in 1563 the power of appointment was 6. Brooke "On the Office of a No- 7 Port. (Ala.) 529, 31 Am. Dec. 722. tary," e. 3. Z. Bouv. Law Diet., Eawle's Eev., 7. 17 Eney. Britannica, tit. "No- tit. "Notary Public." tary Public." 3. 25 Henry VIII, ^. 21, § 4. 1. 14 New International Ency., tit. 4. 17 Ency. Britannica, tit. "No- " Notary Public;" Kirksey v. Bates, tary Public." 6 NOTAEIES AND CoMMISSIONEES OF DeEDS. placed with the lords of session. Since then the court of session in Scotland has exercised full and exclusive authority on the ad- mission of notaries in all legal matters, spiritual and temporal. In Scotland the parish clergyman still has notarial powers to the extent of executing a will — a relic of the old ecclesiastical position or notaries.^ § 6. The Notary Public in International Law. — As was said "before, the office of notary public is of ancient origin,* and has long been known both to the civil and common law.^ It exists and is recognized throughout the commercial world and has been said to be " known to the law of nations." ^ The court in an Indiana case, Teutonia Loan, etc., Co. v. Turrell, said: "All acts done by a notary public, which fall within the rules of the law-merchant, have always been respected under the law of na- tions " f and in Sonfield v. Thompson, an Arkansas case, the court said that " notaries' acts duly authenticated are valid everywhere, and prove themselves by comity of nations." ^ In an English case, Sutcheon v. Mannington, the court said: "A notary public by ihe law of nations has credit everywhere." ' In Wood v. St. Paul City By. Co., a Minnesota judge said: "A public notary is con- sidered, not merely an officer of the country where he is admitted or appointed, but as a kind of international officer, whose official acts, performed in the state for which he is appointed, are recog- nized as authoritative the world over." ' Some of the states in their statutes on notaries recognize this phase of a notary's powers. 8. See p. 5, note 4. Apostolical no- 3. 29 Cyo. Law & Proc, p. 1069 ; tary: an official charged with des- 21 Am. & Eng. Cyc. of Law, 2d ed., patching the orders of the papal see; p. 555; Bouv. Law Diet. (Eawle's ecclesiastical notary ; in the early Rev. ) , tit. " Notary Public." church, a elerk or secretary, especially 4. Teutonia Loan, etc., Co. v. Tur- a shorthand writer, employed to record rell, 19 Ind. App. 469, 65 Am. St. the proceedings of councils and tri- Rep. 419, 49 N". E. 852. bunals, report sermons, take notes, 5. Sonfield v. Thompson, 42 Ark. and prepare papers for bishops and 46, 50, 48 Am. Rep. 49. abbots : 5 Century Diet and Cyc, tit. 6. Hutcheon v. Mannington, 6 Ves. "Notary." Jr. 823, 824, 2 Rev. Rep. 115, 31 Eng. 1. See § 1. Reprint, 1327. 2. 29 Cyc. Law & Proc, p. 1069; 7. Wood v. St. Paul City Ry. Co., 21 Am. & Eng. Cyc. of Law, 2d ed., 42 Minn. 411, 44 N. W. 308, 7 L. R. p. 555. A. 149. HiSTOKY OF THE ISToTAET PuBLIC. T The New York statute which defines his powers in respect to for- eign and inland bills of exchange and promissory notes, confers upon him the further authority " to exercise such powers and duties as by the law of nations and according to commercial usage, or by the laws of any other government, state or country, may be performed by notaries." * § 7. Notaries Public in the United States. — When the Union of the thirteen colonies was formed, nothing was said in the con- stitution concerning notaries public so that full power over such officers was left with the individual states.-^ It is to the states, then, that we must look for the laws affecting the notary public. We find in most of the states that notaries are appointed by the governor,^ with or without the consent of the Senate or some ad- visory council; though in Rhode Island they are elected annually by the general assembly. In the District of Columbia they are appointed by the President of the United States.' By statute certain other public offices frequently include that of notary, so that one holding the same is ex officio a notary. As a general rule, they are appointed for certain counties, though in a few states they may exercise their privileges anywhere in the state. In most states the appointment is for a period of four or five years, but in a few the appointment holds good for one year only.* It is gen- erally held, though the legislation varies in different states, that a notary must be a citizen and a male ; ^ in some few states, how- ever, of which New York is one, women may be appointed to the office.^ At common law a minor has been held eligible to the office.'^ It is also provided in some states that persons who hold certain positions cannot be appointed, for example, a stockholder, director, cashier, teller, clerk or other officer in any bank or bank- 8. Con. Laws, Exec. Law, § 105; 1878, 20 Stat. L. 100, 2 F. S. A. 205, People V. Eathbone (1895), 11 Misc. 5 F. S. A. 379. 99; People v. Travis (1854), 4 Park- 4. 29 Cyc. Law & Proc, p. 1073; «r's Crim. Rep. 215. 21 Am. & Eng. Cyc. of Law, 2d ed., 1. Constitution of United States, p. 557. § 10. 5. 29 Cyc. Law & Proc, p. 1071; 2. 29 Cyc. Law & Proc., p. 1072. 21 Am. & Eng. Cyc. of Law, 2d. ed., 21 Am. & Eng. Ency. of Law, 2d ed., p. 556. V- 556. 6. See § 14. 3. Bouv. Law Diet., tit. "Notary 7. United States v. Bixby, 9 Fed. Public;" U. S. Stat, approved June 7, 78, 10 Bias. 520. 8 Notaries and Commissioners of Deeds. ing iastitution, or in the employment thereof.' By statute in most of the states a notary is required, before assuming the duties of the ofBce, to give a bond, varying in amount in different states^ with good and sufficient sureties, conditioned for the faithful per- formance of his duties. Usually this bond must be approved by some designated officer and filed of record.^ Nearly all the states. demand that the notary provide himself with a seal although in. many states it is not necessary in all cases that his seal be attached for a valid authentication.^" Generally, however, the acts of a foreign notary must be authenticated by his seal." The powers of a notary may be generalized as follows : He may administer oaths and take affidavits ; he may take depositions ; he may take acknowledgments of creditors to powers of attorney and proofs of debt against the estate, in bankruptcy proceedings ; he may take acknowledgments ; he may note and extend marine protests; he may present foreign bills of exchange and protest them.-'^ In some jurisdictions the notarial function is very much more extensive. Thus in Alabama the governor has been author- ized by statute to appoint a limited number of notaries who are ex-officio justices of the peace in the wards for which they are ap- pointed." 'And in states or countries the foundation of whose jurisprudence is the Eoman law, the duties of a notary public are often of great variety and importance, as in Louisiana and ia Lower Canada." In conclusion, we may say that a notary owes his client the general duty of integrity, diligence and skill, pay- ment for the exercise of which is fixed by statutes in the different states.^^ 8. Pa. Act, April 14, 1840; 3 Purdon 12. 29 Cyc. Law & Proc, pp. 1076- Dig., 13th ed., p. 3323; Commonwealth 1089; 21 Am. & Eng. Encyc. of Law, V. Pyle, 18 Pa. 519. 2d ed., pp. 562-567; Bouv. Law Diet. ». 21 Am. & Eng. Ency. of Law, 2d (Rawle's Rev.), tit. "Notary Public."^ ed., p. 558; 29 Cyc. Law & Proc, p. 13. Douglass t. State, 117 Ala. 185, 1103. 23 South. 142. 10. 29 Cyc. Law & Proc, p. 1096; 14., Stork v. American Surety Co., 21 Am. & Eng. Ency. of Law, 2d ed., 10* La. 713, 33 South. 742; Leveille v. p. 559. Kauntz, 4 Quebec Pr. 358; Taillifer r. 11., Alabama Nat. Bank v. Chatta- Taillifer, 21 Ont. 337. Booga Door, etc., Co., 106 Ala. 663, 18 15. 29 Cyc. Law & Proc, p. 1101; South. 74; Bayonne Knife Co. v. Um- Fogarty v. Finlay, 10 Cal. 239, 70 Am. benhauer, 107 Ala. 496, 54 Am. St. Dec. 714; Stork v. American Surety- Rep. 114, 18 South. 175; Booth v. Co., 109 La. 713, 716, 33 South. 742. Cook, 20 111. 129. HiSTOKT OF THE NoTABY PuBLIO, 9f § 8. The Notary Public in the State of New York. — The first statute passed by the legislature of the state of New York in rela- tion to notaries was approved April 18, 1815, when the following- fees were allowed them: For drawing and copying a protest on a promissory note or bill of exchange, twenty-five cents; every other protest twenty-five cents for each folio of one hundred and twenty words ; for sealing the same, twenty-five cents ; for drawing- every notice of protest, copy and service, twenty-five cents ; for drawing and copying an affidavit taken before him, twenty cents for every folio of one hundred and twenty words. It was specifi- cally set out that it was unlawful to ask any greater fees. The law did npt apply to New York City. The first statute we find in the laws of the State of New York creating the office of notary is in the Laws of 1823, which states " that the person administering the government of this state shall nominate, and with the consent of the senate appoint " publi&. notaries who shall hold their office two years ; but that they may be removed by the senate upon the recommendation of the person administering the government and that he may fill vacancies dur- ing recess of the senate. In 1829 the governor was given the power to appoint as many notaries up to the number of one hun- dred as he thought necessary for New York City. In 1835 it was made unlawful for a monied corporation to be interested in the fees of a notary ; and an officer or clerk of such corporation could not charge more than fifty cents for protesting, and giving thet requisite notices. In 1837 the fees for protesting was fixed at seventy-five cents, and the notary was instructed to attach his seal free of expense. In 1851 the governor was allowed to appoint twen- ty-five additional notaries for New York City, and two additional for the City of Troy; in 1853 thirty-five additional for New York City; and in 1854 forty in addition to those prescribed by law. In 1858 the number for the city and county of New York was raised to four hundred; and in 1859 to five hundred. During the latter year a law was passed allowing a notary seventy-five cents for the service of a notice of the nonpayment of any tax or assess- ment upon a mortgage and a certifiate of such service under his hand and seal. In 1859, also, notaries were given the power to administer oaths and affirmations and to take proof and acknowledgment of deeds, mortgages and other papers in the same manner commission- 10 Notaries and Commissioners of Deeds. ■ers of deeds could perform such offices. And it was stipulated that such acts could be performed without official seal. In 1861 the City of New York was given one hundred additional notaries ; and in 1862 two hundred more were added. In 1863, except in the county of Kings, the city of Buffalo and the city and county -of New York the number of notaries was limited to one for every two thousand of population residing in any county as shown by the census and their powers to take affidavits, acknowledgments, •etc., were again defined. In 1864 the term of office was defined as two years and each bank was allowed a notary in addition to the number allowed any county except in the cities of New York, Brooklyn and Buffalo. In 1865 a notary was allowed, in addition to the seventy-five cents for protest, ten cents for each notice sent not exceeding five on each bill or note. In 1866 the number of notaries in New York City was increased by one hundred ; in 1867 another hundred was added for New York City and two addi- tional in each assembly district of the state; and in 1868 two hun- dred more were added to the number for New York City and £ve additional for each assembly district. In 1869 New York City was allowed two hundred and fifty more and each assembly district outside of New York City five additional ; and in the same year the rule was adopted to appoint notaries from the 30th day of March of the year in which they are appointed and for them to hold office for two years. But a person, appointed to fill a vacancy was to hold office for the unexpired term ■of the person in whose stead he was appointed. In 1871 New York County was allowed three hundred in addition to the number pro- Tided by law, and the act of 1869 was amended to add that all no- taries appointed during a recess of the senate but not to fill a va- cancy should hold office from the time of their original appointment until the 30th day of March in the year next after the year in which their appointment was confirmed by the senate. In 1872 a notary appointed for the county of New York or the county of Kings was granted the power to exercise the privileges ■of his office in both counties. If an instrument was to be recorded in the county for which he was not appointed a county clerk's cer- tificate would have to accompany his certificate. In 1873 the gov- ernor's private secretary could sign notarial certificates; and in the same year it became a law that a notary, appointed for any History of the Notary Public. 11 of the counties of Kings, Queens, Richmond, Westchester, or Eock- land, or for the city and county of New York, upon filing a certi- fied copy of appointment, with his autograph signature in the clerk's office of any other of said counties, could exercise all the functions of his office in any other of said counties. In 1874 the numher was again increased by ten for each assembly district and it was provided that in each county which is a single assembly district the additional number be fifteen. In 1875 each assembly district was given ten more and the city and county of New York two hundred and fifty more. It then became a law that each no- tary must pay fifty cents when he takes the oath of office, which money was returned to the State treasurer. In 1875 the counties of Putnam and Suffolk were added to the list under the law of 1873 — ^Kings, Queens, Eichmond, etc. In 1876 ten notaries were added to the number allowed by law for each assembly district and two hundred and fifty additional for New York City ; and a statute was passed as to the causes and manner of removal of notaries by the governor. In 1880 an addi- tional number of notaries equal to the number of banks were allowed to be appointed on the application of the banks. In 1882 under the consolidation act New York City was allowed twenty- seven hundred and ten notaries and also one for each bank. In 1883 the county of Orange was added to the list under the law of 1873 as amended in 1875. In 1884 Westchester county was given thirty additional notaries; and any notary was allowed to file a copy of his appointment and autograph signature in the clerk's office of any county adjoining the one for which he was appointed after which he could exercise all his functions in such adjoining county. In 1885 the law of 1884 was amended to allow a notary to per- form acts in his own county to be used in an adjoining county in which he had filed the necessary papers. In April, 1886, an act was passed increasing the number in each assembly district by twenty and increasing the number in New York City and County by five hundred. The fees were then raised as follows : A notary residing in a city having a population from 50,000 to 300,000, five dollars ; a notary residing in a county which has a city of over 300,000 inhabitants, ten dollars; from all other notaries two and one-half dollars. And if a notary of any county, except Kings, 12 Notaries and Commissioneks of Deeds. filed the required papers in New York City he paid seven and one- half dollars at the time of such filing. This act was amended im May of the same session, adding that the increase where a county made up an assembly district should be thirty. In 1888 the act of 1873 was amended so that any notary appointed for the county of Kings, Queens, Eichmond, Westchester, Putnam, Suffolk, Eock- land. Orange, and Dutchess or for the city and county of New York upon filing a certified copy of his appointment with his auto- graph signature in the clerk's office of any other of said counties could exercise all the functions of his office in any of the other counties and also in the county in which he resided for each of the other counties. In 1890 the governor was empowered to ap- point notaries equal to one for each one thousand population in addition to the number then provided by law. In 1892 the law governing notaries became a part of the Execu- tive Law and the number to be appointed was left discretionary with the governor within certain limits. In New York City and County the number was not to exceed one for each thousand of population as shown by the latest preceding federal or state enumeration together with one for each bank and two thousand seven hundred and ten additional. In each assembly district con- stituting an entire county or two counties three for each two thou- sand of population by the census before referred to, one for each bank and eighty-two additional. In each assembly district con- stituting a portion of a county other than New York, three for each two thousand of population by the census before referred to, •ne for each bank and sixty-two additional, except that in the as- sembly districts of Westchester County the additional number was seventy-two. The notary's authority was then defined to be first, anywhere within the state to exercise his powers and duties in connection with commercial paper and, secondly, in the county for which he was appointed to administer oaths and affirmations, to take affidavits and certify the same, and to take and certify the acknowledgment and proof of deeds and other written instruments. For any misconduct in the performance of such powers the notary was declared to be liable to the party injured for all damages sus- tained by him. In the Public Officers Law it was set out that the oath of office of a notary must be administered by the clerk and filed in the office of the clerk of the county in which he shall reside. : , , i , j HiSTOET OF THE NoTAEY PuBLIG. 13 In 1893 the number the governor might appoint was raised to f«ur for each one thousand of population, and the fee of five dol- lars was asked of all notaries living in counties having a popula- tion from 50,000 to 600,000. The oath of a notary could be taken bj any officer authorized to take within the state the acknowledg- ment of a deed of real property, or by the county clerk; and the notary's oath was to be filed in the office of the county clerk of the county for which he was appointed. In 1894 the fee for a notary who resided in New York or Kings Counties was made ten dollars, for a notary who resided in a city having a popula- tion from 50,000 to 600,000 five dollars and for all others two and one-half dollars. To file a certificate of appointment and quali- fication in ~New York and Kings Counties a fee of seven and one- half dollars was charged. In 1899 the number the governor was allowed to appoint was five for each thousand of population ; but of this number one was to be appointed for each bank applying therefor, and a special act was passed to protect notaries in the new County of Nassau. In 1901 it became the law that a notary appointed for any county upon filing the usual papers and paying a fee of one dollar could exercise his functions in any other county. In 1905 the restric- tion as to number was removed; the governor was empowered to appoint as many as may be necessary. In 1907 a law was passed making it necessary for a notary to file, in a county where there is a; register as well as a county clerk, in the office of the register his autograph signature and a certificate of a county clerk. Until that is done a register cannot record instruments approved or ac- knowledged in said county by a notary, and a notary must not exercise his said functions until he has so filed his signature and a county clerk's certificate. In 1909 the various acts were consoli- dated in the Executive Law and Public Officers Law. In 1910 a law was passed making it a misdemeanor for a person to hold himself out as a notary before he is appointed, or to practice any fraud or deceit in the performance of his duties. In 1911 Section 310 of the Real Property Law was amended so that a conveyance acknowledged before a notary can be read in evidence in any county in which the notary is authorized to act without a county clerk's certificate. Likewise Section 105 of the Executive Law was amended making it obligatory on a notary an- 14 NoTAEIES AND CoMMISSIONEES OF DeEDS. thorized to act in New York City to affix after his name his county clerk number and also, if he has one, his register number.^ 1., Const, of U. S., art. I, § 8; 1869, pp. 687, 986; 1870, p. 1516 j Const, of N. Y. (1846 amended), art. 1871, pp. 335, 3; 1872, p. 1680; 1873, I, § 17, (1894) art. I, § 16; Const, of pp. 163, 1211; 1874, p. 115; 1875, pp. X. Y., art. Ill, § 1. 77, 94, 527; 1876, pp. 100, 102; 1879, The following is a list of the laws pp. 331, 332; 1880, pp. 284, 358; 1882, affecting notaries down to date with p. 419; 1883, p. 142; 1884, p. 334, 69; the exception of those merely legaliz- 1885, p. 122; 1886, pp. 404,565; 1887, ing acts of notaries: Laws of 1815, p. 650; 1888, p. 895; 1890, p. 481; p. 277; 1823, p. 243; 1829, p. 112; 1892, pp. 1702, 1658; 1893, pp. 479, 1835, p. 355; 1837, p. 554; 1841, p. 480, 483, 614; 1894, pp. 184, 185, 346; 1851, pp. 770, 873; 1853, p. 718; 186; 1899, pp. 769, 54, 10; 1901, p. 1854, p. 219; 1855, p. 226; 1858, pp. 1678; 1903, p. 304; 1905, p. 375; 73,91; 1859, pp. 419, 1115, 869; 1861, 1907, pp. 401, 1172; 1908, pp. 709, p. 555; 1862, p. 710; 1863, p. 880; 711; 1909, Consolidated Laws; 1910, 1864, p. 51; 1865, p. 633; 1866, p. p. 911; 1911, Chaipters 668, 196. 1150; 1867, p. 1009; 1868, p. 992; The Notaey Public; Appointment^ Etc. 15 -CHAPTEE II. The Notary Public; Appointment, Etc. B 9. Purpose of the Office of Notary. § 10. Definition. § 11. Nature of the Office: A Public Office. § 12. : A Judicial and Ministerial Office. S 13. Eligibility and Qualifications: Citizen of United States: Residence. § 14. : Women. § 15. : Incompatible Offices. § 16. Appointment: In General. § 17. : Application for. § 18. : By the Governor: Confirmation by the Senate. § 19. : Notary's Commission. § 20. : Final Qualifications. § 21. Oath of Office. § 22. .Procedure to Compel Public Officer to Administer Oath to One Appointed Notary Public. § 23. The Fee to the State. § 24. The Notary's Bond. § 25. Notary's Official Seal: In General. Necessity of. Form. Place of. § 26. § 27. § 28. § 29. The Notary's Name. § 30. Term of Office. § 31. Jurisdiction of a Notary. § g. Purpose of the Office of Notary. — Possibly the best way to appreciate the need and purpose of the office of notary public would be to imagine a state with no officers empowered to admin- ister an oath outside of court. Then, if one should want to prove that he presented a note for payment on a certain day, at the proper time and place, he would be compelled to hale two or three persons to court to prove that fact. If tliose persons were a thou- sand miles away when the case came on for trial, he would be com- pelled to get them to court notwithstanding the expense ; if they had died in the meantime, he would not be able to prove his case. If at the present day a plaintiff or defendant in a case on trial were compelled to brmg into court witnesses to prove the thousand and one things that are now accepted in the form of affidavits, the business world would be paralyzed to a great extent. Every time 16 NOTAEIES ANB CoMMISSIONEES OF DeEDS. a business man takes a note for aa ordinary amount he would know that if it were not paid at the proper time he might as well destroy the note, for it would cost him as much to prove the debt as he would recover. And again, suppose every time a deed were placed on record it would be necessary for the grantor to appear at the ofiBce of the legister or county clerk with some friend who knows the oflScer personally, to prove to him that he is the man who is granting the land and not an impostor. One can readily see that real property owners living out of the state, or, we might say, out of the county, would make one trip to the office, transfer their land, and be care- ful not to buy any more in a foreign state or county. Thousands •of affidavits and acknowledgments are taken in New York every year to be used in all parts of the world. So it can be seen that a public officer who is empowered to administer oaths and can thereafter attach his name to facts sworn to before him, thus mak- ing what we term " affidavits," is a very necessary official both in the business world and in the legal world. And the more complex our civilization becomes the more necessary is such an officer.* § 10. Definition. — A notary public ^ is a public officer whose function it is to attest and certify, by his hand and official seal, ■certain classes of instruments in order to give them credit and authenticity in foreign jurisdictions; to take acknowledgments of deeds and other conveyances, and to certify tlie same; to perform certain official acts, in commercial matters, such as the protesting of notes and bills, and the noting of foreign drafts ; to receive the affidavits of mariners and to draw up protests in cases of loss or damage ; and to perform other official acts, the power to do which is conferred by law.' From this definition it is seen that a notary is a public official whose signature on certain documents carries more weight than that of the ordinary man. He is appointed by the state for the purpose of assisting anyone who wants his assistance in proving that certain facts were sworn to. He is a public functionary au- 1., People V. Eathbone (1895), 11 tit. "Notary Public;'' 21 Am. & Eng. Misc. 100. Encyc. of Law, 2d ed., p. 555; 29 Cyc. 2. The word "notary" is equiva- Law & Proc, p. 1069. See, also, So- lent to the words " notary public." wen v. Stilwell, 9 N. Y, Civ. Proc. ■29 Cyc. Law & Proc., p. 1068. 277, 283. 3. Bouv. Law Diet. ( Rawle's Rev. ) , The Notary Public; Appohsttment^ Etc. 17 &orized to put his name to certain documents to show that they are genuine. When he " attests " he witnesses or sees, as an officer, that a person named in the document swears before God or affirms that certain facts set forth in the document are true; when he ^' certifies " to that instrument he writes on the same instrument that the person named therein did appear before him on a cer- tain day and at a certain place and did there swear before God or affirm that the facts stated therein are true. When he " takes an acknowledgment," the man named in a deed or other convey- ance comes to him with the deed and tells him that he is the man named as grantor in the deed, that he signed the deed and means to convey the property to the person named therein ; when he " cer- tifies the same," he writes on the deed these facts, that he knows ■the man named in the deed and that the said man did sign it and means to convey it. When he " protests," he writes down how and when he performed certain acts which he is called upon to perform as such public ofiicial; for example, that he, at the re- quest of X, called upon A, at his home at 9 o'clock Tuesday, Sep- tember 6, 1910, and asked A to pay a certain note ; that A refused ■to pay the note but gave no reason for said refusal, and that he thereupon notified certain specified parties of the fact. After writing on these various instruments the facts which took place before his eyes, the notary places his seal, which is an impression in the paper which cannot be changed, to further prove that the acts were done before him, a public officer, authorized by the state to have a seal. These facts as set forth by the notary are then accepted in New York and in some cases in other states and coun- tries as true without further proof. In ITew York a notary is a public officer who has authority any- where within the state to demand acceptance and payment of for- eign and inland bills of exchange and of promissory notes ; to pro- test the same for nonacceptance or nonpayment; and to exercise such powers and duties as by the law of nations and according to commercial usage, or by the laws of any other government, state or country, may be performed by notaries ; and, in the county for which he has been appointed, or in other counties under certain conditions, to administer oaths and affirmations ; to take affidavits ; and to certify the acknowledgment and proof of deeds and otheK written instruments to be read in evidence or recorded in this state.* 3, Cob. Laws, Executive Law, § 105. 18 Notaries and Commissioners of Deeds. § II. Nature of the Office: A Public Officer.— The office' of notary public is a public office,^ although in some states the notary's powers may be confined to acts performed in a certain city or county. The court in Golladay v. Union Bank? a Tennessee case^^ said: " The notary is a public ofiicer, and when he certifies that he has done an ofiicial act, it must be presumed that he has done it correctly, unless some statute or rule of law prescribes a par- ticular mode, until the contrary appears.'" In Ashcraft v. Chap- man/ a Connecticut judge said: " Notaries were originally mere commercial scriveners. Becoming important to the commercial world, their appointment was provided for and their duties regu- lated by public law, and they became sworn public ofiicers — no- taries public — and their certificates were received as evidence of their official acts." The title itself expresses this fact, for they are notaries — public. The office of notary is a public office in this state under the statutes and has been so declared in a number of cases by the high- est oourt.^ As the court says in the case of People v. Raihhone, it " is public in its relations to the body politic, by reason of the mode of its creation and of the powers conferred and functions defined by the law." ^ Whether a notary is a state officer only or also a local officer the statutes do not declare and no cases have de- cided the question. He is a state officer in so far as his powers in connection with commercial paper are concerned for he may exercise these powers throughout the state immediately on his ap- pointment and qualification as a notary for any one county.' As to his other duties — to administer oaths, to take acknowledgments, affidavits, and depositions, etc. — he may act only in the county for which he is appointed, after qualifying, unless he files his auto- graph signature and a certificate in the office of the clerk of some other county when he may perform his duties in that county.* As 1. People V. Nostrand (1871), 46 512; Merzbach v. Mayor, etc., of Xew N. Y. 381. York (1S97), 19 App. Div. 191 2., 29 Cyc. Law & Proc, p. 1069; 6. People v. Rathbone (1895), 145 21 Am. & Eng. Encyc. of Law, 2d N. Y. 434; People v. Wadhams- ed., p. 555. (1903), 176 N. Y. 0; Const, of New 3., 2 Head. (Tenn.), 57, 59. York (1894), art. XIII, § 5. 4., 38 Conn. 230. 7. Con. Laws, Executive Law, § 5. Allen v. Merchants' Bank of New 105. York (1839), 22 Wend. 241; McAn- 8. Con, Laws, Executive Law, §§ drew V, Radway (1866), 34 N, Y, 105, 102. The Notary Public ; Appointment, Etc. 19 ihe may so file his signature and certificate in each county of the state he might be considered a state officer in respect to the latter powers also; but it is probable the courts would hold that he is both a state and a local officer.' § 12. Nature of the Office: A Judicial and Ministerial Office. — In New York a notary public is both a judicial and a minis- terial officer. Whether he is a judicial or ministerial officer is an important question which has arisen mainly in consideration of the questions of the territorial jurisdiction of the officer, his disqualifi- cation by reason of interest in the matter, his power to amend a defective certificate of acknowledgment, and the effect of the cer- tificate as evidence. In People v. Rathhone,^ the court said: "He (the notary) is one of the ' public officers of the state,' concerning whom Chap- ter V of the Revised Statutes treats, and he is therein placed ' in the class of judicial officers.' " This case was decided in 1895 and since that time there has been a revision of the statutes ; he is now merely classified as a public officer. He is a judicial officer, how- ever, under Section 305 of the Real Property Law, for he is there given the power to commit a person to prison if he refuses or neg- lects without reasonable cause to attend before him in answer to a subpoena issued by the notary and to testify concerning the execu- tion of a conveyance.^ His special powers under the insurance law may also be classed as judicial.^ And he is certainly a judicial officer when appointed under section 2987 of the Code of Civil Procedure* and section 214 of the Municipal Court Act.^ In those cases he is not appointed as a notary or commissioner of deeds, how- ever, but rather a " commissioner to take a deposition ; " but no- taries and commissioners of deeds are usually appointed. But by the great weight of authority most of his acts are con- sidered to be merely ministerial * and while the cases cannot be 9„ Con. Laws, Public Officers Law, 4., N. Y. Code of Civil Proc, §5 § 2. 2987. 1. People V. Rathbone (1895), 145 5., N. Y. City Municipal Court Act, N. Y. 437. § 214. 2. Con. Laws, Real Prop. Law, § 6., See § 41; 21 Am. & Eng. Encyc. 305. of Law, 2d ed., p. 556 and vol. I, p. 3. See Clap. XII, "Notaries and 485; 29 Cyc. Law & Proc, p. 1070. Insurance." 20 Notaries and Commissioners of Deeds. taken as laying down the rule in regard to all the functions o£ a notary, still we may safely say that the cases decided in New York place this State with the majority as to most of his acts. The eases are Wendall v. Reves, and In re Kimhall,'' in which the administer- ing of an oath was held to be a ministerial act ; and Albany County Savings Bank v. McCarty, People v. Kempner and Lynch v. Liv- ingston,^ in which the taking of an acknowledgment was held to be a ministerial act.' A ministerial act may be defined to be one which a person per- forms upon a given state of facts, in a prescribed manner, in obedi- €nce to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of doing the act.'* § 13. Eligibility and Qualifications: Citizen of United States: Residence. — The question: Who can be notaries public? is gener- ally answered by the constitution or statutes of a State. In New York we find by the Public Officers Law a notary must be of full age,' a citizen of the United States, a resident of the State, and " if it be a local office, a resident of the political subdivision or munici- pal corporation of the State for which he shall be chosen, * * * or within which his official functions are required to be exercised." * 7.. Wendell v. Reves (1887), 6 N. referred to; and, as applied to such Y. St. Rep. 863: In re Kimball cases, the doctrine is sound." In this (1899), 4 Am. Bank. Rep. 144; see State at the present time a wife is |§ 116, 129. not examined privately by the notary; 8. Albany County Savings Bank v. therefore the doctrine would not ap- HcCarty (1896), 149 N. Y. 182; Peo- ply. pie V. Kempner (1900), 49 App. Div. Certifying to the signature and au- 122; Lynch v. Livingston (1852), 6 thority of a commissioner of deeds, is ]Sr. Y. 433; see § 157. a ministerial act, which the county 9. Bowen v. Stilwell (1886), 9 N. clerk may perform by deputy. Lynch Y. Civ. Proc. 283. v. Livingston (1852), 6 N. Y. 422; 10. Am. & Eng. Encyc. of Law, 2d Gibson v. Nat. Park Bank (1885), 98 ed., p. 793; Bouv. Law Diet. (Rawle's N. Y. 96. Rev.), tit. "Ministerial." 1„ "A minor is a person under the In People v. Bartels, 138 111. 322, age of twenty-one years. A minor 17 N. E. 1091, Chief Justice Magruder reaches majority at that age." Con. said: ' The doctrine that the taking Laws, Domestic Relations Law, § 2. of an acknowledgment is a judicial 2. Con. Laws, Public Officers Law, act, had its origin in the consldera- §§ 3, 30; Brink v. Stratton, (1903) tion of acknowledgments by married 176 N. Y. 160; Lambert v. People, women, where the officer is required (1879) 76 N. Y. 230; People v. Dean, te make the privy examination herein (1830) 3 Wend. 438. The Notaet Pfblic; Appointment, Etc. 21 !As a notary is botli a State and local officer or, by one- interpreta- tion of the law, a State officer only,^ it would seem tliat he may be appointed for a county in which he does not live. This would be only when his business and his residence are not in the same county as in the case of a notary appointed for a bank applying therefor.* A person's residence is the place he calls his home and to which he always goes back ; it is the place in which he is seated or settled ; it imports not only personal presence in the place but also an attach- ment to it by those acts or habits which express the closest connec- tion between the person and the place, as by usually sitting or lying there.^ A person remoyed from the position of commissioner of deeds in the City of New York shall not thereafter, under the Charter of Greater ~New York, be eligible for appointment to the office of notary public for any county in the said city.* The eligibility of a. woman to the office is discussed in the following section. § 14. Eligibility and Qualifications: Women. — The question whether a woman is eligible to hold the office of notary came up in the case of Findlay v. Thorn. As we found in the last section, a person, to be capable (eligible) to hold a public office in ISTew York, must be a " citizen." Is a woman a citizen ? The court said in that case : " Citizenship is a condition or status, and has no relation to age or sex." ^ It was also decided in that case that the right of a woman who was duly appointed and confirmed, who filed her official oath and received her commission and is in possession of the office exercis- ing its functions, cannot be questioned except in a direct proceed- ing brought by the attorney-general in the name of the people in which the notary may defend her right to the office. In other 3, See § 11. removed as a commissioner of deeds 4, Con. Laws, Exec. Law, § 101. in New York City would apply for 5, People V. Piatt, (1889) 117 N. appointment as a notary for Erie or Y. 167; Matter of Collins, (1882) 64 any other county outside New York How. Prac. 65. City and exercise the functions of a. 6., Greater N. Y. Charter, § 58. notary. Does the charter of New The words " for any county in the York City apply to anyone in another said city " do not appear in the char- part of the State ? ter. A nice question as to his crim- 1. Findlay v. Thorn, (1885) 1 How. ' inal liability might arise if a person Prac. Eep. N. S. 76. 22 Notaries and Commissionees of Deeds. ■ words the right of a woman to hold the office of notary public can- H-ot be determined in a collateral proceeding. She was at least a notary de facto.'' As to how a woman who marries during her term of office should sign her name, see § 29, " The ISTotary's l^ame." § 15. Eligibility and Qualifications: Incompatible Offices. — It is generally held that the office of notary public is not incom- patible with any other public office unless the constitution ex- pressly forbids a specified officer to hold any other public office. It has been held that a notary may be a librarian or messenger in th© office of the district attorney of New York.-'- But a member of the legislature could not act as notary under an appointment made while he was serving as a legislator.^ JSTor may a sheriff or deputy sheriff act as a notary.^ Eeferees in bankruptcy may hold the office of notary public* § 16. Appointment: In General. — In the states one must al- ways go to the constitution and the statutes of the state in ques' tion to learn how notaries are appointed. Generally they are ap- pointed by the governor, sometimes with the consent of the senate or an advisory counsel.^ In New York the governor shall appoint, by and with the advice and consent of the senate, such number of notaries public in and for the several counties of the state as may be necessary, and of such number the governor is authorized to appoint one notary for each bank applying therefor.^ During the recess of the senate the governor may appoint notaries to fill exist- ing vacancies and it will not be necessary that these appointments be confirmed by the senate." It would seem by Public Officers Law that vacancies occurring or existing by expiration of the term of office of a notary cannot be filled by the governor while the sen- 7. See page 21, note 1; See §§62,63. Aug. 26, 1S95, p. 22S; Const, of New 1. Merzbach v. Mayor, etc., of New York, (1894) art. X, § 1. York (1900), 163 N Y. 21; Greater 4., The Bankruptcy Act of 1898, New York Charter, § 1549. title " Qualifications of Referees." 2., Opinion of Attorney General, 5. 21 Am. & Eng. Eney. of Law, 2(1 June 21, 1899, p. 267; Const, of New ed., p. 556. York, (1894) art. Ill, § 7. 6. Con. Laws, Executive Law, § 3. Opinion of Attorney General, 101; Const, of New York, (1894) art. X, §§ 2, 5. u... .. _ ..i The ISToTAEY Public ; Appointment, Etc. 23 ate is not in session.^ It might be well to add in this connection that if an appointment is not made in the mode prescribed by the •constitution or statute it is inoperative.* § 17. Appointment: Application for. — A person desiring to be appointed a notary public should write a letter to the " Secretary to the Governor " asking for a blank form of application for ap- pointment as notary. The following letter would be sufficient to obtain the blank form, of application : FOKM 1. Letter Beqtnesting Application Blanks. Kingston, N. Y., June 30, 1911. ; Esq., Secretary to tlie Governor, Albany, N. Y. Dear Sir: Will you kindly send me a blank form of application for appointment as notary public? Thanking you for your courtesy, I am Yours very respectfully, JOBN DOE. John Doe, 423 First Street, Kingston, N. Y. [The words in italics must be changed to suit the case.] The following circular of instructions and application blank will be received from the Secretary to the Governor : STATE OF NEW YORK, EXECUTIVE CHAMBER. OFFICE OF NOTARY PUBLIC. Insteuctioks to Applicants. No appointments to the office of Notary Public will be made, except in cases of reappointment or except when the applicant is himself an attorney, unless the appointment is recommended by two members of the Bar. 3. Con. Laws, Public OScers Law, 4. Brown v. State, 43 Tex. 478; 29 § 39. Cyc. Law & Proc, p. 67; 21 Am. & Eng. Ency. of Law, 2d ed., p. 557. J 24 Notaries and Commissionees of Deeds. Applicants must be citizens of the United States, twenty-one yeais old, with, legal residence in the county for which they are appointed. Authority to act in other counties may be obtained by filing a certificate in the office of the county clerk of each additional county. The term of office of Notaries is two years from March 31. Appoint- ments made after March 31 in any year, or before March 31 in the year next succeeding, run for the unexpired portion of the two years begin- ning on the last preceding March 31. Nominations for reofipointment or for an original appointment for a term of two years are sent by the Governor in February and March ta the Senate for confirmation. Each appointee will be notified of his appointment by the county clerk of the county in which he resides and he must qualify within fifteen days after the day upon which the notice was dated, or within fifteen days after the commencement of the term for which he is ap- pointed by paying his fee to the county clerk and taking the oath. Fees are payable as follows: In New York or Kings County, ten dollars; In a city having a population of more than fifty thousand and less than six hundred thousand, five dollars; Elsewhere, two and one-half dollars. FOBM 2. (This blank must be filled in the handwriting of the applicant.) APPLICATION FOR THE OFFICE OP NOTARY PUBLIC County of (Give county of residence.) Name of applicant in full Occupation of applicant With or of the firm of Line of business Business address Any other occupation ? Actual place \ County City or Village of residence : j Street and Number Age When and where born ' If naturalized, when and where Are you admitted to the Bar? If so, when and where? Are you associated with any lawyer or firm of lawyers? If so, with whom Do you solicit, undertake, or have you been paid for the drawing of any legal papers or documents? If so, of what sort? The Notaet Public; Appointment, Etc. 25 STATE OF NEW YORK County of The undersigned, who is an applicant for the office of Notary Public,, having been duly sworn, says that he Is a citizen of the United States, a resident of the State of New York, and over the age of twenty-one years, and that all the statements contained in the foregoing application, are true. (Signature of Applicant) Subscribed and sworn to before me this day of , 191.... by the applicant herein, and who is to me personally known. Votary Public. RECOMMENDATIONS Names of persons recommending appointments must be signed personally by them, with occupation and address. We have known , the can- didate named herein for appointment to the office of Notary Public, for ( ) ( ) years and we know him to be of good moral character, years from the thirtieth day of March of the year in which he shalY be appointed. And those appointed to fill vacancies are to hold office for the unexpired term for which they are named.^ It is expressly stated in the Public Officers Law that a notary shall not hold over and continue to discharge the duties of his office after the expiration of the term for which he shall have been chosen.^ A notary who wilfully exercises any of the functions of his office after his right to do so has ceased is guilty of a misdemeanor; * but his acts would be those of a notary de facto and could not be ques- tioned in a collateral proceeding.' 6. One of the points on appeal which her rights can be secured.'" made in the case of Deans v. Pate Report of Atty. Gtenl., 1909, p. 284. (N. C), 19 S. E. 146, was that the 1. 29 Cyc. Law &, Proc., p. 1073. signature of the notary was " Geo. Z. Const, of N. Y. ( 1894 ) art. V Theo. Sommer," and the seal had on § 3; Con. Laws, Executive Law, | it "Theo Sommer." 101; Con. Laws, Public Officers Law, 7. When a woman who is a notary § 38. public marries during her term of of- 3. Con. Laws, Public Officers Law, fice " she may sign her maiden name § 5. in her notarial capacity, adding after 4. Con. Laws, Penal Law, § 1835. it, in parenthesis, her married name, 5. See §§ 62, 63. as this is the only practicable way in 86 Notaries and Commissionees of Deeds, § 31. Jurisdiction of a Notary. — The question as to where a notary can protest paper, take an affidavit or acknowledgment or administer an oath is a very important one. In many states, while appointed by the governor he can act only within the confines of his own county ; in others he is appointed for the state.^ In New York a notary is both a state officer and a local officer ; ^ as a state officer he, after having duly qualified, can exercise any- where within the state any of his powers in connection with com- mercial paper and such powers and duties as by the law of nations and according to commercial usage, or by the laws of any other government, state or country, may be performed by notaries ; ^ as a local officer of the county for which he is appointed he can in the said county after having duly qualified administer oaths and affirmations, take affidavits, and certify the acknowledgment and proof of deeds and other written instruments.' A notary for any county can extend his jurisdiction as a local officer to as many counties as he desires by filing in the clerk's office of any other county in the state his autograph signature and a certificate of the county clerk of the county for which he was appointed.* A notary's jurisdiction is limited in one respect, however, in any county where there is a register as well as a county clerk. In all counties which have a register a notary cannot take or certify any acknowledgment or proof of any deed or other instrument to be recorded in the register's office unless the notary shall have filed in such register's office his autograph signature and a certifi- cate of a county clerk of a county in which he is authorized to act setting forth the fact of his appointment and qualification. In. the case of a county for which he was not appointed but qualified to act in under section 102 of the Executive Law, a certificate from either the county clerk where he was originally appointed or from the county clerk where he has qualified and is acting shall be sufficient.^ 1. 21 Am. & Eng. Ency. Law, 2d § 105; People v Globe Mut. Life Ins. ed., p. 558; 29 Cye. Law & Proc, p. Co., (1882), 65 How. Pr. 243. 1090. 4. Con. Laws, Executive Law, § 2. Con. Laws, Publi'C Oflacers Law, 102; Produce Bank v. Baldwin § 2. ■* (i8(5), 49 How. Pr. 277. 3. Con. Laws, Executive Law, § 5. Con. Laws, Executive Law, § 103. The Notary Public: Functions anb Powees. 37, CHAPTEE III. The ITotart Public : Functions and Powees. § 32. Functions and Powers: Plan. § 33. : Under International Law. § 34. : Under the Law Merchant. § 35. : Under Federal Statutes. § 36. : Under the Laws of Other States. I 37. : Under the Laws of New York. § 38. : : Certified Copies of Instruments by; Notaries. § 39. : : Sealing up Contents of Any Safe, Vault or Box Under Section 19 of the Banking Law. § 40. Procedure on Refusal of Public Officer to Accept Certificate of Notary Public or Commissioner of Deeds. § 32. Functions and Powers: Plan. — The powers a notary of this state may exercise will be considered under five heads : First, his powers under international law; secondly, his powers under the law merchant; thirdly, his powers as set forth in the statutes of the United States ; fourthly, his powers under the laws of other states; and, fifthly, his powers as they are specified by the laws of New York. § 33. Functions and Powers: Under International Law. — The powers of a notary public of the state of New York under inter- national law may be said to be the drawing up of any affidavit, the taking of any acknowledgment, the drawing up of any marine protest, the taking of depositions or the administering an oath or affirmation to a subject of a foreign country or to a subject of this country, which said instrument is intended to be put in evi- dence in the courts of or used in any manner in some foreign nation. If the document so to be used is one other than a protest of a foreign bill of exchange or a marine protest, the signature of the notary should be authenticated, first, by the clerk of the county in which he resides ^ and, later, by the consul, minister or repre- sentative of the foreign country to which it is to be sent. In Mer- 1. Bouv. Law Diet. (Eawle's Rev.), and Proe., p. 1078; Con. Laws, Execu- iit. "Notary Public;" 29 Cyc. Law tive Law, § 102. 38 Notaries and Commissionees of Deeds. chants' Express Co. v. Morton, it was held " that by statute an iiflSdavit sworn in the United States before a notary public and iaving the signature and official seal of the notary as the official administering the oath was receivable without proof aliunde in the courts of Upper Canada." ^ It will be noted that in this case the affidavit without any authentication of the notary's powers was received by reason of a statute. It is always better form and safer practice to attach the county clerk's certificate and also the certificate of a consul. For example, in Re Earl Trust, it was held that the official seal of a notary pub- lic of a country not under the dominion of the British sovereign was one of which the court could not take judicial notice ; that an ■affidavit could not be admitted in evidence by virture of such seal unverified.' Although the signature and seal of a notary in connec- tion with marine protests and protests of foreign bills of exchange prove themselves it would be allowable and good practice to authen- ticate them with certificates of a county clerk * and a representative of the foreign nation to which they go.^ A power of attorney acknowledged before a I^ew York notary to which are attached certificates of the county clerk and the British consul general is here given : FOKM 5. Power of Attorney to be Used in England. KNOW ALL MEN BY THESE PRESENTS, that I, Richard Roe, of 165 Broadway, Borough of Manhattan, City, County and State of New York, do hereby make, constitute and appoint John Roe an attorney and coun- sellor at laxo of the State of New York whose office is at 141 Broadway, Borough of Manhattan, City, County and State of New York, my true and lawful attorney, for me and in my name to ask, demand, sue for, recover, 2. 15 Grant Ch. 274; 29 Cyc. Law twenty-five cents is made for this and Proc., p. 1078. certificate. 3. 4 Kay & J. 300, 70 Eng. Re- 5. After getting the county clerk's print, 126; In re Davis, L. R. 8 Eq. certificate the instrument should be 98; Haggitt V. Iniff, 5 De Gex, M. & taken to the office of the consul or G. 910, 43 Eng. Reprint, 1124. other representative of the country to 4. The county clerk's certificate is which it is to be sent. The consul obtained by taking the instrument to will attach his certificate for which the county clerk's office where a certi- he will charge a fee. ficate will be attached. A charge of The JSTotaet Public : Functions and Powees. 39; receive, and give acquittance for all sums of money, debts, accounts, and all ether demands whatsoever, which are or shall become due, owing, and payable to me, or detained from me by Benry Jones, of Warrington, County of Lan- caster, England, his heirs, executors, and administrators, or any of them and upon the receipt thereof, receipts, acquittances, or other sufficient discharges for me and in my name to make, seal and deliver. IN WITNESS WHEREOF, I have hereunto set my hand and seal, this 20th day of July, 1911. RICHARD ROE. [Seal.] ' Signed, sealed and delivered in the presence of: FRANK SMITH. State of New York, l y ss. : County of New York. J On this Both day of July, 1911, before me personally came Richard Roe, to me personally known, and known to me to be the individual described In, and who executed the foregoing instrument and he duly acknowledged to me that he executed the same for the uses and purposes therein men- tioned. JOHN DOE, [Seal of Notary.] Notary Public New York County No. 10. No. State of New York, j V ss. : County of New York. ) I , Clerk of the County of New York, and also Clerk of the Supreme Court for the said County, the same being a court of record, DO HEREBY CERTIFY, That John Doe, whose name is sub- scribed to the Certificate of the proof or acknowledgment of the annexed instrument, and thereon written, was, at the time of taking such proof or acknowledgment, a Notary Public in and for the County of New York, dwelling in the said County, commissioned and sworn, and duly author- ized to take the same. And further that I am well acquainted with the iandwriting of such Notary, and verily believe that the signature to the said certificate of proof or acknowledgment is genuine. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of the said Court and County, the 20th day of July, 1911. [Seal of County Clerk.] Clerk. His BRITTANIC MAJESTY'S CONSULATE-GENERAL, NEW YORK. I, , Esquire, Companion of the Most Eminent Order of the Indian Empire, His Brittannic Majesty's Consul-General, for the* States of New York, New Jersey, Connecticut and Rhode Island, 40 iTOTARIES AND CoMMISSIONEES OF DeEDS. DO HEREBY CERTIFY, that I have reason to believe that the Sig- nature subscribed and Seal affixed to the Certificate hereunto annexed are the true Signature and Seal of John Doe who was, on the day of tha date of said Certificate, a Notary Public in and for the County of New York, State of New York, duly commissioned and sworn, to whose official acta as such faith and credit are due. IN TESTIMONY WHEREOF, I do here- unto set my Hand and Seal of Office at [Seal of Consulate General.] the CITY OF NEW YORK, this 20th day of July, in the Year of our Lord One Thousand Nine Hundred and Eleven. Consul-General. [The words in italics must be changed to suit the case.] In preparing depositions for use in a foreign country the notary would follow the instructions in his commission issued to him by some court in this country. For forms see the subject " Deposi- tions " and " Letters Rogatory." The protest of negotiable paper and marine protests also come under the head of powers of a notary under international law but are treated under the topic " Functions and Powers : Under the Law Merchant " as they came into existence through the " law merchant." § 34. Functions and Powers : Under the Law Merchant. — The " law merchant " is the general body of commercial usages in mat- ters relative to commerce.^ Blackstone calls it the custom of mer- chants, and ranks it under the head of the particular customs of England, which go to make up the great body of the common law.^ Since, however, its character is not local, nor its obligation con- fined to a particular district, it cannot with propriety be considered as a custom in the technical sense ; ^ it is rather a system of law which does not rest exclusively on the positive institutions and local customs of any particular country, but consists of certain principles of equity and usages of trade which general convenience- and a common sense of justice have established, to regulate the dealings of merchants and mariners in all the commercial countries 1. Bouv. Law Diet. (Rawle's Rev.), 2. 1 Black Com. 75. tit. "Law Merchant." 3. 1 Steph. Com. 54. The Notaey Public : Functions and Powees. 41 of the civilized world.* These usages constitute a part of the gen- eral law of any land ; their application is not confined to merchants, but extends to all persons concerned in any mercantile transaction.* Independently of statute a notary public may present foreign, bills of exchange and protest them ; ° but a protest of commercial paper other than a foreign bill of exchange is not a notarial act at common law.' The subject of protests of negotiable instruments is the same over all the world. A notary would protest an English bill of exchange or a German promissory note in the same manner he would a note from Texas, Oregon or any other state. For forms see the subject " Protesting Negotiable Instruments." The powers of a notary under the " law merchant " are put in the form of a statute and added to in New York in the following words : "A notary public has authority anywhere within the state to demand 'acceptance and payment of foreign and inland bills of exchange, and of promissory notes, and may protest for the non- acceptance or nonpayment thereof, to exercise such powers and duties as by the law of nations and according to commercial usage, or by the laws of any othet government, state or country, may be performed by notaries." * The " law merchant " is further recog- nized in this state in what is accepted as proof of the presentment, for acceptance or payment, of a promissory note or bill of exchange, payable in another state, or in a territory or foreign country, or of a protest of the note or bill, for nonacceptance or nonpayment, 4. 3 Kent's Com. 2. be of great antiquity and to have been 5. Bouv. Law Diet. ( Rawle's Rev. ) , in use among the Romans ; their ne- tit. "Law Merchant;" Beawes, Lex gotiability, however, is due to the Mereatoria Rediviva. Statute 3 and 4 Anne, chapter 9, 6. Opinion of Justices, 150 Mass. which declares that promissory notes 586, 23 N. E. 850, 6 L. R. A. 842; shall have the same effect and be ne- Nicholls V. Webb, 8 Wheat. {U. S. ) gotiable in like manner as inland bills 326, 5 L. Ed. 628. of exchange according to the customs 7. 29 Cyc. Law &. Proc., p. 1081; of merchants." 4 Am. & Eng. Ency. 4 Am. & Eng. Ency. of Law, 2d ed., of Law, 2d ed-, p. 79; Daniel on Ne- p. 79. gotiable Instruments, § 5. " Bills of exchange originated with 8. Con. Laws, Executive Law, § the revival of commerce after the 105; People v. Travis (1854), 4 Park- Dark Ages, in Italy, whence their use er's Crim. Rep. 216; People v. Rath- spread into Western Europe. Their bone (1895), 11 Misc. 99; King v^ negotiability is due to the law mer- T?he Scriveners' Company, 10 B. & 0. chant. Promissory notes are said to 518. 42 NOTAEIES AND CoMMISSIONEES OF DeEDS. or of the service of notice thereof, on a party to the note or bill. This proof iaa.j be made in any manner authorized by the laws of the state, territory or country where it was payable.' The following are forms of a marine note of protest and a 'marine protest, the former of which should be made within twenty- four hours after arrival of the vessel/" FOEM 6. narine JCote of Protest by Master. The United States of America. State of New York, | r ss. : 'County of New York. ) Be it known, tliat on this 10th day of December, 1910, before me, John Doe, a notary public for the County of New York, State of New York, personally appeared Richard Roe, master of the " City of Fanama,,'' or vessel called the " City of Panama," of the burthen of one hundred tons, or thereabouts, who declares that he sailed last in the vessel under his command, laden with a cargo of merchandise, on the SOth day of November, 1910, from the port of Boston, and bound for the port of Nome, in the Territory of Alaska. Thus the said master notes this, his protest, before me, reserving to himself the right to extend the same at any time and place convenient. RICHARD ROE. Subscribed and sworn to before me, this lOth day of December, 1910. iNotary's Seal] JOHN DOE, Notary Public New York County, No. 10, [The words in italics must be changed to suit the case.] FORM 7. Marine Protest. United Sates of America. State of New York, I rss.: County of New York. ) To All People to Whom These Presents shall Come or may Concern: I, John Doe, a notary public, in and for the county of New York, in the state aforesaid, by letters patent under the great seal of the said state, duly commissioned and sworn, dwelling in the city of New York, send greet- ing: Know ye, that on the 10th day of December, in the year of our Lord one thousand nine hundred and ten, before me, the said notary public, appeared Jtichard Roe, master of the vessel called "City of Panama," of the city of 9. N. y. C<^de of Civil Proc., § 925. 2, 1799, c. 22, § 60; People v. Travis 10. U. S. Rev. Stats., § 2891, March (1854), 4 Parker's Crim. Rep. 216. The Notaey Public : Ftjnctions and Powers. 43 Boston, burthen one hundred tons, and noted in due form of law with me, the said notary, his protest, for the use and purposes hereinafter mentioned; and now at this day, to wit, the day of the date hereof, before me, the said notary, at the city of New York aforesaid, again comes the said Richard Roe, master, and requires me to extend his protest, and together with the said master, also comes John Stiles, mate and Henry Jones, Frank Smith, seamen, belonging to the aforesaid vessel, all of whom, being by me duly sworn, volun- tarily, freely and solemnly do declare and depose as follows, that is to say: That on the 30th day of November, 1910, at 10 o'clock P. M., the said vessel left Boston, in the State of Massachusetts, bound thence to the port of Nome, in the territory of Alaska, United States of America, laden with merchandise; that the said vessel was then stout, staunch and strong; had her cargo well and sufficiently stowed and secured; was well masted, manned, tackled, vict- ualed, appareled and appointed, and was in every respect fit for sea, and the voyage she was about to undertake: And the said master further says, that as all the damage and injury ■which already has or may hereafter appear to have happened or occurred to the said vessel or her said cargo has been occasioned solely by the circumstances hereinbefore stated, and cannot, nor ought to be attributed to any insufficiency of the said vessel, or default of him, this deponent, his officers or crew, he now requires of me, the said notary, to make this protest and this public act thereof, that the same may serve and be of full force and value, as of right shall appertain. And thereupon the said master doth protest, and I, the said notary, at his special instance and request, do by these presents publicly and solemnly protest against winds, vreather and seas, and against all and every accident, matter and thing, had and met with as aforesaid, whereby or by means whereof the said vessel, or her cargo, already has or hereafter shall appear to have suf- fered or sustained damage or injury, for all losses, costs, charges, ex- penses, damages and injury which the said master, or the owner or owners of the said vessel, or the owners, freighters, or shippers of her said cargo, or any other person or persons interested or concerned in either, already have or may hereafter pay, sustain. Incur, or be put into, by or on account of the premises, or for which the insurer or insurers of the said vessel, or her cargo, is or are respectively, liable to pay or make contribution or average, according to custom, or their respective contracts or obligations; and that no part of such losses and expenses already incurred, or hereafter to be Incurred, do fall on him, the said master, his officers or crew. This done an4 protested, in New York, this IZth day of December, 1910. RICHARD ROE. Master. JOHN STILES, Mate. J EENR7 JONES, | FRANK SMITH, Seamen. 44 Notaries and 'Commissioners of Deeds. In witness whereof, as well the said appearers, as I, the said notary, have hereunto subscribed these presents, and I, the said notary, hereunto attached my notarial seal, the day and year last aforesaid. [Notary's Seal] JOffAf DOE, Notary Public, New York County, No. 10. State of New York, 1 County of New York. ) I, John Doe, a notary public in and for said couiity, in the state aforesaid, do hereby certify that the foregoing contains a true and correct copy of the original protest entered on record before me, by Richard Roe, master of the " City of Panama," said protest having been noted on the 10th day of December, 1910, and extended before me on the 12th day of December, 1910. In witness whereof, I have hereunto set my hand and notarial seal, thia 12th day of December, 1910. [Notary's Seal] JOHN DOB, Notary Public New York County, No. 10, [The words in italics must be changed to suit the case.] § 35. Functions and Powers: Under Federal Statutes. — ^As Congress has never passed an act conferring upon the notaries and commissioners of deeds of the different states and territories al general power to administer oaths and to take affidavits, acknowl- edgments and depositions, their authority under the federal stat- utes is limited to those cases as to which the power has been ex- pressly conferred. ^^ Oatlis. The requirement of an oath shall be deemed complied with by making affirmation in judicial form.' In the following cases notaries public and commissioners of deeds have the power to administer an oath : — to any person elected or appointed to any office of honor or profit either in the civil, military or naval service except the President of the United States : ^ to members of the state legislatures and to state officers : * 92. United States v. Curtis, 107 U. Rev. Stats., §§ 4972-5132, July 1, S. 671, 2 Sup. Ct. Rep. 507, 27 L. Ed. 1898, c. 541, § 20, § 1, subd. 17. 534; United States v. Hall, 131 U. S. 2. U. S. Rev. Stats., 1 1756, May 50, 9 Sup. Ct. Rep. 663, 33 L. Ed. 97; 13 1884, c. 46; § 1757, Feby. 15, 1871, United States v. Manion, 44 Fed. 800. u. 53; § 1758, Aug. 6, 1861, c. 64, § 2. 1. U. S. Rev. Stats., § 110, Jan. 23, 3. U S. Rev. Stats., §§ 1836, 1837, 1869, c. 15. See §§ 108-123. U. S. June 1, 1879, c. 1, § 2. The Notary Public : Functions and Powees. 45 to a person " prosecuting claims, either as attorney or on his own account, before any of the departments or bureaus of the United States : * to inspectors of steam vessels when they verify certifi- cates of inspection : ^ to an applicant for a patent : ^ to any person under the Bankruptcy Act of 1898 : '' to officers of national banks located in Wew York verifying returns made to the Comptroller of the Currency under § 5211 of the Revised Statutes, except when the notary or commissioner is an ofiicer of the said bank.* In the following cases a notary only has the power to administer an oath: — Of any kind whatsoever required to be made by appli- cants and entrymen under the homestead, pre-emption, timber cul- ture, desert land, and timber and stone acts : ' in relation to the examination and settlement of the accounts committed to the charge of the auditor of the post-office department : ^^ to any person em- ployed in the postal service : " to administer oaths (without lim- iting the power to any special case) : ^ to justices of the supreme court, the circuit judges, and the district judges : ^^ to any marshal or deputy marshal : " to any clerk or deputy clerk of a circuit or district court : ^^ the special oath taken by an appointee before en- tering the United States Military Academy : ■'■^ to any person in connection with proof of citizenship of all applicants for mineral patents who reside beyond the limits of the district wherein the 4. U. S. Rev. Stats., § 3478, July practice for the notary to affix hia 17, 1862, c. 205, § 1; § 3479, July seal in all cases where he is author- 17, 1862. c. 205, § 2. ized to act by a federal statute. 5. U. S. Rev. Stats., § 4421, June 11. U. S. Rev. Stats., § 391, Mar. 11, 1906, c. 3071. 5, 1874, c. 46. 6. U. S. Rev. Stat ,§ 4892, Mar. 3, 12. 31 Stat, at L. 956, Mar. 2, 1903, c. 1019, § 2. 1901, e. 814, Supp. to Rev. Stats. U. 7. U. S. Rev. Stats., §§ 4972-5132, S. (1892-1901), p. 1529; U. S. Rev. July 1, 1898, e. 541, § 20. Stats., § 863, Aug. 15, 1876, c. 304; 8. 21 Stat, at L. 352, Feby. 26, U. S. Rev. Stats., § 627, May 28, 1881, Supp. to Rev. Stats. {1874- 1896, c. 252, § 19. 1891), p. 318. 13. U. S. Rev. Stats., § 712, Sept. 9. U. S. Rev. Stats., § 2294, Mar. 4, 24, 1789, c. 20, § 8. 1904, e. 394. 14. U. S. Rev. Stats., § 782, Sept. 10. U. S. Rev. Stats., § 1778, July 16, 1850 c. 52, §§ 1, 2. 29, 1854, 0. 159, § 1; U. S. Rev. 15. U. S. Rev. Stats., § 794, June Stats., § 298, Juae 8, 1872, u. 335, 30, 1870, c. 180, § 7. § 24. 16. U. S. Rev. Stats., § 1758, Aug. It will be seen from § 1778 that the 6, 1861, g. 64, § 2; § 1320, June 8, notary's seal is neeessary. It is safe 1866, c. 110, § 2. 46 Notaries and 'Commissionebs of Deeds. claim is situated : " to a collector of duties on taking office : " to persons required to verify reports of common carriers and railroads engaged in interstate commerce in their annual reports to the Interstate Commerce Commission.-" Affidavits. In the following cases notaries public and commissioners of deeds have the power to take an affidavit: — concerning mineral lands : ^^ of a person claiming a copyright on a book, that the book was printed in the United States.^^ In the following oases a notary only has the power to take an affidavit : — required to be made by applicants 'and entrymen under the homestead, pre-emption, timber culture, desert land, and tim- ber and stone acts : ^^ required for proof of citizenship of all ap- plicants for mineral patents who reside beyond the limits of the district wherein the claim is situated : ^^ of a locator or owner of a mining claim in Alaska : ^* of an adverse claimant or his duly authorized agent to a mining right which has been previously filed on, if the affiant at the time is beyond the limits of the district wherein the claim is situated : ^^ to an account of an importer to be given by the said importer to the collector of the district : ^^ required in cases pending in the patent office : " of the applicant for the registration of a trademark or of the person filing a notice in opposition to the registration of a trademark : ^ in matters con- nected with taxes on legacies : ^ if he is so authorized by a rule of 17. U. S. Rev. Stata., § 2321, Apr. be consulted before the notary actsun- 26, 1882, e. 106, § 2. der it. 18. U. S. Rev. Stats., § 2617, June 23. U. S. Rev. Stats., § 2321, April 26, 1848, c. 71, § 6; § 2618, Feb. 8, 26, 1882, c. 106, § 2. 1875. c. 36, § 11. 24. U. S. Rev. Stats., § 2324, Mar. 19. U. S. Rev. Stats., tit. 56A, In- 2, 1907, e. 2559. teratate Commerce, c. 1, § 20; Amend- 25. U. S. Rev. Stats., § 2326, Apr. ment of Feb. 4, 1887, c. 104, § 20. 26, 1882, c. 106. 20. U. S. Rev. Stats., § 2335, May 26. U. S. Rev. Stats., § 2787, Mar. 10, 1872, c. 152, § 13. 2, 1905. 21. U. S Rev. Stats., tit. 60, "Pat- 27. U. S. Rev. Stats., § 4905, July ents and Copyrights," c. 3, § 16, Mar. 8, 1870, c. 230, § 43. 4, 1909, c. 320, § 16. 28. U. S. Rev. Stats., §§ 4937-4947, a2. U. 8. Rev. Stats., § 2294, Mar. Feb. 20, 1905, c. 592, §§ 2, 6, 10. 4, 1904, c. 394. This statute should 29. U. S. Rev. Stats., c. 11 A, "War Revenue," Apr. 2, 1902, c. 500 § 8. The Notary Public : Functions and Powers. 47 the court or by a regulation of the head of a department : ^^ if it is the custom of a department : '^ in the matter of proof of any letter of attorney to represent a creditor in bankruptcy.^^ Acknowledgment and Proof. In the following cases notaries public and commissioners of deeds have the power to take an acknowledgment :— to bills of sale, mortgages, hypothecations, conveyances, discharges of mortgages or other encumbrances of any vessel.^^ In the following cases a notary public only has the power to- take an acknowledgment: — ^(proofs) of any kind whatsoever re- quired to be made by applicants and entrymen under the home- stead, pre-emption, timber culture, desert land, and timber and stone acts : '* of an assignment of -a patent : ^ to the assignment of a trademark : ^^ of an agreement of arbitration by carriers and their employees under the Interstate Commerce Law : '' of any letter of attorney to represent a creditor, or of an assignment of claim after proof .^^ Protests. A notary may make protests in the following cases : — ^when re- quested to make a marine protest by the master, mate or person in command of the vessel within twenty-four hours after her ar- rival : ^' when requested to protest circulating notes of a national banking association upon refusal of the said association to redeem the said notes in lawful money of the United States.*" 30. United States v. Bailey, 9 Pet. 36. U. S. Eev. Stats. §§ 4937-4947, (U. S.) 230, 9 L. ed. 113. Feb. 20, 1905, e. 592, §§ 2, 6, 10. 31. United States v. Winchester, 2 37. U. 8. Rev. Stats., tit. 56 C, McLean (U. S.) 135, Fed. Cas. No. "National Trade Union," June 1, 1898, 16739. c. 370, § 6. 32. General Orders in Bankruptcy 38. General Orders in Bankruptcy XXr. XXI. 33. U. S. Rev. Stats., § 4193, Mar. 39. U. S. Rev. Stats., § 2891, Mar. 3, 1865, c. 101, S 1. 2, 1799, o. 22, § 60. See § 34 of this 34. U. S. Rev. Stats., § 2294, Mar. book. 4, 1904, e. 394. 40. U. S. Rev. Stats., § 5226, June 35. § 4898 Rev. Stats. Amended 3, 1864, c. 106. This statute should Mar. 3, 1897, ch. 391, Supp. Rev. be consulted before the notary acta Stats. (1892-1901), p. 611. under it. 48' JS'OTAEIES AND CoMMISSIONEES OF DeEDS. Depositions. 'A notary public may take depositions to be used in the courts ■of the United States or under the federal statutes in the following cases: — after issuing subpoenas in contested election cases in his congressional district : " depositions de bene esse in any civil case when the witness is ancient, infirm or lives at a greater dis' tance than one hundred miles from the place of trial or is about to go out of the United States or out of the district and to a greater •distance than one hundred miles from the place of trial : *^ deposi- tions in perpetuain memoriam rei when ordered by a court of the United States : *' in obeying an order of a court of the United States, to which has been addressed letters rogatory from a court of a foreign country : ** probably in the case of a deposition to ■establish a residence in naturalization papers : *^ depositions to be used in the land office : ^^ depositions required in cases pend- ing in the patent office : " depositions in proceedings in bank- Tuptcy : ** depositions for Interstate Commerce Commission.*^ Fees. 'A notary public who is an officer, clerk or employee of any exe- cutive department of the United States shall not charge any fee for administering oaths of office to employees of such department required to be taken on appointment or promotion therein.^" The only statute which might be considered to fix the fees of a notary or commissioner of deeds was apparently abolished .as far as such fees are concerned in 1897.'^ As no other was passed to take its 41. U. S. Rev. Stats., § 110, Jan. not specify the oflBcers ■who may take 23, 1869, c. 15. See §§ 105-130. the deposition. 42. U. 8. Rev. Stats., § 883, May 46. -U. S. ReT. Stats., § 2246, Jan. 8, 1872, c. 14S; § 865, Sept. 24, 1789, 31, 1903, c. 344, § 4. c. 20, § 30; § 866, Maroh 9, 1892, c. 47. U. S. Rev. Stats., § 4905, July 14; § 863, Aug. 15, 1876, c. 304; 8, 1870, c. 230, § 43. § 917, Aug. 23, 1842, c. 188, § 6. 48. U. S. Rev. Stats., §§ 4972-5132. These statutes should be consulted be- tit. 61 "Bankruptcy," §§ 21 b, 21 c. fore the notary acts under them. 49. U. S. Rev. Stats., tit. 56 A, 43. U. S. Rev. Stats., §§ 866-869. "Regulation of Interstate and Foreign 44. U. S. Rev. Stats., § 875, Feb. Commerce." 27, 1877, c. 69. See also U. S. Rev. 50. U. S. Rev. Stats., § 170, Aug. Stats., §§ 4071-4074. 29, 1S90, c. 820. 45. U. S. Rev. Stats., § 2127, June 51. U. S. Rev. Stats., § 627, May 29, 1906, c. 3592, § 10. The act does 28, 1896, i:. 252, § 19. The Notaet Public : Functions and Powees. 4^ place the fees are here given: for administering an oath (except to witnesses, as to attendance and travel), ten cents; for taking and certifying depositions to file in civil cases, ten cents for each folio ; for each copy of the same furnished to a party on request, ten cents for each folio.'* Under the Land Office Act: for each affidavit, tvrenty-five cents; for each deposition of claimant or witness, when not prepared by officer, twenty-five cents ; when prepared by officer, one dollar.^ In protesting national bank notes a person who has two packages of notes protested on the same day shall not receive pay for more than one protest.^* Criminal Law. LA.ny officer demanding or receiving a greater sum than allowed for the taking of an affidavit or deposition under the Land Office Act shall be guilty of a misdemeanor and upon conviction shall be punished for each offense by a fine not exceeding one hundred dollars.^' An officer who makes a false certificate in an instrument to be used in the aid of the prosecution of any claim for pension or bounty land or payment thereof shall be punished by a fine not exceeding five hundred dollars or by imprisonment for a term of not more than five years. ^^ A notary or commissioner of deeds who knowingly makes any false acknowledgment, certificate or statement concerning the appearance before him or the taking of an oath or affirmation by any person with respect to any proposal, contract, bond, undertaking or other matter, submitted to, made with or taken on behalf of, the United States and concerning which an oath or affirmation is required by law or regulation made in pursuance of law, or with respect to the financial standing of any principal, surety, or other party to any such proposal, contract, bond, undertaking or other instrument, shall be fined not more than two thousand dollars, or imprisoned not more than two years, or both." 52. U. S. Stats., May 28, 1896, 55. U. S. Rev. Stats., § 2294, Mar. chap. 252, § 20, Supp. to Rev. Stats. 4, 1904, c. 394. XJ S. (1892-1901), p. 486. 56. U. S. Rev. Stats., § 4746, July 53. U S. Rev. Stats., § 2294, Mar. 7, 1898, c. 578. 4, 1904, c. 394. 57. U. 8. Rev. Stats., tit. 70, 54. U. S. Rev. Stats., § 5226, June "Crimes," c. 4, Mar. 4, 1909, v;. 321, 3, 1864, c. 166. § 31. 50 Notaries and Commissionees of Deeds. § 36. Functions and Powers : Under the Laws of Other States. — Having discussed the powers of a New York notary in foreign countries, and under the law merchant and likewise the statutory powers conferred by United States statutes, we now come to the powers which are conferred on all notaries of the state of New York by virtue of statutes in other states. These powers will be taken up under five heads : First, the power to take acknowledg- ments; secondly, the power to take affidavits; thirdly, the power to take depositions; fourthly, the power to administer oaths; fifthly, the powers in regard to negotiable instruments. Under the first topic, the power of a notary public of New York to take an acknowledgment to be used in some other state, we must first state that the power to take acknowledgments is not one inci- dent to the office of notary public. Whenever a notary has that power a statute must confer it.^ Most of the states provide that a notary of another state, when authorized by the laws of the no- tary's state to take acknowledgments within his jurisdiction may take acknowledgments within his jurisdiction to be used in the sister state, provided the acknowledgment is accompanied with the proper authentication.^ Just how these 'acknowledgments shall be taken is always regulated by statute. Therefore, in order to send an acknowledgment in good form to Texas, so that it would pass the land in Texas, it would be necessary for the notary of New York to obtain the form of the Texas acknowledgment, to learn its proper place on the instrument, how the official should designate himself, whether a seal is needed, what it must certify, and any and all other requirements which may be set forth in the Texas statute.^ Usually these facts would be learned through a Texas attorney. After knowing the requirements of the Texas statute the next thing is to follow them explicitly; that means in every detail. If the Texas statute should say that the grantor shall take off his hat and hold up his left hand while taking the acknowledgment, then the notary should have the grantor take off iis hat and hold up his left hand. Before a notary takes an ac- 1. 21 Am. & Eng. Ency. of Law, 3. See note 2. The forms necessary 2d ed., p. 563; vol. 1, pp. 493, 500; to follow in acknowledgments and Lemmer v. Morison (1895), 89 Hun, any particulars of the law may be 279. found in "Hubbell's Legal Directory." 2. 21 Am. & Eng. Ency. of Law, It is well always to use the latest edi- 2d ed., p. 564; also vol. 1, p. 501. tion; it is published every year. The Notaey Public : ruNCTioNs and Powers. 51 knowledgment in New York to pass land in Texas he should be sure that the statutes of Texas designate a notary of another state as an officer having that power. Secondly, the power of notaries to take affidavits is also of purely statutory origin, but has been conferred upon them in most, if not all, of the states.* The statutes of the state in which the affidavit is to be used will set forth the fact that a notary of a foreign state may take an affidavit to be used in that state, pro- vided the affidavit is accompanied by a certiiicate setting forth the fact that the person before whom the affidavit was taken is a duly authorized and commissioned notary public, and is authorized by the laws of his state to administer oaths. ^ In some states a certifi- cate of the notary himself to the effect that he is authorized to administer oaths is sufficient.* In the absence of such a stat- ute, affidavits sworn to before a nonresident notary will not be recognized.' In New York there is a statute which says an oath or affidavit may be received in an action, special proceeding or other matter if taken without the state, except where it is otherwise specially prescribed by law, before any officer authorized by the laws of the state to take and certify the acknowledgment and proof of deeds to be recorded in the state when accompanied with the usual certificate of authenticity.^ Thirdly, the power of notaries to take depositions within the state of their appointment for use in other states is purely statu- tory.' Keference should be made to the statutes of the state to which they desire to send the depositions.-"' These statutes gene- erally set forth that depositions taken by notaries of other states 4. 21 Am. & Eng. Ency. of Law, and proof of deeds. Matter of Wis- 2d ed., p. 564. ner (1885), 3 Demarest 11; or to take 5. 21 Am. & Eng. Ency. of Law, the affidavit and that his signature is 2d ed., p. 565. genuine. Bowen v. Stihvell (1886), 6. 1 Ency. PI. & Pr., p. 331. 9 N. Y. Civ. Proc. Pep. 277; Gtod- 7. Benedict v. Hall, 76 N. C. 113. dard v. Schmoll (1898), 24 Misc. 381; 8. N". Y. Code of Civil Proc, § Stanton v. U. S. Pipe Line Co. (1895), 844; Ross V. Wigg (1884), 34 Hun 90 Hun 37. 98; Turtle v. Turtle (1898), 31 App. 9. 21 Am. & Eng. Ency. of Law, Div. 49. The authenticating certifi- 2d ed., p. 566; 29 Cyc. Law & Proc, cate must show that the officer was p. 1084. authorized by the laws of his state to lO. See note 9. take and certify the acknowledgment 52 NOTAEIES AND COMMISSIONERS OF DeEDS. may be used where, by the laws of their own states^ the power to take depositions is conferred on notaries." Without this author- ization a ISTew York notary would have no authority to take deposi- tions for use in other states.'^ It was held in Patterson v. Patterson^^ a Vermont case, that a deposition cannot be used in a foreign state when the notary is not authorized by the laws of his state to take depositions for use in other states. There would be no question as to the powers of -a 'Eem York notary in such cases for sections 914, 915 and 919 of the Code of Civil Procedure confer the power on any " com- missioner named in the commission " or " the officer designated in the commission, notice or other paper, by his title of ofEee " " to take down his (witness) testimony in writing " and to " cer- tify and transmit it to the court " in which the action is pending." Fourthly, the power of notaries to administer oaths, except those necessarily taken in the transaction of commercial affairs, does not pertain to the ofSce by usage or custom.-'^ Whenever a notary, with the one exception just stated, has the power to ad- minister oaths, it must be found in a statute. It has, however, been very generally conferred by statute.^^ There is a conflict of authority on the question whethei one state will presume that a notary of another state has the authority to administer oaths. Alabama, Georgia, Illinois, Indiana and Michigan courts hold that no such presumption arises, while Maryland, Minnesota and the District of Columbia courts hold there is such a presumption." The matter has never been passed on in liew York. Fifthly, in regard to the powers of notaries of New York over negotiable instruments, not by reason, of the law merchant, but by the statutory provisions of foreign states, the notary will, of course, have to examine the statutes of the stat-e into which the protest is to go. However, as the statute of ISTew York in regard to bills and notes and the protest thereof is the same as those of a large number of states and is as nearly perfect as any passed by sister states, it will be safe to say that if a notary receives a foreign bill or 11. 21 Am. k Eng. Ency. of Law, 15. 21 Am. & Eng. Ency. of Law, 2d ed., p. 566; and vol. 9, p. 298. 2d ed., p. 567; 29 Cyc. Law & Proc, 12. See note 11. p. 1088. 13. 1 D Chip. (Vt.) 200. 16. 21 Am. & Eng. Eney. of Law, 14. N. Y. Code of Civil Proc., §§ 2d ed., p. 567. 914, 915, 919. 17. See note 16. The Notaey Public : Functions and Powses. 53 note to protest, the best rule he can follow is the New York statute as to negotiable instruments, which will be found under the subject of " Protesting Negotiable Instruments," Chapter X. We only wish to add in this connection that all affidavits and acknowledgments taken in New York to be used in some sister state should be accompanied with the certificate of a county clerk authenticating the sigiiature and -authority of the notary.'^ § 37. Functions and Powers : Under the Laws of New York. — "We now come to the powers of a notary in New York. The Execu- tive Law says a notary public has authority anywhere within the state to demand acceptance and payment of foreign and inland bills of exchange, and of promissory notes, and may protest for the non-acceptance or non-payment thereof, to exercise such powers and duties as by the law of nations and according to commercial usage, or by the laws of any other government, state or country, may be performed by notaries.-^ He may also in the county in and for which he shall have been appointed and in all other counties in which he has filed his autograph signature and certificate as pro- vided in the Executive Law,^ 'administer oaths and affirmations, take affidavits, and certify the acknowledgment and proof of deeds and other written instruments to be read in evidence or recorded in this state, in all cases in which commissioners of deeds may now take and certify the same, and under the same rules, regulations and requirements prescribed to commissioners of deeds, not incon- sistent with any of the provisions of this chapter.'' The law setting forth the powers of commisisoners of deeds is the Executive Law which says that commissioners of deeds in the cities of this state shall have power to take proof and acknowledgment of all written instruments.^ 18. For copy of the certificate fur- connnissioners of deeds now "have nished by county clerks see page 39. does not differentiate between "Com- 1. Qon. Laws, Executive Law, § 105; missioners of Deeds Within the State" Matter of Utica, etc., R. R. Co. v. and "Oommissioners of Deeds in other Stewart (1867), 33 How. Pr. 315. States, Territories and. Foreign Coun- 2. Con. Laws, Executive Law, § 102. tries;" but it is presumed the former 3. Con. Laws, Executive Law, § 106. are referred to for the latter are to The Executive Law which says that exercise their powers in oonnection the notary shall have the same powers with o-aths, affidavits, aoknowledg- in connection with oaths, affidavits, ments and proofs in the manner in acknowledgments and proofs that which suck acts are performed by au- 54 Notaries and Commissioners of Deeds. A notary is a public officer and when called upon to exercise his' functions as such officer it is his duty to act.* § 38. Functions and Powers: Under the Laws of New York: Certified Copies of Instruments by Notaries. — In New York notaries public have not been designated specifically 'as officers who can make certified copies of instruments on file or not on file and thereby authenticate them as evidence or for record.^ A notary may make copies of protests on file in his office, how- ever, as such protests are public documents in his custody.^ Such copies must be certified under his official hand and seal, when as evidence they will have the same force and effect as the original.^ If he has made diligent examination in his office for a paper which should be in his legal custody and which he is unable to find he may make a certificate to that effect which will be presumptive evidence of the facts so stated.' After an oath, affidavit, acknowledgment or deposition, certified to by a notary has been placed on file or recorded in a public office, the only manner in which certified copies of the same may be ob- tained is through the officer in whose custody they are. He can be compelled to make certified copies of any such instrument if he refuses.* A notary or commissioner of deeds or any other person may make a copy of an instrument on file or recorded in a public office and thereupon testify as a witness that he has compared the instru- ment with the original and that it is an exact and true copy of the original on file or recorded.^ Such copies are sometimes called " sworn " copies to distinguish them from " certified " copies. § 39. Functions and Powers: Under the Laws of New York: Sealing up Contents of Any Safe, Vault or Box Under Sections 19 and 304 of the B.anking Law. — Under section 19 of the Bank- ing Law of ISTew York a notary public may be called in to be thorized officers within the state 1. N. Y. Code of Civil Proc, §§ (New York). Notaries and commis- 922, 923, 929, 930, 931, 957, 958. sioners of deeds cannot take oaths ex- 2. N. Y. Code of Civil Proc, § 933. cept under special laws. 3. N. Y. Code of Civil Proc, §§ 4. Allen v. Merchants' Bank of New 921, 958. York (1839), 22 Wend. 241. 4. N. Y. Code of Civil Proc., § 961. 5. N. Y. Code of Civil Proc, § 962. The Notary Public : Functions and Powers. 55 present at the opening of and to seal up in the presence of the superintendent of banks or one of the special deputy superinten- dents of banks, the contents of any safe, vault or box. The notary must not be an officer of or in the employ of the corporation or in- dividual banker or of the superintendent of banks. After making a package of the contents of the safe, vault or box the notary must seal the same, distinctly mark thereon the name and address of the person in whose name such safe, vault or box stands upon the books of the corporation or individual banker; and attach thereto a list and description of the property therein. Under Section 304 of the same law he may be called on to open a safe or box for nonpayment of rent for a period of three years, when he is to make a list of the contents, deposit the contents se- curely wrapped in one of the general safes or boxes of the cor- poration and enter the whole matter in his own handwriting in a book of the corporation kept for that purpose.^ § 40. Procedure on Refusal of Public Officer to Accept Cer- tificate of Notary Public or Commissioner of Deeds. — If a notary public or commissioner of deeds has been regularly appointed, commissioned and sworn and thereupon, during his term of office, takes an acknowledgment or affidavit in legal form, a public officer whose duty it is to accept the same, upon his refusal, may be com- pelled by mandamus to accept the certificate.^ 1. Con. Laws, Banking Law, § 304. 2 People v. Haggerty (1898), 22 Misc. 296. 56 Notaries and 'Commissioners of Deeds. CHAPTER IV. The Notaey Public : Disqualifications : Duties^ Etc. § 41. Disqualifications: Acknowledgments: Affidavits: Depositions r Oaths : Protests. 5 42. : Notary or Commissioner of Deeds Cannot Take Proof of Execution of Conveyance When Witnesses are Dead. 5 43. : Notary or Commissioner of Deeds Cannot Take Affidavit That Books and Papers Have Been Delivered to Pul)lic Officer Under Section 80 of the Public Officers Law. 5 44. : Notary or Commissioner of Deeds Cannot Solem- nize a Marriage. 5 45. : Person Cannot Practice as an Attorney in any City of the First or Second Class Unless he has Been Admitted as aa Attorney and Counsellor at Law. § 46. Duties and Liabilities in General. § 47. : Limitation of Actions. § 48. : Criminal: In General. § 49. : Criminal Liability of Person Who Intrudes Himself Into the Office of Notary Public. § 50. : Criminal Liability of Notary Public. § 51. : Criminal: Miscellaneous Acts. § 52. Notary May Be Compelled to Act by Writ of Mandamus or for a Contempt. § 53. Records: Notary Should Keep. § 54. : Of Notary as Evidence. § 55. : Form of Book for Notary's Record. § 56. Fees: Of a Notary. § 57. : Of a Notary Who Occupies a Position in a Public Office. § 58. Vacancy in Office of Notary. § 59. Resignation of Notary. § 60. Removal of Notary. § 61. Reappointment of Notary. § 62. Notaries' De Facto: Definition. § 63. ': Are Their Acts Valid? § 64. Notaries Ex Officio. § 65. Validating Acts. § 66. Delegation of Authority. § 67. Authentication of Netary's Certificate. I 68. Sunday. 8 41. Disqualifications: Acknowledgments: Affidavits: Depo- sitions: Oaths: Protests. — Though a person may be eligible to The ISTotaey Public: Disqualifications^ Etc. 57 told the office of notary he may be disqualified to act in certain, cases by reason of having an interest in the case.^ The degree of interest which will render the notary incompetent cannot be summed up in any rule which will operate as a safe test in every case; each case must be decided on its own facts and particular circumstances.^ To state the rule broadly : If the notary is a party to or directly and pecuniarily interested in the transaction, he is not capable of acting in that case.' For example, a notary who is a grantee or mortgagee in a conveyance or mortgage is disqualified to take the acknowledgment of the grantor or mortgagor ;* likewise a notary who is a trustee in a deed of trust ;^ and, of course, a notary who is the grantor could not take his own acknowledgment.^ A notary beneficially interested in the conveyance by way of being secured thereby is not competent to take the .acknowledgment of the instrument;^ but where there are several grantees in a deed, each, taking a separate and definite interest, the acknowledgment of the deed by one of the grantees as a notary will be valid as to all the grantees except himself.^ In New York the courts have held an acknowledgment taken by a person financially or beneficially interested in and a party to a conveyance or instrument of which, it is a part to be a nullity;' and that the acknowledgment of an assignment of a mortgage before one of the assignees is a nullity ;■"* and that acknowledgments of the other three incorporators taken by one of the incorporators of a railroad company were of no legal effect.' In the United States bankruptcy court it was held that the acknowledgment of a power of attorney cannot be taken before the 1. 1 Am. & Eng. Ency. of Law & ney, 20 Me. 413; Groesbeck v. Seeley, Proc, p. 860; 29 Cyc. Law & Proc, 13 Mich. 329." Note to Goodhue v. p. 1092. Berrien (1845), 2 Sandf. Ch. 628. 2. 1 Am. & Eng. Ency. of Law & 5. 1 Am. & Eng. Ency. of Law, 2d Proc, p. 862. ed., p. 493. 3. See notes 1 and 2. 6. Davis y. Beazley, 75 Va. 491. 4. 1 Am. & Eng. En(^. of Law, 2d 7. Leonhard v. Flood, 68 Ark. 162, ed., p. 493. 56 S. W. 781. "As no man can be a judge of his 8. Murray v. Tulare Irr. Co., 120 own acts, it follows that the grantee Cal. 311, 49 Pac. 563, 52 Pae. 586. in a deed can never act as an officer 9. People v. Board of E. E. Corns, in taking an acknowledgment of the (1905), 105 N. Y. 277. conveyance cited in Wasson v. Connor, lO. Armstrong v. Combs ( 1897 ) , 44 54 Miss. 353. See Beamau v. Whit- N. Y. S. 173. 58 Notaries and Commissioners of Deeds. person appointed by the power of attorney." In New York and most of the states it is held that relationship will not disqualify a notary from taking acknowledgments of conveyances, as in so doing he acts as a ministerial and not as a judicial officer/^ As to affidavits the oases have established the rule that a notary who is attorney of record in a case cannot take the affidavit of his client or of any other, person to be used in that case. When no suit is pending, or when the notary is counsel in the case, or when he is a partner of the attorney of record, the rule does not apply. See Section 130. It may be said that generally a notary is incompetent to take depositions when he is interested in any way in the suit for which the deposition is being taken ;^' the same rule applies when the notary is a near relative of any of the parties to the suit ;" or if he is the law partner of one of the parties,^^ or a stenographer of the attorney of one of the parties.^^ Because the administration of an oath is purely ministerial, the fact that the officer administering it is interested in the proceeding H. In re Sugenheimer (1899), 1 partner of counsel; Dodd v. Northrop, Am. Bank Rep. 425. 37 Conn. 216; Floyd v. Rice, 28 Tex. 12. See § 12; 1 Am. & Eng. Ency. 341. of Law, 2d ed., p. 494; Remington 14. 9 Am. & Eng. Ency. of Law, Paper Co. v. O'Dougherty (1880), 81 2d ed., p. 306; uncle; Bean v. Quinby, N. Y. 483; Lynch v. Livingston 5 N. H. 94; brother-in-law; Bryant (1852), 6 N. Y. 433. "Law Notes'' v. Ingraham, 16 Ala. 116; within for October, 1909, has the following: sixth degree; Call v. Pike, 66 Me. "A Remarkable Feat. — On record In 350; but in Reed v. Newcomb, 62 \t. Bosque county, Texas, is a deed in 75, 19 Atl. 367, it was held that a which the separate acknowledgment deposition was not objectionable on of the feme covert grantor was tak- ths ground that it was taken before en by her husband, a justice of tne a notary who was second cousin to peace, who duly certified under his the plaintiif. hand and oificial seal that he exam- 15. Dodd v. Northrop. 37 Conn, ined her privily and apart from her 216. husband." 16. Knickerbocker Ice Co. v. Gray, 13. 21 Am. & Eng. Ency. of Law, 165 Ind. 140, 72 N. E. 869, 6 Ann. 2d ed., p. 571; vol. 9, p. 305; McLean Cas. 607. "A commissioner to take V. Adams, 45 Hun (N. Y.), 189; for- testimony should be a person who has mer agent; Smith v. Smith, 2 Greenl. no bias or prejudice in reference to (Me.) 408; former appearance as the litigants or the cause." McLean counsel; Whicher v. Whicher, 11 N. v. Adams (1887), 45 Hub 190. H. 348; Cutler v. Maker, U Me. 594; The Notaet Public : Disqualifications, Etc. 59 in which it is to be used does not disqualify him." But a notary cannot administer an oath to himself.''^ In the matter of the interest or relationship of the notary in pro- testing bills and notes it would seem that it does not invalidate the protest, though the notary is the son of the holder/' the cashier of a bank to which the paper belongs,^" or the maker of a note and cashier of a bank to which the note belonged. ^^ § 42. Disqualifications: Notary or Commissioner of Deeds Cannot Take Proof of Execution of Conveyance When Witnesses Are Dead. — In New York a notary may take proof of the execu- tion of a conveyance except in one case. When the witnesses to a conveyance are all dead and it is necessary to prove a conveyance by proving the death of the witnesses and the handwriting of the grantor and the witnesses, Section 314 of the Real Property Law says that such proof cannot be made before a notary public or a commissioner of deeds. § 43. Disqualifications: Notary or Commissioner of Deeds Cannot Take Affidavit That Books and Papers have been De- livered to Public Officer Under Section 80 of the Public Officers Law. — By the case of McGrogy v. Henderson ^ neither a notary nor a commissioner of deeds may take the affidavit of a person under section 80 of the Public Officers Law that he has turned over to the incumbent of the office all books and papers appertaining thereto. § 44. Disqualifications: Notary or Commissioner of Deeds Cannot Solemnize a Marriage. — One of the powers a notary does not have is to perform the ceremony of marriage. Marriage is a civil contract so far as its validity in law is concerned, and the law allows the parties to express their consent by a written contract signed by both parties. The contract must have at least two wit- nesses, who must subscribe the same, and it must state the place of 17. Peck V. People, 153 111. 454, 39 20. Nelson v. Killingley First Nat. N. E. 117; Wendell v. Eeves (1887), Bank, 69 Fed. 798, 16 C. C. A. 425. 6 N. Y. St. Rep. 863. 21. Dykman v. Northridge (1896), 18. In re South Beaver Tp. Road, 1 App. Div. 28. 8 Kulp. (Pa.) 75. 1. 43 Hun 438. 19. Eason v. Isbell, 42 Ala. 456. '60 Notaries and Commissioneks op Deeds. residence of eacii of the parties and the witnesses and the date and place of marriage. The said contract must be acknowledged by the parties and witnesses in the manner required for the acknowledg- ment of a conveyance of real estate to entitle the same to be re^ corded and must be acknowledged before a judge of a court of record.' As a notary generally may take all other acknowledgments when not disqualified for other reasons and as in this case no one but a judge of a court of record may take the acknowledgment it was thought well to add this section to place the law before the notary. § 45. Disqualifications: Person Cannot Practice as an At- torney in Any City of the First or Second Class Unless He Has Been Admitted as an Attorney and Counsellor at Law. — In cities of the first and second class * neither a notary nor any other person not regularly admitted to the bar as an attorney and counsellor at law can practice in a court or before any magistrate, nor must he ask or receive, directly or indirectly, compensation for appearing as an attorney in such courts. If he does so appear he is guilty of a misdemeanor and shall be punished by imprisonment in the county jail, not exceeding one month, or by a fine of not less than one hundred dollars or more than two hundred and fifty dollars, or by both such fine and imprisonment. This law, however, does not bar a person from appearing in a cause to which he is a party.^ § 46. Duties and Liabilities : In General. — When a person takes upon himself the public office of a notary he undertakes to perform certain acts in a legal manner; he thereupon assumes certain re- sponsibilities which, if he does not carry out by reason of dis- honesty, lack of diligence or want of skill, and his client, whether a resident of New York or not, is thereby injured, he is liable in 3, Con. Laws, Domestic Relations 50,000 to 175,000: Schenectady, Utica, Law, §§ 10, 11. Yonkers, Troy, Albany, Syracuse. 1. Constitution of New York, Art. Binghamton without doubt will be- XII, § 2. The following cities are long to the second class at the next of the first and second class, according state census, as the population in 1910 to the United States Census of 1910: v/as 48,443. first class, those over 175,000 popu- 2. Con. Laws, Penal Law, §§ 270, latien: New York 'City, Buffalo, 271, 272. Kochester; second elass, those from The Notary Public : Disqualifications, Etc. 61 damages.^ The measure of such damages will be the loss sustained by reason of the notary's wrongful act or omission.^ The Keal Property Law says that a notary who is guilty of mal- feasance or fraudulent practice in the execution of any duty pre- scribed by law in relation to acknowledgments or proofs of convey- ances or other instruments is liable in damages to the person in- jured.' And the Executive Law says that for any misconduct in the performance of any powers given him by the State of New York, by the law of nations and according to commercial usage, or by the laws of any other government, state or country, a notary shall be liable to the parties injured for all damages sustained.* The question of the liability of the bank for the misconduct of its notary in matters connected with protests when paper has been sent to it for collection is discussed in Chapter XI, " Banks and Notaries." A notary public is an officer appointed and commissioned by the State to perform certain offices and it is his duty to exercise those powers when called upon.° His omission to act when there is no reason why he should not, lays him liable both civilly and crimi- nally.* § 47. Duties and Liabilities: Limitation of Actions. — As the usual contract made by a person with a notary is an unwritten one, the statute of limitations would bar any action brought six years after the cause of action has accrued.' It would be possible, al- though probably it seldom has been done, for a person to make a written sealed contract with a notary. In such a case the statute 1. Bank of Utica v. Childs ( 1826 ),■» (failure to give notice of protest); 6 Cow. 237; Franklin v. Smith "^People v. Butler, 74 Mich. 643, 42 N. (1839), 21 Wend. 624; Ck)n. Laws, W. 273 (false certificate of acknowl- Penal Law, § 24. r edgment). In Stork v. American Surety Co., ] 2. 29 Cyc. Law & Proc., p. 1105. 109 La. 713, 33 South. 742, the court J 3. Con. Laws, Real Prop. Law, § said: "In accepting the office," a no- 330. tary "contracts the obligation to 4. Con. Laws, Exec. Law, § 105. fill it intelligently and hon- S. Allen v. Merchants' Bank of estly;" 29 Cyc. Law & Proc, N. Y. (1839), 22 Wen4. 241. p. 101 and p. 1104; Tevis v. Randall, 6. See § 121. 6 Cal. 632, 65 Am. Deo. 547 (failure 7. N. Y. Code of Civil Proc., §§ to give notice of protest to indorsers ) ; 380, 382; Bank of Utica v. Childa Wheeler v. State, 9 Heisk (Tenn.), 393' (1826), 6 Cow. 238. 62 NOTAEIES AND CoMMISSIONEES OF DeEDS, of limitations would not bar an action if brought witbin twenty years.^ In the case of an action for relief on tbe ground of fraud, the cause of action is not deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud." The time during which an action might be brought against a notary would also be extended if the person entitled to bring the action were at the time the cause of action accrued under the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life.' § 48. Duties and Liabilities: Criminal: In General.' — A crime is an act or omission forbidden by law, and punishable upon con- viction by death, imprisonment, fine, removal from office, disquali- fication to hold office or other penal discipline.^ When a crime is punishable by death or imprisonment in a state prison it is a felony ; when it is punishable in some other manner it is a misde- meanor.^ A party to a crime is either a principal or an accessory ; * ■a person concerned in the commission of a crime, whether he di- rectly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures an- other to commit a crime is a principal ; while a person who, after the commission of a felony, harbors, conceals, or aids the offender, with intent that he may avoid or escape from arrest, trial, convic- tion, or punishment, having knowledge or reasonable ground to be- lieve that such offender is liable to arrest, has been arrested, is in- dicted or convicted, or has committed a felony, is an accessory to the felony.^ A person who commits or participates in an act which would make him an accessory if the crime committed were a felony, is a principal and may be indicted and punished as such, if the crime be a misdemeanor.* An act, done with intent to commit a crime, and tending but failing to effect its commission is an attempt to commit a crime.^ 5. N. y. Code of Civil Proc, §§ 2. Con. Laws, Penal Law, § 2. 380, 381. 3. Con. Laws, Penal Law, § 26. 6. N. Y. Code of Civil Proc, § 396. 4. Con. Laws, Penal Law, §§ 27, 1. The contents of this section must 1936. be read in connection with each of the three following sections. The Notaey Public : Disqualifications, Etc. 63 ■A person may be convicted of an attempt to commit a crime^ although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury and directs the defendant to be tried for the crime itself.^ A person is pre- sumed to be responsible for his acts,^ but when he commits a crime through duress he is excused.' Upon the trial of an indictment the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime. ^ If two or more persons conspire to commit a crime or to cheat and defraud another out of property each of them is guilty of a misdemeanor.' Compounding a crime is the concealing of a crime or of the violation of a statute, or the abstaining from, discontinu- ing or delaying a prosecution therefor for some reward or prom- ise.-'" The punishment for compounding a crime varies from five years' imprisonment in a state prison to imprisonment in a county jail for not more than one year, or by a fine of not more than two hundred and fifty dollars, or both.^" If a person attempts to commit a crime but is unsuccessful he may be imprisoned for not more than twenty years in some cases and in others may be imprisoned for not more than half of the longest term or may be fined not more than one-half of the largest sum prescribed upon a conviction for the commission of the offense attempted, or by both such fine and im- prisonment.''"' A person who wilfully and wrongfully commits any act which seriously injures the property or person of another for which no other punishment is expressly prescribed by this chapter is guilty of a misdemeanor." And if no other punishment is specially pre- scribed a person convicted of a misdemeanor is punishable by im- prisonment in a penitentiary or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both.'' A person convicted of a crime declared to be a felony, for which na 5. Con. Laws, Penal Law, § 260. lO. Oon. Laws, Penal Law, §§ 570, I 6. Con. Laws, Penal Law, § 815. 571. 7. Con. Laws, Penal Law, § 859. 11. Con. Laws, Penal Law, §§ 261, 8. Con. Laws, Penal Law, § 610. 262. 9. Con. Laws, Penal Law, §§ 580, 12. Con. La,ws, Penal Law, § 43. 682, 583. 13. Con. Laws, Penal Law, § 1937. 64 Notaries and Commissioners of Deeds. other punishment is specially prescribed by a statute is punishable by imprisonment for not more than seven years, or by a fine of not more than one thousand dollars, or by both." And except where a different punishment is specially prescribed a person convicted as an accessory to a felony is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred ■dollars, or by both." If an act or omission is made a crime and punishable in different ways, by different provisions of law, it may 1)6 punished under any one of those provisions, but not under more than one.-'' When the performance of any aot is prohibited by a statute, and no penalty for the violation of such statute is imposed in any statute, the doing such act is a misdemeanor.''^ When the amount of a fine is not specified a fine of not more than five hun- dred dollars may be imposed." An act committed without the state which affects persons or property within the state is punish- able as if the act were committed within this state." The various provisions of the Penal Law which relate to execu- tive officers apply to administrative officers in the same manner as if ^administrative and executive officers were both mentioned.'' An act or omission declared punishable by the Penal Law is not less so because it is also punishable under the laws of another state, government or country, unless the contrary is expressly declared.''* The provisions of the Penal Law are to be construed according to the fair import of their terms, to promote justice and effect the objects of the law.^^ The words " neglect," " negligence," " negli- gent," " negligently," " corrupt," " corruptly," " knowingly," "" signature," and " writing " are construed broadly. ^^ An indictment for a felony must be found within five years and one for a misdemeanor within two years after its commission ; if the defendant is not an inhabitant of the state the time does not run during his absence.^' 14. Con. Laws, Penal Law, §§ 19. Con. Laws, Penal Law, § 1837. 1935, 1934. 20. Con. Laws, Penal Law, § 28. 15. Con. Laws, Penal Law, § 1938. 21. Con. Laws, Penal Law, § 21. 16. Con. Laws, Penal Law, § 29. 2a. Con. Laws, Penal Law, § 3. 17. Con. Laws, Penal Law, § 36. 23. Con. Laws, Penal Law, §§ 142, 18. Con. Laws, Penal Law, §§ 1933, 143. 1930. The Notaby Public : Disqualifications^ Etc. ©5 § 49. Duties and Liabilities : Criminal Liability of Person Who Intrudes Himself into the Office of Notary Public.^ — A person who holds himself out to the public as a notary public by assuming, Tising or advertising the title " Notary Public " in such a manner as to convey the impression that he is a notary public without hav- ing been first appointed is guilty of a misdemeanor,^ 'and a person who executes any of the functions of the office of notary without having taken and duly filed the required oath of office is guilty of a misdemeanor,' and a person who wilfully exercises any of the functions of the office of notary after his right so to do has ceased is guilty of a misdemeanor.* By the Charter of Grreater New York a person removed as a commissioner of deeds in the City of New York who thereafter exercises the office of commissioner of deeds or notary public is guilty of a misdemeanor.^ A person pretending to be a public officer who unlawfully and maliciously, under pretense or color of official authority, does any act whereby another person is injured in his person, property or rights commits oppression and is guilty of a misdemeanor,^ and a person who obtains the property of another with his consent under color of official right is guilty of extortion.' § 50. Duties and Liabilities: Criminal Liability of Notary Public. 1 — A notary who knowingly makes and delivers as true a certificate or writing containing a statement which he knows *■<> be false, in a case where the punishment thereof is not expressly provided by law, is guilty of a misdemeanor.^ A notary who wil- fully omits to perform his duties as a public officer is guilty of a misdemeanor.' And if he neglects to make a transcript of records in his office or refuses or unreasonably neglects to make a search, •or to furnish such a transcript or certificate as prescribed by law, or makes a false certificate he is guilty of a misdemeanor.* But a person is not punishable for an omission to perform an act, where 1. This section must be read in coh- 7. Oon. Laws, Penal Law, § 850. nection with § 48. 1. This section must be read in 2. Con. Laws, Penal Law, §§ 1820a, connection with § 48. 931, 1835. a. Con. Laws, Penal Law, § 1861. 3. Con. Laws, Penal Law, § 1820. 3. Con. Laws, Penal Law, §§ 1841, 4. Con. Laws, Penal Law, § 1835. 1857. 5. Greater New York Charter, § 58. 4. Con. Laws,. Penal Law, § 1874. 6. Con. Laws, Penal Law, § 854. '6'6 Notaries and Oommissionees of Deeds. such act has been performed by another person acting in his behalf, and competent by law to perform it.^ If a notary in the perform- ance of the duties of his office practices any fraud or deceit, the punishment for which is not otherwise provided for, he is guilty of a misdemeanor.' And a public officer, who, unlawfully and malic- iously, under pretense or color of official authority, does any act whereby another person is injured in his person, property or rights, commits oppression and is guilty of a misdemeanor.' A notary who wilfully disobeys the lawful process or other mandate of a court is guilty of a misdemeanor.^ A notary or his clerk who muti- lates, destroys, conceals, erases, obliterates or falsifies any record or paper appertaining to his office is guilty of a felony.' A notary who wilfully certifies falsely that the execution of an instrument which by law may be recorded was acknowledged by any party thereto, or that the execution of any such instrument was proved, is guilty of forgery in the first degree,"* and punishable by impris- onment for a term not exceeding twenty years.'* A notary who fraudulently makes or prepares any false record with intent to pro- duce it, or allow it to be produced in evidence, as genuine, upon any trial authorized by law is guilty of a felony.^ A notary who asks, or receives, or agrees to receive, a fee or other compensation for his official services in excess of the fee or compen- sation allowed to him by statute therefor, or where no fee or com- pensation is allowed to him by statute therefor, commits extortion and is guilty of a misdemeanor." And a notary who asks or re- ceives, or consents or agrees to receive, any emolument, gratuity or reward, or any promise of emolument, gratuity or reward, or any money, property or thing of value or of personal 'advantage, except such as may be authorized by law, for doing or omitting to do any official act, or for performing or omitting to perform, or for having performed or omitted to perform any act whatsoever, directly or in- directly, related to any matter in respect to which any duty or dis- .cretion is by or in pursuance of law imposed upon or vested in him, or may be exercised by him by virtue of his office, shall be 5. Con. Laws, Penal Law, § 35. lO. Con Laws, Penal Law, § 885. i 6. Cbn. Laws, PenaJ Law, § 1820a. 11. Con. Laws, Penal Law, § 886. 7. Con. Laws, Penal Law, § 854. 12. Con. Laws, Penal Law, § 811. 8. Con. Laws, Penal Law, §§ 600, 13. Con. Laws, Penal Law, § 855. 601, 602. See U. 8. Rev. Stats., § 2294, March 9. Con. Laws, Penal Law, § 1838. 4, 1904, c. 394. ^ The Notary Public: Disqualifications, Etc. 67 guilty of a felony and punishable by imprisonment for not more than ten years or by a fine of not more than four thousand dollars, or both." And a notary who asks and receives a fee for services not actually rendered is guilty of a misdemeanor." In any city of the first or second class a notary who is not an at- torney at law is guilty of a misdemeanor who asks or receives, directly or indirectly, compensation for appearing as attorney in a court or before a magistrate, and he may be imprisoned in the coiinty jail, not exceeding one month, or fined not less than one hundred dollars nor more than two hundred and fifty dollars, or both imprisoned and fined." And acceptance by a notary of a pass to ride on a railroad or having paid the railroad fare acceptance of a pass to ride in a palace or sleeping car is contrary to Article XIII, Section 5 of the New York Constitution, which says that an officer must not directly or indirectly ask, demand, accept, receive or consent to receive for his own use or benefit, or for the use or benefit of another, any free pass, free transportation, franking privilege or discrimination in passenger, telegraph or telephone, rates, from any person or corporation, or make use of the same him- self or in conjunction with another. A person who violates this provision is deemed guilty of a misdemeanor." The New York constitution says that a notary public who re- ceives or consents to receive a reward for performing or omitting to perform any ofiicial act or with the express or implied understand- ing that his official action or omission to act is to be in any degree influenced thereby shall be guilty of a felony.^^ And this law is expressed in several statutes also, wherein the punishments differ.^' By the Constitution, Article XIII, Section 6, we find that any district attorney who fails faithfully to prosecute a person charged with a violation of the bribery laws shall be removed from office.^" A person charged with bribery may testify in his own defense ^ and is a competent witness against another person so charged. He 14. Con. Laws, Penal Law, § 1828. 18. Constitution of New York, Art. 15. Con. Laws, Penal Law, § 1830. XIII, § 2. 16. Con. Laws, Penal Law, §§ 271, 19. Con. Laws, Penal Law, § § 374, 2T2. 1829, 1823, 372. 17. Constitution of New York, Art. 20. Constitution of New York, Art. XIII, § 5; People V. Rathbone (1895), XIII, § 6. 145 N. Y. 434; People v. Wadhama 21. Constitution of New York, Art. ,(1903), 176 N. Y. 9. XIII, § 4. '68 NOTAEIES AND CoMMISSIONEES OF DeEDS. may be compelled to attend and to testify upon any trial in the same manner as any other person but cannot thereafter be indicted, ior that bribery. ^^ A notary who for reward grants another the right to discharge :any of the functions of his office or permits another to perform any •of its duties is guilty of a misdemeanor, and a conviction for the same forfeits his office and disqualifies him for ever from holding any office whatever under this state.^^ A notary imprisoned in a .state prison for any term less than for life, forfeits his office.^ § 51. Duties and Liabilities: Criminal: Miscellaneous Acts.^ I — A notary is protected in the exercise of his official duties by three sections of the Penal Law which declare that a person who resists, delays, obstructs or attempts to deter or prevent a public officer in the performance of his duty is guilty of a misdemeanor.^ And a person who attempts to intimidate a notary in the discharge of his duty is guilty of a misdemeanor.' His records are protected from mutilation or destruction by a penalty of imprisonment for not more than five years, or by a fine of not more than five hundred dol- lars, or by both.^ A public officer who files or records any instrument affecting real -property which is not accompanied by a certificate according to law, >of the proof or acknowledgment, is guilty of a misdemeanor.^ A person who coerces a notary is guilty of a misdemeanor,* and a -person who compels or induces another to execute an instrument 'by force or threat is guilty of extortion,'' and may be imprisoned for .fifteen years.^ A person who obtains the signature of any person 1x) a written instrument by false pretenses is punishable by im- prisonment in a state prison for not more than three years, or in a county jail for not more than one year, or by a fine of not more fian. 22. Con. Laws, Penal Law, § 381; 2. Con. Laws, Penal Law, §§ 1824, Constitution of New York, Art. XIII, 1825, 1851. § 3. 3. Con. Laws, Penal Law, § 860. 23. Con. Laws, Penal Law, §§ 1832, 4. Con. Laws, Penal Law, § 2050. 1833, 1834. 5. Con. Laws, Penal Law, § 1862. 24. Con. Laws, Penal Law, §§ 610, 6. Con. Laws, Penal Law, § S30. 37. 7. Con. Laws, Penal Law, § 853. 1. This section must be read in con- 8. Con. Lawa, Penal Law, §§ 851, section with § 48. 852. The Notaey Public : Disqualifications, Etc. 69 three times the value of the money or property affected or obtained thereby, or by both such fine and imprisonment.' A person who bribes a notary is guilty of a felony/" and a per- son who forges a will or codicil of real or personal property or the attestation thereof, a deed, a certificate of acknowledgment or proof of a will, codicil or deed, a bill of exchange, draft, check, an in- dorsement, etc., is guilty of forgery in the first degree and is pun- ishable by imprisonment for a term not exceeding twenty years." A person who forges the seal of a notary, the record of a will or conveyance, an entry in the records of a notary, etc., is guilty of forgery in the second degree and punishable by imprisonment for a term not exceeding ten years.-'^ A person who utters a writing which is a forgery is guilty of forgery in the same degree as the one who forged the instrument,^' and a person who offers or procures to be offered in evidence an instrument knowing it to be a forgery is guilty of a felony." The words " forge," " forged," and " forg- ing " are defined in -a broad manner.-^^ § 52. Notary May Be Compelled to Act by Writ of Mandamus or for a Contempt. — A notary public may be compelled to per- form his duties or if he has done some act not in accordance with the statute applying thereto, may be compelled to correct the same, either by a writ of mandamus or by a court of record, by reason of its being a contempt punishable civilly.^ § 53. Records: Notary Should Keep. — A notary public should keep an official book, and in this he should enter an account of all matters in connection with his office which may be of importance at some later time. While the New York statutes do not directly specify that a notary shall keep a book of records such a book is re- ferred to as the " regular register of offi,cial acts kept by him " in 9. Con. Laws, Penal Law, § 932. 13. Con. Laws, Penal Law, §§ 881, 10. Constitution of New York, Art. 883. XIII, § 3. 14. Con. Laws, Penal Law, § 810. 11. Con. Laws, Penal Law, §§ 884, 15. Con. Laws, Penal Law, § 880. 886. 1. Peoiile v. Keihpner ,(1900), 49 12. Con. Laws, Penal Law, §§ 887, App. Div. 121; Oon. Laws, Judiciary 888. Law, § 753. 70 NOTAKIES AND CoMMISSIONEES OF DeEDS. • Section 924 of the Code of Civil Procedure.^ And to keep an exact copy of all marine notes of protest and protests made before a notary is one of his duties as a public officer under the " law mer- chant." ' In his " regular register " a notary should keep a true record of each notice of dishonor given or sent by him, with the time and manner in which the same was given or sent, the name and reputed place of residence of each of the parties to whom the same was given or sent, and the post office nearest thereto, together with a copy of the instrument in relation to which the notices were given or sent and a copy of the protest itself. These records are de- manded inferentially by Section 924 of the Code of Civil Proce^ dure. In many states the book in which a notary keeps his records becomes, by statute, a public record of the state, and the notary as an individual has no property in it.^ On his death, resignation or removal his records are placed in the custody of the county clerk or some other municipal officer,* and if this is not done within a certain time the person neglecting to so deposit the records is liable to a civil action.* A notary must, upon request, and payment of the proper fees, diligently search his records and make transcripts therefrom and certify to the correctness thereof ; and to search and certify that a document or paper, of which the custody legally belongs to him, cannot be found.^ The records of a notary may be made with type- 1. It is very important that a notary 3. People v. Peck (1893), 138 N. Y. keep a register : Cummings v. Fisher 397; Deshong v. City of New York (1808), Anthon's N. P. 1; Genet v. (1903), 176 N. Y. 485. Lawyer (1871), 61 Barb. 211; Wilbur Under a statute providing that the V. Seldeu (1826), 6 Cow. 162; Butler custodian of notarial records shall V. Wright (1829), 2 Wend. 369; Hart hold the records of every notary, in V. Wilsoi (1829), 2 Wend. 513; Gaw- the parish of Orleans, functus officio, try V. Doane (1872), 51 N. Y. 84; it was held tl,at a notary, son of a de- Cole v. Jessup (1854), 10 How. Pr. ceased notary, had no right to the uo- 521; affirmed 10 N. Y. 96; Halliday tarial records of his father either as V. Martinet (1882), 20 Johns. 168; hia son or as a notary; State v. Dunn V. Parsons (1893), 50 N. Y. Theard, 45 La. Ann. 680, 12 South. St. Eep. 94. 892. 2. The Gallego (1887), 30 Fed. Rep. 4. Laws of Washington, 2 Rem. & 271. This case came up in the Dis- Bal. Cbde, § 8301. trict Court of the United States for 5. Con. Laws, Public Officers Law, the Eastern District of New York. § 66. The ]J«I"otart Ptjblio: Disqualifications, Etc. ^ 71 writers.^ They are not to be removed from the office of the notary by virtue of a subpoena duces tecum except by the notary and then, only temporarily to a term or sitting of a court in the city or town where the office is situated.' § 54. Records: Of Notary as Evidence. — Full faith and credit are generally given to attestations of notaries public, especially in connection with commercial affairs.^ And when by reason of death or removal the records are in the keeping of others than the notary himself, the record itself or a copy of the same duly certified is gen- erally accepted.^ In a Mississippi case the record of an absent foreign notary proved by the deposition of a person in whose cus- tody it had been left during the notary's absence was admitted in evidence.' In ISTew York the statute says : " In the case of the death or insanity of a notary public of the State, or of his absence or removal, so that his personal attendance, or his testimony, can- not be produced, in any mode prescribed by law, his original pro- test, under his hand and ofiicial seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of accept- ance, or of payment, therein stated ; and a note or memorandum, ' personally made or signed by him, at the foot of a protest, or in a regular register of official acts, kept by him, is presumptive evi- dence that a notice of non-acceptance or non-payment was sent or delivered, at the time, and in the manner, stated in the note or memorandum." * And it has been held also that a notary's records, not treated as official, may be used to refresh the memory of the notary when he testifies as a witness.' If no note or memorandum is found in the regular register of official acts kept by him or at the foot of the protest the presump- tion is that no notices of dishonor were sent. If no " record book " of a dead or insane notary is found it might well be presumed that he never protested any negotiable paper.^ It will be seen very readily that this presumption is a strong argument why a notary 6. Con. Laws, Public Officers Law, 3. Ellis v. Oommercial Bank, 7 5 65. How. (Miss.) 294, 40 Am. Dec. 63. 7. N. Y. Code of Civil Proc, § 866. 4. N. Y. Code of Civil Proc, § 924. 1. 21 Am. & Eng. Ency. of Law, 5. Lindenberger v. Beall, 6 Whe^t. 2d ed., p. 575. (U. S.) 104, 5 L. ed. 216. 2. The GaHego, 30 Fed. 271. 6. Deshong v. City of New York (1903), 176 N. Y. 485. 72 Notaries and Commissioners of Deeds. should keep a record book notwithstanding the fact that such a book is not called for specifically in the statutes. § 55' Records: Form of Book for Notary's Records. — ^A no- tary should keep a " register," that is an official book of his office, in which he records all matters in connection with marine protests and protests of commercial paper. Exact copies of all marine notes of protest and marine portests should be placed in this book. And, likewise, every protest made under the Negotiable Instru- ments Law should be here recorded. It is possible to get books con- taining blanks at some stationers. The following would be a sufficient record of a protest of com- mercial paper to make the " register " of value as evidence under Section 924 of the Code of Civil Procedure : FOBM 8. Becord of Protest $1,000.00 New York City, N. Y., July 20, 1911 One monOi after date I promise to pay to the order of John Jones | One Thousand 00/100 Dollars at the Excelsior National Bank, New York City. Value received. FRANK STILES. Indorsed by Henry Stiles and John Smith. Duly protested note of which the above is a copy on the 20th day of July, 1911, at the request of John Jones after having made demand for payment on Prank Stiles personally thereupon showing him the note and been refused payment by him. Mailed notices of dishonor to Henry Stiles, 14 Exchange Place, Jer- sey City, N. J., and John Smith, 138 West 91st St., New York City, on the 20th day of July, 1911. § 56. Fees: Of a Notary. — The following is a schedule of the fees which a notary public or commisisoner of deeds acting within the state may legally charge for his services, to which schedule is added the fees of commissioners of deeds appointed to act in some other state, territory, dependency or foreign country, that the com-' plete schedule of fees may be under one section : The Notaet Public: Disqualifications, Etc. YS Under the Laws of 'New York: Withm the State of New York. Administering on oathi « 12 Administering an Afflrmationi .12 Administering an oath and certifying the same when requiredi. . .12 Administering an affirmation and certifying the same when re- quiredi 12 Taking and certifying the acknowledgment of a written instru- ment by one personi .25> Taking and certifying the acknowledgment of a written instru- ment for each additional person when more than onei .12 Taking and certifying the proof of the execution of a written instrument by one personi .25 Taking and certifying the proof of the execution of a written instrument for each additional person when more than onei .12 Swearing each witness in the taking or certifying the acknowl- edgment or proof of the execution of a written instrumenti .06 Administering the oath of office to a member of the leg- islature, to any military officer, to an inspector of election, clerk of the poll, or any town officer^ OCOO Administering an official oath to any other officer .10 Taking a deposition: Eeasonable compensation together with his reasonable and necessary expenses, including actual travel- ing expenses^ Protesting for nonpayment any note, or protesting for non-ac- ceptance or nonpayment any bill of exchange, check or draft, and giving the requisite certificate of such protest, with seal attached* .75 Giving notices of dishonor on the protest of any note, bill of exchange, check or draft for each notice, not exceeding five on any bill or note* .16 Making one or more transcripts from records in his office, for each folio^ .08' Making a certificate that he has searched in his office for a paper and has not found it= -25 Taking deposition for use in a justice of the peace court and returning testimony^ 1.00 Each subpoena issued and oath administered in taking the de- position^ -"^ 1. N. y. Code of Civil Proc., § 3298. 4. Con. Laws, Executive Law, § 105. 2. Con. Laws, Public Officers Laws, 5. Con. Laws, Public Officers Law, I 69. § 66; N. Y. Code of Civil Proc, 5 3. N. Y. Code of Civil Proc, § 3256 3304; Con. Laws, General Construc- and Eeiohel v. N. Y. C. & H. E. E. E. tion Law, § 21. Co. (1890), 29 N. Y. St. Eep. 841. 6. N. Y. Code of Civil Proc, § 3325. 74 NOTAEIES AND COMMISSIONEES OF DeEDS. Under the Laws of New York : Without the State of New York. Commissioners of deeds appointed for another state, territory or dependency may charge a fee not to exceed four times the amount allowed by the laws of such state, territory or de- pendency for like services and not to exceed in any case one dollar for taking the proof or acknowledgment of a written instrument, or administering an oathj Commissioners of deeds appointed for Great Britain or Ireland, for administering or certifying an oath' , Is. Commissioners of deeds appointed for Great Britain or Ireland for taking the proof or acknowledgment of a written instru- ment or for certifying to the existence or correctness of a copy of a patent, record or document' 4s. Commissioners of deeds appointed for Prance or any other for- eign country, for administering and certifying an oath'.... 1 franc 25 centimes Commissioners of deeds appointed for France or any other for- eign country, for taking the proof or acknowledgment of a written instrument, or for certifying to the existence or cor- rectness of a copy of a patent, record or document' 5 francs Under the Federal Statutes. Administering an oath (except to a witness as to attendance and travel) ^ xq Administering an oath (when notary is an officer, clerk or em- ployee of any executive department of the United States) to employees of such department required to be taken on ap- pointment or promotion therein' 00.08 Taking and certifying depositions to file in civil cases, for each. folio^ .10 For each copy of the same furnished to a party on request, for each folio* .10 Acting under the homestead, preemption, timber culture, desert land, and timber and stone actsi" 00.00 Administering an affidavit .25 Taking a deposition of claimant or witness, when not prepared by officer .25 Taking a deposition of claimant or witness, when prepared by officer 1.00 7. Con. Law3, Executive Law, § 109. 9. U. S. Rev. Stats., § 170, Aug. 29, 8. U. S. Stats., May 2S, 1896, chap. 1890, c. 820. 250, § 20. 10. U. S. Rev. Stats., 5 2294, Mar. 4 1904, c. 394. The Notary Public : Disqualifications, Etc. 73 Taking depositions to be used before registers and receivers of the land office: the fees shall be the same as those allowed in the state courts.^ A notary may demand his fee in advance but must not charge or receive a greater fee or reward for his services than is allowed by law ; nor must he demand or receive any fee or compensation, al- lowed to him by law for any service, unless the service was actually rendered by him. A notary who violates either of these provisions is liable in addition to the punishment prescribed by the criminal statutes, to an action in behalf of the person aggrieved, in which the plaintiff is entitled to treble damages.-^ For charging or receiv- ing a greater fee than is allowed by law the notary is guilty of ex- tortion and may be prosecuted criminally.''' Nor can he accept passes from railroads, or privileges from telegraph or telephone companies without laying himself liable to the criminal laws." "A notary is not entitled to fees for the performance of an act which is unnecessary or unauthorized ;^^ but he can collect his fees although his services prove ineffective if the fault was of the per- son employing him." ^^ If a notary, besides performing some no- tarial act for a client, performs some unofficial services, he may, of course, charge for the same.'^ The question of the right of a notary public who occupies a posi- tion in some public office to be paid for his services as notary dur- ing the hours of his employment is taken up in the next section. § 57. Fees: Of a Notary Who Occupies a Position in a Pub- lic Office. — An interesting question was brought before the courts in 1891 when Henry Merzbach, who had occupied a subordinate position in the office of the district attorney of New York from 1884 to 1890, sued the mayor, aldermen and commonalty of the City of New York for fees for services as a notary public. It seems that while he held his position in the district attorney's office he administered various oaths in various proceedings in which 11. U. S. Eev. Stata., § 2246, Jan. 14. Constitution of New York, Art. 31, 1903, c. 344, § 4. XIII, § 5. 12. Oon. Laws, Public Officers Law, 15. 21 Am. & Eng. Enc. of Law, 5 67; Penal Law, 1830. 2d ed., p. 576. 13. Con. Laws, Penal Law, §§ 855, 16. 29 Cyc. Law & Proc, p. 1107. 1826; U. S. Rev. Stats., § 2294, March 4, 1904, o. 394. I 76 NOTAKIES AND CoMMISSIONEES OF DeEDS. the People were parties. Some of these aiSdavits thus verined were affidavits of the district attorney in office during the period, and others the affidavits of assistants, clerks or witnesses. He sought to recover for the legal fees as notary for officiating as such in taking these, affidavits.-^ He finally succeeded in his action and his success inspired the institution of a number of actions, as fol- lows: Benjamin v. City of New Yorhf Rourhe v. City of New York/ McCabe v. City of New Yorkf Knox v. City of New York/ Hughes v. Mayor of New Yorkf Morgan v. City &f New Yorkf Bookman v. City of New York? It would seem from the last case and from section 3298 of the Code of Civil Procedure that a notary has a right to collect for every oath or affirmation he administers and likewise for all ac- knowledgments he takes. And a commissioner of deeds has the same right whether he is engaged in a public office or not. The only demand the law makes is that if he is engaged in a public office and taking affidavits and acknowledgments therein for which he expects his pay from the city through the officer, he must demand it at the time the service is rendered, or within such time there- after as would enable the officer, in the presentation of his claim for audit, to include the same and be reimbursed. The law as laid down in this case is in accord with Section 17 of the Second-Class Cities Law. § 58. Vacancy in Office of Notary. — The office of notary pub- lic may become vacant by reason of the happening of any of the following events before the expiration of the term thereof: the death of the notary ; his resignation ; his removal from office ; his ceasing to be an inhabitant of the state, or if he be a local officer, 1. Merzbaoh v. Mayor (1894), 10 6. Hughes v. Mayor of New York Misc. 131; (1897) 19 App. Div. 186; (1903), 84 App. Div. 347; (1903) 176 (1900) 163 N. Y. 16. N. Y. 585. 2. Benjamin v. City of New York 7. Morgan v. City of New York (1902), 77 App. Div. 62. (1906), 115 App. Div. 893; (1907) 3. Rourke v. City of New York 190 N. Y. 237. (1902), 77 App. Div. 72. 8. Bookman v. City of New York 4. McCabe v. City of New York (1909), 133 App. Div. 242; (1910) (1902), 77 App. Div. 637; (1903), 200 N. Y. 53. Con. Laws, Public Of- 176 N. Y. 587. ficers Law, §§ 67, 68; N. Y. Code of 5. Knox V. City of New York Civil Proc., § 3298. (1903), 78 Apip. Div. 368. The N'otaet Public : Disqualifications, Etc. 7T of the political subdivision, or municipal corporation of which he is required to be a resident when chosen ; his conviction of a felony, or a crime involving a violation of his oath of office; the judgment of a court, declaring void his appointment, or that his office is forfeited or vacant; his refusal or neglect to file his official oath within fifteen days after notice of his appointment, or within fif- teen days after the commencement of such term.^ Whether a no- tary is a state or local officer ^ might become very important at this point in determining whether a notary vacates his office so far as his power to protest negotiable instruments goes when he moves from one county to another. He is a state officer as to those powers. Question: If a notary is appointed for Oneida County may he move into Albany County and protest bills of exchange, notes, etc., for the balance of his term of office ? § 59. Resignation of Notary. — When, for any reason, a notary public desires to resign his office, he must send his written resig- nation to the governor as an official of the state. The resignation will take eifeot upon delivery to him at the State House at Albany or when it shall be filed in his office.^ The notary's office thereupon becomes vacant.^ § 60. Removal of Notary. — A notary public is appointed by the governor with the advice and consent of the senate for a period of two years, but may be removed by the governor within the term after giving to such officer a copy of the charges against him and an opportunity to be heard in his defense.^ The governor may either hear the evidence himself or appoint some judge or com- missioner to report to him the evidence taken or the evidence and the findings of the material facts deemed by such judge or com- missioner to be established.^ The person directed to hear the evi- dence may require witnesses to attend befor6 him, and shall issue subpoenas for such witnesses as may be requested by the notary proceeded against." The attorney-general or a district attorney will 1. Constitution of New York, Art. 4. Con. Laws, Public OflScers Law, X, § 8; Con. Laws, Public OfBcers § 30. Law, §§ 30, 37; N. Y. Code of Civil 5. Con. Laws, Public Officers Law, Proc, § 1948. § 33. 2. See § 11. 6. Con. Laws, Public Officers Law, 3. Con. Laws, Public Officers Law, §§ 34, 61. 9 3L 78 Notaries and Commissioneks of Deeds. conduct the examination for the state, and if it is held before a judge or commissioner it must be in the coimty in which the notary resides at some place appointed by the said judge or commissioner/ The notary must receive at least eight days' written notice of the time or place of the said examination.^ The removal must be written in duplicate, signed by the gov- ernor, and both such duplicate orders, or certified copies, delivered to the secretary of state. One of the orders is recorded in the office of the secretary of state and the other delivered, assuming the no- tary to be a local officer for this step,' to the county clerk of the county in which the notary removed shall have resided at the time he was chosen to the office and such clerk shall file the same in his office, and forthwith notify the notary removed of his removal.* § 6i. Reappointment of Notary. — No statute prevents a no- tary from being reappointed for term after term, and, as a matter of custom, that is the usual procedure if a notary desires reappoint- aaent. A notary who wishes to continue in office, at least two months before the thirtieth of March when his commission ex- pires, should make a written application to the governor for reappointment. § 62. Notaries De Facto: Definition. — Lord Ellenborough, many years ago in England, defined an officer de facto to be " one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law." Some examples of no- taries de facto would be the following : A present notary in liew York, assuming the law under which he was appointed to be un- constitutional ; a notary beginning to officiate, although his term has not begun; a notary holding over after the expiration of his term ; a person appointed a notary who is in fact an alien ; a per- son appointed in this state who has not filed his oath to fulfill the requirements of the statute. If a person who has no reason what- ! ever to think he is a notary should begin to act as a notary he would not be a notary de facto; he would be an intruder or usurper.^ 2. Con. Laws, Public Officers Law, 4. Con. Laws, Public Officers Law, §§ 34, 61. § 35. 3. See § 11. I- Lambert v. People (1879), 76 N. A notary files his oath aa a local Y. 238; R. & G. Valley E. y. Clarke officer and it is presumed he would Nat. Bank (1871), 60 Barb. 234; be removed through the county clerk's office, as his oath is on file there. ' The ISToTAET Public : Disqualifications^ Etc. 79 If a person has reason to think that he has been appointed a notary, and then performs notarial acts, he would be a notary de facto, although by reason of some defect in his appointment or othei^ ■wise he is not a legally appointed notary.' A single act, however, will not constitute a person a de facto notary,' he must exercise the rights of a notary for some period of time.* § 63. Notaries De Facto: Are Their Acts Valid?— The valid- ity of the acts of notaries de facto is often of great importance. The rule seems to be that as to the public and third persons his acts are valid and cannot be collaterally attacked.^ This rule was laid down in IS'ew York as early as 1822 in the case of King v. Stow ^ and has been followed by a long line of decisions, the last of which was 8chiff v. Leipziger Banh} In Findlay v. Thorn* the question came up in 1885, whether a woman could be a legal notary and in this case the court stated the law very clearly. It said : " Miss T. was appointed by the governor, and the appointr ment was confirmed by the senate. She has filed her official oath and has received her commission and is in possession of the office exercising its functions, and her right to the office cannot be ques- tioned except in a direct proceeding brought by the attorney- general in the name of the people, in which the notary may defend her right to the office. It cannot be determined in the collateral manner in which the defendants present their objection. When the appointing power can lawfully be exercised upon a particular office, the appointee, after qualifying and entering upon the office, becomes an officer de facto j if not de jure, his acts are legal so far as the public is concerned, and his capacity or qualification for the office cannot be inquired into collaterally." The law as to the validity of acts of officers not having filed an oath is now in the form of a statute ^ which says that the acts of a public officer who has been duly chosen but who has not taken the Wilcox V. Smith (1830), 6 Wend. 1. Gary v. State, 76 Ala. 78. 231. 2. King v. Stow (1822), 6 Johns. 6. 29 Cyc. Law & Proc, p. 1075; Ch. 331. McDowell V. United States, 159 U. S. 3. Schiflf v. Leipziger Bank (1901), 601. 65 App. Div. 33. 7. 8 Am. & Eng. Ency. of Law, 2d 4. Findlay v. Thorn (1885), 1 ed., p. 784. How. Proc. Rep. N. S. 76. 8. Hughes V. Long, 119 N. C. 52, 5. Con. Laws, Public Officers Law, 25 S. E. 743, notes 1 and 2. 9 15. ^0 NOTAEIES AND CoMMISSIONBES OF DeEDS. oath of office shall be as valid and of as full force and effect as if such oath had been duly taken and filed. It is also set out in the Penal Law that the validity of acts done by a person exercising the functions of a public office in fact, where other persons than liimself are interested in maintaining the validity of such acts can- not be questioned ; ^ and where an appointment is avoided and annulled by conviction any official act done before conviction is unaffected.' • § 64. Notaries Ex Officio. — In addition to notaries public many other officials may by virtue of their office administer oaths -and take affidavits, acknowledgments and depositions, and others, not by virtue of any office, may protest negotiable instruments.^ Among those who may administer oaths and take affidavits under ■certain circumstances are judges; clerks, deputy clerks and special deputy clerks of a court ; mayors ; justices of the peace ; surrogates ; .special county judges ; county clerks, deputy county clerks ; special deputy county clerks ; commissioners of deeds ; ^ members of a board or commission ; ^ referees ; * commissioners of jurors and assistant commissioners of jurors.^ Among those who may take acknowledg- ments under certain circumstances are justices of the supreme court; judges of other courts; clerks, deputy clerks, and special deputy clerks of courts ; mayors ; recorders ; justices of the peace ; surrogates ; special surrogates ; special county judges ; commission- ers of deeds ; ^ judges of the New York City court; ' and clerks of 6. Oon. Laws, Penal Law, § 182L Gilleland v. Drake, 36 Tex. 676;" 29 7. On. Laws, Penal Law, § 1834. Cyc. Law & Proc, p. 1073, note 38. 1. A consul o'r other ofiSoer author- 2. Code of Civil Proc. of N. Y., ized to perform any notarial act that § 842. may be required to be done by any 3. Code of Civil Proc. of N. Y., notary in any of the United States § 843. is a notary public ex officio; it is 4. Code of Civil Proc, of N. Y., not considered that it merely adds a § 1026. function to the office of consul. Bruce 5. Code of Civil Proc. of N. Y., V. Gibson, 8 Ohio Dec. (Reprint) 31. § 1091. "The constitution of Texas has rec- 6. Con. Laws of N. Y., Real Prop- o^nized domestic justices of the peace erty Law, § 298. as notaries ex officio, but it is said 7. Oqde of Civil Proc. of N. Y., tiiat such justices are not recognized § 326. as notaries by foreign governments; The Notaet Public : Disqualifications, Etc. 81 surrogates' courts.* Among those who may take depositions ar& judges of the courts,' and any person authorized by law." The Negotiable Instruments Law says that " any respectable resident of the place where the bill is dishonored " may protest it.^^ But these powers do not constitute these various officials and individuals notaries public. Their powers are delegated to them by statute, and they have no right to overstep those enumerated and attempt to perform other acts which a notary may do by virtue of his office. There are cases, however, in which certain officers are notaries public or commissioners of deeds by reason of holding some other ■office. Under the Second 'Class Cities Law, the city clerk and his deputy, the comptroller and his deputy and the president of the common council are commissioners of deeds ex officio. And the mayor may take affidavits and administer oaths in matters con- nected with the city.^ § 65. Validating Acts. — Because of the many reasons why notaries when they take oaths, affidavits, acknowledgments or proofs may not at that time be legal officers the protection of public documents demands that a statute be passed every year to legalize and confirm acts of persons who, acting in good faith, thought them- selves notaries de jure. The defects or irregularities enumerated in the various acts have grown from year to year until now they include the following: change of residence made after appoint- ment ; misnomer, misspelling of name or other error made in the appointment or commission; omission or failure to take the pre- scribed oath of office within the time required by law; fact that person acting as notary was at the time under the age of twenty- one years; expiration of term of office; omission to file certified copy of his appointment and his autographed signature with clerk of adjoining county ; omission to set forth in certificate filed with clerk of an adjoining county the fact of qualification as notary. The laws generally set forth that the acts of such notary " are 8. Code of Civil Proc. of N". Y., ments Law, § 262. Possibly the word I 2509. "responsible" instead of "respectable" 9. Code of Civil Proc. of K. Y., would have expressed the intention of § 326. the writers more perfectly. 10. Code of Civil Proc. of N. Y., 12. Con. Laws, Second CTass Cities S 843. Law, §§ 31, 32, 56, 62. For the list 11. Con. Laws, Negotiable Instru- of second class cities see § 45, note 1. 82 JSTOTAEIES AND CoMMISSIONEES OF DeEDS. hereby legalized and confirmed, and made as effectual and valid as if the term of office of said notary public bad not expired or a& if no misnomer or misspelling or otber error bad occurred, or bad been made in tbe appointment or commission of said notary public, or as if tbe oatb of office had been taken within the time prescribed by law ; " in otber words, such acts are confirmed and made valid the same as if legally performed by an officer duly appointed, com- missioned and sworn and who acted within his jurisdiction. From time to time statutes have been passed legalizing the acts of certain individual notaries who because of some special reason were not legal officers. Such laws and also the general legalizing, confirming and enabling statutes which have been passed from year to year are enumerated in a foot-note.^ A law was passed in 1904 and amended in 1905 which is now section 332 of the Eeal Prop- erty Law validating records of deeds, mortgages, assignments and. satisfaction pieces in any county when the acknowledgments or proofs were taken in another county but no certificate as to the authority of the notary attached. § 66. Delegation of Authority. — A notary's privileges and rights are personal.^ A notary's clerk has no right to take oaths, affidavits or acknowledgments and to attach the notary's seal thereto whether the notary is present or absent. He would thereby be lay- 1. The following laws have been 1548; 1896, p. 693; 1897, pp. 131, passed from time to time legalizing 733, 817; 1898, pp. 1176, 1228, 1053, and confirming the acts of notaries: 1054, 1196; 1899 pp. 136, 1041, 102, Laws of 1859, p. 1064; 1860, p. 767; 7gS; 1900, p. 135; 1901, pp. 1240, 280; 1861, p. 572; 1864, p. 886; 1865, pp. 1902, pp. 315, 425; 1903, p. 1426; 695, 741; 1S66, p. 807; 1867, pp. 1904, pp. 76, 429, 638; 1905, pp. 1503, 1504, 109; 1868, pp. 2007, 26; 1869, 890, 1230, 1229; 1906, pp. 467, 919, pp. 1898, 939, 28; 1870, p. 140; 1871, 1500; 1907, p. 1342; 1908, p. 241; p. 1317; 1872, p. 551; 1873, pp. 1017, 1909, p. 320; 1910, p. 180; 1911, p. 1215, 1019; 1874, pp. 124, 520, 460, 225; 1912, March 26, 1912. 524; 1875, pp. 60, 84, 230, 301, 285, 2. Sacrider v. Brown, 3 McLean 523; 1876, p. 243; 1877, pp. 345, 125, (U. S.), 481; Chitty on Bills, 13th 353, 102, 124, 306, 154; 1878, pp. 148, Am. ed., p. 517. 108, 388, 15, 401 ; 1879, pp. 436, 22, "The duty of the notary in making 180, 108, 236, 433, 179, 437, 390 42, the demand for acceptance or pay- 289; 1880, pp. 209, 714; 1881, p. 43, ment is personal, and cannot be per- 711; 1882, p. 11; 1883, pp. 236, 23; formed by his clerk or a third person, 1884, p. 372; 1885, p. 125; 1886, p. and his notarial certificate must show 688; 1894, pp. 512, 188; 1895, pp. 309, it;" 3 Kent's Com., p. 94. The Notaey Pttblic : Disqualifications, Etc. &3 ing himself open to a criminal prosecution, as would the notary himself, if he knew and countenanced such acts.^ The question of" how far a notary's clerk's acts are acceptable as the acts of the- notary himself has never been taken to any final court of judica- ture in this country, except in the case of bills and notes.^ In New York we find a line of cases running from 1842 to 1866, all of which hold that a notary cannot delegate to a clerk his official authority in the protesting of bills and notes, and that he cannot lawfully certify the performance of an act, within the scope of his duty, where it has been performed by a deputy.* In 1872 a hard fought case. Commercial Bank v. Varnum, came b&fore the Court of Appeals in the decision of which it would seem that the court laid down the rule that a clerk of a notary might make presentment and demand of a negotiable instrument which would be held valid if it could be shown that it was the usage and custom for a notary's clerk to perform that necessary step in a pro- test.^ In the same year, but a few months later and before the Varnum case came out in the reports the case of Gawtry v. Doane * was decided by the Commissioners of Appeal who apparently had not read the decision in the Varnum case and based their opinion on the older line of cases setting forth that a notary cannot dele- gate his official authority to a clerk. As here shown the law seems rather unsettled and in order to be on the safe side it is suggested that the notary perform all the steps personally so that he may certify that the acts were per- formed by him. There is no well-known case in which it was proved that it is the custom in JSTew York for the deputy or clerk 2. Con. Laws, Penal Law, § 1833. ity to a clerk." Sheldon v. Benliam 3. 21 Am. & Eng. Ency. of Law, (1843), 4 Hill, 129; The Onondaga 2d ed., p. 577, note 3. County Bank v. Bates (1842), 3 Hill, 4. "Of course, the notary mus* 53; Warnick v. Crane (1847), 4- certify only the truth, and that only Denio, 458; Cole v. Jessup (1854), of which he has personal knowledge. 10 How. Pr. 521, 10 N. Y. 100; Hunt He cannot lawfully certify the per- v. Maybee (1852), 7 N. Y. 269; Mc- formance of an act, within the scope Andrew v. Radway (1866), 34 N. Y. of his duty, where it has been per- 512. formed by a deputy." McAndrew v. 5. Commercial Bank of Kentucky Kadway (1866), 34 N. Y. 512; Hunt v. Varnum (1872), 49 N. Y. 277. V. Maybee (1852), 7 N. Y. 269. 6. Gawtry v. Doane (1872), 51 N. " It is quite clear that the notary Y. 90. could not delegate his official author- 84 NOTAEIES AND CoMMISSIONEES OF DeEDS. of a notary to make a presentment and demand of payment; but "we have a Massachusetts case in which it was unsuccessfully at- tempted to show that such is the custom in New York.' In Commercial Bank of Kentucky v. Bet,rksdale, the court made the statement that the law knows no partnership relation between notaries as public officers.' § 67. Authentication of Notary's Certificate. — If the instru- ment certified to by the notary is to be used in some county of the state in which the notary is not authorized to act or in some sister state it must be accompanied with a certificate of authentication. Such certificate is obtained at the office of the county clerk of the county in which the notary is authorized to act.' If the instrument is to be used in some foreign country, after having the notary's certificate authenticated by the county clerk, the certificate of the notary and county clerk should be authenti- cated by a certificate of the consul or other representative of the country to which the instrument is to be sent. § 68. Sunday. — Whether a notary public or a commissioner of ■deeds may administer a valid oath or take a valid affidavit or ac- knowledgment on Sunday the same as on any other day in the "week has never been decided in New York. The statute says: "All labor on Sunday is prohibited, excepting the works of neces- sity and charity ; " ^ but whether such- acts are labor on the part of the officer the courts have never been called upon to decide. jFrom the cases we learn that any private business may be lawfully done, which the statute does not prohibit, and all contracts relat- ing thereto are valid.^ As in taking an acknowledgment a notary or commissioner of deeds, although a public officer, is engaged in 7. Ocean National Bank v. Wil- with certificates of authenticity illus- ' liams, 102 Mass. 143. trates the law in most if not all of 8. Oommercial Bank of Kentucky the States. See N. Y. Code of Civil V. Barksdale (1865), 36 Mo. Rep. Proc., § 844. 573. 1. Oon. Laws, Penal Law, § 2143. 9. Con. Laws, Real Property Law, 2. Merritt v. Earle (1864), 29 N. S§ 310, 312; Oon. Laws, Executive Y. 121; Boynton v. Paige (1835), 13 Law, § 102. Wend. 425; Sun Assn. t. Tribune The law of New York that oaths, Assn. (1878), 44 N. Y. Super. 137; aflSdavits and acknowledgments made Greenbury t. Wilkins '(1858), 9 ABb. in other States must be acoompaaied Rep. 20S. I The ISToTAET Public : DISQUALIFICATIONS;, Etc. 86 private business,' it would seem that an oath administered or aB affidavit or acknowledgment taken on Sunday would be valid. In Smith v. Wilcox the court said that a contract made on Sun- day " would not for that reason be void if it did not contemplate and provide for some prohibited service or act to be done on. Sunday." ' A deposition cannot be taken on Sunday. In taking a deposition a notary or commissioner of deeds acts as a judicial officer.^ As to protests the reader is referred to sections 238, 251, 264 and 285- of this book. 3. Slater v. Schack (1889), 43 N. Beneke Lithog. Co. (1889), 9 N. y: W. ' 7 (Minn.) S. 507. 4. 24 N. Y. 357; Bilor,deavix V. H. 5. 21 Am. &. Eng, , Ency. Law, 2d ed., p. ! 571. SQ NOTAEIES AND CoMMISSIONEES OF DeEDS. CHAPTER V. Commissioners of Deeds, ? 69. Historjr of Commissioners of Deeds. § 70. Classes of Commissioners of Deeds. § 71. Purpose of the Office of Commissioner of Deeds. § 72. Definition. § 73. Nature of the Office: A Public Office. § 74. : A Judicial and Ministerial Office. § 75. Eligibility and Qualifications: Citizen: Residence: Women. § 76. : Incompatible Offices. § 77. Appointment: In General. -.§ 78. : Application for. § 79. : By Whom. § 80. Oath of Office. § 81. Procedure to Compel Public Officer to Administer Oath to One Appointed Commissioner of Deeds. § 82. The Pee Payable on Appointment. § 83. The Commissioner's Bond. § 84. The Name of the Commissioner of Deeds. ■I 85. Term of Office. :§ 86. Commissioner of Deed's Official Seal: Form: Necessity of. § 87. : Place of. • § 88. Jurisdiction of Commissioners of Deeds. • § 89. Functions and Powers of Commissioners of Deeds. ■ § 90. Certified Copies of Instruments. § 91. Disqualifications of Commissioners of Deeds. - § 92. Duties and Civil Liabilities of Commissioners of Deeds. ; § 93. Criminal Liabilities of Commissioners of Deeds. ':% 94. Commissioners of Deeds May be Compelled to Act by a Writ of Mandamus or for a Contempt. § 95. Records. § 96. Fees: Of Commissioners of Deeds. § 97. Vacancy in Office of Commissioners of Deeds. § 98. Resignation of Commissioners of Deeds. § 99. Removal of Commissioners of Deeds. § 100. Reappointment of Commissioners of Deeds. § 101. Commissioners De Facto: Definition: Are Their Acts Valid? § 102. Commissioners of Deeds Ex Officio. § 103. Validating Acts. § 104. Delegation of Authority. § 105. Sunday. § 106. Authentication of Certificate of Commlsaioner of Deeds, i 107. Fees for Certificate of Authentication. COMMISSIONEES OF DeEDS. 87 § 69. History of Commissioners of Deeds. — In General. — The tistory of commissioners of deeds begins at the time the first stat- ute was placed on the books of any of our states creating the office. Whether New York legislators adopted the name from some other state we do not know.^ In New York. — ^Commissioners of deeds in New York were first authorized by the law of 1818 when masters in chancery were stripped of all powers in connection with oaths and acknowledg- ments outside their own court, and commissioners to take acknowl- edgments of deeds and special bail and affidavits to be used in courts of record, were granted these powers upon their appoint- ment by the council of appointment.^ In 1819 the power to take affidavits under the insolvent or imprisoned debtor laws was given them.^ In 1823 the governor with the consent of the senate was given the power to appoint commissioners within the city and county of New York and the several cities of the state, and the judges of the common pleas of each county in conjunction with the .supervisors thereof were given the power, under the laws of 1818, to appoint two commissioners in each town. The court of common pleas was given the power to increase the number in a town up to four. The commissioners thus appointed were to hold office by the same tenure as justices of the peace.* A validating act to cover all cases where the commissioners' oaths were not properly taken was passed in 1831 ; it also remitted " all liabilities and forfeitures incurred by any person " in connection with his oath.^ In the same year commissioners of deeds were granted the power to take the acknowledgment of an attorney's written autliority to appear in a justice's court. The fee to be charged was twenty -five cents and they were not to take the same unless tiiey knew the person making it which fact the certificate was to state.' In 1840 the office 1. "The office of commisaioner of sioners of deeds of any city the char- deeds is entirely the creature of the ter of the city must provide for such statute. Its creation, its powers, its officers. Parker v. Baker (1840), duties, its compensation, and its term Clarke Ch. 224. is wholly the work of the Legisla- 2. Laws of 1818, p. 44. ture.'' An affidavit purporting to be 3. Laws of 1819, p. 40. «worn to before an officer not known 4. Laws of 1823, p. 243. to the law as an officer authorized to 5. Laws of 1831, p. 129. take affidavits cannot be read in 6. Laws of 1831, p. 356. court. Before there can be commis- 88 Notaries and Commissioners of Deeds. of commissioners of deeds was abolished in the several towns of the state and their duties and powers given to the justices of the peaceJ In 1840 a law was passed authorizing the governor to appoint commissioners in other states or territories to take the acknowledg- ment of deeds and instruments of writing under seal to be used in New York. They were also given the power to administer oaths and affirmations.* In 1843 commissioners were given the power to administer oaths to arbitrators.' In 1846 fifty were added to- the number in the city and county of New York." In 1847 the fees of commissioners were made the same as those of justices of the peace. ■'■'■ At that time a justice could charge twelve and one- half cents for administering an oath,'^ twenty-five cents for taking the proof or acknowledgment of a deed for one person, twelve and a half cents for each additional person and six cents for swearing each witness.^' In 1848 the appointment of commissioners of deeds in the cities was given to the common councils/* the term of office being fixed at two years.^^ During the same year a statute validating the acts of commissioners of Brooklyn was passed.''^ In 1850 the village of Williamsburgh was granted three commis- sioners to be appointed by the board of trustees of the village." During the same year a new and more complete statute in regard to New York commissioners in other states was passed. It de- manded that they have a seal containing about the same words necessary under the law of 1909 and that all instruments be authenticated by the secretary of state.-^* In 1851 the common council of the city of New York was given the power to appoint seventy-five additional commissioners so that the number would be two hundred and twenty-five." In 1857 the statute as to New York commissioners in other states was broadened so as to take in Canada, and the number in any city or county was limited to five.^ In 1858 the village of Saratoga Springs was granted six commis- sioners whose powers could be exercised anywhere in the county of 7. Laws of 1849, p. 187. 8. LawB of 1840, p. 235. 9. Laws of 1843, p. 246. 10. Laws of 1846, p. 30. 11. Laws of 1847, p. 444. 1«. Laws of 1833, p. 490. Jt3. Laws of 1840, p. 187 14. Laws of 1848, p. 84. 15. Laws of 1848, p. 267. 16. Laws of 1848, p. 358. 17. Laws of 1850, p. 749. 18. Laws of 1850, p. 582. 19. Laws of 1851, p. 959. 20. Laws of 1857, p. 756. OOMMISSIONEES OF DbEDS. 8& Saratoga.^^ In 1858 the law as to commissioners of New York without the state was amended so that such officers could be ap- pointed for London, Liverpool, and Glasgow in Great Britain and Paris and Marseilles in France and fees fixed which are the same as at the present time.^^ In 1859 six commissioners were granted to the village of Ballston Spa and three to the village of Waterford who could act anywhere in the county of Saratoga.^' In 1859 the number five under the act of 1857 was changed to ten.^* In 1862 the acts of Samuel Sizer of Buffalo were confirmed and all liabil- ities,- penalties and forfeitures incurred by him remitted.^' The acts of Martin Deforest of Sechenectady were confirmed and legal- ized in 1865.^^ In 1870 the village of Mechanicville was granted four commissioners.^' In 1873 the acts of William Phair of New York City were legalized and confirmed.^^ In 1874 the acts of a commissioner appointed for the city of Paris, France, were legal- ized.^' In 1874 the number for the village of Waterford was in- creased to seven.^"' In 1875 the act in relation to commissioners without the state was amended so that the governor could appoint them in any foreign country, the number not to exceed five for any city.^-'- In 1876 the governor was allowed to appoint ten com- missioners in the cities or counties of other states, and they were to hold office for four years.^^ In 1880 five hundred additional commissioners were granted New York City.^' In 1880, also, the law of 1875 was amended as to the form of the jurat. ^* In 1883 the number of commissioners for cities without the state of New York was increased by five.^^ In 1886 the acts of John T. Cum- ing of New York City were legalized.^^ In 1892 the various acts relating to commissioners of deeds were gathered together in the Executive Law." In 1893 the laws of 1892 was amended increas- ing the number of commissioners in other states to fifteen for any city or county and in any city of a foreign country to ten.'^ In 21. Laws of 1858, p. 208. 30. Laws of 1874, p. 117. 22. Laws of 1858, p. 498. 31. Laws of 1875, p. 119. 23. Laws of 1859, pp. 35, 861, 259. 32. Laws of 1876, p. 47. 24. Laws of 1859, p. 487. 33. Laws of 1880, p. 774. 25. Laws of 1862, p. 732. 34. Laws of 1880, p. 227. 26. Laws of 1865, p. 1367. 35. Laws of 1883, p. 238. 27. Laws of 1870, p. 2043. 36. Laws of 1886, p. 747. 28. Laws of 1873, p. 1084. 37. Laws of 1892, p. 1705. 29. Laws 0^ 1874, p. 24. 38. Laws of 1893, p. 481. 90 Notaries and Commissionees of Deeds. 1894 the Executive Law as to the appointment of commissioners in cities of the state was amended and a validating act passed." In. 1897 the acts of Charles Hagen, a commissioner of deeds for the village of Lansingburgh in the county, of Rensselaer, were legal- ized.*" In 1898 the classification of cities situated in counties con- taining between 300,000' and 550,000 was made " and an act passed in reference to the powers of previously appointed com- missioners in Greater JSTew York." In 1899 one dollar was fixed as the fee for appointment in cities of the state.''* In 1897 the <;harter of Greater New York was passed containing section 58 in relation to commissioners of deeds** and in 1900 the section was amended.*^ In 1900 a legalizing act was passed as to all commissioners of the city of New York.^^ In 1904 acts were passed legalizing the official acts of various commissioners and also a general legalizing act;*' and a like act was passed in 1905.** In 1906 a general legalizing act was passed.*^ In 1907 the Execu- tive Law as to commissioners without the state was amended and legalizing acts passed.^" In 1908, 1909, 1910 and 1911 legalizing acts were passed,^^ and in 1910' it was made a penal offence for a person to hold himself out as a commissioner of deeds unless he •was appointed to the office.^^ § 70. Classes of Commissioners of Deeds. — There are three classes of commissioners of deeds under the laws of New York. Eirst, there are commissioners of deeds appointed by the common ■councils of cities of the state except New York City; secondly, there are commissioners of deeds appointed by the board of alder- men of New York City ; thirdly, there are commissioners of deeds appointed by the governor and commissioned to act in some other state, territory, dependency or foreign country.' As the different 39. Laws of 1894, p. 187. 48. Laws of 1905, pp. 1233, 1861. 40. Laws of 1897, p. 732. 49. Laws of 1906, p. 919. 41. Laws of 1898, p. 1331. 50. Laws of 1907, pp. 189, 1045, 42. Laws of 1898, p. 1084. 1342. 43. Laws of 1899, p. 134. 51. Laws of 1908, p. 241; 1909, p. 44. Laws of 1897, chap. 378, § 58. 320; 1910, p. 180; 1911, chap. 140. 45. Laws of 1900, p-. 496. 52. Laws of 1910, p. 911. 46. Liaws of 190O, p. 1373. 1. Con. Laws, Executive Law, |§ 47. Laws of 1904, pp. 839, 840, 638, 106, 107; Greater New York Charter, 1076. § 58. Commissioners of Deeds. 91 topics are discussed the three classes will be differentiated; if the three classes of officers are not taken up separately in any section what is said refers to all three. § 71. Purpose of the Office of Commissioner of Deeds. — Com- missioners of deeds are appointed to supplement the number of notaries and to facilitate business, both legal and commercial. Foreign commissioners are appointed to aid New Yorkers in other states and countries and to simplify the legal machinery where possible. A discussion of the topic will be found under section 9. § 72. Definition. — A commissioner of deeds is a person to whom a commission, letters patent or other lawful warrant has been granted whereby he is given certain powers in connection with deeds. ^ Most of the states have added to his powers in connection with deeds other powers so that we may define a commissioner of deeds as a public officer whose powers and duties are defined by statute. Unlike the notary he has no powers or functions by means of the common law or ecclesiastical law. The reader is referred to sections 89 and 90 where his functions and powers are set forth; and to section 10 for explanations. § 73. Nature of the Office: A Public Office. — The office of commissioner of deeds is a public office although his power to act is restricted to the city, county, municipality or other political sub- division for which he is appointed. He is a local public officer when appointed for a city in this state. See section 11 and notes.^ § 74. Nature of the Office: A Judicial and Ministerial Office. — In cities of the State and in the City of New York. — A commissioner of deeds is both a judicial and ministerial officer. A discussion of this topic will be found under section 12. Without the State of New York. — Commissioners of deeds re- siding without the state of New York have ministeria} yowers only.' 1. Morris Canal ads. The State 2. €b.n. Laws, Executive Law, §§ (1834), 14 N. J. L. 428; I JaSL iaw 108, 107; Greater New York Charter, Diet. 507. 9 Sa 3. Con. Laws, Executive Law, § 108, i 1 92 NOTAEIES AND COMMISSIONEES OF DeEDS. § 75. Eligibility and Qualifications: Citizens: Residence: Women. — In Cities of the State and in the City of New York. — A commissioner of deeds must be of full age, a citizen of the United States, and a resident of the city or county for which he is ap- pointed. A person removed from the position of commissioner of deeds in the city of New York shall not thereafter under the charter of Greater New York be eligible for appointment to the office of notary public. See section 13 for discussion and notes. Women may be appointed commissioners of deeds. See section 14 for dis- cussion and notes.-' Without the State of New York : A commissioner of deeds must be of full age, a resident of or have his place of business in the city, county, municipality or other political subdivision from which chosen.^ Women may be appointed. See sections 13 and 14. § 76. Eligibility and Qualifications: Incompatible Offices. — As a general rule the office of commissioner of deeds is not incom- patible with any other public office. See section 15 for a discus- sion of the topic and notes. Under article III, section 8, of the Constitution of New York a commissioner of deeds cannot be elected to the legislature ; and a member of the legislature who is appointed a commissioner of deeds for any city of the state and thereafter accepts the office of commissioner of deeds will by his acceptance vacate his seat in the legislature. Section 19 of the Second Class Cities Law says that no person shall, at the same time, hold more than one city office and that no officer shall be interested directly or indirectly in any contract to which the city is a party, but adds that the term " city officer " shall not be deemed to include a commissioner of deeds. Likewise in the char- ter of Greater New York the office of commissioner of deeds is not considered a city office which would prevent the holder from holding some other office of honor, trust or emolument.' 1. Con. Laws, Executive Law, § sent to applicants from otlier states 106; Greater New York Charter, § 58. and foreign countries is not the " eon- 2. Con. Laws, Executive Law, § 107. stitutional oath " referred to in the It is not necessary for the commis- Consolidated Laws, Executive Law, sioner of deeds to be a citizen of the § 107. United States. The State authorities 3. Greater New York Charter, § issue commissions to subjects of for- 1549. eigix countries. Tke oath of office Commissioners or Deeds. 93 § 77. Appointment: In General.— InCities of the State Except New York City. — ^Ck)ininissioner3 of deeds are appointed by tke common councils of tlie cities. The common councils of the sev- eral cities except in cities situate in a county which has a popula- tion of not less than 300,000 and not more than 550,000, accord- ing to the last state or federal enumeration, shall, at the end of every even numbered year, by resolution of the board, determine the number of commissioners of deeds to be appointed. The com- mon councils in cities situate in a county which has a population of not less than 300,000 and not more than 550,000, according to the last state or federal enumeration, shall in the month of Novem- ber in every even numbered year, by resolution, determine the number of commissioners of deeds to be appointed for the next succeeding two years. Such commissioners of deeds may be ap- pointed by resolution and the city clerk shall, immediately after such appointment, file a certificate thereof with the county clerk of the county in which such city is situate specifying the terms for which the said commissioners of deeds shall have been appointed. The county clerk shall thereupon notify such persons of their appointment. A vacancy occurring during any commissioner's term shall be filled by the common council.^ In the City of New York. — In the city of Wew York commis- sioners of deeds are appointed, from time to time, by the board of aldermen. Such appointment does hot require the approval of the mayor. Tlie certificate of appointment is made out by the clerk in the office of the city clerk known as the commissioners of deeds clerk.^ No person who has been removed from office as a commis- sioner of deeds for the city of New York as provided in section 58 of the Greater New York Charter shall thereafter be eligible again to be appointed as such commissioner.^ Without the State of New York. — The governor may appoint and commission in any other state, territory or dependency, or in any foreign country, such number of conxmiflsioners of deeds as he may think proper.' § 78. Appointment: Application for. — In Cities of the State except New York City. — 'A person desiring to be appointed com- missioner of deeds should apply to the councilman representing the 1. Con. Laws, Executive Law, § liJB. 3. CoK. Laws, Executive Law, § 107. 2. Greater New York Charter, § 58. 04 NOTAEIES AND COMMISSIONERS OF DeEDS. district in which he resides or to some personal friend in council if he has one. In the City of New York. — A person desiring to be appointed commissioner of deeds should apply to the alderman representing the district in which he resides, to some personal friend in the board of aldermen, if he has one, or to the city clerk. Without the State of New York. — ^A person desiring to be ap- pointed commissioner of deeds should make a written application addressed to the governor. His application should state the city, county, municipality or other political subdivision for which he desires to be appointed and should be accompanied with the sum of five dollars. If the commission be not granted the money will be refunded.^ § 79. Appointment: By Whom. — InCities of theStateExcept New York City. — The appointment of commissioners of deeds is made by resolution of the council and immediately after such ap- pointment the city clerk files a certificate thereof with the county clerk of the county in which such city is situate, certifying the terms for which said commissioners of deeds shall have been ap- pointed.-'' The county clerk thereupon notifies such persons of their appointment whereupon they must qualify by taking the oath of office before such county clerk within ten days after giving such notice and pay a fee.^ In the city of New York. — The appointment of commissioners of deeds is made by the board of aldermen without the approval of the mayor. After appointment a clerk in the ofiice of the city clerk known as the commissioner of deeds clerk enters the names of the commissioners of deeds appointed, in a book kept for that pur- pose, and makes out certificates of appointment.^ The applicant is notified of his appointment by the commissioner of deeds clerk. Without the State of New York. — The appointment of commis- sioners of deeds is made by the governor.^ § 80. Oath of Office.— 7w Cities of the State Except New York City. — ^Persons appointed commissioners of deeds must qualify by taking, within ten days after notice of appointment, the oath 5. Con. Laws, Executiv« Law, § 107. 2. Con. Laws, Executive Law, § 106. 1. Knox V. City of New York 3. Greater New York Charter, § 58. ;(1903), 78 App. Div. 372. 4. Con. Laws, Executive Law, § 107. COMMISSIONEES OF DeEDS. &5 of office before the county clerk of the couaty in which the city for which they are appointed is situated. The oath of office is given under section 21 substituting the words " commissioner of deeds " for " notary public." ^ The oath must be taken before he attempts to discharge any of his official duties. In the City of New York. — ^A person appointed commissioner of deeds before entering upon the discharge of his duties and within thirty days after such appointment must take and subscribe before the commissioners of deeds clerk in the office of the city clerk^ the following oath of office : ^ FOBM 9. Oath of Commissioner of Deeds in New Tork City. I do solemnly swear (or affirm) that I am a citizen of the United States and of the state of New York and a resident of the city of New York and that I will support the constitution of the United States and the constitution of the state of New York and that I will faithfully dis- charge the duties of the office of commissioner of deeds. WUJiout the State of New York. — Persons appointed commis- sioners of deeds before performing any of the duties or exercising any of the powers of their office, shall take the constitutional oath of office, if appointed for a city or county within the United States, before a justice of the peace or some other magistrate in such city or county; and if for a territory or dependency, before a judge of a court of record in such territory or dependency; and if for a city, municipality or other political subdivision in a foreign, country, before a person authorized by the laws of this state to administer an oath in such country, or before a clerk or judge of la court of record in such foreign country. The constitutional oath will be found under section 21 substituting the words " commis- sioner of deeds " for " notary public." ' § 8i. Procedure to Compel Public Officer to Administer Oath to One Appointed Commissioner of Deeds. — If an applicant has been appointed a commissioner of deeds and is entitled to the office 1. Oon. Laws, Public Oflficers Law, 3. Con. Laws, Executive Law, § § 10; Executive Law, § 106. 107. 2. Greater New York Charter, § 58. As a matter of practice, however^ ^6 Notaries and Commissioners of Deeds. Ihe officer whose duty it is may be compelled to administer the oath by a writ of mandamus.^ § 82. The Fee Payable on Appointment.— Jn Cities of the State Except New York City. — Upon taking the oath of office the county clerk " shall demand and receive the sum of one dollar " from each person qualifying as a commissioner of deeds.^ In the City of New York. — Upon taking the oath of office the city clerk " shall collect from each person appointed a commis- sioner of deeds the sum of five dollars, and he shall not administer or file said oath unless said fee has been paid." ' Without the State of New York. — Upon making application for appointment as a commissioner of deeds the applicant " shall en- close with his application the sum of five dollars," which sum, if the commission shall not be granted, will be returned to the person making the application.* § 83. The Commissioner's Bond. — While a commissioner of ^ ^^ seal, take the oath or affirmation required by section'^SfiTof the Kevised Statutes " verifying the returns made by national banks to the comptroller of the currency." ^^ See section 35, where the; United States laws are discussed. In the Cities of the State and New York City. — ^Commissioners of deeds shall have power to take proof and acknowledgment of all written instruments.^^ And under the Code of Civil Procedure' they may take oaths and affidavits required or authorized by law except oaths to jurors or witnesses upon a trial or oaths required by law to be taken by particular officers." They may take oatha of office.''^ They may take the acknowledgment or proof of a con- veyance of real property within the state. ■'^ Without the State of New Yorh. — Commissioners of deeds, shall have authority, in the manner in which such acts are per- formed by authorized officers within the state, to take the acknowl- edgment or proof of the execution of a written instrument, except a bill of exchange, promissory note or will, to be read in evidence or recorded in this state; to administer oaths; if appointed for a foreign country, to certify to the existence of a patent, record or other document recorded in a public office or under official custody in such foreign country, and to the correctness of a copy of such patent, record or document, or to the correctness of a copy of a certified copy of such patent, record or other document, which has been certified according to the form in use in such foreign country. When properly certified and authenticated such instruments have the same force and effect as instruments acknowledged or sworn to- within the state." § 90. Functions and Powers of Commissioners of Deeds: Certified Copies of Instruments.— Zn Cities of the State, in Neiv City, and in Other States of the United States. — 'Commissioners of deeds have no special powers to make certified copies of instru- ments, on file or not on file, to authenticate them as evidence or 12. Supp. to U. S. Eev. Stats. 16. Con. Laws, Real Propertv Law,. (1874-1891), p. 318, Feby. 26, 1881. | 298. 13. Con. Laws, Executive Law, § 17. Con. Laws, Executive Law, ^ 106; Greater New York Charter, § 58. 108; N. Y. Code of Civil Proc., § 956; 14. N. Y. Code of Civil Proc, § 842. Con. Laws, Real Property Law, §g 15. Con. Laws, Public Officers Law, 299, 300, 301. § 10. 102 NOTAKIES AND CoMMISSIONEES OF DeEDS. fpr record. He may make "sworn " copies tlie same as a notary. The topic is discussed under section 38, In a Foreign Country. — ^A commissioner of deeds appointed for a foreign coimtry may certify to the existence of a patent, record or other document recorded in a public office or under official cus- tody in such foreign country, and to the correctness of a copy of such patent, record or document, or to the correctness of a copy of a certified copy of such patent, record or other document, which has been certified according to the form in use in such foreign country. Such certified copy will have full force and effect in this state when there shall be annexed or subjoined thereto, or indorsed thereon, a certificate of the commissioner by whom the correctness of such copy is certified, under his hand and official seal, and authenticated by the certificate of the secretary of state, annexed or subjoined to the certificate of the said commissioner.^ § 91. Disqualifications of Commissioners of Deeds. — The dis- qualifications of notary public to take acknowledgments, affidavits, oaths and depositions apply likewise to commissioners of deeds. The topic will be found under section 41. A commissioner of deeds cannot take the proof of the execution of a conveyance when the witnesses are dead, see section 42 ; nor can he solemnize a mar- riage, see section 44 ; nor can he practice as an attorney in any city of the first or second class unless he has been admitted as an attor- ney and counsellor at law, see section 45 ; nor can he take the affida- vit of the person that he has turned over to a public officer all books and papers connected with the office under section 80 of the Public Officers Law, see section 43. § 92 Duties and Civil Liabilities of Commissioners of Deeds. — The discussion of the duties and civil liabilities of a notary public applies in part to the duties and civil liabilities, like- wise, of a commissioner of deeds; the topic will be found under iSections 46, 47 and 121. § 93. Criminal Liabilities of Commissioners of Deeds. — The criminal liabilities in connection with the office of notary public are discussed in full in sections 48, 49, 50 and 51. The same laws 1. Con. Laws, Executive Law, § 108; N. Y. Code of Civil Proc, § 956. Commissioners of Deeds. 103 apply in most part to tiie office of commissioner of deeds. The Penal Law does not repeal any of the provisions of city charters or criminal laws not defined and made punishable by the Penal Law except so far as they have been repealed or affected by subsequent laws.-' In the City of New York. — 'Any person who has been regularly removed by the mayor from the office of commissioner of deeds for cause shown who shall, after knowledge of such removal, sign or execute any instrument as a commissioner of deeds or notary pub- lic, shall be deemed guilty of a misdemeanor.^ § 94. Commissioner of Deeds May be Compelled to Act by a Writ of Mandamus or for a Contempt.— This topic and the case and statute applying thereto will be found under Section 52. § 95. Records. — There is no statute in New York which either directly or inferentially demands that commissioners of deeds keep records of oaths, affidavits or acknowledgments which they admin- ister or take. As they cannot protest negotiable paper as public officers, and when acting as commissioners to take depositions all the papers are returned there is only one possible case when New York commissioners of deeds should keep a record of their acts; that is when they take marine protests. For a discussion of the topic see Sections 53 and 55. § 96. Fees: Of Commissioners of Deeds. — The discussion of the subject of fees and a complete schedule of fees to be charged by commissioners of deeds will be found under Section 56. The ques- tion of the right of a commissioner of deeds who occupies a posi- tion in some public office to be paid for his services as commissioner during the hours of his employment is taken up in section 57. § 97. Vacancy in Office of Commissioner of Deeds. — The events upon the happening of which the office of commissioner of deeds becomes vacant are enumerated in section 58 as set forth in Public Officers Law, § 30. In the Cities of the State Except New York City. — A commis- sioner shall hold office for the term of two years from the date of his 1. Con. Laws, Penal Law, § 40. 2. Greater Neiw York Charter, § 58. 104 Notaries and Commissionees of Deeds. appointment and until another is appointed in his place. A va- cancy occurring during the term for which a commissioner shall be appointed, shall be filled by the common council. In the City of New Yorh and Without the State of New York. — The board of aldermen, who appoint commissioners for New York City, and the governor, who appoints commissioners for sister states or foreign countries, are not compelled to keep a certain num- ber of offices filled so that the matter of vacancy does not present itself as it does in cities of the state. § 98. Resignation of Commissioner of Deeds. — In the Cities of the State Except New York City. — A commissioner of deeds who for any cause desires to resign should send his written resignation to the common council of the city for which he was appointed.^ In the City of New York. — ^A commissioner of deeds who for any cause desires to resign should send his written resignation to the clerk of the City of New Tork.^ Without the State of New York. — 'A commissioner of deeds who for any cause desires to resign should send his written resignation, to the governor of the State of New York.' § 99. Removal of Commissioners of Deeds.— 7n the Cities of the State Except New York City. — To learn the reasons for removal and the manner of removing a commissioner of deeds it will be necessary to consult the charter of the city in which the commis- sioner holds office. The charter of the City of Yonkers, for ex- ample, contains the following: "Any person appointed to public, office by the mayor and common council, may be removed from office by the common council for incapacity, official malfeasance or non-feasance, or other lawful cause, by a two-thirds vote of its mem- bers, after having given him notice and opportunity to be heard upon the charges preferred." ^ In the City of New York. — The mayor of the City of New York may remove any commissioner of deeds appointed under the pro- visions of section 58 of the Greater New York Charter for cause shown ; but no such commissioner shall be removed until charges bave been duly made against him to the said mayor and the said 1. Oon. Laws, Public Officers Law, 2. Laws of 1881, p. 231. { 31. COMMISSIONEES OF DeEI 105 commissioner shall have had aji opportunity to answer the same. At any proceeding held before the said mayor for the removal of such commissioner of deeds, the said mayor shall have power to subpoena witnesses and to compel the attendance of the same, and to administer oaths, and to compel the production of books and papers, and upon the termination of such proceeding, shall make his decision thereon in writing, and cause the same to be filed in. the office of the city clerk of the City of New York. In case the said commissioner shall be removed from office, the said city clerk shall immediately upon the receipt by him of the order of removal signed by the mayor, cause the name of the said commissioner so removed to be stricken from the roll of commissioner of deeds of said city.^ ^Amj commissioner of deeds who may remove from the city of New York during the term of office is required to notify the city clerk of such removal." Without the State of New York. — The governor of New York may revoke the appointment of a commissioner of deeds at any time.' § 100. Reappointment of Commissioners of Deeds. — No stat- ute prevents a commissioner of deeds from being reappointed for term after term, and, as a matter of custom, that is the usual pro- cedure. A commissioner who desires to continue in office should make application for reappointment at least a month before his term runs out. § loi. Commissioners De Facto: Definition: Are Their Acts Valid? — These topics have been fully discussed under the sub- ject of Notaries, sections 62 and 63. The law as there stated ap- plies likewise to commissioners of deeds. § 102. Commissioners of Deeds Ex Officio. — This topic has been discussed under the subject of Notaries, section 64. § 103. Validating Acts. — The acts of commissioners of deeds and notaries public are validated by the same general statute. The topic has been discussed under section 65. By chapter 783 of the laws of 1911 the official acts of the various females appointed com- *. Greater New York Charter, § 58. 3. Con. Laws, Executive Law, § 107^ 106 Notaries and Oommissionees of Deeds. missioners of deeds by the common council of the City of Niagara Falls between the 13 th day of April, 1904, and the 1st day of Jan- nary, 1911, were legalized and confirmed. § 104. Delegation of Authority. — That the commissioner of deeds' privileges and rights are personal and cannot be delegated is discussed under the subject of Notaries, section 66. § 105. Sunday. — The question of the legality of acts of a com- missioner of deeds when performed on Sunday is discussed under section 68. § 106. Authentication of Certificate of Commissioner of Deeds. — In Cities of the State Except New York City. — Upon appointment by the common council of any city, the city clerk thereof immediately files a certificate of such appointment with the county clerk of the county in which such city is situated, speci- fying the term for which the said commissioner of deeds has been appointed.-' Certificates of authentication may be obtained from the county clerk by presenting the instrument at his office. The laws of 1911 amended section 310 of the Real Property Law to read as follows : "A certificate of acknowledgment or proof, made with- in the state, by a commissioner of deeds * * * does not entitle the conveyance to be read in evidence or recorded, except within the county in which the officer making the same is authorized to act at the time of making such certificate, unless authenticated by a cer- tificate of a clerk of the same county.^ In the City of New Yorh. — " The city clerk upon the request of any commissioner appointed under the provisions of this act must make and deliver to such commissioner a certificate under his hand and official seal, showing the appointment and term of office of such commissioner, which certificate may be filed in the office of the clerk of the counties of New York, Kings, Queens and Richmond upon payment of six cents in each office for filing. The clerks of the counties of New York, Kings, Queens and Richmond shall each keep a book in which shall be registered the signatures of the com- missioners so filing such certificate, and said clerks of the counties 1. Ck>n. Laws, Executive Law, § 106. 2. Con. Laws, Real Property Law, §§ 310, 312. COMMISSIONEES OF DeEDS. 107 of New York, Kings, Queens and Richmond shall upon demand and upon payment of the sum of twenty-five cents authenticate a certificate of acknowledgment or proof or oath taken before such a commissioner of deeds, by subjoining or attaching to the original certificate or acknowledgment or proof or oath, a certificate under his hand and official seal specifying that at the time of taking the acknowledgment or proof, the officer taking it was duly authorized to take the same ; that the authenticating officer is acquainted with the former's handwriting or has compared the signature to the original certificate with that deposited in his office by such officer, and that he verily believes the signature to the original certificate is genuine, and if the original certificate is required to be under seal, he must also certify that he has compared the impression of the seal affixed thereto with the impression of the seal of the officer who took the acknowledgment or proof deposited in his office, and that he verily believes the impression of the seal upon the original certificate to be genuine, without regard to the county in which said acknowledgment was taken or oath administered, provided that said county be wholly within the City of !N"ew York, or if it be partly within the City of New York that the acknowledgment was taken or oath administered in that portion of said county which is included within the boundaries of the City of New York. Any instrument or paper acknowledged before a commissioner within the City of New York and certified by a clerk of the county of New York, Kings, Queens or Richmond, as heretofore provided, shall be recorded and read in evidence in any county in this state without further proof.' In 1911 section 310 of the Real Property Law was amended to read as follows : " Certificates of acknowledg- ment or proof, made by or before a commissioner of deeds of the City of New York residing in any part therein, shall be authenti- cated by the clerk of any county within said city, in whose office such commissioner of deeds shall have filed a certificate under the hand and seal of the city clerk of said city, showing the appoint- ment and term of office of such commissioner, and no other certifi- cate shall be required, from any other officer to entitle said convey- ance to be read in evidence or recorded in any county of the state of New York." 3. Greater New York Charter, § 58. 108 NOTAEIES AWB COMMISSIONEES OF DeEDS, Without the State of New Yorh. — ^Instruments acknowledged or sworn to before a commissioner without the State of New York or certified by him, in order to be read in evidence or recorded in this state must have annexed or subjoined thereto, a certificate of the secretary of state of New York that such commissioner was, at the time of taking such acknowledgment or proof or administering such oath, or of certifying to such patent, record or document, or copy thereof, duly authorized therefor, that he is acquainted with the handwriting of such commissioner, or has compared the signature to the certificate with the signature of such commissioner deposited in his office, that he has compared the impression of the seal affixed to such certificate with the impression of the seal of such commis- sioner deposited in his office, and that he verily believes the signa- ture and the impression of the seal upon such certificate to be genu- § 107. Fees for Certificates of Authentication. — In Cities of the State and New Yorh City. — The county clerk charges a fee of twenty-five cents for a certificate certifying the official character of the commissioner and to his signature and seal.^ Without the State of New York. — The secretary of state charges a fee of twenty-five cents for certificate certifying the official character of the commissioner and to his signature and seal.^ 4. Cton. Laws, Executive Law, § thenticated by the Secretary of State 108; Eeal Property Law, § 311. of New York to entitle it to be read An instrument acknowledged by the in evidence or recorded. Williamson grantor before a commissioner of v. Banning (1895), 86 Hun, 204. deeds for the State of New York in 1. N. Y. Code of Civil Proc, § 3304. the State of Pennsylvania must be au- 2. Con. Laws, Executive Law, § 26. Oaths. 109 CHAPTEE VI. Oaths. § 108. History. § 109. Definitions: Oath. § 110. : Affirmation. § 111. Administration: What Constitutes. § 112. : Who May Take an Oath. § 113. : Who May Affirm. § 114. : Notaries and Commissioners of Deeds may ad- minister an oath or affirmation. § 115. : Oaths of Office and Special Oaths a Notary or Commissioner of Deeds May Administer. § 116. : A Ministerial Act: Disqualification of Notary or a Commissioner of Deeds. § 117. : Delegation of Authority. § 118. : Evidence of. § 119. Forms of Oaths and Affirmations. § 120. Fees for Administering an Oath, or Affirmation. § 121. Oaths: Civil Liability of Notary or Commissioner of Deeds. S 122. : Criminal Liability of a Notary or Commissioner of Deeds. § 123. False Oaths: Criminal Liability of Affiant on Affirmant. § io8. History. — The taking of an oath, or swearing, is a very old practice. It has been the custom of all civilized nations to have persons go through some form of pledge or avowal to God in order to insure truthfulness.* Oaths are a part of Christianity no more than of any other religion ; nor are they a custom of courts alone.^ According to one writer they were used before societies were formed or cities built.' We know that a Jew is sworn on the Pen- tateuch, or Old Testament, with his head covered ; * a Mohamme- dan, on the Koran ; ^ a Gentoo, by touching with his hand the foot of a Brahmin or priest of his religion ; a Brahmin, by touching the 1. 21 Am. & Eng. Ency. of Law, 2d 3. See note 2. «d., p. 744. 4. Strange, 821, 1113; Newman v. 2. See note 1 ; Best on Evidence, Newman, 7 N. J. Eq. 26. Ohamberlayne's ed., § 56. 5. Rex v. Morgan, Leach C. C. 64. 110 NOTAEIES AND COMMISSIONEES OF DeEDS. hand of another such priest ; ' a Chinaman, by breaking a china saucer/ by blowing out a candle/ or by burning a josh-stick.' While oaths are of very ancient origin, aflBrmations are modem, created by statute law." They were first introduced to satisfy cer- tain religious sects whose members believe that the Biblical admon- ition " Swear not at all " means just what it says. Prominent among these are the Quakers, Moravians and Separatists." The granting of the right to those who have religious scruples was soon followed by a granting of the same privilege to those who have con- scientious scruples.-'^ And now by statute in nearly all of the states a person may affirm instead of taking an oath. In New York this right is protected by section 847 of the Code of Civil Procedure ; and the New York Constitution says no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief.-" The history of those deemed worthy to take an oath is set forth in the case of Brink v. Stratton}* § log. Definitions: Oath. — An oath is an outward pledge given by the person taking it that his attestation or promise is made 6. Omychund v. Barker, 1 Atk. 45, 26 Eng. Reprint, 15. 7. State V. Chyo Chiagk, 92 Mo. 395. 4 S. W. 704. The following was the oath taken by a young Chinese before Judge Scott, sitting in the Marine Court of the city of New York in 1839: The plaintiff knelt down, and the witness took in his hand what he called the Chinese Bible, and the judge, as does the Mandarin in such cases, told the ' ' witness to tell the truth. The witness then handed the Bible to the plaintiff. The witness then took a Cliina cup in his hand, and held it while the plain- tiflf read aloud a small portion of the Chinese Bible. When the plaintiff stopped reading, the witness then handed him the cup, which the plain- tiff dashed against the ground with much vehemence of manner, and of course broke it in pieces. The wit- ness then shut up the book, and wit- ness and plaintiff kissed it, and the plaintiff stood up. The plaintiff then required the judge to put his (the plaintiff's) name in that part of the Bible which he had read, which the judge did, and the witness then began to give his evidence. Note of the Editor to the case of Fryatt v. Lindo (1839), 3 Edw. Ch. 239. 8. State V. Gin Pong, 16 Wash. 428, 47 Pac. 961. 9. State V. Chyo Chiagk (1887), 92 Mo. 411. 10. 21 Am. & Eng. EncT. Law, 2d ed., p. 744. 11. See note 10. See Laws of N. Y., 1774-1775, chap. XCl.; Laws of N. Y., 1797-1800, chap. 52. 12. Sec note 10. 13. N. Y. Constitution (1894), art. I, § 3. 14. Brink v. Stratton (1903), 176 N. Y. 157. Oaths. Ill "under an immediate sense of his responsibility to God.^ Another definition is : An oath is a solemn invocation of the vengeance of the Deity upon the witness if he do not declare the v?^hole truth, so far as he knows it.^ In its broadest sense, the term is used to in- clude all forms of attestation by which a party signifies that he is bound in conscience to perform the act faithfully and truly.' The essential requisite of an oath at common law is belief by the wit- ness or afiiant in the existence of a God, who will punish him if he swears falsely, and an appeal to such God as the rewarder of truth and the avenger of falsehood.* In the state of ISTew York the oath may be taken, except as otherwise specially prescribed, in either of two ways : First, the witness shall lay his hand on the Gospels and express assent to the oath repeated by the notary or commissioner of deeds, and it shall not be necessary that he kiss the Gospels;'' secondly, if he so desires, he shall express his assent to the following words repeated by the officer : " You do swear, in the presence of the ever-living God," ^ and while swearing, he may or may not hold up his hand, at his option, but need not lay his hand upon the Gos- pels. If the notary or commissioner of deeds is satisfied that any pe- culiar mode of swearing in lieu of, or in addition to, the usual manner of administering an oath is, in his opinion, more solemn and more obligatory on the person being sworn, he may, in his dis- cretion, adopt that mode of swearing him.' The word " oath " in- cludes every mode authorized by law of attesting the truth of that which is stated. The term " swear " includes every mode author- ized by law for administering an oath.* § no. Definitions: Affirmation. — An affirmation has been defined as a solemn declaration made under penalties of perjury by persons who conscientiously decline taking an oath, which decla- ration is in law equivalent to an oath.^ If a person has religious or conscientious scruples against taking an oath, the notary or com- 1. Tyler on Oaths, 15. 7. N. Y. Code of Civil Proc, §§ 848, 2. 1 Starkie on Evidence, 22. 849, 850. 3. Bouv. Law Diet. (Rawle's Rev.), 8. Con. Laws, General Construo- tit. "Oath." tion Law, § 36; Penal Law, § 1621. 4. 29 Cyc. Law & Proc., p. 1298. 9. Con. Laws, General Construction 5. N. Y. Code of Civil Proc, § 845. Law, § 36; Penal Law, § 1621. 6. N. Y. Code of Civil Proc, § 846. 112 Notaries and Commissioners op Deeds. missioner of deeds should have him affirm. An affirmation is just as binding in law as an oath; the one affirming will be guilty of perjury in a case where he would be guilty of the same crime, if he iad sworn by laying his hand upon the Gospels.' The following is an example of an affirmation : " You do solemnly, sincerely, and truly declare and affirm that you will true answers make to all ques- tions you may be asked in regard to the parties to the deed here -shown to you and to the execution of the same." § III. Administration: What Constitutes. — The administra- tion of an oath must necessarily vary with the person taking the oath, for it is to be administered in the manner which most affects his conscience.-^ 'As the great majority of those taking oaths or affirmations in the state of New York are Christiana or others who have no peculiar mode of swearing, the law sets out what shall be •considered legal oaths in such cases and leaves it to the discretion of the officer to properly swear those to whom some other form of oath is more obligatory.^ Unless otherwise specially prescribed, when an oath is adminis- tered the person taking the oath must lay his hand on the Gospels and express assent to the oath repeated by the notary or commis- ■sioner of deeds by the words " I do " or some other words of like meaning, but he need not kiss the book.' Another manner of ad- ministering an oath to a person who so desires is for the notary or commissioner of deeds to say : " You do swear, in the presence of the ever-living God," at which time the person swearing may or onay not hold up his hand at his option. It is not necessary for him to lay his hand upon the Gospels in this form of oath.'* If the person to be sworn believes in a religion other than the Christian religion he may, if he so desires, be sworn according to the peculiar ceremonies of his religion, if there are any such cere- monies.^ If the notary or commissioner of deeds is satisfied that 6. Con. Laws, Penal Law, § 1622. O'Reilly v. People (1881), 86 N. Y. 1. 21 Am. & Eng. Ency. of Law, 158. -2(1 ed., p. 750; 29 Cyc. Law & Proc., 5. Omychund v Barker, 1 Atk. 21, p. 1303. 26 Eng. Reprint, 15; Newman v. New- 2. N. Y. Code of Civil Proc, §§ man, 7 N. J. Eq. 26; N. Y. Code of 848, 850. Civil Proc, §§ 849, 850; People v. 3. N. Y. Code of Civil Proc, § 845; Jackson (1857), 3 Parker's Crim. Eep. Tuttle V. People (1867), 36 N. Y. 436. 590. 4. N. Y. Code of Civil Proc, § 846; Oaths. 113 iany peculiar mode of swearing, in place of, or in addition to, on© ©f the other modes, as above set forth, is, in his opinion, more bind- ing on the conscience of the person swearing he may, in his discre- tion, adopt that mode of administering the oath.^ A person taking an oath who at the time makes no objection to the mode of admin- istering it, is deemed to have assented to the particular form of the •oath and is liable to all the consequences of perjury as if it had been administered in some other manner.' If the person informs the notary or commissioner of deeds that he has conscientious scruples against taking an oath the officer should then administer the following affirmation to him : " You do solemnly, sincerely, and truly, declare and affirm." ' An affirma- tion is likewise accepted under the Bankruptcy Act, and also under the United 'States Revised Statutes.* It is thus seen that a wide scope, a large liberty, is given to the form of the oath or affirmation, but some form remains essential; something must be present to distinguish between an oath and a mere statement. An act to some extent solemn must be done and clothed in such form as to characterize and evidence it.' For an oath or affirmation to be valid, whatever form is adopted, it is nec- essary that: first, the person swearing or affirming be in the pres- ence of the notary or commissioner of deeds ;^'' secondly, that the person imequivocally swears or affirms that, what he states, is true ; thirdly, that he swears or affirms as of that time ; and, lastly, that the person conscientiously takes upon himself the obligation of an oath." A person cannot take an oath before a notary or commis- sioner of deeds when they are not in the same room.^^ l^or can ^n 5. N". y. Code of Civil Proc, §§ 848, ficer purporting to administer it knew 850. and recognized tlie voice of the person 6. People V. Cook (1853), 8 N. Y. purporting to take the oath, under S4. a statute requiring the most binding 7. N. Y. Code of Civil Proc, § 847. on the conscience of the individual, 8. Bankruptcy Act of 1898, § 20; and another providing that affidavits TJ. S. Rev. Stats., § 1, July 1868, c. " may be made before " certain of- 186, § 104. fleers. 9. O'Reilly v. People (1881), 86 N. 11. Bookman v. City of New York Y. 159. (1910), 200 N. Y. 56; People v. Nolte 10. In Sullivan v. Flatonia First (1897), 44 N. Y. S. 444; Walker v. Nat. Bank, 37 Tex. Civ. App. 228, 83 Spencer (1881), 86 N. Y. 162. S. W. 421, it was held that the ad- 12. Case v. People (1879), 76 N. ministration of an oath over the tele- Y. 242; People v. O'Reilly (1881), 61 phone was not good, although the of- How. Prac. Rep. 11. 114r NOTAKIES AND COMMISSIONEES OF DeEDS. oath or affirmation be taken '-when no words are spoken either by the officer or the person swearing or affirming.^' Nor can an oath be taken when the commissioner of deeds says " Is that true ? " and the would-be affiant says nothing." If a statute prescribes some special form of oath that form must be administered by the notary or commissioner of deeds.^^ No provision is made as to swearing persons who do not speak English. They must necessarily be communicated with through an interpreter who should first be sworn by the notary or commis- sioner of deeds that he is conversant with the foreign language and that he will true interpretation make of all statements made in th& administration of the oath or affirmation." § 112. Administration: Who may Take an Oath. — All per- sons who have sufficient intelligence to understand the nature of an oath, and who believe in the existence of a Supreme Being whose attributes impose upon their consciences a sense of responsibility for falsehood and a moral obligation to speak the truth when depos- ing under the sanction of an oath, are competent to take an oath.* For example, a child may be sworn if, after an examination by the notary or commissioner of deeds, he decides that the child under- stands the nature of an oath.^ The officer should learn this fact by talking with the child and questioning him as to what telling the truth means and as to what will happen if he does not tell the truth.* The officer should examine him also along the lines of his capability to receive true impressions from things which have taken place around him and of his ability to tell about these impressions truth- 13 O'Reilly v. People (1881), 86 2. N. Y. Code of Civil Proc, § 850^ N. Y. 159. 3. 16 Am. & Eng. Ency. of Law, 2d 14. Bookman v. City of New York ed., p. 267. "The lad was of tender (1910), 200 N. Y 56. years (11), and if it had turned out, 15. Whitney v. Wyncoop (1857), as it might, that he was wholly igno- 4 Abb. Prac, Rep. 373 ; Shattuck v. rant of the nature of an oath, it would Bascom, 105 N. Y. 39, 15 N. E. 283; have been the duty of the court to In re Thompson (1911), 128 N. Y. have rejected him as a witness, or at S. 604. least before permitting him to tes- 16. Leetch v. The Atlantic Mutual tify, to have instructed him on the Ins. Co. (1873), 4 Daly 525; In the subject." People v. McNair (1839). Matter of Harper, 6 Man. & G. 732. 21 Wend. 608. 1. 21 Am. & Eng. Ency. of Law, 2d ed., p. 747. Oaths. 115 fully.' Intelligence and not age seems to be the proper test/ Be- fore putting the child under oath the notary or commissioner of deeds should decide whether he has sufficient mental capacity and sC proper sense of moral obligation.' The rules which govern a notary or commissioner of deeds in taking the oath of an infant apply, likewise, to a person apparently of weak intellect.^ It is left to the discretion of the officer whether the person is capable of taking an oath. A deaf and dumb person who understands the nature and sanc- tity of an oath is competent to be sworn, if any person can be found who can communicate to him, by signs, the questions asked, and interpret his answers to the officer ; or if he can write and read writing, and thus receive questions and give answers.' Should the person to be sworn be unable to understand the English language the oath may be administered through the medium of an inter- preter.^ By the constitutional amendment of 1846 an atheist or an infidel may take an oath and a witness cannot be questioned as to his be- lief in the existence of a Supreme Being, who would punish false swearing, for the purpose of affecting the weight of his testimony.* 4. Washburn v. People, 10 Mich, was, but also said he knew what it 372; People v. Bernal, 10 Cal. 66. was "to go up in the court house and 5 N. Y. Code of Civil Proc, § 850. swear you have to tell the truth," The following examples were taken that the law would punish him if he from 16 Am. & Eng. Ency. of Law, 2d told a story, and that he was bound cd., p. 269 : to tell the truth when sworn, waa In Missouri, etc. R. Co. v. Johnson held to be competent. (Tex. Civ. App. 1896), 37 S. W. 771, In Parker v. State, 33 Tex. Crim. a child of ten, who stated that it was 111, 21 S. W. 604, 25 S. W. 967, a. wrong to tell a story, and that if he boy of twelve, who stated that " it did the old huggerman would get him was wrong to tell a, lie,'' and that if and burn him, was held to be com- he told a lie he would be punished, petent. was held competent. In State v. Scanlan, 58 Mo. 204, a 6. N. Y. Code of Civil Proc., § 850. child of nine, who stated that she 7. 8 Am. & Eng. Ency. of Law, 2d was the daughter of the defendant, eid., p. 844. that she knew her prayers, could read In the Matter of Harper, 6 Man. some, believed in God, and thought it & G. 732. wrong to tell lies, was held to be com- 8. Leetch v. The Atlantic Mutual petent. Ins. Co. (1873), 4 Daly 525. In Minton v. State, 99 Ga. 254, 25 9. "This amendment (Cbnstitu- S. E. 626, a child of eight, who stated tional Amendment of 1846), of course, that he did not know what an oath established the competency of an in- 11& Notaries and Commissioners of Deeds. A corporation or a partnership cannot take an oath ; an oath must te taken by an individual." It is incumbent upon the officer to know that the person is capable to take upon himself the obligation of an oath and that he does take upon himself such obligation, as set forth in the preceding section, § 113. Administration: Who May Affirm. — The rules as to "who may take an oath, as set forth in the preceding section, apply, likewise, to the capability of a person to affirm. § 114. Administration: Notaries and Commissioners of Deeds May Administer an Oath or Affirmation. — As this is a handbook for notaries and commissioners of deeds, it is sufficient to state that they have the power to administer oaths under the laws of iN^ew York except in certain cases. They cannot administer an oath to a juror or to a witness upon a trial, or an oath required by law to be taken before a particular officer. They may administer an oath of office.' A commissioner o£ deeds of New York residing in some other state, territory, or foreign country has like powers.^ Under the laws of the United States the notary public has power to administer oaths in many cases which are set out in detail under fidel or an atheist as a witness. As ports to be the oath of a corporation, to this there is no dispute." ♦ » ♦ and yet a corporation cannot be " A witness cannot be interrogated as sworn, nor can it be put in jail for ix) his belief in the existence of a Su- perjury. It has no ' soul ' and an preme Being, who would punish false oath does not bind it. Therefore, the swearing, for the purpose of affecting oath and signature mtxst be those of his credibility." Brink v. Stratton an individual; who, of course may, <1903), 176 N. Y. 150. and should, describe, in the body of The case of Brink v. Stratton the affidavit, his relation to the cor- <1903), 176 N. Y. 150, overruled poration.'' Remington on Bank- Stanbro v. Hopkins (1858), 28 Barb, ruptcy, page 365. ^65 and People v. Most (1891). 128 1. N. Y. Code of Civil Proc, §§ 842, N. Y. 108. See Gibson v. American 843; Con. Laws, Public Officers Law, Xiife Ins. Co. (1868), 37 N. Y. 580. § 10; Con. Laws, Executive Law, §§ Con. of New York, art. I, section 3. 105 and 106; Con. Laws, General Con- 10. "The signature and oath must struction Law, § 12; Bolton v. Jacks be those of a natural person. One of (1868), 29 N. Y. Super. Ct. 192. the most common mistakes is to sign 2. Con. Laws, Executive Law, § the corporate name to the affidavit, 108; N. Y. Code of Civil Proc., § 844: as, for instance, ' The The words " the State " in this sec- Co., by John Doe, Treasurer.' This, tion refer to the State of New York, obviously, is improper, because it pur- ■■'• Oaths. 117 section 35, " Functions and Powers of the ITotary Under Federal Statutes." It may be well to add that a commissioner of deeds o£ New York has no powers under the Federal Statutes except those given him expressly. They are set out in section 89. A notary has power also to administer the oath in marine pro- tests under the law merchant.' This power, now put in the form of a statute, is : " to exercise such powers and duties as by the law of nations and according to commercial usage, or by the laws of any other government, state or country, may be performed by no- taries." * When a statute contains no direction as to the officer to> administer an oath in a special case, except in cases noted at the be- ginning of this section, it may be taken before any officer author- ized to administer an oath.^ ^ A notary or commissioner of deeds is bound to administer an oath when requested if there is no valid legal reason why he should not. The word " may " in the statute, Section 842 of the Code of Civil Procedure, is equivalent to " shall." ^ If he refuses he is liable to an action ' and may also be proceeded against criminally.® The question whether an attorney may take the oath of his client is discussed under Section 130. § 115. Administration: Oaths of Office and Special Oaths a Notary or Commissioner of Deeds May Administer. — Under Section 842 of the Code of Civil Procedure notaries and commis- sioners of deeds cannot administer an oath of office, but under Sec- tion 10 of the Public Officers Law they ean^^ When arbitrators are selected to hear testimony under sections 2365-2386 of the Code of Civil Procedure their oath must contain the words : " faith- fully and fairly to hear and examine the matters in controversy, and to make a just reward, according to the best of their under- standing." 3. People V. Travis (1854), '4 Par- 3 Hill 612; Gardner v. People (1875), ker's Crim. Eep. 216. 62 N. Y. 304; Whitford v. Scott and 4. Con. Laws, Executive Law, § Bissell (1857), 14 How. Pr. Rep. 304 j 105; Matter of Utica, etc. R. R. Co. see note 1. V. Stewart (1867), 33 How. Pr. 315. 7. Clark v; Miller (1874), 54 N. Y. 5. Wood V. Jefferson Co., Bank 534. (1828), 9 Cow. 194; People v. Tioga 8. Oon. Laws, Penal Law, §§ 1841, C. P. (1832), 7 Wend. 516. 1857. 6. People V. Brooks (1845), 1 1 Con. Laws, Public Officers Lacw, Denio 475; Mayor v. Furze (1842), § 19. 118 I^TOTAEIES AND COMMISSIONERS OF DeEDS. The oath of a referee appointed by consent to hear testimony under sections 1011-1026 of the Code of Civil Procedure must con- 4;ain the words : " faithfully and fairly to try the issues (or to de- termine the questions referred to him) and to make a just and true Teport, according to the best of his understanding." The oath of a referee appointed in proceedings supplementary "to an execution against property, sections 2432-2463 of the Code ■of Civil Procedure, should contain the words : " faithfully and fairly discharge his duty upon the reference and make a just and true report, according to the best of his understanding." The oath of the commissioners appointed in an action for parti- tion, sections 1532-1595 of the Code of Civil Procedure, must con- tain the words : " faithfully, honestly and impartially discharge the trust reposed in him." The oath of each of the commissioners or of the referee appointed in an action for dower, sections 1596-1625 of the Code of Civil Procedure, must contain the words : " faithfully, honestly and im- partially discharge the trust reposed in him." The oath of each of the commissioners in a proceeding for the .■appointment of a committee of the person, and of the property, of a lunatic, idiot, or habitual drunkard, sections 2320-2344 of the Code of Civil Procedure, should contain the words : " faithfully, .honestly, and impartially to discharge the trust committed to him." The official oath or affirmation of an executor, administrator, or ; guardian, appointed by the Surrogate's Courts under sections 2594- :2610 of the Code of Civil Procedure, should contain the words: '"well, faithfully and honestly discharge the duties of his office ((describing the office)." The oath taken and subscribed to by commissioners under the Condemnation Law must be the constitutional oath of office, as de- clared in section 3370 of the Code of Civil Procedure.^ When application is made to a notary or commissioner to admin- ister an oath of office it is the duty of the officer to administer the ■oath. It is not the province of the officer to determine whether the j)erson presenting himself is or is not capable of holding the office.' 2. In re Thompaon (1911), 128 N. Denio 395; Dolan v. Mayor (1877), Y. S. 604. 68 N. Y. 279; People v. Tieman 3. People V. Dean (1830), 3 Wend. (1859), 30 Barb. 196; People v. Bren- ,438; Wilcox v. Smith (1830), 5 Wend, nan (1866), 30 How. Pr. 419. 233; Morris v. People (1846), 3 Oaths. 119 § 1 1 6. Administration: A Ministerial Act: Disqualification of Notary or Commissioner of Deeds. — The administration of an oath to a person is a purely ministerial act on the part of the notary or commissioner of deeds.^ Therefore the fact that the 'notary or commissioner of deeds administering it is interested in the pro- ceeding in which it is to be used does not disqualify him f but an ■officer cannot administer an oath to himself.' The question of in- terest on the part of the officer is discussed under section 41 ; and the subject of the taking of an oath, etc., being a ministerial act, is taken up more fully under section. 12. § 117. Administration: Delegation of Authority. — The clerk ■of a notary or commissioner of deeds has no right to take oaths or affirmations. He would thereby be laying himself liable to a crimi- nal prosecution, as would the officer himself, if he knew of and countenanced such acts.* The privileges and rights of a notary and commissioner of deeds are personal. § 118. Administration: Evidence of. — When a notary cer- tifies that a certain person has sworn before him it is not necessary for him to add in what manner the oath was administered. It will be presumed that he administered it in the legal way. If the per- son affirms instead' of swearing, it will not be necessary to add any- thing to the words that he affirms ; that is, no words in explanation of the fact why he affirmed. Nor, if the oath is administered in some peculiar manner, will it be necessary to set forth that fact and explain why that form was used. The law will presume, if nothing is said by way of explanation, that the ceremony most binding on the conscience of the affiant was performed.^ This subject is dis- cussed more fully under sections 142, 143 and 144, where various forms of the jurat ^ are set forth. 1. Wendell v. Reves (1887), 6 N. 4. Con. Laws, Penal Law, §§ 1820, Y. St. Rep. 863; In re Kimball 1832, 1833, 1834. (1899), 4 Am. Bank. Rep. 144. 5. 21 Am. & Eng. Ency. of Law, 2d 2. 21 Am. & Eng. Ency. of Law, 2d ed., p. 753; 29 Oyc. Law * Proc., p. ed., p. 556, and Vol. 1, p. 485; 29 1305; Tuttle v. People (1867), 36 N. Cyc. Law & Proc., p. 1070. Y. 436. 3. In re South Beaver Tp. Road, 6. The statement of the fact that 8 Kulp. (Pa.), 75. One would think the oath was sworn to is known as it unnecessary to make such a state- the " jurat." ment if it were not for this case. 120 Notaries and Commissionees of Deeds. § 119. Forms of Oaths and Affirmations. — As stated before, the form of the oath must necessarily vary with the person taking it, as it must be in that form which will be most binding on the conscience of the affiant. If the person is a Christian, one of the forms given below should be used. In administering an oath on the Gospels it is only necessary that the person lay his hand on the book ; he need not kiss it^ FOEM 12. Oath Taken on the Gospels on the Taking an Affidavit : " You do solemnly swear that the contents of this afladavit are known to you and that the said facts are true to the best of your knowledge and belief, so help you God." FOBM 13. Oath Taken on the Gospels on the Taking of a Deposition: " You do solemnly swear that the evidence you shall give relating to the matter in difference between Joim Doe, plaintiff, and Richard Roe, de- fendant, shall be the truth, the whole truth, and nothing but the truth, 60 help you God." FOBM 14. Oath Taken on the Gospels "When a Subscribing Witness Swears: " You do solemnly swear that you will true answers make to all ques- tions which may be asked you in regard to the parties to the deed here shown you, and the execution thereof, so help you God." FOKM 15. Oath Taken on the Gospels When a Witness to Identity of Party Swears: " You do solemnly swear that you will true answers make to all ques- _tions which may be asked you in regard to the identity of the parties to the deed here shown to you, so help you God." 1. Allen V. Merchants' Bank of N. Rathbone (1895), 145 N. Y. 434; Peo- Y. (1839), 22 Wend. 241; McAndrew pie v. Wadhams (1903), 176 N, Y. 9; V. Radway (1866), 34 N. Y. 512; Constitution of N. Y. (1894), art. Merzbach v. Mayor, etc., of New York XIII, § 5; Con. Laws, Public OflBcers l(1897), 19 App. Div. J91; People v. Law, § 2. Oaths. 121 FOEM 16. Oatli Taken on the Gospels When a Witness to Identity of Snbscrihing^ Witnesses Swears: " You do solemnly swear that you will true answers make to all ques- tions which may be asked you in regard to the identity of the subscrib- ing witnesses to the deed here shown to you, so help you God." [The words in italics must be changed to suit the case.] In administering the following oaths, using the expression " You do swear in the presence of the ever-living God " the person sweai^ ing may or may not, as he wishes, raise his right hand. This style of oath is to be used when the person swearing so desires it.^ FORM 17. Oath Taken in the Presence of the Ever-LiTing God on the Taking an Affidavit : " You do swear, in the presence of the ever-living God, that the con- tents of this affidavit are known to you and that the said facts are true to the best of your knowledge and belief." FOEM 18. Oath Taken in the Presence of the Ever-Living God on the Taking of a. Deposition: " You do swear in the presence of the ever-living God that the evidence you shall give, relating to the matter in difference between John Doe, plaintiff, and Richard Roe, defendant, shall be the truth, the whole truth* and nothing but the truth." FORM 19. Oath Taken in the Presence of the Ever-Living God When a Subscribing Witness Swears: " You do swear in the presence of the ever-living God that you will true answers make to all questions which may be asked you in regard to the parties to the deed here shown you, and the execution thereo'." FOEM 20. Oath Taken in the Presence of the Ever-Living God When a Witness to Identity of party Swears: " You do swear in the presence of the ever-living God that you will true answers make to all questions which may be asked you in regard to the identity of the parties to the deed here shov^n to you." ; 1. See note 1, p. 120. 122 NOTAKIES AND COMMISSIONERS OF DeEDS. FOBM 21. ©ath Taken In the Presence of the Ever-Liying God When a Witness t» Identity of Subscribing Witnesses Swears: " You do swear in the presence of the ever-living God that you will true answers make to all questions which may he asked you in regard to the identity of the subscribing witnesses to the deed here shown to you." [The words in italics must be changed to suit the case.] To a person who declares lie has conscientious scruples against taking an oath, or swearing in any form, one of the following forms •of affirmation must be administered ■} FORM 22. Affirmation en the Taking an Affidavit: " You do solemnly, sincerely, and truly, declare and affirm that the •contents of this affidavit are known to you and that the said fact* are true to the best of your knowledge and belief." FORM 23. Affirmation on the Taking of a Deposition: " You do solemnly, sincerely, and truly, declare and affirm that the ■evidence you shall give relating to the matter in difference between John Doe, plaintiff, and Richard Roe, defendant, shall be the truth, the whole truth, and nothing but the truth." FORM 24. Affirmation When a Subscribing Witness Affirms: " You do solemnly, sincerely, and truly, declare and affirm that you will true answers make to all questions which may be asked you in re- gard to the parties to the deed here shown you, and the execution thereof." FORM 25. Affirmation When a Witness to Identity of Party Affirms: " You do solemnly, sincerely, and truly, declare and affirm that you •will true answers make to all questions which may be asked you in regard to the identity of the parties to the deed here shown to you." 1. See note 1, p. 120. Oaths. 123 FORM 26. Affirmation When a Witness to Identity of Subscribing Witnesses Affirms ; " You do solemnly, sincerely, and truly, declare and aflarm that you will true answers make to all questions which may be asked you in regard to the identity of the subscribing witnesses to the deed here shown to you." [The words in italics must be changed to suit the case.] If the person to be placed under oath informs the notary or com- missioner of deeds that he believes in a religion other than the Christian religion the officer may use the form of ceremony, if any, peculiar to his religion and which will be most binding on his con- science ; it may be breaking a saucer, blowing out a candle, burning josh sticks, or kissing the foot of a priest.^ If a statute lays down a particular form of oath in any special case that form should be followed or the action under the statute will be void.' The special forms for referees, arbitrators, commis- sioners, executors, etc., are set out in section 115. 2. 29 Cyc. Law & Proc, p. 1303. See § 108. 3. 29 Cyc. Law & Proc., p. 1304; Shattuck V. Bascom (1887), 105 N. Y. 45; Hinckley v. Cooper (1880), ■/2 Hun 253; In re Thompson (1911), 128 N. Y. S. 604; Con. Laws, High- way Law, § 194. " The prescribed certificate requires tlie assessors to certify that they have set down all the real estate situate in their town, and that, with certain specified exceptions, ' we have esti- mated the value of the said real es- tate, at the sums which a majority of the assessors have decided to be "the true value thereof, and at which they would appraise the same in the payment of a just debt due from a solvent debtor,' etc. ' And that, with the exception of those cases in which the value of the personal estate has heen sworn to by the owner or pos- sessor, we have estimated the same, ■according to our hest information and belief.' * * * The proceedings, therefore would be fatally defective. if no certificate had been annexed to the assessments; they are, if possible, worse, with the one furnished in this case. The assessors have taken the precaution to negative all presump- tion that they had done their duty, by certifying that they had estimated the real estate, not according to its value, ' but as they deemed proper,' and the personal, not ' according to their best information and belief, of its value,' but ' according to the usual way of asseFsing.' " Held, that the assessment roll was not complete un- til a certificate was made containing substantially the matters specified by the statute. Van Rensselaer v. Wit- beck (1852), 7 N. Y. 522; People v. Fowler (1873), 55 N. Y. 254; Bel- linger v. Gray (1873), 51 N. Y. 620; VVestfall V. Preston (1872), 49 N. Y. 355; In Shattuck v. Bascom (1887), 105 N. Y. 45, the word " hereof " was inserted instead of the words' " of proof " and it was held that the en- tire value of the oath was lost. 1 .,^1 124: NOTAEIES AND COMMISSIONERS OF DeEDS. When it is necessary to use an interpreter the officer should first administer an oath or affirmation to the person intending to act as interpreter. One of the following forms may be used : FOEM 27. Interpreter's Oath Taken on the Gospels on Taking an Affidarit of a Person : " You do solemnly swear that you are conversant with the PoUsh lan- guage and that you will true interpretation make of all statements mad© in the taking of this affidavit according to the best of your skill and un- derstanding, so help you God." FOEM 28. Interpreter's Oath Taken in the Presence of the Ever-Living God on the Taking of a Deposition: " You do swear in the presence of the ever-living God that you are conversant with the German language and that you will true interpreta- tion make of all statements made relating to the matter in difference between John Doe, plaintiff, and Richard. Roe, defendant, according to the best of your skill and understanding." FOEM 29. Interpreter's AfBrmation When a Person Proves a Deed. " You do solemnly, sincerely, and truly, declare and affirm that you ■are conversant with the Italian language and that you will true inter- pretation make of all statements made in the proving of the deed here shown you according to the best of your skill and understanding." [The words in italics must be changed to suit the case. It will be necessary for the officer to combine two of these forms at times, e. g., when he desires to administer an affirmation to an interpreter on taking an affidavit.] ' § 120. Fees for Administering an Oath or Affirmation. — For administering an oath or affirmation and certifying the same when ■I required, except where another fee is specially prescribed by stat- ute, a notary or commissioner of deeds is entitled, under the laws of If ew York, to twelve cents ; for swearing each witness in the proof of the execution of a written instrument, six cents.* For adminis- tering an official oath he is allowed ten cents.^ But an oath of 1. N. Y. Code of Civil Proc, § 3298. 2. Con. Laws, Public Officers Law, § 69. Oaths. 125 office to a member of the legislature, to any military officer, to an inspector of elections, clerk of the poll or to a town officer must be administered free of charge.' Under the Revised Statutes of the United States a notary public who is an officer, clerk or employee of any executive department of the United States shall not charge any fee for administering oaths of office to employees of such department required to be taken on appointment or promotion therein.^ By the same laws * a notary public is authorized to charge ten cents for each oath administered except oaths administered to witnesses as to their attendance and travel when a deposition is taken before the notary. ■A notary or commissioner of deeds may demand in advance his fee for taking an oath but must not charge or receive a greater im or reward for that service than is allowed by law.^ § 121. Oaths: Civil Liability of Notary or Commissioner of Deeds. — ^A notary or commissioner of deeds may demand in ad- vance his fee for taking an oath but must not charge or receive a greater fee or reward for that service than is allowed by law. An officer who violates either of these provisions is liable to an action in behalf of the person aggrieved, in which the plaintiff is entitled to treble damages and may also be punished under the criminal laws.^ A notary or commissioner of deeds is bound to administer an oath when requested if there is no valid legal reason why he should not. The word " may " in the statute. Section 842 of the Code of Civil Procedure, is equivalent to " shall." ^ § 122. Oaths: Criminal Liability of a Notary and Commis- sioner of Deeds. — The criminal laws to which a notary or com- missioner of deeds lays himself liable by an illegal use of his office are considered ii sections 48 to 51. 6. Con. Laws, Public Officers Law, 5. Con. Laws, Public Officers Law, § 69. § 67. 3. U. S. Rev. Stats., § 170, August 1. Con. Laws, Public Officers Law, 29, 1890, c. 820. See § 35. § 67. 4. U. S. Stats., May 29, 1896, chap. 2. Soe § 114, not© 1. 252, § 20, Supp. to Rev. Stats. U. S (1892-1901), p. 486. 126 NOTAEIES AND COMMISSIONEES OF DeEDS, § 123. False Oaths: Criminal Liability of Affiant or Affirm- ^^^- — ^Any person wlio wilfully and knowingly takes a false oath, on any occasion in whicli an oath is required by law or may law- fully be administered is guilty of perjury.' The term " oath " in- cludes not only an affirmation and every other mode of attesting the truth authorized by law but also an oath administered or taken in an irregular manner.^ And it would be no defense that the person was not competent to take the oath.' Likewise, an unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false.* 'A person, who wilfully procures or induces another to commit perjury, is guilty of subornation of perjury;^ and a person who without giving, offering or promising a bribe, incites or attempts to procure another to commit perjury, though no perjury is com- mitted is guilty of a misdemeanor.' These crimes may be committed by a person within the state ; or by a person who, being without the state, causes, procures, aids, or abets another to commit them within the state.' They may be proved directly, of course ; but proof that the person has testified, declared, deposed or certified under oath to the contrary thereof in any other written testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed shall presumptively establish the falsity of the statement.* Perjury committed before a notary or commissioner of deeds and subornation of perjury committed in connection with an oath taken before a notary or commissioner of deeds is punishable by impris- onment for a term not exceeding ten years.' An attempt to procure another to commit perjury, though no perjury is committed, is punishable by imprisonment in a penitentiary or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both.'" 1. Con. Laws, Penal Law, §§ 1620, Kane v. City of Brooklyn (1889), lU 1233; People v. Martin (1903), 175 N. Y. 591. N. Y. 316; People V. Clements (1887), 5. Con. Laws, Penal Law, § 1632. 107 N. Y. 208. 6. Con. Laws, Penal Law, § 813. 2. Con. Laws, Penal Law, §§ 1622, 7. Con. Laws, Penal Law, § 1930. 1621. 8. Con. Laws, Penal Law, § 1627. 3. Con. Laws, Penal Law, § 1623; 9. Con. Laws, Penal Law, §§ 1633, People V. Bowe (1885), 34 Hun 533. 1931. 4. Con. Laws, Penal Law, § 1626; lO. Con. Laws, Penal Law, §§ 1931, 1937. Oaths. 127 " But to make a valid oath, for the falsity of which perjury will lie, there must he in some form, in the presence of an officer author- ized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath.-"^ 11. People V. Nolte (1897), 44 N. 86 N. Y. 162; Bookman v. City of N. Y. S. 444; Walker v. Spencer (1881), Y. (1910), 200 N. Y. 56. 128 N^TAEIES AND CoMMISSIONEES OF . DeEDS. § 124. § 125. •S 126. :§ 127. § 128. S 129. § 130. ^ 131. § 132. I 133. ^ 134. § 135. § 136. § 137. § 138. § 139. ^ 140. § 141. § 142. § 143. I 144. § 145. I 146. § 147. § 148. § 149. S 150. f 151. I 152. CHAPTEK VII. Affidavits. Definition. Importance of Affidavits. Who May Make. The Oath. Notaries and Commissioners of Deeds May Take Affidavits. : A Ministerial Act; When Disqualified. : Disqualified When Attorneys of Record. : Delegation of Authority. Parts of an Affidavit. The Title. The Venue. The Date. Body. ■ SS." Signature. -: Special Statutes. Names. Seal of Affiant. The Jurat. : Prima Facie Evidence. : Forms. The Seal of the Notary or Commissioner of Deeds. Witnesses. Affidavits: Forms. Fees for Taking an Affidavit. Authentication by County Clerk or Secretary of State. Civil Liability of Notary or Commissioner of Deeds. Criminal Liability of a Notary or Commissioner of Deeds. False Affidavits: Criminal Liability of Affiant or Affirmant. § 124. Definition. — An aflSdavit is a voluntary ex parte state- ment, formally reduced to writing, and sworn to or affirmed before some officer authorized by law to take it.^ First, it must be volun- tary. If it were not voluntary it might come under the head of •depositions when the witness is compelled to attend and testify ; but 1. 1 Ency. of PI. & Pr., p. 309; JSf. of deeds de facto. SchiflF v. Leipziger Y. Code of Civil Proc, § 3298; Peo- Bank (1901), 65 App. Div. 33, holds ^le V. Sutherland (1880), 81 N. Y. 6. that an affidavit taken before a no- There is one defect in these deflni- tary de facto is not a nullity. See the -tions. They do not include affidavits topic, " Notaries De Faeto," §§ 62, 63. ■taken before a notary or commissioner Affibavits. 139 the word " affidavit " always carries with it the idea that it is vol- untarily sworn to.^ Secondly, it must be " ex parte." If it were not ex parte it would clearly be a deposition, for that marks the dif- ference between affidavits and depositions.^ Thirdly, it must be re- duced to writing. The law knows no such thing as an unwritten affidavit.* Fourthly, the written statement must be sworn to or af- firmed. The true test of the sufficiency of a paper as an affidavit is the possibility of assigning perjury on it if it is false.^ Fifthly, it must be sworn to or affirmed before some officer authorized by law to take it. Under the New York statutes notaries and commis- sioners of deeds are clearly such officers,^ although they would not have such power at common law.' The word " affidavit " includes a verified pleading in an action, or a verified petition or answer in a special proceeding.' § 125. Importance of Affidavits. — Many thousand affidavits are taken each year of which a great many would be found to be void if examined critically. The ease with which they may be amended when objected to naturally leads parties to pay very little attention to their validity. It is the exceptional case, one that is tried out in the courts on every possible point that can be raised which brings out the importance of having a legal affidavit, that is, one taken by an officer authorized to act and who does administer the oath according to law. In Produce Bank v. Baldwin the case turned on the validity of an assignment and the assignment was 2. Bacon v. Magee (1827), 7 Cow. after notice and the latter without 515; 1 Ency. of PI. & Pr., p. 309. notice: 1 Am. & Eng. Ency. of Law, "The law presumes that the per- 2d ed., p. 909; 1 Ency. of PI. & Pr., iormance of every act required by it pp. 309, 310. is voluntary, and no affidavit is valid 4. 1 Ency. of PI. & Pr., p. 310; Con. unless obtained by legal means and Laws, General Construction Law, § for a legal purpose;" Dudley v. Mc- 56. Cord, 65 Iowa, 671, 22 N. W. 920. An 5. 1 Ency. of PI. & Pr., p. 310; Peo- affidavit is also voluntary in the sense pie v. Sutherland (1880), 81 N. Y. 8. of not being made under cross-ex- 6. Con. Laws, Executive Law, § amination; Robb v. McDonald, 29 105; N. Y. Code of Civil Proc, § 842. Iowa, 330, 4 Am. Rep. 211. 7. Keefer v. Mason, 36 111. 406; 3. Ex parte means " on the part of State v. Green, 15 N. J. L. 88. one party." It seems that the differ- 8. N. Y. Code of Civil Proo., § 3343, ence between a deposition and an sub. 1 1 ; Con. Laws, General Construo- affidavit is that the former is made tion Laws, § 36. 130 NOTAEIES AND COMMISSIONERS OF DeEDS. teld void because the notary administered the oath in the city of New York, he being a notary of the city of Brooklyn who had never filed his certificate in the clerk's office in New York.^ § 126. Who May Make. — In determining whether a person can take an affidavit the first question is, Can he take an oath? This subject has been fully discussed under the subject of " Oaths," sections 108-123. Having decided that important point the next question is, Does he know the facts ? If he does not state the facts positively, as of his ovm knowledge, it will then be necessary to make the affidavit " on information and belief " and not only to state positively the belief of the affiant but also to set forth the grounds of his belief in detail that the court may determine the reasonableness or unreasonableness of his belief.-' In an affidavit made by an agent or attorney instead of by one of the parties to a case an explanation should be made why the plaintiff or defendant did not make it,^ and also, if it is stated positively, facts and cir- cumstances should be given from which it could be inferred that the attorney or agent had personal knowledge of the facts material to the making of the affidavit.^ What would be a sufficient reason for an agent or attorney, in- stead of a party, to make an affidavit would depend on the nature of the case. The sickness or absence of the party from the jurisdic- tion would generally be accepted. Time is often of great import- ance in deciding that question.* It may be noted that when a stat- 5. 49 How. Pr. 277 (1875). App. Div. 139; Nelson v. Baruch 1. Eolker v. Gonaalez (1898), 25 (1908), 60 Misc. 357; In re Vast- App. Div. 97; see § 137. binder (1903), 11 Am. Bank. Eep. 2. 2 Cyc. Law & Proc, p. 5; 1 118; Buhl v. Ball (1886), 41 Hun 61; Ency. of PI. & Pr., p. 327; N. Y. Oode Bates v. Pimstein (1885), 1 How. of Civil Proc, § 636 ; Gribbon v. Prac. Eep. N. S. 335 ; Murphy v. Ja,ck Ganss (1892), 18 N. Y. S. 608; In (1894), 142 N. Y. 215; Cribben v. ■re Levingston (1905), 13 Am. B. E. Schillinger (1883), 30 Hun 248; 357. Lampkin v. Douglass (1882), 10 Abb. 3. N. Y. Code of Civil Proc, § 525. N. C. 342 ; Shuler v. Birdsall Mfg. Eastham v. York Stafe Tel. Go. Co. (1897), 17 App. Div. 228; Wee- (1903), 86 App. Div. 562; Henry & hawken Wharf Co. v. Knick. Coal Co. Co. V. Talcott (1903), 89 App. Div. (1898), 24 Miss. 683. 77; Westinghouse v. Eemington 4. That the creditor himself was (1903), 89 App. Div. 126; Mutual merely "absent" from the city, or Iioan Ass'n v. Lesser No. 1 (1903), 81 county, or State, is hardly a sufficient ' Affidavits. 131 Tite prescribes a certain person to make an affidavit, no one else can make it.^ The courts have held that a partnership cannot make an affidavit in the firm name, though an affidavit signed "A and B, by B," has been held good as an affidavit of the agent.* Likevpise an affidavit beginning " I, A B, state, etc.," and signed "A B & Co., v^as held sufficient.' The proper forms, however, would be as follows : * FOEM 30 AffidaTit of Member of Partnership. "I, A B, do hereby certify that I am the senior member of the firm of A B & Co., the plaintiff in the above action, that * * * " In the case of a private corporation, an agent or officer duly au- thorized by the statutes to make oaths on behalf of the corporation, may make all affidavits.' In regard to a municipal corporation it will depend on the statutes and charters as to who can make affi- davits. In some a councilman, in others the mayor or city attorney may take the oath in behalf of the municipality.''^'' FOEM 31. AfBdarit of a Corporation. " I, John Doe, do hereby certify that I am treasurer for the Hudson Eealty Company, that I had full charge of the purchasing of rights of ■way for the Catskill Railroad Company and know personally all the facts in the matter concerning which the above-entitled suit is brought." It has been held that ah affidavit made by a party as " guardian " is his individual affidavit. ^^ Several persons may swear to and sign the same statement of facts in a single affidavit.-'^ reason why he should not swear to 5. 2 Cyc. Law & Proc, p. 5. the proof of claim. In re Reboulin 6. Norman v. Horn, 36 Mo. App. Fils. and Co. (1907), 19 A. B. E. 215. 419. " What are sufficient reasons for an 7. Fortenheim v. Clafin, 47 Ark. 49. agent's making the proof instead of 8. General Orders in Bankruptcy the creditor himself, are varied, as, XXI. for instance, that the creditor is sick 9. St. Louis E. R. Co. v. Fowler, or is travelling and could not have 113 Mo. 458; see note 3, p. 132. been reached in time after receipt of 10. Wheeling v. Black, 25 W. Va. the notice for him to have prepared 266. the claim for the first meeting of 11. Wade y. Roberts, 53 Ga. 26. j creditors and so forth." Remington 12. Taylor v. State, 48 Ala. 180. [ on Bankruptcy, § 614. _ 132 Notaries and Commissionees of Deeds. '" ' , i § 127. The Oath. — Before an affidavit has any value what- soever it must be sworn to or affirmed by the affiant.* Just what form must be gone through before the notary or commissioner of deeds can certify the instrument thereby making it an affidavit has been considered under the subject " Oaths," found under section, HI. , § 128. Notaries and Commissioners of Deeds May Take Affi- davits. — Affidavits may be taken by notaries ^ and likewise by commissioners of deeds appointed for some city within the State,^ or for some other state, territory or foreign country.^ As to when, la notary may take affidavits to be used in the courts of the United States or otherwise under the United States government, see the topic " Federal Statutes," under section 35. It may be well to add that a commissioner of deeds has no powers under the federal laws except those conferred expressly by statute. These powers are set out in section 89. § 129. Notaries and Commissioners of Deeds May Take Affi- davits : A Ministerial Act : When Disqualified. — The difference between an oath and an affidavit from the point of view of the dis- > SS ' County of New York. 5 FOBM J7. State of New York, , Borough of Brooklyn, I s». : County of Kings. J meaning " and another " and " and 9. Greneral Orders in Bankruptcy others." XXI. 8. N. Y. Code of Civil Proc., S 1. See note 1, p. 137. 1295; Olickman v. CTickman (1848), 1 N. Y. 611. Affidavits. 137 FORM 88. State of New York, County of Rensselaer, City of Troy. FORM 89. United States of America, "\ State of New Yorii, )-»».: County of New York, ( Southern District of New York. -^ In Form 36 it means that the notary or commissioner of deeds was in New York County, State of New York, when he adminis- tered the oath of the aflSdavit; in Form 37 that he was in the Borough of Brooklyn in the County of Kings and State of New York when he administered the oath, etc. The purpose of the T€nue -^ is to show where the affidavit was taken so that, when read in connection with the " jurat," the face of the affidavit will show that the officer was acting within his jurisdiction when he per- formed the official act. The venue shows where he was when the oath was administered ; the jurat should show where he has power to act; geographically the venue should be within the jurat.^ It can readily be seen that the venue is a very important part of an affidavit.' If a notary or commissioner of deeds is not within his. 1. The word "venue" was origi- How. Pr. Eep. 127; Snyder v. 01m- nally spelled " visne," which word sted (1846), 2 How. Pr. Rep. 181; came from the low Latin word "vis- Thompson v. Burhans (1874), 61 N> metum," meaning neigihborhood. In Y. 63; Rogers v. Pell (1898), 154 N> early days the jury was always Y. 529; People v. Canvassers of chosen from among the men of the Dutchess Co. (1892), 20 N. Y. Supp. neighborhood who knew all the facts 329; Lane v. Morse (1852), 6 How. of the case, just the opposite of our Pr. 394. present theory of choosing a jury. 3. Cook v. Staats (1854), 18 Barb. The venue showed the county in which 408; Clement v. Fernback (1877), 1 the facts were alleged to have oc- City Ct. Rep. 57; People v. De Camp curred; Bouv. Law Diet. (Rawle's (1877), 12 Hun 879; Frees v. Blyth Rev.), tit. "Venue." (1904), 99 App. Div. 541; Saril v. 2. Robinson v. Cooper ("1909), €2 Payne (1889), 4 N. Y. Supp. 897; Misc. 518; Shaw v. N. Y. C. & H. R. McManus v. Western Assur. Co. R. R. Co. (1905), 91 N. Y. S. 746; (1898), 48 N. Y. Supp. 820; Smith v. Davis V. Rich (1846), 2 How. Pr. Rep. Collier (1886), 3 St. Rep. 172; Bar- 86; Sandland v. Adams (1846), 2 nard v. Darling (1845), 1 Barb. Ch. 138 NOTAEIES AND COMMISSIONEES OF DeEDS. jurisdiction when lie attempts to take an affidavit his act is a! nullity.* If the instrument does not show he had the power to act it will be a nullity prima facie, although in some cases a party would be allowed to show that his act was done within his juris- diction.^ If it can be shown from the body of the affidavit where the oath was taken although no venue is attached probably it would not be held a nullity.* But this would not be possible in many cases ; therefore the notary or commissioner of deeds should make sure a venue appears showing that the oath was administered within his jurisdiction. When an affidavit is taken in a county in which the officer does not reside, he should place the venue in the county in which he is at the time of the administration of the oath.' When the affidavit is taken before a notary to be used in the United States courts the venue should be : ' FOBM 40. United States of America, State of New York, County of New York, Soutliern District of New York. FORM 41. United States of America, v State of New York, I ss.: County of Albany, | Northern District of New York. J § 135. Parts of an Affidavit: The Venue: "ss." — ^^A part of the venue which everyone seems to remember without any effort ■218; Babcock v. Kuntzscli (1895), 32 cock v. Kuntzsch (1895), 85 Hun 34; N. Y. Supp. 587; Lamkin v. Oppen- Fisiier v. Bloomberg (1902), 74 App. heim (1895), 33 N. Y. Supp. 367; Div. 368; Smith v. Collier (1886), 3 Thompson v. Burnhana (1874), 61 N. N. Y. St. Rep. 172. Y. 63; Lane v. Morse (1852), 6 How. 6. People v. De Camp (1877), 12 Pr. 394; Vincent v. People (1860), 5 Hun 379; MoM'anus v. Western As- Park. Grim. Rep. 88; Brooks v. Hunt surance Co. (1898), 22 Misc. 277. (1805), 3 Caines (N. Y.) 128 7. As to notary's poiwer to act in 4. Schiflt V. Leipziger Bank (1901), more than one county, see § 31. 85 App. Div. 35. 8. Sterrick v. Pugsley, 22 Fed. 5. Shaw V. N. Y. C. & H. R. R. R. Cases No. 13,379 and U. S. Rev. Stats., ■Co. (1905), 101 App. Div. 247; Bab- § 863, Aug. 15, 1876, c. 304. Affidavits. 139 is the " ss." The question is often asked, What do the two letters " ss " mean? The authorities say that " ss " is the abbreviation of the Latin word " scilicet " (for scire licet — it is granted to know) and means, " to wit," " namely," " that is to say." How the second " s " became attached to the first " s," which is undoubtedly the first letter of " scire," seems to be a question. One writer says that in old manuscripts and books the abbreviation for " et " (like the " et " in licet) closely resembled a " z." We have an example of that in " viz.," which is the same as " viet," which is the abbreviation for " videlicet." " Videlicet " now means the same as " scilicet." How the " z " changed into an " s " we do not know, unless the sounds of the two letters being alike had some- thing to do with it.^ There have been cases when the " ss " was omitted and that fact used as an argument that therefore the affidavit was a nullity. The courts of this state have held that the omission of the letters " ss " from the venue is immaterial.^ It is good practice to use it, however. § 136. Parts of an Affidavit: Date. — While a date is not an essential part of an affidavit the notary or commissioner of deeds should see that the affidavit is dated.^ If no date is given in the body the jurat shoxild at least be dated. It is his duty to see that the affidavit is in good form ; that would call for a date. § 137. Parts of an Affidavit: Body. — The body of the affi- davit consists of the statements to which the affiant desires to make oath. The following are forms often used in introducing the body of the affidavit : 1. An Etymological Dictionary of sex to wit,' or ' City of Bristol and the English Language (2d ed.), by county of the same city to wit.'" Skeat; The Americana, vol. 1, tit. Chitty on Pleading, p. 288. "Abbreviations;'' Stanford Dictionary 2. Jones v. Hoyt (1895), 8.5 Hun of Anglicized Words and Phrases; 35; Babcock v. Kuntzach (1895), 32 Century Dictionary and Cyclopedia. N. Y. S. 587. In the case of Barry v. Crowley The courts of Utah have likewise (1846), i Gill (Md.) 194, we find the held that it is immaterial: McCord abbreviation " set " instead of " ss." Mercantile Co. v. Glenn, 6 Utah 139, " The venue is thus stated in the 21 Pac. 50#. margin of the declaration, ' Middle- 3. Freas v. Jones, 15 N. J. L. 20. 140 Notaries and Oommissionebs of Deeds. FORM 42. "Richard Roe, of the City of Buffalo, County of Erie, and State of New- York, being duly sworn on his oath, deposes and says: that he is the defendant in the above-entitled action; that he has reason to believe and does believe that he cannot have a fair and impartial trial before the justice before whom this action is brought, etc." In the above introduction it will be noticed that the case is not set out, but merely referred to; a title would be absolutely necessary. FORM 48. " Richard Roe, being duly sworn on his oath deposes and says, that he is a resident of the city of Buffalo, county of Erie and State of New Fork, that for the past five years he has been a resident of the said city, county and state; that he is of the age of twenty-one years; that he is the plaintiff in the action now pending in the supreme court of Erie county. State of New York, in which John Stiles is the defendant; that he makes this affidavit for the purpose of procuring a writ of attachment in said action in the manner provided by law, etc." In the above introduction the case is set out so that it designates the action in which it is to be used though not headed by a title of the cause. Another introduction of the body setting forth the date and place is as follows: FOBiM 44. " Richard Roe personally appears before me, John Doe, a notary pub- lic, in and for the County of Onondaga, State of New York, residing at Syracuse, and now on the 28th day of December, 1911, at 9 o'clock A. M. of said day, in my office, 304 Security Bldg., in said city of Syracuse, County of Onondaga and State of New York, being by me duly sworn on his oath, doth depose and say that he is a resident of the city of Kings- ton, County of Ulster and State of New York; that." The notary or commissioner of deeds should be sure that the aflSant's name is found in the body of the affidavit; it makes the value of the affidavit more certain notwithstanding the fact that the omission of the name may be supplied by the affidavit being Affidavits. I'il subscribed.^ And wben it is material that the affidavit show the residence of the affiant it should be stated in such words that there could be no question raised. For example : ^ rOKM 45. " Richard Roe, being duly sworn on his oath, doth depose and say that he is now a resident of the city of Albany, State of New York, and has been a resident of the said city for the past ten years, etc." Likewise, when the affidavit is required to be made by a certain person, as, e. g., " by the attorney," the affidavit must expressly state that fact, as e. g., " that the deponent is the attorney, etc." The fact that he was the attorney is not sufficient.' The body of the affidavit should be composed of clear, concise, positive statements of those facts which the affiant desires to swear to ; it should not be worded that it might be construed in two ways ; the language should be so clear that there could be no mistake as to what facts the affiant means to take an oath to.* An affidavit should state facts and not conclusions ; the court draws the conclu- sions from the facts set before it.^ If the facts are not within the personal knowledge of the affiant they should be set out in the form " on information and belief." But in such a case, other than the verification to a pleading ' mad© by a party, it is essential that the information should appear to be competently derived; the nature, quality and sources thereof must be disclosed in such a way as to enable the court to decide upon the probable truth of the statements, whether the belief is ■well founded or not, and the authenticity of the jurisdictional 1. People V. Sutherland (1880), 81 (1891), 17 N. Y. S. 24; Matter of N. Y. 8; O'Connell v. Sutherland McLean (1891), 16 N. Y. S. 417; (1862), 16 Abb. Pr. 460; Morrison v. Simmons v. Craig (1893), 137 N. Y. Watson (1885), 23 Wk. Dig. 286. 550; Jamison v. Bcecher (1857), 4 2. Staples v. Fairchild (1849), 3 Abb. Pr. Rep. 230. N. Y. 41; Payne v. Young (1853), 8 5. Miller v. Oppenheimer (1887), N. Y. 158; People v. Cady (1887), 2 City Ct. 408; McCuUoch v. Aeby & 105 N. Y. 307. Co. (1890), 9 N. Y. Supp. 361; Town 3. Ex parte Shumway (1847), 4 of Duanesburgh v. Jenkins (1863), Den. 258. 40 Barb. 574. 4. In re Vastbinder (1903), 11 A. 6. N. Y. Code of Civil Proc, § 526; B. R. 119; People v. Becker (1859), Henry v. Brooklyn Heights R. R. Co. 20 N. Y. 354; In re Guess (1896), 38 (1904), 43 Misc. 589. N. Y. S. 91; Simmons v. Craig 142 ISTOTAEIES AND CoMMISSIONEES OF DeEDS. facts.'^ The only way this can be done is to set forth in full in the affidavit, all letters, telegrams, depositions, conversations, etyork J. D. is a resident of the /" State of Newj^^w*^ and intends to remain a resident of the United States; that he has declared his intention >the Uaited States J. D. to become a citizen "ofl WiiW Yo r k pursuant to the laws of the United States and will become a citizen thereof as soon as he can under the said laws. JOET:i DOE. Sworn to before me this 20*?!. day of July, 1911, the words " United States and of the," "York," and "the United States" having been interlined before signature. RICHARD ROB, Notary Public, Ulster County. [The words in italics must be changed to suit the case. For explanation of corrections see page 142.] FOBM 62. Proof of Unsecured Debt in Bankruptcy. In the District Court of the United States for the Northern District of New York. In the Matter of John Doe, Bankrupt. In Bankrupt«7. United States of America, .^ State of New York, 1 tforthern District of New York, r* •• County of Albany. J At Albany, in the said northern district of New York, on the SOth day of July, A. D. 1911, came Henry Jones of the City of Albany, in the County of Albany in said district of 'Northern New York, and made oath, and says that John Doe, the person against whom a petition for adjudication of bank- ruptcy has been filed, was at and before the filing of said petition and still is, justly and truly indebted to said deponent in the sum of One ThousanO, dollars; that the consideration of the said debt is as follows: goods, wares Affidavits. 157 and merchandise; that no part of said debt has been paid except the sum of One hundred dollars; that there are no set-offs or counterclaims to the same; and that deponent has not, nor has any person by his order, or to his knowledge or belief, for his use, had or received any manner of security for said sum whatsoever. BENBY JONES, Creditor. Subscribed and sworn to before me this 20th day of July, 1911. JOHN STILES, Notary Public, Albany County. ; £The words in italics must be changed to suit the case.] FORM 63. Proof of a Secured Debt In Bankruptcy. In the District Court of the United States for the Northern District ol New York. In the Matter of John Doe, Bankrupt. In Bankruptcy. United States of Axaerica, ^ State of New York, ' I „ Northern District of New York, I County of Albany. J At Albany, in said Northern District of New York, on the 20th day of July, A. D. 1911, came Henry Jones, of the City of Albany and County of Albany, in the said Northern district of New York, and made oath, and says that John Doe, the person by whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to said deponent, in the sum of one thousand dol- lars; that the consideration of said debt is as follows: one printing press; that no part of said debt has been paid; that there are no set-offs or counter- claims to the same; and that the only securities held by the deponent for said debt are the following: a, chattel mortgage which covers all the per- sonalty in the printing house of the said bankrupt the value of which is uncertain. EENRY JONES, Creditor. Subscribed and sworn to before me, this 20th day of July, 1911. JOHN STTLES, Notary Public, Albany County. [The words in italics must be changed to suit the case.] 158 Notaries and Commissionbes of Deeds. § 148. Fees for Taking an Affidavit. — For taking an affidavit except where another fee is prescribed by statute a notary or com- missioner of deeds is entitled under the laws of New York to twelve cents.-' By the United States statute a notary is allowed to charge ten cents for certifying an aiSdavit.^ A notary or com- missioner of deeds may demand in advance his fee for taking an affidavit but must not charge or receive a greater fee or reward for that service than is allowed by law.^ § 149. Affidavit: Authentication by County Clerk or Secre- tary of State. — In preparing an affidavit to be used in some sister state the certificate of the notary or commissioner should be au- thenticated by a certificate of a county clerk and, if the affidavit is to go to some foreign country, the county clerk's certificate should be authenticated by the certificate of the consul or represen- tative of the country to which it is to go.* An illustration of such authentication will be found on page 38. An affidavit taken by a commissioner of deeds of New York residing in some sister state or foreign country must be authenticated by the Secretary of State of New York.^ It would seem that the affidavit to a proof of debt taken before a notary public of New York to be used in some sister state in a court of bankruptcy need not be accompanied with a' certificate of authentication. In the first instance the notary's sig- nature and seal would be sufficient.' It was held in a late case that an affidavit that a summons was served must be sworn to before an officer authorized to take affi- davits in New York county to support a default judgment in an action in the Municipal Court, Borough of Manhattan.' § 150. Affidavits: Civil Liability of Notary or Commissioner of Deeds. — This topic is treated under Section 121, "Oaths: Civil 1. N. y. Code of Civil Proc, § 3298. Squire (1893), 21 N. Y. S. 972; God- 2. U. S. Stats. May 28, 1896, ch. dard v. Schmoll (1898), 53 N. Y. S. 252, § 20. Supp. to Eev. Stats. (1892- 402; Con. Laws, Executive Law, § 108; 1901), p. 486. Real Property Law, §§ 299, 300, 301- 3. See § 121. N. Y. Code of Civil Proc, § 956. 4. Manheimer v. Dosh (1901), 74 6. In re Pancoast (1904), 12 A. B. N. Y. S. 922; Spencer v. Ft. Orange E. 275, 129 Fed. Rep. 643; Collier on Paper Company (1902), 74 App. Div. Bankruptcy, 8th ed. (1910), p. 371. 74; Carr v. Prudential Ins. Co. 7. Melville v. McAvoy (1912), 132 (1906), 115 App. Div. 760. N. Y. S. 764. 5. Cream City Furniture Co. v. Affidavits. 159' Liability of Notary or Commissioner of Deeds." The statute* and cases apply likewise to affidavits. § 151. Affidavits: Criminal Liability of a Notary or Commis- sioner of Deeds. — The criminal laws to which a notary or com- missioner of deeds lays himself liable by an illegal use of his office are considered in sections 48 to 51. § 152. False Affidavits: Criminal Liability of Affiant or Af- firmant. — The making of a false affidavit is the same in effect as the making of a false oath from the point of view of the pun- ishment therefor. This topic is treated under section 123, " False Oaths ; Criminal Liability of Affiant or Affirmant." When an affi- davit is delivered by the affiant to any other person with intent that it be uttered or published as true it is deemed to be complete under the criminal statutes.^ A person who falsely personates another, and, in such assumed character subscribes, verifies, pub- lishes, acknowledges, or proves a written instrument, which by law- may be recorded, with the intent tiiat the same may be delivered or used as true is punishable by imprisonment in a state prison, for not more than ten years.^ 1. Con. Laws, Penal Law, § 1625. 2. Con. Laws, Penal Law, § 928. 160 NOTAEIES AND COMMISSIONEES OF DeEDS. CHAPTER VIII. Acknowledgment and Peoof. 5 153. Object of Acknowledgment and Proof. § 154. Importance of Acknowledgment and Proof. S 155. Definitions. § 156. What May be Acknowledged or Proved. I 157. Nature of the Act of Taking an Acknowledgment or Proof. 5 158. Notary Public and Commissioner of Deeds May Take Acknowledg- ment or Proof: New York Statutes. § 159. : When Disqualified. § 160. : Jurisdiction. § 161. Who May Make Acknowledgment: In General: Agent or Attor- ney: Minor: Idiot: Insane Person: Intoxicated Person: Partner- ship: Corporation. § 162. : Aliens. § 163. : Women. § 164. : Age of Grantor. § 165. : Signature of Grantor: Seal of Grantor: Witnesses. § 166. Who May Make Proof. § 167. Time of Taking Acknowledgment or Proof § 168. Acknowledgment: How Taken: In General. § 169. I 170. § 171. Identity. Explanation of Instrument, Unequivocal Acknowledgment. § 172. Proof: How Taken. § 173. Certificate of Acknowledgment: Contents of Certificate. § 174. : Forms. § 175. Certificate of Proof: Contents of Certificate. S 176. : Forms. § 177. Certificate of Acknowledgment or Proof: By Whom Written: Time of Writing: Position of Certificate. § 178. : Venue: "SS:" Date. § 179. : Signature of Officer: Official Designation: Seal Of OiRcer. § 180. Delivery of an Instrument. § 181. : Delivery in Escrow. § 182. Miscellaneous Acknowledgments or Proofs: Recognizance of Bail: Surrogate's Court: Arbitration and Award: Subpoenas, Etc. § 183. Forms of Conveyances and Mortgages: Short Forms. 5 184. Explanations of Short Forms of Conveyances and Mortgages, Etc. § 185. Power to Transfer: Special Statutes. i 186. Certificate of Authenticity and Conformity. Acknowledgment and Proof. 161 i 187. Amendment of Certificate of Acknowledgment or Proof. 5 188. Certificate of Acknowledgment or P^of: Evidence. 5 189. Recording Laws. § 190. Acknowledgments and Proofs: Civil Liability of Notary or Com- missioner of Deeds. 5 191. : Criminal Liability of a Notary or Commissioner of Deeds. § 192. : Miscellaneous Acts: Criminal Liability. § 193. Compelling Witness to Prove Conveyance. S 194. : Forms: Petition: Subpoena: Aflidavit of Service: Warrant to Arrest: Warrant to Commit to Jail. ^ 195. Powers of Attorney. § 153- Object of Acknowledgment and Proof.^ — The object of all the laws on acknowledgments and proof is to place a protection around deeds or other important instruments from the point of view of the purchaser; to make it more certain that the person named in a deed or instrument intended to transfer the property or right; and to prevent frauds in conveyancing.^ This is accom- plished by compelling the grantor to appear before a public officer and there to state that he is the grantor in the instrument and that he means to transfer the right set forth in the instrument; or, if this is not done, by demanding the oath of a witness to the execution of the instrument. This is called " proof." By demand- ing that all deeds and certain other instruments be acknowledged or proved before certain public officers before they can be placed on record at the county or state offices it makes acknowledgment or proof obligatory, as such instruments are not fully effective until recorded. Before a person can acknowledge his signature or a wit- ness can prove the execution of an instrument he must find some public officer with whom he is personally acquainted, and that is a further protection. In some states an instrument is not effective until acknowledged or proved although completed in every other respect.' But in New York and in fact most of the states, it is valid between the parties 1. The word "acknowledgment" ia Z. Armstrong v. Combs (1897), 44 sometimes used in such a general N. Y. S. 173; Albany Co. Savings sense that it includes "proof." An Bank v. McCarty (1896), 149 N. Y. instrument may be either acknowl- 83. edged or proved; both are not neces- 3. 1 Am. & Eng. Ency. Law & Pr., sary. Boyd v. Boyd (1897), 21 App. 2d ed., p. 824. Div. 364. 162 Notaries and Commissioners of Deeds. "thougli not acknowledged or proved/ In New York, however, i£ not acknowledged before delivery nor attested by at least one wit- ness, it does not take effect as against a subsequent purchaser or incumbrancer until acknowledged and is void against any sub- sequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, whose conveyance is first duly recorded/ In other words the acknowledgment or proof is not part of the deed^ but a purchaser is not fully protected unless his deed is acknowledged or proved and afterwards recorded. As a general rule, the two powers which accompany acknowledg- ment or proof are : first, to entitle the instrument to registration ; and, secondly, to render the instrument admissible as evidence.^ The practice of acknowledging or proving instruments is a creation, of modem statutes; it was unknown to the common law/ An agreement to convey need not be acknowledged or proved,' but if acknowledged or proved in the manner to entitle a conveyance to be recorded may be recorded by the recording officer of any county in which any of the real property to which it relates is situated/ § 154. Importance of Acknowledgment and Proof. — The im- portance of acknowledgment and proof is not generally appreciated, by reason of the fact that although a great number are taken each year but very few ever come before the courts for adjudication. Once in a while a case turns on the question of the validity of an acknowledgment or a proof, however, and it is then appreciated how important it is that the rules of law should be carefully fol- lowed. The case of In re High Falls Sulphite Pulp and Mining Co., decided in 1897, is a striking example of the importance of the acknowledgment.^ In that case an assignment was made which 3. See page 161, note 3. 6. Giould v. Howe, 131 111. 490, 23 4. Con. Laws, Real Property Law, N. E. 602. §§ 242, 243, 274, 291; Fryer v. Eocke- 7. Conv Laws, Real Property Law, feller (1875), 63 N. Y. 274. § 259. 5. 1 Am. & Eng. Ency. of Law & 8. Oon. Laws, Real Property Law, Prac, p. 826. Chief Justice Marshall § 294. said in Sicard v. Davis, 6 Pet. (U. S.) 1. In re High Falls Sulphite Pulp 124: "The acknowledgment or the and Mining Co. (1897), 47 N. Y. S. proof which may authorize the admis- 6; Lemmer v. Morison (1895), 89 sion of the deed to record, and the re- Hun 279; Albany Co. Savings Bank v. cording thereof, are provisions which McOarty (1896), 149 N. Y. 82. the law makes for the security of creditors and purchasers." Acknowledgment and Peoof. 163 "was regular in form, and perfect in execution, delivery and pos- session by the assignee except that the acknowledgment was not in proper form. A new acknowledgment in good form was made, but in the meantime creditors had issued attachments and the ques- tion arose whether the title of the assignee dated from the first acknowledgment or from the second acknowledgment and after the creditors' rights had attached. The court held the title of the assignee dated from the second acknowledgment. , § 155. Definitions. — An acknowledgment is a formal declara- tion or admission before an authorized court or public officer, by a person who has executed an instrument, that such instrument is his act and deed.^ The Keal Property Law says " an officer tak- ing the acknowledgment or proof of a conveyance must endorse thereupon or attach thereto, a certificate, signed by himself, stat- ing all the matters required to be done, known, or proved on the taking of such acknowledg-ment or proof; together with the name and substance of the testimony of each witness examined before; him, and if a subscribing witness, his place of residence." ^ And Mr. Justice Vann in the case of Rogers v. Pell ' held that an in- strument was not " duly acknowledged " unless there was not only the oral acknowledgment but the written certificate also. He said : " The word as commonly used by the legislature, the courts, and the bar, means both the act and the written evidence thereof made by the officer." The terms " acknowledge " and " acknowledgment " when used with reference to the execution of any instrument, whether a deed of real property or not, include a compliance with the provisions governing conveyances of real property.* A proof is the formal declaration before an authorized court or public officer by a person who was a witness to the execution of an instrument that he saw the grantor therein sign and deliver the same and that said witness, thereupon subscribed his name thereto as a witness. An instrument would not be proved until the certificate is attached.' 1. Am. & Eng. Ency. of Law & 3. Rogers v. Pell (1898), 154 N. Y. Prae., p. 820. 518, 49 N. E. 75. 2. Con. Laws, Keal Property Law, 4. Con. Laws, General Construction § 306. Law, §§ 10, 11. 5. Boyd V. Boyd (1897), 21 App. Div. 364. 164 Notaries and Commissioners of Deeds. § 156. What May Be Acknowledged or Proved. — Any instru- ment, except a promissory note, a bill of exchainge, or a last will, may be acknowledged, or proved, and certified; and thereupon it is evidence, as if it was a conveyance of real property.^ A con- veyance of real property may be acknowledged or proved and when duly acknowledged or proved may be recorded in the office of the county clerk or register where such real property is situated.^ And every conveyance, assignment, or other transfer of, and every mortgage or other charge upon the interest, or any part thereof, of any person in the estate of a decedent which is situated within fhis state, may be acknowledged or proved and recorded.' An. executory contract for the sale or purchase of real property, or an instrument containing a power to convey real property, as the agent or attorney for the owner of the property, may be acknowl- edged or proved and recorded.* The word " conveyance " includes every written instrument by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument postponing or subordinating a mortgage lien ; except a will, a lease for a term not exceeding three years, an executory contract for the sale and purchase of lands, and an instrument containing a pov/er to convey real property as the agent or attorney for the -owner of such property.^ § 157. Nature of the Act of Taking an Acknowledgment or Proof. — By the great weight of authority the taking of an ac- knowledgment is held to be a ministerial act, though in jN'ew Jer^ sey, Mississippi, ISTorth iCarolina, Texas, Virginia, and in a few 1. N. Y. Code of Civil Proc, § 937. 3. Con. Laws, Real Property Law, Acknowledgment of a contract to ex- § 274. change personalty for realty is not 4. Con. Laws, Real Property Law, essential to its validity, since the ac- § 294. knowledgment relates merely to the 5. Con. Laws, Real Property Law, proof of execution. Morton v. Witte §§ 290, 240; Trustees v. McKechnie (1911), 131 N. Y. S. 777. (1882), 90 N. Y. 6fi9; Goodhue v. 2. Con. Laws, Real Property Law, Cameron (19U), 127 N. Y. S. 120. % 291. Acknowledgment and Peoof. 165 other states it is held to be a judicial act.^ In ISTew York the Court of lA-ppeals has held that it is merely ministerial in its nature. This question is discussed and the New York cases referred to under the topic, " Nature of the Office : A Judicial and Ministerial Office," section 12. Whether taking the proof of the execution of an instrument is different from taking the acknowledgment and, also, whether it is judicial or ministerial have never been settled by any case. § 158. Notary Public and Commissioner of Deeds May Take Acknowledgment or Proof: New York Statutes. — By section 298 of the Real Property Law the acknowledgment or proof of a conveyance of real property within the state to entitle it to be recorded may be made before a notary public or a commissioner of deeds. Likewise by section 11 of the General Construction Law a notary or a commissioner of deeds may take the acknowledg- ment or proof of any instrument or writing authorized or required by law to be acknowledged or to be proven so ais to entitle it to be filed or recorded in a public office.^ And by section 106 of the Executive Law commissioners of deeds both within and without the state have power to take proof and acknowledgment of all writ- ten instruments. By sections 299, 300 and 301 of the Eeal Prop- erty Law the acknowledgment or proof of a conveyance of real property may be made without the state but within the United States, in Porto Eico, the Philippine Islands, Cuba, or in any other place over which the United States of America at the time has or exercises sovereignty, control, or a protectorate, or in some 1. 1 Am. & Eng. Ency. of Law & gee, 57 Miss. 410; Greenleaf -Johnson Prac, p. 868; Woodland Bank v. Lumber Co. v. Leonard, 145 N. C. 339, Oberhaus, 125 Cal. 320, 57 Pac. 1070; 50 S. E. 134; Nicholson v. Gloucester People V. Battels, 138 111. 322, 27 N. Charity School, 93 Va. 101, 24 S. E. E. 1091; Commonwealth v. Johnson, 899. 123 Ky. 437, 124 Am. St. Rep. 368, 2. See also N. Y. Code of Civil 96 S. W. 801, 13 Ann. Cas. 716; Bar- Proc., § 937. A police magistrate of nard v. Schuler, 100 Minn. 289, 110 the City of New York cannot take an N. W. 966; Keene Guaranty Savings acknowledgment of conveyances of Bank v. Lawrence, 32 Wash. 577, 73 real estate to entitle them to be re- Pac. 680; Riddle v. Keller, 61 N. J. corded: Tully v. L«witz (1906), 98 E. 513, 48 Atl. 818; Harmon v. Ma- N. Y. S. 829. 16'6 Notaries and Commissioneks of Deeds. foreign country before a commissioner appointed for the purpose by the governor and acting within his jurisdiction.^ A notary may take the acknowledgment of a letter of attorney to represent a creditor, or of an assignment of claim after proof in bankruptcy.^ § 159. Notary Public and Commissioner of Deeds May Take Acknowledgment or Proof: When Disqualified. — The disquali- fication of a public oflBcer to take the acknowledgment of a person by reason of his interest in the matter or relationship to the parties has been discussed and the ISTew York cases referred to under sec- tion 4:1. There is one case of proof of the execution of a convey- ance which cannot be taken by a notary or commissioner of deeds ; that is when the witnesses to a conveyance are dead. In that case the proof may be made by showing the death of all the witnesses, and proving the handwriting of the witnesses and the grantor but the proof must be made before an " officer authorized to take within the state, the acknowledgment and proof of conveyances, other than a commissioner of deeds, a notary public, or a justice of the peace." * § 160. Notary Public and Commissioner of Deeds May Take Acknowledgments or Proofs: Jurisdiction. — A notary may take an acknowledgment or proof in the county for which he was ap- pointed and also in any other county in which he has filed his auto- graph signature and a certificate of the county clerk of the county for which he was appointed.^ A commissioner of deeds may take an acknowledgment or proof anywhere within the district for which he was appointed — ^within the city, if he is a commissioner of deeds within the state ; or within the city, county, municipality or other political subdivision, if he was appointed for any other state, territory, dependency or foreign country.* 2. It is presumed that the word 4. Con. Laws, Real Property Law, "acknowledgment" in the last para- § 314. graph of Oon. Laws, Eeal Property 5. Con. Laws, Real Property Law, Law, § 300, includes " proof." § 298 ; Executive Law, § 102. 3. General Orders in Bankruptcy 6. Con. Laws, Real Property Law, XXI; In re Roy (1910), 26 A. B. E. § 298; Executive Law, §§ 106, 108. 4. Acknowledgment and Proof. 167 'As commissioners of deeds of the city of New York do not come under the same law as to appointment, etc., as those of the balance of the state it is necessary to add that commissioners of deeds of New York City may take acknowledgments in any part of the city/ § i6i. Who May Make Acknowledgment: In General: Agent or Attorney: Minor: Idiot: Insane Person: Intoxicated Per- son: Partnership: Corporation. — The proper and only persons to acknowledge the execution of an instrument are, of course, the persons who execute it.^ Any other acknowledgment, except by a lawfully authorized agent, is of no effect.^ If there are several grantors each should acknowledge his signature.^ An acknowledg- ment may be made by a duly authorized agent or attorney ; * but when so made the certificate must show that it was made on behalf of the principal.^ There should be a recital in the certificate to the effect that he is the duly authorized agent; the proof of the agent's authority need not be stated in the certificate.^ It is cus- tomary, however, to refer to the power of attorney giving the date of the same and where and when it was recorded if it has been recorded. In the late case of Goodhue v. Cameron it was held that the ofiicer need not certify that he knew that the attorney was the attorney or that the power of attorney was exhibited and known to him.' Any person other than a minor, an idiot, or person of unsound mind, seized of or entitled to an estate or interest in real prop- erty, may transfer such estate or interest.^ This right incidentally carries with it the right to acknowledge the conveyance. A minor 8. Con. Laws, Executive Law, § is implied from a power of attorney 106; Charter of Greater New York, to execute the instrument: Robin- § 58. son v. Mauldin, 11 Ala. 977. 1. Con. Laws, Real Property Law, 5. Con. Laws, Real Property Law, I 292. § 243; Campbell v. Hough, 73 N. J. 2. Con. Laws, Real Property Law, Eq. 601, 68 Atl 759. § 242; 1 Am. & Eng. Ency. of Law & 6. 1 Am. & Eng. Ency. of Law & Prac., p. 848. Prac, p. 967; Goodhue v. Cameron 3. 1 Am. & Eng. Ency. of Law & (1911), 127 N. Y. S. 120. Prae., pp. 848, 849. 7. Con. Laws, Real Property Law, 4. 1 Am. & Eng. Ency. of Law & § 11. Prac, p. 966. Power to acknowledge 16'8 NOTAEIES AND CoMMISSIONEES OF DeEDS, is a person under the age of twenty-one years.* An acknowledg- ment may be made by an infant, but that will not prevent him from revoking the transfer ; ^ the acknowledgment by an infant, in open court, of a deed executed by him does not render it irrevocable.'* An acknowledgment by an insane person could be set aside upon showing that fact ; '^ likewise the acknowledgment of an intoxicated person if the degree of intoxication were such that he was deprived of his understanding.'^ A notary or commissioner of deeds should refuse to take the acknowledgment of a person so intoxicated that his condition is apparent. Ordinarily, an instrument running in the name of a partnership and signed with tbe firm name may be acknowledged by any one of the partners.'' The acknowledgment of a corporation may be made by any officer thereof authorized by the board of directors of the corporation to execute the acknowledgment." § 162. Who May Make Acknowledgments: Aliens. — Any cit- izen of a state or nation which, by' its laws, confers similar privi- leges on citizens of the United States, may take, acquire, hold and convey lands or real estate within this state, in the same manner and with like effect as if such person were, at the time, a citizen of the United States.' And a citizen of a state or nation the laws of which do not confer such privileges on citizens of the United States may declare his intention to become a citizen of the United States ^ and thereupon after filing a deposition of his intention to become a citizen of the United 'States may take, hold, convey and devise real property for a term of six years.^ Any woman bom a citizen of the United States, who shall have married or shall marry an alien, and the foreign-bom children and descendants of any such woman, shall, notwithstanding her 8. Con. Laws, Domeatic Relations 26 A. B. R. 4; Klumpp v. Gardner Xaw, § 2. (1889), 114 N. Y. 160. 9. 22 Cyc. Law & Proc, p. 531. 14. Con. Laws, Real Prop. Law, 10. Slaughter v. Cunningham, 24 § 309. See § 158. Ala. 260, 60 Am. Dec. 463. 1. Con. Laws, Real Prop. Law, § 11. 22 Cyc. Law & Proc, p. 1171. 10. 12. 14 Cyc. Law & Proc, p. 1103. 2. Con. Laws, Real Prop. Law, § 13. 1 Am. & Eng. Ency. of Law & 12. Proc, p. 965; General Orders in 3. Con. Laws, Real Prop. Law, § Bankruptcy, XXI; In re Roy (1910), 13. Acknowledgment and Proof. 169" or their residence or birth in a foreign country, be entitled to take,, hold, convey and devise real property situated within this state in like manner, and with like effect, as if such woman and such for- eign-born children and descendants were citizens of the United States.' The power in such persons to convey real property situate in this state carries with it the right to acknowledge their signatures. § 163. Who May Make Acknowledgments: Women. — The acknowledgment or proof of a conveyance of real property, within the state, or of any other written instrument, may be made by a married woman the same as if unmarried.^ A married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any person, including her hus- band, as if she were unmarried.^ Husband and wife may convey real property directly, the one to the other, without the interven- tion of a third person, and may make partition or division of any real property held by them.' Property owned by a woman before her marriage or acquired by her as prescribed in the Real Property Law continues her sole and separate property.* A married woman may by a power of attorney appoint her hus- band her attorney in fact.^ § 164. Who May Make Acknowledgment: Age of Grantor. — By statute in this state a minor cannot transfer an estate or interest in real property.' And by statute, also, a minor is defined to be 7. Con. Laws, Real Prop. Law, § The statute demanding an examina- 14. tion of a mairied woman separate 1. Con. Laws, Real Property Law, and apart from her husband when § 302. making her acknowledgment was re- Evidently the writer of this section pealed in 1879: Laws of 1879, ch. added the word " proof " without ap- 249, amended by Laws of 1880, eh. preoiating its meaning. A married 300. woman was accepted as a witness in 3. Con. Laws, Domestic Relation* all courts of law before she was given Law, § 56. property rights. If she could testify 4. Con. Laws, Domestic Relations, before a court of law she certainly Law, § 50. could testify to the fact that she saw 5. Wronkow v. Oakley (1892), 133- the grantor execute a deed. N. Y. 505. 2. Con. Laws, Domestic Relations 6. Con. Laws, Real Property Law,, Law, I 51. § 11. 170 NoTAEIES AND COMMISSIONERS OF DeEDS. a person under the age of twenty-one years.' When a woman marries before she is twenty-one years of age her property remains in the care of her guardian till she reaches that age/ § 165. Who May Make Acknowledgment: Signature of Grantor: Seal of Grantor: Witnesses. — The grantor of a deed must sign his name at the end of the deed for the law says " sub- scribed." ^ The proper manner for a person to sign his name is discussed under section 140. As to what is a signature see note 2. If the transfer is being made by an agent of the grantor the agent must " subscribe " the name of the grantor.' It is not necessary that the grantor in a deed place a seal after his name, although it is allowable and customary.* A conveyance or other instrument by a corporation must have its corporate seal attached or the fact that it has no seal must be stated in the certificate of acknowledgment.^ If the instrument is acknowledged before delivery it is not neces- sary that it be witnessed, but if it is to be delivered before the grantor acknowledges the same its execution * should be attested by at least one witness for, if not so attested, it will not take effect as against a subsequent purchaser or incumbrancer until so ac- knowledged.^ The custom is for the witness to subscribe his name under the word " Witness : " which is placed just after the deed along the left margin. If the deed has not been acknowledged note should be made of all corrections and interlineations before the witness signs. They should be noted just under the word " Witness : " and the witness should sign directly under them. For an example of suoh corrections see page 208. The witness must be some third person who can look on while the signing and delivery takes place. The mortgagee cannot be a witness to the 7. Con. Laws, Domestic Relations ing." Con. Laws, (Jen. Construction Law, § 2. Law, § 46. 8. Con. Laws, Domestic Relations 3. Con. Laws, Real Property Law, Law, § 84. § 243. 1. Con. Laws, Real Property Law, 4. Fitzpatriek v. Graham (1903), 5§ 242, 243. 122 Fed. Rep. 402. Z. " The term signature includes 5. Con. Laws, Real Prop. Law, § any memorandum, mark or sign, writ- 309. ten or placed upon any instrument or 6. Con. Laws, Real Prop. Law, § writing with intent to execute or au- 292. thenticate such instrument or writ- Acknowledgment and Peoof. 171 mortgage/ For a person to be able to claim that he was a witness to an instrument he must sign as a witness. Although he signed the instrument for some other purpose that will not be considered aa his signature as a witness.* § 1 66. Who May Make Proof. — The only person to prove the execution of an instrument is a person who was a witness of its execution, and at the same time subscribed his name to the instru- ment as a witness.-'- A person interested in the matter cannot prove the execution of a deed although he signed as a witness ; nor can a person who signed as a witness if at the time he signed he would have been considered incompetent to testify on a trial. ^ Likewise, if he is incompetent at the time of proof. A person who has written his name on an instrument but not as a witness cannot prove the execution of the instrument ; his name must be written as a witness.' The proof of a conveyance of real property, within the state, or of any other written instrument, may be made by a married woman the same as though she were unmarried.* § 167. Time of Taking Acknowledgment or Proof. — The acknowledgment or proof should be taken after the deed or instru- ment is otherwise complete ; a notary or commissioner of deeds should refuse to take an acknowledgment or proof where there are blanks left in a deed to be filled in afterward. An instrument may be acknowledged or proved at any time be- fore it is introduced in evidence, even after the action has been begun.' An instrument may be acknowledged more than once and if the last was valid and delivery then made that would cure a former defect unless other rights had in the meantime taken 7. Goodhue v Berrien (1845), 2 3. Mutual Life Ins. Co. v. Corey Sandf. Oh. 632. (1889), 27 N. Y. St. Rep. 608; Peo- 8. Mutual Life Ins. Co. v. Corey pie v. R. R. Com'rs (1902), 77 N. (1889), 27 N. Y. St. Rep. 608; People Y. S. 380. V. R. R. Com'rs (1902), 77 N. Y. S. 4. Con. Laws, Real Property Law, 380. § 302. 1. Con. Laws, Real Property Law, 5. Wetterer v. Sonbirous (1898), |§ 292, 243. 49 N. Y. S. 1043; Holbrook v. N. J. 2. N. Y. Code of Civil Proc, § 936. Zinc Co. (1874), 57 N. Y. 624. 172 Notaries and Commissioners of Deeds. effect.^ An acknowledgment taken on a holiday or Sunday would he valid.' § 168. Acknowledgment: How Taken: In General. — The ancient custom of taking acknowledgments in open court ^ has degenerated into a very uncerimonious proceeding. There are some requirements, however, which must be followed: first, the notary or commissioner of deeds must be sure of the identity of the person appearing before him ; that is, he must be certain that the person named in the deed or other instrument and the person who desires to acknowledge his signature are one and the same person ; secondly, if there is any question as to the ability of the person to understand the meaning and contents of the deed or instrument, it is incumbent upon the notary or commissioner of deeds to make a full explanation of the contents thereof; thirdly, the notary or commissioner of deeds should either see the signature written or ask him if it is his signature and then whether he acknowledges that he executed the same for the purposes therein mentioned. These requirements are taken up in their order.* § 169. Acknowledgment: How Taken: Identity. — ^The Real Property Law says "An acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence that the person making it is the person described in and who executed such instru- ment." ^ It will be seen that the officer must (1) either know the person to be the one described in the instrument, or, if he does not know him, ('2) he must have satisfactory evidence that the person desiring to acknowledge the instrument is the one described in it and the one who executed it. The interpretation of this statute becomes of prime importance at; times so that it is absolutely necessary for* his own protection that a notary or commissioner of deeds know what the courts have 2. Osterhout v. Shoemaker (1842), 4. Irving v. Campbell (1890), 121 3 Hill, 513. N. Y. 354; Gross v. Rowley (1911), 3. Flynn v. Union Surety and 132 N. Y. S. 541. Guaranty Oo. (1902), 170 N. Y. 147; 5. Con. Laws, Real Property Law, Morel V. Stearns (1902), 75 N. Y. S. § 303; Gross v. Rowley (1911), 132 1084. N. Y. S. 541. 1. 1 Am. & Eng. Ency. of Law & Prae., p. 873. Acknowledgment and Peoof. 173 decided.^ In 1858, in the case of Watson v. Campbell, the court said : " Had he done his duty in taking this acknowledgment he would have required proof of the identity of the persons appearing hefore him, and this defense would not probably have been made. The case shows the impropriety of a commissioner of deeds, in such an acknowledgment, certifying that he knows the parties, without any further knowledge than a mere introduction, or seeing the signature written." ^ If the notary or commissioner has known the person for four or five years and there is no question in his mind as to his honesty there would then be no question; that is all the law would demand. But when the officer does not " know," that is, does not have a " personal acquaintance " with the one to ac- knowledge, then it is his duty to demand " satisfactory evidence." " Personal acquaintance does not mean an acquaintance acquired upon the instant. It means an acquaintance of such a character and existing for such a length of time, as enables the notary to identify the person as the individual described in the instrument to be executed." * If the notary or commissioner has not that " per- sonal acquaintance " then the statute says he must have " satisfac- tory evidence " that the person making it is the person described in and who executed such instrument. Evidence must, of course, be on oath or affirmation,^ and it must be " satisfactory " to the officer. It must be taken in each case the notary or commissioner does not personally know the person, but how much evidence and who may be sworn are matters left to the discretion of the officer. The California statute requires the oath of a credible witness and the Missouri and Minnesota statutes require the sworn testimony of at least two credible witnesses.* In the New York case of Goodhue v. Berrien it was held that the 2. People V. School^y (1895), 89 4. Bidwell v. Sullivan (1897), 45 Hun 397; Albany County Savings N. Y. S. 531; Jones v. Bach (1867), Bank v. MeOarty (1896), 149 N. Y. S. 48 Barb. 569. 82. 5. Jones v. Bach (1867), 48 Barb. 3. Watson v. Campbell (1858), 28 569; Wood v. Bach (1869), 54 Barb. Barb. 423; Treadwell v. Sackett 143; Eexford v. Eexford (1872), 7 (1867), 50 Barb. 441; Wood v. B..oh Lans. 6. (1869), 54 Barb. 136; this case was 6. Barnard v. Schuler, 100 Minn, overruled by those following. Kran- 289; Joost v. Craig, 131 Cal. 504; ichfelt V. Slattery (1895), 12 Misc. State v. Ryland, 163 Mo. 280. «7. lT4r Notaries and Commissionees of Deeds. "witness identifying a mortgagor to a commissioner taking the acknowledgment to the mortgage cannot be the mortgagee.' General Orders in Bankruptcy XXI says : " When the person executing is not personally known to the officer taking the proof or acknowledgment, his identity shall be established by satisfactory proof.^ § 170. Acknowledgment: How Taken: Explanation of In- strument. — Before taking the acknowledgment of a person to an instrument the notary or commissioner must satisfy himself that the contents of the instrument are known and understood by the person. If he is a person of intelligence who states that he knows the contents that would be sufficient; but, if there is any question in the mind of the officer he should go over the contents so as to make sure the grantor appreciates his act. At times that would necessitate an interpreter of some foreign language or of the deaf and dumb signs.-* To read an instrument in English to a per- son who is unable to understand the language would seem to be in- sufficient to make known the contents of a deed before acknowledg- ment.^ And where the grantor is old, decrepit, and ignorant, it is the duty of the officer authenticating the execution of the deed to make known to him its contents by such means as will enable him to comprehend the nature and effect of his act ; a simple reading of the instrument is insufficient.^ 7. Goodhue v Berrien (1845), 2 stood it. In fact, it is pretty plain Sandf. Ch. 632. that he did not understand it, and 8. General Orders in Bankruptcy, that it was conceded that he did not, XXI. In re Roy (1910), 26 A. B. or there would have been no necessity E. 4. for an interpretation. No one else 1. " The evidence in this case con- who was there understooid the lan- clusively shows that the plaintiff wa,s guage in which the deed was inter- an ignorant, unlettered Indian; that preted: " Jackson v. Tatebo, 3 Wash, his knowledge of the English Ian- 464, 28 Pac. 916; 1 Am. & Eng. Ency. guage was exceedingly limited; that Law & Prac, p. 875. he had no knowledge whatever of In the Matter of Harper, 6 Man. legal transactions or the force or ef- & G. 732. feet of legal instruments. ♦ ♦ ♦ 2. Devlin on Deeds, § 229. Tustin, who drew the deed, swears 3. Lyons v. Van Riper, 26 N. J. E. that he read the same to Jackson, but 337. does not swear that Jackson under- Acknowledgment and Proof. 175 I 171. Acknowledgment: How Taken: Unequivocal Ac- knowledgment. — Lastly, after satisfying himself of the identity of the person and that he knows the contents of the deed or instru- ment, the notary or commissioner of deeds either should see the signature written or should ask him if that is his signature, and then whether he acknowledges that he executed the same for the purposes therein mentioned. The acknowledgment must be une- quivocal ; a casual admission in the presence of an officer by a per- son who has signed a conveyance, that he executed it, does not au- thorize the officer to make a certificate that it was acknowledged.^ As was said by the court in the case of Breitling v. Chester:' " In order to call into exercise the authority of the officer to make the certificate, the grantor must appear before him for the purpose of acknowledging the instrument, and his admission that he had executed it must be made with a view to give it authen- ticity." § 172. Proof: How Taken. — In taking the proof of the execu- tion of an instrument the notary or commissioner of deeds must be certain, first, that the person named in the deed or other instrument as witness and the person who desires to prove his signature are one and the same person ; secondly, that he signed his name as a witness at the time of the execution ; thirdly, that the witness was in no maimer interested in the matter; fourthly, that the witness was competent at the time of proof and at the time he signed his name to testify on the trial of an action ; and, lastly, that the witness knew the person described in the conveyance and saw him execute the same. The rules which apply to the question of identity in taking an acknowledgment apply, likewise, to the question of the identity of the person desiring to prove an instrument as a subscribing wit- ness. The reader is, therefore, referred to section 169, where the statute and cases are discussed. And in section 304 of the Eeal Property Law we learn that the proof must not be taken unless the officer is personally acquainted with such witness, or has satisfac- tory evidence that he is the same person, who was a subscribing wit- ness to the conveyance.' 1. 1 Am. & Kng. Eney. Law & 2. 88 Texas 586, 32 S. W. 527. Prac, p. 873, and note 9 [a]; Grass 3. Jackson v. Livingston (1810), 6 V. Rowley (1911), 132 N. Y. S. 541. Johns. Rep. 151. 176 NOTAEIES AND CoMMISSIONEKS OF DeEDS. If the person whose name appears on the conveyance as a witness did not sign at the time it was signed and delivered by the grantor he cannot prove the execution. Section 292 of the Eeal Property Law says : "And such proof can be made only by some other person, who was a witness of its execution, and at the same time subscribed his name to the conveyance as a witness." Nor can a person be a witness who is in any manner interested in. the matter.^ It is probable this law is so stringent, contradicting the present rule of evidence — that an interested person may testify — because in this case the testimony of one witness closes the mat- ter. Likewise, if a person at the time of the execution of the convey- ance would not have been considered a competent witness on the trial of an action he will not be accepted as a witness to prove the execution of a conveyance.^ And the witness must be competent, of course, at the time of the proof.^ Having learned from the person that all the above requirements iave been met it is then the duty of the notary or commissioner to have the person swear or affirm that he knew personally the person described in the conveyance and that he saw him at that time exe- cute it by signing and making a delivery of the same.^ § 173. Certificate of Acknowledgment: Contents of Certifi- cate. — The statutes of New York do not specify any fixed form for a certificate of acknowledgment except for a corporation, but from various statutes and divers decisions we may gather the requisites of a legal acknowledgment, in any case. All acknowledgments hereafter considered should show the for- lowing facts : a venue, the day and year when the acknowledgment was taken, the fact that the person named appeared personally be- fore the officer, the fact in some words that he acknowledged that he executed the instrument to which the acknowledgment is at- tached, the name of the officer and the title of his office showing his jurisdiction.' The acknowledgment of an individual taken by and known to a notary or commissioner of deeds in the State of New York must 2. N. Y. Code of CHvil Proc, § 936. 1. Irving v. Campbell (1890), 121 3. Con. Laws, Heal Prop. Law, §§ N. Y. 361; Wetmore v. Eaird, 29 292, 304. Fed. Cas. No. 17,467. Acknowledgment and Peoof, 17T also show tliat tlie officer knows that the person making it is th© person described in and who executed " such instrument." ^ The acknowledgment of an individual unknown to a notary or commissioner and taken by him in the State of New York must set out the names and the substance of the testimony of each of the witnesses examined under oath by the officer to prove the identity of the grantor/ and must state that the said evidence is satisfactory to the officer to identify the said grantor.^ The acknowledgment of a corporation must be made by some officer authorized to execute the same by the board of directors of the said corporation ; it must state that he is known to the notary or commissioner; the office he holds and name of the person ac- knowledging and the name of the corporation must be given; the words " the corporation described in and which executed the above instrument " should be used ; the fact that the officer knows the seal of the said corporation should be stated ; and, likewise, that the seal affixed to said instrument is the corporate seal, that it was af- fixed by order of the board of directors of said corporation and that the officer signing sig-ned his name thereto by like order. If the corporation has no seal that fact should be stated.* The acknowledgment of an individual or corporation, known or unknown to the officer, besides following the above in any special case when taken by a commissioner of deeds appointed by the gov- ernor for a city or county within the United States and without the State, must also state the day on which and the town and county or the city in which the same was taken.^ The venue would show 2. The statute demanding that a Yoran (1905), 104 App. Div. 489; married woman be examined separate Freedman v. Oppenheim ( 1903 ) , 80 and apart from her husband was re- App. Div. 487; Gross v. Rowley pealed in 1879: Laws of 1879, ch. (1911), 132 N. Y. S. 541. 249, amended 1880, ch. 300. 3. Oon. Laws, Real Prop. Law, § Gon. Laws, Real Property Law, § 306. 303; Smith v. Tim (1884), 14 Abb. 4. Con. Laws, Real Prop. Law, 5 N. C. 451; Claflin v. Smith (1885), 309. See § 154. In re Hulbert Bros. 15 Abb. N". C. 241; Moran v. Stader and Co. ( 1899 ) , 57 N. Y. S. 38 ; Canan- (1907), 103 N. Y. S. 175; Stehlin v. darqua Academy v. McKechnie (1879), Golding (1888), 15 N. Y. St. Rep. 16 Hun 63. 814; Fryer v. Rockefeller (1875), 63 5. Con. Laws, Real Prop. Law, § N. Y. 268; Irving V. Campbell (1890), 307; Goddard v. SchmoU (1898), 53 121 N. Y. 361; Paolillo v. Faber N. Y. S. 402. <1900), 56 App. Div. 242; Carolan v. 178 Notaries and Commissionees of Deeds. the one fact but it should be stated also in the body of the certifi- cate.^ The acknowledgment of an individual or corporation, known or unknown to the officer, besides following the above in any special case, when taken by a commissioner of deeds appointed by the gov- ernor for a district in Porto Rico, the Philippine Islands, Cuba, or in any other place over which the United States of America at the time has or exercises sovereignty, control or a protectorate, must have attached thereto the seal of the commissioner if he have an ofiicial seal, and if he have no seal, then a statement to that effect.* The rule as to attaching his seal of office applies likewise to ac- knowledgments made before a commissioner appointed by the gov- ernor for some territory, dependency or foreign country. But in these cases he must attach a seal; a statement that he has no seal would not be accepted.^ The acknowledgment of an attorney in fact should show, besides following the above as to personal knowledge or proof, the date when made, the name of the attorney in fact, the fact that he per- sonally appeared before the notary or commissioner of deeds, that he is the person appointed by a certain power of attorney giving date of execution, grantor of the power, place and reference of its record or the fact that it is to be recorded, and the place where, and the fact that he acknowledges that he executed the within or fore- going instrument as the act of the grantor, naming him.* The acknowledgment of a person on behalf of a partnership or a corporation in connection with matters of bankruptcy should state that the person made oath that he is a member of the partnership, or a duly authorized officer of the corporation on whose behalf he acts. Personal knowledge of the officer or proof of identity must be shown.' If the person acknowledging signed both as an individual and as an attorney in fact the certificate should recite " to me known and 5. See note 5, p. 77. (1900), 56 App. Div. 241; Fryer v. 6. Con. Laws, Real Prop. Law, § Rockefeller ( 1875 ) , 63 N. Y. 268 ; Irv- 300. ing V. Campbell (1890), 121 N. Y. 7. Con. Laws, Real Prop. Law, § 356; Carolan v. Yoran (1905), 104 308. App. Div. 489. 8. Con. Laws, Real Prop. Law, § 9. General Orders in Bankruptcy 332; Freedman v. Oppenheim (1903), XXI; In re Roy (1910)^ 26 A. B. 80 App. Div 488; Paolillo v. Faber R. 4. Acknowledgment and Peoof. 179 tnown to me to be the attorney in fact," etc., and " to me known and known to me to be the individual described in and who exe- cuted," etc. Statement of the former will not suffice for the latter j both statements must appear." § 174. Certificate of Acknowledgment: Forms. — The follow- ing forms embody all the requirements as enumerated in different sections of the Real Property Law. Often the word " above " or the word " annexed " is used in place of " foregoing " as found id these forms. And, likewise, the word " conveyance " is often used; in place of " instrument." It will be necessary often for the notary; or commissioner to combine parts of two of the forms in order to suit his case. FORK U. Certificate of Acknowledgment: IndiTidnal Known to Officer. State of New York, 1 ^^ . County of New York, f On this ^Oth day of July, 1911, before me personally came John Stiles, to me personally known, and known to me to be the individual described in, and who executed the foregoing instrument and he duly acknowledged to me that he executed the same for the uses and purposes therein men- tioned. JOHN DOE, Notary Public, New York County, No. 10. New York Register No. Jf67. FORM (g. Certificate of Acknowledgment: Two or More IndlTidnals Known to Officer. State of New York, i ^ . County of Kings. j On this ^Oth day of July, 1911, before me personally came John Stiles, Henry Jones and Jome Jones, to me personally known, and known to me 10. Carolan v. Yoran (1905), 104 App. Div. 490. 180 Notaries and Oommissionees of Deeds. to be the individuals described in, and who executed the foregoing in- strument and severally they duly acknowledged to me that they executed the same for the uses and purposes therein mentioned. JOHN DOE, Notary Public, Kings County. FOBH M. Certificate of Acknowledgment: Husband and Wife Known to Officer. State of New Yorlc, i City of New York. f On this 20th day of July, 1911, before me personally came John Btilea, and Jane Stiles, his wife, to me personally known and known to me to be the individuals described in, and who executed the foregoing instrument and severally they duly acknowledged to me that they executed the same for the uses and purposes therein mentioned. RICHARD ROE, Commissioner of Deeds of the City of New York. FOEM 67- Certificat« of Acknowledgment: One of Sereral Indivldaals Known to Officer. State of New York, 1 . Oounty of Erie. j On this 20th day of July, 1911, before me personally came John Stiles, to me personally known, and known to me to be one of the individuals described in, and who executed the foregoing instrument and he duly acknowledged to me that he executed the same for the uses and pur- poses therein mentioned. JOHN DOE, Notary Public, Oneida County. Certificate filed in Erie County. FOBM 68. Certificate of Acknowledgment: Att»mey-in.fact Known to Officer: Power of Attorney Recorded.^ >ss.: State of New York, County of Wayne. On this 20th day of July, 1911, before me personally came Richard Roe, to me personally known and known to me to be the person described and 1. Oon. Laws, Real Prop. Law, 5 332. Acknowledgment and Peoof. 181 V appointed attorney in fact in and by a certain power of attorney executed by William Stiles, bearing date the 10th day of July, 1911, and recorded In the office of the Clerk of the County of Wayne on the l^th day of July, 1911, and duly acknowledged to me that he had executed the foregoing instrument as the act of the said William Stiles. JOHN DOE, Notary Public, Oswego C!ounty. Certificate filed in Wayne County. FOBM 69. Certificate ef Acknowledgment: Attorney in Fact Known to OfBcer: Power of Attorney }fot Becorded. State of New York, , County of Wayne. j " On this ^Oth day of July, 1911, before me personally came Richa/rd Roe, to me personally known and known to me to be the person described and appointed attorney in fact in and by a certain power of attorney- executed by William Stiles, bearing date the 19th day of July, 1911, and to^ be recorded in the office of the Clerk of the County of Wayne simultane- ously with the within instrument and duly acknowledged to me that her had executed the foregoing instrument as the act of the said William Stiles. JOHN DOE, Notary Public, Oswego County. Certificate filed in Wayne County .^ FOBM 70. Certificate of Acknowledgment: Beferee, Beceiyer, Execntor, Administra- tor, Trustee, or Sheriff Known to Officer. State of New York, i City of New York. j-**'-" On this SOth day of July, 1911, before me personally came John Stiles, Referee, in the cause within named, to me personally known and known to me to be the individual described in, and who executed the foregoing in- strument and he duly acknowledged to me that he executed the same as such referee for the uses and purposes therein mentioned. JOHN DOE, Commissioner of Deeds, New York City. [The words in italics must be changed to suit the case. The ex- pressions commonly used with the various officers are as follows r Receiver, "of the rents, issues, and profits, etc." or "of the property of 182 NOTAEIES AND COMMISSIONEES OF DeEDS. 'John Stiles, a judgment debtor"; Executor, "of the last will and testa- ment ol"; Administrator "of the goods, chattels and credits of John Stiles, late of, ©tc"; Trustee, "of the trusts created by the last will and testa- ment of, etc."; Sheriff, "of the County of, etc."] FOEM 71. Certificate of Acknowledgment: Depnt^ Sheriff or Under Sheriff Enown to Officer. Stat© of New York, > County of Oneida. I **' " On this SOth day of July, 1911, before me personally cama John Stiles, to me personally known, and known to me to be the deputy sheriff of Henry Jones, sheriff of the County of Oneida, and the individual described in the foregoing instrument; and he duly acknowledged to me that he as deputy sheriff had executed the same in the name and as the act and deed of the said sheriff for the uses and purposes therein mentioned. JOHN DOE, Notary Publie, Oneida County. FOEM 72. Certificate of Acknowledgment: By Partner of Firm Known to Officer. State of New York, , County of Albany . |**" On this ^Oth day of July, 1911, before me personally came John Stiles, to me personally known, and known to me to be a member of the firm of Stiles, Jones amd Smith, and known to me to be the individual described in and who executed the foregoing instrument in the firm name of Stiles, Jones and Smith, and he duly acknowledged to me that the executed the same for the uses and purposes therein mentioned. JOHN DOE, Notary Public, Albany County. FOEM 7*. Certificate of Acknowledgment: By Corporation: Officer of Corporation Known to Officer.^ 1^ State of New York, County of Kings. On this 20th day of July, in the year 1911, before me personally came John Stiles, to me known, who, being by me duly sworn, did depose and 2. Con. Laws, Real Prop. Law, § 309. Acknowledgment and Peoof. 183 Bay that lie resides in T^ew York City; that he is the president of th© Stiles Wood Company, the corporation described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that iie signed his name thereto by like order. JOHN DOE, Notary Public, New York County. Certificate filed in Kings County. [The words in italics must be changed to suit the case. If the cor- poration have no seal, that fact must be stated in place of the statements required respecting the seal. The person acknowledging must be some officer of the corporation authorized to execute the same by the board of directors of said corporation.] FORM 74. Certificate of Acknewledgment: Another Form by Two Officers of Cor- poration: Officers of Corporation Known to Officer. State of New York, j. County of Kings. ) **' ' On this 20th day of July, in the year 1911, before me personally came John Stiles and Henry Jones both of whom are to me personally known, and they, being by me severally duly sworn, did depose and say, that he the said John Stiles resides in the Borough of Kvngs, New York City, and is President of the Stiles Wood Compmiy, and that he, the said Henry Jones resides in the Borough of Queens, New York City, and is Secretary of the Stiles Wood Company; and that they are the said officers of the said corporation described in and which executed the above instrument; that they know the seal of the said corporation; that the seal affixed to Baid instrument is the corporate seal of the Stiles Wood Company; that it was so affixed by order of the board of directors of said corporation; that they severally signed their names thereto as President and Sec- retary respectively by like order and the said John Stiles and Henry Jones severally duly acknowledged to me that they executed the said instru- ment as the act of the said Stiles Wood Company for the uses ana purposes therein expressed. In Witness Wbereof I have hereunto set my hand and seal at the Borough of Kings, County of Kings, City and State of New York on the 20th day of July, 1911. JOHN DOE, Notary Public, Kings County. [See note under Form 73.] 184 NOTAEIES AND CoMMISSIONEES OF DeEDS. rOEM 75. Certificate of Acknowledgment: By Grantor to Confirm Deed Executed During Minority. State of New York, j County of Erie. [ **• ' Now on this ^Oth day of July, 1911, before me personally comes John Stiles, to me personally known, and known to me to be the individual described in and who executed the foregoing instrument and he acknowl- edged to me that he formerly executed the said instrument when he was an infant, under the age of twenty-one years; that he is now of full age, and being desirous to confirm his former execution thereof, he hereupon adopts his former signature as of the present date and here and now acknowledges his due execution of the same as and for his act of the present date for the uses and purposes therein expressed. JOHN DOE, Notary Public, Erie Co. FORM 76. Certificate of Acknowledgment: Individual Ifot Personally Known to OfBcer: Known to Personal Acquaintance of OfBceu State of New York, ) County of New York. 5 **' " On this 20th day of July, 1911, before me personally came Jane Roe, to me personally known, who, being by me duly sworn, did depose and say, that for the past ten years she has been personally acquainted with Jennie Stiles, and that she knows her to be the individual described in and who executed the foregoing instrument; and the said Jennie Stiles being then personally present before me and thereby satisfactorily proven to me to be the individual described in and who executed the foregoing instru- ment, she thereupon duly acknowledged to me that she executed the same lor the uses and purposes therein mentioned. JOHN DOE, Notary Public, New York County, No. 10. New York Register, No. 467. FOBM 77. Certificate of Acknowledgment: Individual Not Personally Known t» Officer: Identity Satisfactorily Proven by Oath ef Another. State of New York, I County of Onondaga. ) On this 20th day of July, 1911, before me personally came Henry Johnson, a well known shoe manufacturer of Syracuse, New York, to me known 6y Acknowledgment and Pkoof. 185 sight, who, being by me duly sworn, did depose and say, that for several years past he has ieen personally acquainted loith Richard Roe and that he knows him to be the Individual described in and who executed the foregoing instrument; and the said Richard Roe being then personally present before me and thereby satisfactorily proven to me to be the individual described in and who executed the foregoing instrument, he thereupon duly acknowl- edged to me that he executed the same for the uses and purposes therein mentioned. JOHN DOE, Notary Public, Onondaga County. FOBM 78. Certificate of AcknoTrledgment: Indiridnal "Sot Fersonally Known to Officer: Identity Satisfactorily Proyen by Oaths of Two Persons. State of New York, ) County of Kings. > On this 20th day of July, 1911, before me personally came Henry Johnson and John Jones, with whom I have a speaking acquaintance, and the said Johnson being by me duly sworn, did depose and say, that he has personally known Richard Roe for two years last past and that he knows him to be the individual described in and who executed the foregoing instrument; and the said Jones, being by me duly sworn, did depose and say that he is a. brother-in-law of Richard Roe, and that he knows him to be. the individual described in and who executed the foregoing instrument; and the said Richard Roe being then personally present befpre me and thereby satisfactorily proven to me to be the individual described in and who executed the foregoing instru- ment, he thereupon duly acknowledged to me that he executed the same for the uses and purposes therein mentioned. JOHN DOE, Notary Public, Kings County. Certificate filed in New York County, No. 10. New York Reg- ister No. 467. FOEM 79. Certificate of Acknowledgment; Two Individnals: One Known and One Unknown to Officer: Identity Proven by Brotlier. State of New York, County of Ulster. On this ZOth day of July, 1911, before me personally came Richard Roe, to me personally known and known to me to be one of the individuals de- scribed in and who executed the foregoing instrument; and likewise on the same day personally came William Stiles, personally known to me, who, being by me duly sworn, did depose and say that he is a brother of John Stiles 186 NOTAEIES AND COMMISSIONERS OF DeEDS. ■and that he knows him to be one of the individuals described in and who executed the foregoing instrument, and the said John Stiles being then per- sonally present before me and thereby satisfactorily proven to me to be the individual described in and who executed the foregoing instrument, there- upon the said Richard Roe and John Stiles severally duly acknowledged to Bie that they executed the same for the uses and purposes therein mentioned. JOBTSl DOE, Notary Public, Ulster County. FOBM SO. -Certificate of Acknowledgment When Grantors are Beferred to as Hn8- band and Wife: Husband Known, Wife Unknown to Officer: Identity Proven. State of New York, ) J. s«. : County of Oneida. \ On this Wth day of July, 1911, before me personally came Richard Roe, to me personally known and known to me to be one of the individuals de- scribed in, and who executed the foregoing instrument; and the said Richard Roe, being by me duly sworn, did depose and say, that he is the husband of Jane Roe, and the said Jane Roe being then personally present before me and thereby satisfactorily proven to me to be the individual described in and who executed the foregoing instrument, thereupon the said Richard Roe and the said Jane Roe, his wife, severally duly acknowledged to me that they executed the same for the uses and purposes therein mentioned. JOBN DOE, Notary Public, Oneida County. FORM 81. Acknowledgment For All States.^ "United States of America, ^ State of New York, Vss.: County of AXbany. J I John Doe, a notary public, in and for the County of Albany, State of New YorTc, duly appointed, commissioned and sworn as a notary for said 3. This form of acknowledgment, tioned to use the latest edition; it is while containing much that is not published yearly. There are so many needed in many States, contains all different requirements in the various that is needed in any State, unless the States for the acknowledgments of State has a statutory form which married women and corporations that must be followed. If there is a statu- forms for married women and corpora- tory form it may be found in Hubbel's tions for all States do not appear legal Directory. The notary is cau- feasible. Acknowledgment and Peooe. 18T County in said State, residing therein and acting as such ofBcer, do hereby certify that on the 10th day of December, in the year 1910, there appeared before me in person, William Stiles, known to me, and known to me to be the identical person who is described as a party grantor to a certain deed bearing date December 9, 1910, and hereto annexed, and -who having been first informed of the contents thereof, signed the said deed before me and in the presence of the two subscribing legal wit- nesses and acknowledged that he signed, sealed, and delivered the said deed before me and in the presence of the said witnesses, and that he executed the same freely and voluntarily for the uses, purposes and considerations therein expressed and desired the same to be recorded as such. In witness whereof I have hereunto set my hand and affixed my official seal at my office in the city of Albany, county of Albany and state of New York, the day and year in this certificate first above written. [Seal of John Doe] JOHN DOE, Notary Public, Albany County, New York. My Commission expires September SO, 19H, (1) . (2) , Witnesses. [The words in italics must be changed to suit the case.] § 175. Certificate of Proof: Contents of Certificate. — The statutes of New York do not set out a form for the proof of the exe- cution of a conveyance or other instrument, but from the require- ments of the statutes and certain decisions we are able to compile the requisites of a legal proof in any given case.^ All proofs hereafter considered should show the following facts : A venue, the day and year when the proof was taken, the fact that the witness making the proof personally appeared before the ofBcer, the fact in some words that he took an oath or affirmation that he saw the conveyance or instrument to which his name was signed as witness executed by the grantor or his attorney in fact, the fact that he signed his name as a witness at that time, the resi- dence of the proving witness,^ the fact that the witness knew the person described in and who executed the conveyance, the fact that 1. See § 173 and cases thereunder. 2. Irving v. Campbell (1890), 121 N. Y. 359. 188' l^OTARIES AND COMMISSIONERS OF DeEDS. te was an uninterested and competent subscribing witness to the conveyance or instrument.^ The proof of a witness with whom the officer is personally ac- quainted should also show that the officer knows that the proving witness is the person who signed as a subscribing witness to the conveyance.' The proof of a witness unknown to the officer should also set out the names and the substance of the testimony of each of the wit- nesses examined under oath by the officer to prove the identity of the subscribing witness and should also state that the said evidence is satisfactory to the officer to identify the said subscribing wit- ness.' The proof of a subscribing witness, known or unknown to the of- ficer, besides following the above in any special case when taken by a commissioner of deeds appointed by the governor for a city or county, within the United States and without the State, must also state the day on which and the town and county or the city in which the same was taken.* The venue would show the one fact, but it should be set out in the body of the certificate also. The proof of a subscribing witness, knovsoi or unknown to the officer, besides following the above in any special case, when taken by a commissioner of deeds appointed by the governor for some ter- ritory, dependency or foreign country, without the United States, must be under the seal of office of the commissioner of deeds. ^ There is a question in the mind of the writer whether a subscrib- ing witness can prove the execution of a conveyance by an attorney in fact. If possible, it would be only in a case in which the sub- scribing witness knows personally both the attorney in fact and his principal, for section 304 of the Eeal Property Law says : " Such witness must state * * * that he knew the person described in and who executed the conveyance." ^ The proof, if legal, would combine the facts as set out in this section, together with those ' stated in section 173 in regard to the acknowledgment of an attor- ney in fact. 3. Con. Laws, Real Prop. Law, §§ 4. Con. Laws, Eeal Prop. Law, § 304, 306; N. Y. Code of Civil Proc, 307. § 936; Smith v. Boyd (1886), 101 N. 5. Con. Laws, Eeal Prop. Law, § Y. 472; Canandarqua Academy v. Mc- 308. Kechnie (1879), 16 Hub 63. 6. Con. Laws, Eeal Prop. Law, §§ 304, 332. Acknowledgment and Proof. 189 When the witnesses to a conveyance are dead its execution may be proved by showing the death of all the witnesses and proving the handwriting of the grantor and of the witnesses or of any one of the witnesses, which evidence, with the name and residence of each witness examined, must be set forth in the certificate of proof. This proof cannot be taken by a notary public or commissioner of deeds.^ § 176. Certificate of Proof: Forms. — The following forms set forth the requirements of the statutes as to the contents of the cer- tificate of proof. Often the word " above " or the word " annexed " is used in place of " foregoing," as found in these forms. And, likewise, the word " conveyance " is often used in place of " in- strument." It will be necessary very often for the officer to write new forms suitable to his case but he should be careful to embody all the facts which are found in these. A reference to the forms of acknowledgment may be of assistance at times. FORM 82. Certificate of Proof: By a. Subscribing Witness Known to Officer. State of New York, ^ County of New Torh. Uss. .• City of New York. J On this 20th day of July, 1911, before me personally came Jolm Stiles, to me personally known, and who, being by me duly sworn, said that he resides in the City of Kingston, County of Ulster and State of New York, that he has been a personal friend of Henry Jones for the past ten years and knew him to be the person described in and who executed the foregoing instrument and that he saw him execute the same and that he, the said John Stiles, thereupon subscribed his name as a witness thereto. JOHN DOE, Commissioner of Deeds, City of New York. ! 7. Con. Laws, Real Prop. Law, § 314; Biglow v. Biglow (1899), 56 N. ) Y. S. 794. 190 Notaries and Commissiohees of Deeds. FOKM 88. Certificate of Proof: By a Subscribing Witsess Not Personally Known to Officer: Known to Personal Acquaintance of Officer. State of New York, County of Albany, (. ss. : On this 20th day of July, 1911, before me personally came John Stiles, to me personally known, who, being by me duly sworn, did depose and say, that for the past ten years he has been personally acquainted with Henry Jones, and that he knows him to be the individual who subscribed the fore- going instrument as a witness; and the said Henry Jones being then per- sonally present before me and thereby satisfactorily proven to me to be the individual who subscribed the foregoing instrument as a, witness, he, there- upon, being by me duly sworn, did depose and say, that he resides in the City of Albamy, County of Albany and State of New York, that he is a brother-in-law and personally acquainted for many years with Frank Smith and knew him to be the person described in and who executed the foregoing instrument and that he, the said Henry Jones, saw the said Frank Smith execute the same and that he thereupon subscribed his name as a witness thereto. JOHN DOE, Notary Public, Albany County. § 177. Certificate of Acknowledgment or Proof: By Whom Written : Time of Writing : Position of Certificate. — The certifi- cate should be written or filled out by tlie notary or commissioner of deeds, preferably at the time the signature is acknowledged or proved, and should be written on or attached to the instrument acknowledged or proved. There is no particular position for it; generally it is placed just after the signature of the person signing the instrument. § 178. Certificate of Acknowledgment or Proof: Venue: "SS" : Date. — The venue of the certificate should show the place where the acknowledgment is taken.* For example, if the officer is a notary it should be one of the following : FOBM 84. State of New York, ) ) ss. : County of Kings. ^ 1. Rogers v. Pell (1898), 154 N. Y. 529. Acknowledgment and Pkoof. F0RM8&. 191 State of New York, C!ounty of Oneida. State of New York, County of Erie. FORM 86. r If the officer taking the acknowledgment is a commissioner of deeds one of the following should be used, making sure that the district shown in the venue is geographically within the jurisdic- tion of the commissioner : State of New York, > \ ss. : City of Syracuse. J State of New York, ^ County of Albany, yss.: City of Albany, J State of Texas, ) City of San Antonio. \ Confederation of Switzerland, Canton De Taud, City of Vevey. State of Kansas — ss. Dominion of Canada, "^ Province of Ontario, >si County of Peterborough. J rOBM 87. FOBM 88. FOKH 89. FORMM. FOBM »1. FOBM 92. FORM 93. United States of America, State of New York, Southern District of New York, Oounty of Weto York. 192 NOTAEIES AND COMMISSIONERS OF DeEDS. For a discussion on the venue and an explanation o£ the letters '' ss " which are always placed directly after the venue see §§ 134, 135, under " Affidavits." The date should be carefully filled in as that is a very important fact in a certificate. The certificate should show when the aelmowl- edgment was taken in order to show whether the ofl&cer acted within his term of office. § 179. Certificate of Acknowledgment or Proof: Signature of Officer: Official Designation: Seal of Officer. — Directly after the certificate the officer should sign his name in the form he usually signs it, which should be in the form his name appears on his seal, if it appears there, so no question can arise from the paper itself. If his seal says " John B. Smith " he should sign " John B. Smith," and not " J. B. Smith." ^ After his name he should add " Notary Public, Oneida County," or " Notary Public, New York County No. 10, New York Register No. 467," or " Notary Public, Kings County, Certificate filed in New York County No. 40, New York Register No. 23," or " Com- missioner of Deeds, City of Troy," or " Commissioner of Deeds, €ity of New York." See Sections 142-146. The official seal of the officer is not necessary on acknowledg- ments or proofs to be used in any city or county where the officer is authorized to act;^ but acknowledgments or proofs to be used in -any of the courts of the United States or under the Federal Stat- utes should be sealed f and all acknowledgments or proofs taken by officials of New York without the state should be sealed with the ■official seal of the officer.* The seal may be impressed directly on the paper. An impression should be made for each certificate of proof or acknowledgment and the face of the seal should be on the side of the certificate. § 180. Delivery of an Instrument. — An instrument is delivered when it is physically given to the person to whom delivery should be made, or to his agent ; in the case of a deed when it is given to 1. It la not meant to state here that Z. Con. Laws, Executive Law, § 105. -the seal of a notary should contain 3. See § 1778 U. S. Rev. Stats. his name. That question is discussed 4. Con. Laws, Executive Law, | under §§ 25-28. 108; Real Prop. Law, § 308. 1 Acknowledgment and Proof. 193 the grantee or to some agent of the grantee. A deed does not take effect to vest the interest or estate in the grantee until delivery is made.^ The subject of delivery in escrow is discussed in the following section. § i8i. Delivery of an Instrument: Delivery in Escrow. — The parties to a deed or other instrument often desire to perform prac- tically all the acts necessary for the completion of the contract but wish it not to become a completed contract until a certain desig- nated event happens. This desire was worked out in what is known as a delivery in escrow. It is used generally in connection with deeds but may be applied to the delivery of any written instru- ment. "^ A delivery in escrow is the placing of an instrument setting forth a contract in the hands of a person as a depositary who on the hap- pening of a designated event, is to deliver the instrument to a third person or to himself as an individual.^ When the instrument con- veys or relates to the conveyance of real estate or an interest therein the depositary must be a person other than the grantee or grantor.^ As a notary public or commissioner of deeds is often chosen as the third person or " stranger " into whose hands the deed is placed for him to make delivery of the same on the happening of a designated event it is necessary to look at the various questions which may con- front him as such depositary. As stated above, any instrument may be deposited in escrow if it evidences a contract and has been duly and validly executed, with the exception that it has not been delivered. In making the de- posit the grantor or obligor should plainly state the fact and it should be agreed to by the grantee or obligee, that he delivers the deed or other instrument to the notary or commissioner as an escrow to be held by him until such a day or upon such and such a condition and that then the notary or commissioner shall deliver the escrow to the grantee as the deed of the grantor.* A delivery to 5. Con. Laws, Real Property Law, 3. Blewitt v. Boorum (1894), 142 § 244. N. Y. 363. 1. Reeves on Real Property, § 1111; 4. Washburn on Real Property, 6th 16 Cyclopedia of Law & Proc., p. 563. ed., § 2178. 2. Reeves on Real Property, § 1111. 194i NOTAEIES AND CoMMISSlONEKS OF DeEDS. "the depositary made by the grantor or obligor alone will not be suf- ficient to constitute a valid escrow. Upon receiving an escrow the depositary has nothing to do until the happening of the event stipu- lated by the grantor and grantee when the grantor delivered the escrow. Immediately, upon the happening of the event the de- positary must deliver the deed to the grantee. A depositary has no right, under any conditions except upon agreement of all the par- ties to return the deed to the grantor or to give it to any other per- son before the happening of the event. When the delivery is made to the depositary the grantor loses his legal control of both the deed and the title.^ '^According to the great weight of authority, the event on which the ultimate delivery is directed to occur may be either certain or uncertain — the depositary may hold the instrument, to be handed to the grantee, on the marriage of a person, or on the death of a per- son." ^ The condition imposed is often for the payment of money by the grantee. In making a delivery in escrow it is not necessary that the word " escrow " be used,' although its use would be preferable, as it evinces more clearly and distinctly than any other word the actual intention of the parties.* Neither need it be in writing,' although a memorandum is often made of the stipulations of the escrow con- tract and the instrument or instruments deposited. The memoran- dum is sometimes called an "escrow card." ^^ "While the deed or other instrument remains in the possession of the depositary the contract of escrow may be rescinded or the con- ditions •©n which it is placed in the hands of the depositary may be varied by a new agreement of the parties.-^ When the escrow was made hj parol it may be discharged by parol.-'^ " Where the grantee or obligee does not comply with the terms of the conditions upon which a deed is delivered in escrow, the deposi- 5. 11 Am. & Eng. Ency. of Law, 8. 16 Cyclopedia Law & Proc, p. '2d ed., p. 344; Nottbeck v. Wilks 565. (1857), 4 Abb. Pr. 319; Stonehill v. 9. Stanton v. Miller, 58 N. Y. 192, Hastings (1911), 202 N. Y. 115. See 203. Hathaway v. Payne (1865), 34 N. Y. lO. Balfour v. Hopkins, 93 Fed. 92. Rep. 564. 6. Reeves on Real Property, §1111. 11. 11 Am. & Eng. Ency. of Law, See note 5. 2d ed., p. 345; Raymond v. Smith, 7. Nottbeck V. Wilks (1857), 4 Abb. 5 Conn. 556; Fred v. Fred (N. J. Pr. 318. Chan. 1901), 50 Alt. 776. Acknowledgment and, Proof. 195 tary is justified in redelivering the deed to tlie depositor. But -where there is no evidence to establish the fact that a redelivery is authorized or that the grantee has failed to comply with the condi- tions, the depositary should not make a redelivery." A depositary who violates the terms of the escrow contract is liable in damages for the loss suffered thereby.^' § 182. Miscellaneous Acknowledgments or Proofs : Recogni- zance of Bail : Surrogate's Court : Arbitration and Award : Sub- poena: Etc. — A number of statutes to which the notary or commissioner may desire reference are here enumerated for the sake of completeness : Examination on request of sheriff of persons offering to become bail in taking acknowledgment of the undertak- ing, ]Sr. T. Code of Civil Proc, § 576; acknowledgment of recog- nizance, N. Y. Code of Civil Proc, § 2046 ; bonds filed with sur- rogate must be acknowledged or proved, N. Y. Code of Civil Proc.,. § 2500 ; acknowledgment of service of citation or subpoena, N. Y> Code of Civil Proc, § 2532 ; acknowledgment or proof of authori- zation to receive ancillary letter testamentary, N. Y. Code of Civil Proc, § 2697 ; acknowledgment or proof of a selection of execution under a power in the will, N. Y. Code of Civil Proc, § 2640 ; ac- knowledgment or proof of renunciation of right of administration, ]Sr. Y. Code of Civil Proc, § 2663 ; acknowledgment or proof of re- nunciation of appointment as executor in a will, N. Y. Code of Civil Proc, § 2639 ; acknowledgment of a waiver of citation in a Surrogate's Court, N. Y. Code of Civil Proc, § 2528 ; acknowledg- ment or proof of an instrument submitting a controversy to arbitra- tion, N. Y. Code of Civil Proc, § 2366; acknowledgment or proof of an award, IST. Y. Code of Civil Proc, § 2372; acknowledgment or proof of a case submitted to a court of record, iN". Y. Code of Civil Proc, § 1279 ; acknowledgment of a written designation of a person on whom to serve summons when a resident is absent, N. Y. Code of Civil Proc, § 430 ; acknowledgment or proof of service of summons, IST. Y. Code of Civil Proc, § 434; acknowledgment or proof of satisfaction pieces in cancelling judgments, N. Y. Code of 12. 11 Am. & Eng. Ency. of Law, 13. Nathan v. Kehkopf, 57 111. App. 2d ed., p. 352; Hay den v. Meeks (Ark. 212. 1890), 14 S. W. Eep. 864; Bodwell v. Webster, 13 Pick. (Mass.) 411. 196 NOTAEIES AND CoMMISSIONEES OF DeEDS. ■Civil Proc, § 1260; acknowledgment of satisfaction piece, "N. Y. ■Code of Civil Proc, § 1261 ; ackno'wledgment of assignment of a judgment, K Y. Code of Civil Proc, § 1262 ; Ackno-wledgment or proof of a bond or undertaking, IST. Y. Code of Civil Proc, § 810 ; .ackno'wledgment of ■written consent to act as guardian ad litem, JST. Y. Code of Civil Proc, § 472. § 183. Forms of Conveyances and Mortgages: Short Torms — The Real Property La-w in sections 2^58 and 273 sets out short forms of the folio-wing deeds and mortgages : A deed -with full covenants, an executor's deed, a mortgage, a mortgage on a lease of real property. The la-w does not make it compulsory to use the short forms but if they are not used an extra charge is made by the recording officer.' In 1910 the Real Property Law -was amended so that it is neces- sary to state in all conveyances of real property the residence of the purchaser and if such residence is in a city of over five hundred thousand inhabitants, the street number of the residence of the purchaser.^ The notary or commissioner of deeds should follo-w the examples given belo^w in describing the grantors and grantees in deeds. The purpose of such descriptions is to assist those making title searches, many years, possibly, after all the parties to the deed are dead. " I, Richard L. Roe, husband of Jane J. Roe." " I, Jane J. Roe, vi^ife of Richard L. Roe." " I, Richard L. Roe, -widower, husband of the late Mary Roe at the time I acquired the hereinafter described premises." " I, Jane J. Roe, widow of the late Richard L. Roe, who died January, 1905." " To Richard Roe (husband of Jane Roe)," when he is the grantee. " To Jane Roe (wife of Richard Roe)," when she is the grantee. " I, John Doe, widower now and at the time I acquired the here- inafter described premises and during all the time intervening." " I, Richard L. Roe, bachelor." " I, Jane J. Roe, spinster." 1. Con. Laws, Real Prop. Law, § 2. Con. Lawa, Real Prop. Law, S 327. 333, as amended in 1910. Acknowledgment and Proof. 19'7 " Spinster " describes a woinan wlio has never been married. " Bachelor " describes a man who has never been married. The word " unmarried " should not be used ; it may mean spinster, widow, divorcee, bachelor, widower or a man who has been di- vorced. It would be a good rule to show the approximate date o£ the marriage of the grantors in every deed. A deed transferring property to an executor should state that fact, for example, to " A B as executor of C D." ^ § 184. Explanation of Short Forms of Conveyances and Mort- gages, Etc. — As stated in the last preceding section certain short forms of deeds and mortgages may be used. When called upon to explain the meaning and legal effect of these short forms it will be necessary for the notary or commissioner of deeds to refer to the following statutes : Consolidated Laws, Real Property Law : What estate passes by the deed, § 245 ; construction of grant of appur- tenances in executor's or trustee's deed, § 250 ; no implied cove- nants in deeds, § 251 ; covenants in short forms, seizin, quiet enjoy- ment, freedom from incumbrances, further assurance, warranty of title, grantor has not incumbered, § 253 ; construction of grant of appurtenances and of all the rights and estates of grantor, § 255 ; covenants to bind whom and for benefit of whom, § 257 ; covenants in mortgages, § 249 ; construction of covenants in mortgages and bonds, § 254; construction of covenants in mortgages or leases of real property and bonds, § 271 ; construction of grant of appurten- ances in mortgages, § 272. § 185. Power to Transfer : Special Statutes. — ^A number of statutes to which a notary or commissioner of deeds may at some time wish to refer are the following : Contracts in contemplation of marriage, Domestic Relations Law, § 53 ; leases or grants of agri- cultural lands. Const, of New York, Art. I, § 13 ;^ purchases or contracts to purchase from Indians, Const, of New York, Art. I, § 15, Real Prop. Law, § 17; mines in Saint Lawrence Coimty, Real Prop. Law, § 18 ; grant or mortgage of real property adversely possessed, Real Prop. Law, § 260 ; conveyances by tenant for life or years of greater estate than possessed, Real Prop. Law, § 247 ; 3. People V. Keyser (1863), 28 N. 1. Odell v. Durant (1875), 62 N. Y. Y. 227. 524. 198 ISTOTAEIES AND CoMMISSIONEES OF DeEDS, deeds of bargain and sale and lease and release are deemed grants, Ileal Prop. Law, § 246 ; certain deeds deemed mortgages, Real Prop. Law, § 320 ; effect of conveyance where property is leased, Eeal Prop. Law, § 248. § i86. Certificate of Authenticity and Conformity. — A certifi- cate of acknowledgment or proof, made within the state, by a com- missioner of deeds or notary public, does not entitle a conveyance to be read in evidence or recorded, except within the county within which the officer making the same is authorized to act at the time iof making such certificate unless authenticated by a certificate of the clerk of the same county. The clerk of any county of the city of Ifew York may authenticate such a certificate of a commissioner of deeds if he has filed in the said county clerk's office a certificate of the city clerk as to his appointment.^ A certificate of acknowledgment or proof made without the state by a commissioner of deeds of ISTew York must be accompanied by a certificate of the secretary of state.^ The certificate in the above cases must specify the officer's power to perform such act at that time and that his signature and seal, if any is attached, are genuine.' § 187. Amendment of Certificate of Acknowledgment or Proof. — A notary public or commissioner of deeds cannot cor- rect mistakes in a certificate of acknowledgment or proof after his term of office has expired.* During his term of office he may cor- rect his certificate to conform to the facts.' § 188. Certificate of Acknowledgment or Proof: Evidence. — A conveyance acknowledged or proved, and certified, in the manner prescribed by law, to entitle it to be recorded in the county where 1. Con. Laws, Exec. Law, § 102, 4. Elwood v. Klock (1852), 13 Barb. Eeal Prop. Law, §§ 310, 312. 55. 2. Con. Laws, Exec. Law, § 108, 5. 1 Am. & Eng. Eney. Law A, Prae., Eeal Prop. Law, §§ 311, 312. p. 911; Camp v. Buxton (1885), 34 3. Con. Laws, Eeal Prop. Law, § Hun, 511; see dictum in National 312. Bank v. Scriven (1892), 18 N. Y. Supp. Acknowledgment and Proof. 199^ it is offered, is evidence, without further proof thereof.' The cer- tificate of acknowledgment or proof is not conclusive, however, and may be rebutted.' If the proof was taken upon the oath of an in- terested or incompetent witness the conveyance shall not be received in evidence until its execution is established by other competent proof.^ Any instrument, except a promissory note, a bill of exchange, or a last will, may be acknowledged or proved and is, thereupon, evi- dence as if it was a conveyance of real property.' § 189. Recording Laws. — When an instrument duly acknowl- edged ^ before an officer authorized to take acknowledgments ^ is presented to the recording officer the instrument and all certificates thereto attached, if required, must be recorded.' All instruments must be recorded in the order of their delivery to the recording of- ficer.* Leaving an instrument with a recording officer for record is all that a party is bound to do ; the failure of the officer to record the instrument will not prejudice the party.' The law as to recording discharges and assignments of mortgages will be found in Sections 321, 322, 323 and 324 of the Eeal Prop- erty Law. As to recording powers of attorney and the necessity of recording revocations of powers of attorney when the power was recorded, see Sections 294 and 326 of the Eeal Property Law. § 190. Acknowledgments and Proofs: Civil Liability of Notary or Commissioner of Deeds. — The Real Property Law 6. N. y. Code of Civil Proc, § 935; 2. People v. Brown (1832), 7 Wend. Albany Co. Savings Bank v. McCarty 493; Con. Laws, Penal Law, § 1862. (1896), 149 N. Y. 83. 3. Con. Laws, Real Prop. Law, §§ 7. IST. Y. Code of Civil Proe., § 936; 318, 291. Albany Co. Savings Bank v. McCarty 4. Oon. Laws, Eeal Prop. Law, §§i (1896), 149 N. Y. 80; KranicMelt v. 317, 319. Slattery (1895), 12 Misc. 97; Biglow 5. Reid v. Town of Long Lake V. Bigelow (1899), 56 N. Y. S. 794. (1904), 89 N. Y. S. 993; Simonson v. 8. N. Y. Code of Civil Proc, § 937. Falihee (1881), 25 Hun, 573; Bedford 1. Irving v. Campbell (1890), 121 v. Tupper (1883), 30 Hun, 175; N. Y. 361. The fact that an iustru- Droge v. Cree (1891), 14 N. Y. S. ment was recorded is of no avail if it 300; Pres. Manhattan Co. v. Laim- was not entitled to be recorded. Brad- beer (1888), 108 N. Y. 578; Mutual ley V. Walker, 138 N. Y. 291. Life Ins. Co. v. Dake (1881), 87 N. Y., 264. 200 NoTAEIES AND CoMMISSIONEES OK DeEDS. says : "An oflScer authorized to take the acknowledgment or proof of a conveyance or other instrumeilt, or to certify such proof or ■acknowledgment, or to record the same, who is guilty of malfeas- ance or fraudulent practice in the execution of any duty prescribed by law in relation thereto, is liable in damages to the person in- jured." ^ As to the liability of a notary or commissioner of deeds in general see the topic " Duties and Liabilities," section 46. To recover damages for a false certificate of acknowledgment the party claiming them must prove a clear and intentional dereliction of duty.^ If a notary certifies that he personally knew the one making the acknowledgment, when, as a matter of fact, he did not, he will be liable in an action for damages ; it is his duty to know before certifying that fact.^ The damages in cases of the negligence of the notary in taking and certifying the acknowledgment of a mortgage is the amount of the debt and interest intended to be secured by the mortgage.^ § 191. Acknowledgments and Proofs: Criminal Liability of a Notary or Commissioner of Deeds. — The criminal liability of the notary or commissioner of deeds in connection with the subject of acknowledgments has been considered, together with his criminal liability in connection with oaths, affidavits, etc., under sections 48-51. § 192. Acknowledgments and Proofs: Miscellaneous Acts: Criminal Liability. — As there are some transfers of real property which are illegal by statute and as a notary or commissioner may sooner or later be called upon to take acknowledgments to such illegal deeds it is thought well to make reference to the said stat- utes. A person who without authority and consent of the legislature purchases or contracts to purchase lands of any Indian residing in New York is guilty of a misdemeanor.^ 1. Con. Laws, Real Prop. Law, § 531, 7 N. W. 157; State v. Meyer, 2 330. Mo. App. 413; Hattan v. Holmes, 9T 2. Commonwealth v. Haines, 97 Pa. Cal. 208, 31 Pac. 1131; Bartels v. Peo- 228, 39 Am. Rep. 805; Henderson v. pie, 45 111. App. 306. Smith, 26 W. Va. 829, 53 Am. Rep. 4. Fogarty v. Pinlay, 10 Cal. 239, 139; Browne v. Dolan, 68 Iowa, 645, 70 Am. Dec. 714. 27 N. W. 795. 5. Con. Laws, Penal Code, § 2030. 3. Cameron v. Culkins, 44 Mich. Acknowledgment and Peoof. 201 A person who takes a conveyaiice of lands from a person not in possession while such lands are the subject of controversy, by a suit in court, knowing these facts, is guilty of a misdemeanor.^ A person who buys or sells land which has not been in the possession of the grantor or those by whom he claims for the space of one year is guilty of a misdemeanor.^ But that will not prevent a person who has a just title to lands in the adverse possession of another from executing a mortgage on such lands or a conveyance or re- lease to any person in lawful possession thereof.* Any person who is a party to a fraud in connection with the registration of land under the new Torrens law of registration is guilty of a felony and punishable by a fine of not exceeding five thousand dollars, or imprisonment for a period not exceeding five years, or both, in the discretion of the court.^ And any person who forges or swears falsely concerning any matter or proceeding made or done in pursuance of the registering title to real property under the new Torrens law of registration is guilty of a felony and pun- ishable in the same manner.^ A certificate is deemed complete from the time it is delivered by the defendant to any other person with intent that it be uttered or published as true.' A person who falsely personates another, and, in such assumed character, acknowledges or proves a written instrument, which by law may be recorded, with intent that the same may be delivered or used as true is punishable by imprisonment in a state prison for not more than ten years.* § 193. Compelling Witness to Prove Conveyance. — When the grantee in a conveyance, his heir or personal representative, or a person claiming under any of them, finds himself in possession of a conveyance which has not been acknowledged or proved he can compel a subscribing witness to the conveyance to prove the same if he can show that the conveyance cannot be proved without his testi- mony.'^ The facts should be set out in the form of a petition to a 2. Con. Laws, Penal Law, § 2031 6. Con. Laws, Real Prop. Law, §• 3. Con. Laws, Penal Law, | 2032. 431. 4. Con. Laws, Penal Law, § 2033. 7. Con. Laws, Penal Law, § 1625. 5. Con. Laws, Kcal Prop. Law, § 8. Con. Laws, Penal Law, § 928. 430. 1. Con. Laws, Real Prop. Law, 5 305. '202 Notaries and Commissioners of Deeds. notary public or commissioner of deeds of the county or city where the subscribing witness resides praying that the officer issue a sub- poena requiring such witness to attend and testify before him con- cerning the execution of the conveyance. If the witness without reasonable cause refuses or neglects to attend the notary or com- missioner may issue a warrant for his arrest/ If, upon coming vol- untarily or being brought before the officer issuing the subpoena, the witness refuses to answer under oath concerning the execution of the said conveyance he forfeits to the person injured one hundred ■dollars and may also be committed to prison by the officer who is- sued the subposna, there to remain without bail and without the liberties of the jail, until he answers under oath concerning the -execution of the conveyance.^ § 194. Compelling Witness to Prove Conveyance: Forms: Petition: Subpoena: Affidavit of Service: Warrant to Arrest: Warrant to Commit to Jail. — The following forms may be fol- lowed in compelling the witness to testify, varying the forms to suit the individual cases : FORM 98. Petition that Notary Public or Commissioner of Deeds Issue Snbpoena Keqniring a Subscribing Witness to Attend and Testify Before Him Concerning tlie Execution of the Conveyance. "Office of John Doe, notary Public, Ulster County, New York. In the Matter of the application of John Stiles to compel Frank Smith, the sub- scribing witness in a conveyance from Henry Jones to John Stiles, to prove the same. To the Honorable John Doe, Notary Public, City of Kingston, Ulster County, State of New York; The petition of John Stiles respectfully shows that one Eenry Jones on the 20th day of July, 1911, signed, sealed, and delivered to your petitioner a conveyance of lands situate, lying and being in the County of Albany and Stat© of New York; that the said conveyance has never been acknowledged or proved; that the said conveyance was witnessed by one Frank Smith who at the present time is a resident of the City of Kingston, County of Ulster, State ■of New York; that the said Eenry Jones, the grantor in the said conveyance, 1. See p. 201, note 1. Acknowledgment and Peoof. 203 has died since the execution of the same; that the execution of the said conveyance cannot be proved without the testimony of the said Frank Smith; that your petitioner has repeatedly applied to the said Frank Smith request- ing him to prove the said conveyance; that on one occasion, to wit, on the 4th day of August, 1911, your petitioner accompanied with a duly qualified notary public of the County of Ulster, at 11 o'clock in the forenoon at his office. Wo. 40 Main Avenue, in the said City of Kingston, called on the said subscribing witness, Frank Smith, and requested him to testify in relation to the execution of the said conveyance; that he thereupon refused to so testify and prove the execution of the said conveyance. Wheeefoee your petitioner prays that a subpoena be issued requiring such witness to appear and testify before you concerning his signature as a wit- ness to the said conveyance and the execution of the said conveyance by the grantor, Benry Jones. JOBN STILES. State of New York, ) J. ss. ; County of Ulster. \ John Stiles, being duly sworn, deposes and says that he is the petitioner in and has read the foregoing petition and knows the contents thereof, and that the same are true of his own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. JOHN STILES. Sworn to and subscribed before me this 10th day of Sept., 1911. BICHABD ROE, Notary Public, Ulster County. FOBM 99. Subpoena Issued by Notary or Commissioner of Deeds to Compel Safc- scribing Witness to Appear and Testify. Office of John Doe, Notary Public, Ulster County, New York. In the Matter of the application of John Stiles to compel Frank Smith, the sub- scribing witness in a conveyance from Henry Jones to John Stiles, to prove the same. The People of the State of New Yobk, To Frank Smith, City of Kingston, County of Ulster, State of New York. Geeetino : We command you, that all business and excuses being laid aside, you ap- pear and attend before John Doe, duly commissioned and sworn to perform 204 NOTAEIES AND CoMMISSIONEES OF DeEDS. the powers and functions of the office of notary public in the County of Ulster, on the 16th day of September, 1911, at 10 o'clock in the /orenoon, at the office of the said John Doe, No. &3 First Avenue, City of Kingston, to testify concerning your signature as a witness to, and the execution of a. certain conveyance of real property by which, on the 20th day of July, 1911, one, Henry Jones, is alleged to have transferred to one, John Stiles, certain lands situate within the County of Albany, State of New York, and to which as it appears by the petition of the said John Stiles you are a subscribing witness, and for a failure to attend you will be liable to forfeit to the said John Stiles one hundred dollars. Witness my hand and seal this 10th day of September, 1911. JOHN DOE, Notfiry Public, Ulster County. FORM 100. AffidaTit of Service of Subpoena. Office of John Doe, Notary Public, Ulster County, New York. In the Matter of the application of John Stiles to compel Frank Smith, the sub- scribing witness in a conveyance from Henry Jones to John Stiles, to prove the same. State of New York, ) Y ss. : County of Ulster. \ William Thompson, being duly sworn, says that on the 11th day of Sep- tember, 1911, he served the annexed subpoBna personally on Frank Smith, the person therein named as witness, by then and there exhibiting to him the said original subpoena, and delivering to and leaving with him a copy thereof and paying to him at the same time and place ninety-eight cents as and for his fees for travelling from 32 Whitman Road, City of Kingston, which was then the residence of the said Pramk Smith, to the place mentioned in the said subpoena, and return thereupon, and for one day's attendance as such witness. WILLIAM THOMPSON. Sworn to and subscribed before me this 11th day of Sept., 1911. RICHARD ROE, Notary Public, Ulster County. Acknowledgment and Proof. 205 FOEM 101. Tfarrant to OiQcer to Arrest Witness and to Bring Him Before the Notary or Commissioner of Deeds. State of New York, County of Ulster. In the Name of the People of the State of New Yobk: To James Smith, Sheriff of the County of Ulster, Greeting: Information on oath having this day been laid before me that on the day of July, 1911, a deed was executed by Henry Jones to John Stiles con- veying certain lands situate, lying and being in the County of Albany and State of New York, that the said conveyance has never been acknowledged or proved, that the said conveyance was witnessed by one Frank Smith who, at the present time is a resident of the City of Kingston, County of Ulster, State of New York, that the testimony of the said Frank Smith is necessary to prove the said execution, and that the said Frank Smith has repeatedly refused to prove the same, You are therefore commanded forthwith to arrest the said Frank Smith and bring him before me at my office. Dated at the City of Kingston, this 22nd day of September, 1911. JOHN DOE, Notary Public, Ulster County. FOEM 102. "Warrant to Officer to Arrest Witness and to DeliTer Him to tlie Slieriff of tlie County, or to the Keeper of the City Prison of the City and} County of New York, for Befusal to Answer and to Such Sheriff or Keeper of the Prison to Detain Him, State of New York, ) I ss. . County of Ulster. \ In the Name of the People of the State of New Yoek: To the Sheriff of the County of Vlster, Greeting: Wheeeas, on the 10th day of September, 1911, John Doe, a notary public of Ulster County, duly commissioned and sworn, issued a subpoena to Frank Smith of the City of Kingston, County of Ulster and State of New York, commanding him to appear at the office of the said John Doe, No. 23 First Avenue, City of Kingston, on the 16th day of September, 1911, at 10 o'clock in the forenoon, then and there to testify concerning his signature as a witness to, and the execution of a certain conveyance of real property by which, on the 20th day of July, 1911, one, Henry Jones is alleged to have transferred to one, John Stiles, certain lands, situate within the County of Albany, State of New York, and Whereas, the said subpoena was duly served on the said Framk Smith oa the 11th of September, 1911, as appears by affidavit of William Thompson dated the same day and now on file in my offixie, and 206 Notaries and Commissionees of Deeds. Whereas, the said Frcmh Smith did on this 16th day of September, 1911, appear in answer to the said subpoena, and Whebeas, the said Frcmk Smith upon being asked the following questions: Do you know Henry Jones? Do you know John Stiles? Is this your signa- ture? (showing witness deed from Henry Jones to John Stiles on which the name Prank Smith appears under the word "Witnesses.") Did you see Kenry Jones execute this deed? refused thereupon to make any answer what- soever, Now, thebefore, you are hereby commanded, in the name of the people of the State of New York, forthwith, to arrest the said Frank Smith and to keep and detain him in your custody, there to remain without bail and without the liberties of the jail until he answers under oath as prescribed by section three hundred five of chapter fifty of the Consolidated Laws of New York, being chapter fifty-two of the laws of nineteen hundred nine, or is otherwise discharged according to law. Dated at the City of Kingston, this 16th day of September, 1911. [Seal of Notary] JOHJi DOE, Notary Public, Ulster County. FOBJU: 103. Commitment When Officer Other Than Sheriff Arrests or When Airest is Made in Jfew Torh County. State of New York, i . County of 'New York, j To the Keepeb of the Peison op the Citt and County of New York: An order having been made this day by me that Frcmk Smith be held to answer to John Doe, notary public of the county of New York upon a charge of refusing to testify concerning his signature as a, witness to, and the execution of a certain conveyance under section three hundred five of chapter fifty of the Consolidated Laws of New York, being chapter fifty-two of the laws of nineteen hundred nine, you are commanded to receive him into your custody, and detain him until he be legally discharged. Dated at the City of New York, this 16th day of September, 1911. [Seal of Notary] JOHN DOB, Notary Public, New York County, No. 10. § 195. Powers of Attorney: Deed With Corrections. — The following are forms of a general letter of attorney in fact in bank- ruptcy and a deed with full covenants and certain corrections made before the deed was executed : ACKNOWLEDGMEJSTT AND PeOOF. 207 FOBM 104. €t«neral letter of Attorney in Fact When Creditor is not Represented by Attorney at Law. In the DlBTBICT COTIET OF THE UNITED STATES FOB THE SOUTHEEN DISTRICT OF New Yoek, in Bankbuptct. In the Matter of Richard Roe, hard Roe, ) Bankrupt. \ ^^ Bankruptcy. To William Stiles, 149 Broadway, New York City. I, John Jones, of the Borough of Manhattan, City, County and State of New York do hereby authorize you or any one of you, to attend the meeting or meetings of creditors of the bankrupt aforesaid at a court of bankruptcy, wherever advertised or directed to be holden, on the day and at the hour appointed and notified by said court in said matter, or at such other place and time as may be appointed by the court for hold- ing such meeting or meetings, or at which such meeting or meetings, or any adjournment or adjournments thereof may be held, and then and there from time to time, and as often as there may be occasion, for me and in my name to vote for or against any proposal or resolution that may be then submitted under the acts of Congress relating to bank- ruptcy; and in the choice of trustee or trustees of the estate of the said bankrupt, and for me to assent to such appointment of trustee; and with like powers to attend and vote at any other meeting or meetings, of creditors, or sitting or sittings of the court, which may be held therein for any of the purposes aforesaid; also to accept any composition pro- posed by said bankrupt in satisfaction of his debts, and to receive pay- ment of dividends and of money due me under any composition, and for any other purpose in my interest whatsoever, with full power of sub- stitution. IN WITNESS WHEREOF I have hereunto signed my name and affixed my seal the iOth day of December, A. D. 1910. JOHN JONES. [Seal] Signed, sealed and delivered in presence of FRANK JONES. JAMES SMITH. Acknowledged before me this 10th day of December, A. D. 1910. [Notary's Seal] JOHN DOE, Notary Public, New York County No. 40. [The words in italics must be changed to suit the case.] ^08 NOTAEIES AND COMMISSIONERS OF DeEDS. FORM 105. Deed Showing Corrections. ^August, THIS INDENTURE, made the 20th day of^|i*^, in the year on« thousand nine hundred and eleven, between Richard Roe who resides at 412 West 93rd Street, Borough oi Manhattan, City, County and ^a bac helor. State of New York, "^^ of the first part, and Jane Stiles of the Village of South Orange, County of Essex and State of New Jersey, a spinster, of the second part. WITNESSETH: That the said party of the first part, in considera- F. J. V. D. F. J. J. D. F. J. V. D. ftwo h undred f ($1,200) usand \ 7 tion of One thousand \ Dollars < $1,000 ) JLlawful money of the United States, paid by the party of the second part, doth hereby grant and release unto tlie said party of the second part, her heirs and assigns forever all that certain parcel of land situate, lying and being in the Borough of the Bronx, City of New York and bounded and described as -follows: ( Desceiption Together with the appurtenances, and all the estate and rights of the said party of the first part, in and to said premises, to have and to hold the above granted premises unto the said party of the second part, her heirs and assigns forever. And the said Richard Roe, party of the first part, does covenant with the party of the second part as follows: First. That the said Richard Roe, the party of the first part, is seized of the said premises in fee simple, and has good right to convey the same. Second. That the party of the second part shall quietly enjoy the same. Third. That the said premises are free from encumbrances. Fourth. That the party of the first part will execute or procure any further necessary assurance of the title to said premises. Fifth. That the party of the first part will forever warrant the title to said premises. IN WITNESS WHEREOF, the said party of the first part has here- unto set his hand and seal the day and year first ibove written. RICHARD ROE. [Seal] Sealed and delivered in the presence of (the amount $1,000 changed to $1,200; the month July changed to August; and the words "a bachelor" on the first page interlined before execution.) FRANK JONES, JOHN DOE. Acknowledgment and Pboof. 209 State of New York, County of New York {■«s.; On this 20th day of August, 1911, before me personally came Richard Koe, to me personally known, and known to me to be the individual described in, and who executed the foregoing instrument and he duly acknowledged to me that he executed the same for the uses and pur- poses therein mentioned. JOHN DOE, [Seal of Notary] Notary Public, New York County. Certificate filed in Westchester County. S'lO, NOTABIES AND CoMMISSIONEES O^'DeEDS. CHAPTEE IX. Depositions. S 196. Introduction: History. § 197. Definition. § 198. When Depositions may be Taken. § 199. Notary Public or Commissioner of Deeds May Take. § 200. : When Disqualified. § 201. Notary Public or Commissioner of Deeds Appointed Commissioner to Take Deposition May Employ Attorney. § 202. Compelling Witness to Conveyance to Testify. § 203. Whose Deposition May be Taken. § 204. : Statutes and Cases. § 205. Depositions: New York Statutes: In General. § 206. : : Continued. § 207. : "On Order:" Code of Civil Procedure, Sections 873, 885, 1688f, and 2538. § 208. : "On Stipulation: " Code of Civil Procedure, Sec- tions 879, 908, 2538 and 3171: Municipal Court Act, Section 218. § 209. : "On Commission:" Code of Civil Procedure, Sec- tions 915, 887, 2980: Municipal Court Act, Section 205. § 210. : Criminal Law: Under the New York Code of Criminal Procedure. § 211. : : Under the Laws of Other States. § 212. : Criminal Law. § 213. Interrogatories: Oral Examination. 5 214. Open Commission. § 215. Time of Taking Deposition. § 216. Witnesses: Attendance: Subpoenas: Witness Fees. § 217. : Subpoenas Duces Tecum. § 218. : Subpoenas: Forms. § 219. : Refusal to Attend: Liability. § 220. : Refusal to Testify: Liability. § 221. Deposition: How Taken. § 222. S 223. § 224. § 225. § 226. S 227. ■ S 228. S 229. Irregularities. Influencing Testimony. Interpreters. How Returned. Certificate of Execution. Form. Exhibits. How Amended. ,1 230. Fees of Commissioner. Depositions. 211 § 196. Introduction: History. — Under the admiralty law, ■when a witness is in a foreign country or without the jurisdiction. of a trial court " letters rogatory " are issued to a court of the for- eign country. Thereupon the foreign judge, by reason of the law of nations, examines the witness himself or appoints a commis- sioner to examine him.-' In England the courts of chancery like- wise exercised the power of examining witnesses out of their juris- diction by commissions directed to foreign magistrates.^ At com- mon law, the courts coerced litigants into allowing the other party to take depositions by consent, by delaying the case. But later on that procedure was abandoned, as it was considered an unwarranted use of power. Then it was that statutes were passed allowing al party to a cause, by following the statute in all its details, to obtain the testimony of a person who could not be called as a witness.^ Be- cause these statutes are in derogation of the common law formerly it was held that they must be strictly complied with, otherwise the depositions taken under them would not be admissible;* but by Section 3345 of the Code of Civil Procedure the rule of strict con- struction is not applicable to the law governing depositions. § 197. Definition. — The word "deposition," as used in this chapter, is taken to mean the written testimony of a witness taken out of court before a notary, commissioner of deeds or other person duly authorized to take it, and which is intended to be used upon the trial of some cause in court or before some officer or commission ^appointed by statute.^ A deposition differs from an affidavit, in that a deposition is evidence, given by a witness under interroga- tories written down by an official person ; while an affidavit is the mere voluntary act of the party making the oath, and may be, and generally is, taken without cognizance of the one against whom it is to be used. 1. See §§ 35, 198; 1 Greenleaf Ev., 4. 9 Am. & Eng. Ency. of Law, 2d § 320; Bouv. Law Diet. (Eawle's ed., p. 300, and cases there cited. Kev. ), tit., "Letters Rogatory." 5. Black's Law Diet., tit., " Deposi- 2. 1 Greenl. Ev., §§ 320, 251; 9 tion;" Bouv. Law Diet. (Rawle's Am. & Eng. Ency. of Law, 2d ed., p. Eev. ) , tit. " Deposition." As to the use 299. of depositions before the Interstate 3. 9 Am. & Eng. Ency. of Law, 2d Commerce Commission, see U. S. Rev. ed., p. 299; 1 Grenl. Ev., § 321. Stats., § 866, and following. 212* NOTAEIES AND CoMMISSIONEES OF DeEDS. § 198. When Depositions May be Taken. — It may be desir- able to take depositions for use in some foreign country, for use in the courts of the United States, for use in the courts of some sister state, or in the courts of the state of New York. First, we will consider depositions to be used in some foreign country. As a general rule, when the court of one country desires to use the testimony of a person in some foreign country, it issues to some court in the foreign country " letters rogatory," by which it requests the foreign court to take the desired testimony and for- ward it to the trial court.^ Very often the court, upon the receipt of " letters rogatory," appoints by a commission some notary pub- lic or commissioner of deeds to take the desired testimony. He is instructed by the commission to return the testimony or inter- rogatories and answers to the court issuing the commission, where- upon they are forwarded to the foreign court. As a general rule, the " letters rogatory " will be accompanied with interrogatories, and it will be the duty of the notary or commissioner to carry out the commission issued to him in the same manner he would were the testimony to be used in some court in New York.^ Sometimes a notice is given or some other proceeding taken in accordance with "the laws of the foreign country. The New York Code will recog- nize any of these.* In considering when depositions may be taken for use in the courts of the United States the reader is referred to the United States statute. There we find they may be taken " when the wit- ness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go ■out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, or when he is ancient and infirm." * 1. 9 Am. & Eng. Ency. of Law, 2(i usually may be taken at his place of ed., p. 298, § 89. business, if within a different State 2. N. Y. Code of Civil Proc, §§ 914, from his home:" 9 Am. & Eng. Ency. 915. of Law, 2d ed., p. 309. 3. N. Y. Code of Civil Proc, § 915. A witness lives at a greater dia- 4. U. S. Rev. Stats., § 863. tance than one hundred miles from the " For this purpose the residence of place of trial if he is sojourning there the witness is not to be determined for any lawful purpose: Mutual Bene- by applying with great strictness the fit Life Ins. Oo. v. Robison, 19 U. 8. rules of domicile, and bis deposition Depositions. 213 If the depositions are to be taken under the section of the United iStates laws just quoted, the notary should first be satisfied in some manner- that some one of the causes therein set forth is a fact. As. a general rule, however, the attorney desiring to take depositions will have the notary appointed by a commission out of the circuit or district court to take the testimony, and it will then be the duty of the notary to carry out the commission according to the instruc- tions given him and the laws of New York.^ In taking depositions for use in some sister state the notary or commissioner should follow the commission as issued to him by the court of that state and supplement his instructions from the sister state with the laws of New York whenever it is necessary to do so. The Code says: "A party to an action, suit, or special proceed- ings, civil or criminal, pending in a court without the state, either in the United States, or in a foreign country, may obtain the testi- mony of witnesses, and, in connection therewith, the production of- books and papers." ^ That brings us to the question of when depositions may be taken' by notaries and commissioners of New York to be used in the courts of New York. The deposition of a party to an action pend- ing in a court of record, or of a person who expects to be a party to an action about to be brought in such a court may be taken at his own instance or at the instance of an adverse party, or by a coplaintiff or codefendant at any time before or during the trial.^' Likewise the deposition of a person not a party, whose testimony- is material and necessary to a party to an action, pending in a court of record, or to a person who expects to be a party to an action about to be brought in such a court, by a person other than the person to be examined, may also be taken.^ In the cases just enumerated if the action is pending it must be shown that the per- App. 266, 58 Fed. 723, 7 C. C. A. 444, is to be determined by the usual, ordi- 22 L. R. A. 325. nary and shortest route of public The distance is to be computed upon travel, and not by a mathematically the way of usual travel from the resi- straight line between the place of resi- dence of the witness to the place of dence and the place of trial: Jen- trial: In re Foster, 44 Vt. 570; and nings v. Menaugh, 118 Fed. 612. by the usual land route though there 2. N. Y. Code of Civil Proc, §§ 914, is a nearer and more used route by 915. ■water: Marston v. Forward, 5 Ala. 5. U. S. Eev. Stats., § 866. 347. 6. N. Y. Code of Civil Proc, § 870. The distance from the place of trial 7. N. Y. Cbde of Civil Proc, § 871. ■214 Notaries and Commissionees of Deeds, son to be examined is about to depart from the state; or that lie is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial or that any other special ■circumstances exist which render it proper that he should be ex- amined.* If no action is pending it must be shown that the persons ■expected to be the adverse parties are of full age and live, sojourn •or have offices within the state and also the circumstances which render it necessary for the protection of the applicant's rights that the witness's testimony should be perpetuated.' And depositions may be taken when the parties to an action stipulate, in writing, that certain competent witnesses are to be examined at a time and place specified, either orally or upon interrogatories, before a judge or referea^" By section 2538 of the ^Code of Civil Procedure the sections S70 to 913 apply to depositions taken for use in a Surrogate's Court. Therefore, in the cases just enumerated, depositions may also be taken to be used in the Surrogate's Court. ^'■ Where a person has been, or he or those under whom he claims iave been, for one year in possession of real property or of an undivided interest therein, claiming it in fee or for life or for a ■ term of years, not less than ten, he may take the deposition of any person or persons in order to perpetuate such testimony.^^ In the City Court of the city of New York a commission may be issued in six cases : first, when a party is in default ; second, where final judgment has been rendered and testimony is required to carry the judgment into effect; third, where an appeal has been taken and testimony will be material and necessary if a new trial is granted; fourth, where a witness may die or remove from juris- •diction ; fifth, where issue of fact has been joined and testimony is material; sixth, in special proceedings.^' A commission or order may be issued if the parties consent thereto.^* In the Municipal Courts of New York City and in the justice of the peace courts where the defendant has neglected to appear upon the return of a summons, or has failed to answer the com- 8. K. Y. Code of Civil Proc, §§ 872- 11. N. Y. Code of Civil Proc, § '875. 2538. 9. N. Y. Code of Civil Proc, §§ 872- 12. N. Y. Code of Civil Proc, | •876. 1688d. 10. N. Y. Code of Civil Proc, § 879. 13. N. Y. Code of Civil Proc, § 888. 14. N. Y. Code of Civil Proc, § 908. Depositions. 215 plaint, or where an issue of fact has been joined ia an action ; and it appears, by affidavit, upon the application of either party, that a witness, not within the city of New York or county where the action is pending, or an adjoining county, is material to the prose- cution or defence of the action, the court or a justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon inter- rogatories to be settled by the court or justice, or by the written agreement of the parties, and indorsed upon or annexed to the com- mission ; to take and certify the deposition of the witness ; and to return the same by mail addressed to the clerk of the court or to the justice.^^ Under the Municipal Court Act the parties may stipulate in writing that an order to take testimony conditionally be granted.^* If the witness is confined in a prison or jail such a stipulation cannot be entered into.^' If both parties consent the deposition may be taken upon oral questions." It is to be understood that in all the cases set out in this section the testimony of the witness must be material and necessary. § 199. Notary Public or Commissioner of Deeds May Take. — A notary public may take depositions to be used in a foreign coun- try if he is appointed by a commission out of a federal court. It need hardly be said that a United States court would not issue such a commission to him if he were not designated by a United States law as an officer qualified to take depositions to be used in the courts of the United States. A notary is given that power by the Revised Statutes, sections 863 and 866. A commissioner of deeds is not designated. As to taking depositions for use in the courts of other states, a notary or commissioner of deeds of New York generally may take them if he has been designated in a commission issued out of the court of some other state. In many states a commission may be issued in blank to a notary public, leaving the name of the notary to be filled in when the deposition is taken ; but in others a blank 15. N. y. Code of Civil Proc., § 17. Municipal Court Act of the City 2980 ; Municipal Court Act of the City of New York, § 206 ; N. Y. Code of of New York, § 205. Civil Proc., § 2981. 16. Municipal Court Act of the City of New York, § 218. 216 NoTAEIES AND COMMISSIONERS OF DeEDS. commission is invalid.' If a blank commission were agreed to loy the parties, however, it would be held valid.^ It might be noted in this connection that there are states which hold that a notary or commissioner of deeds in any foreign state cannot take depositions to be used in their state tinless he is au- thorized by his home state to take depositions to be used in foreign states. "Vermont and Indiana are two states which have held that to be the law ' and as New York has no law which expressly desig- nates a notary or commissioner of deeds as an officer to take deposi- tions to be used in a foreign state it is a question whether deposi- tions taken by a notary or commissioner of deeds here in New York would be valid in Vermont or Indiana. As a general rule whether a notary or commissioner of deeds may take a deposition will, of course, depend on whether he is named in the commission, order or stipulation as the officer to take the deposition. Sections 873, 879 and 1688/ of the Code of Civil Procedure refer to a " judge " or " referee; " section 915 of the Code of Civil Procedure to a " commissioner " or " officer desig- nated in the commission ; " section 899 of the Code of Civil Pro- cedure which applies to depositions to be used in the City Court speaks of " a person mutually agreed upon by the parties," " a chancellor," " a judge of a court of record," " the mayor or other chief magistrate of a city," " a justice of the peace of the state or territory ; " while section 205 of the Municipal Court Act of New York City and section 2980 of the Code of Civil Procedure which applies to depositions to be used in the courts of justices of the peace refer to " any competent person." As a matter of practice a notary or commissioner of deeds is gen- erally chosen as the officer to take a deposition by the consent of the parties.* If the parties do not consent and it becomes neces- sary for the court to appoint a " referee " he would have to be an attorney of the courts in good standing.^ 1. Brackett v. Nikirk, 20 111. App. D. Chip. (Vt.) 200; Dumont v. Mc- 525; Dumont v. McCracken, 6 Bla«kf. Cracken, 6 Blackf. (Ind.) 355. (Ind.) 355. 4. Halleran v. Field (1840), 23 2. Carlyle v. Plumer, 11 Wis. 99; Wend. 37. Hall V. Lay, 2 Ala. 529. 5. Rule 79 of the General Rules of 3. Midland Steel Co. v. Citizens' Practice. National Bank, 34 Ind. App. 107, 72 A referee and a commissioner to JSr. E. 290 ; Patterson v. Patterson, 1 take a deposition are two different offi- Depositions, 217 If more than one person is named to take a deposition, one of those named should not take the deposition in the absence of the other commissioner. If he does it may be set aside as an irregu- larity unless it can be shown that the other commissioner had refused to act.^ § 200. Notary Public or Commissioner of Deeds May Take: When Disqualified. — A notary or commissioner of deeds is in- competent to take depositions when he is interested in any way in the suit for which the deposition is being taken ; * the same rule applies when the officer is a near relative of any of the parties to the suit ; ^ or if he is the partner or clerk of the attorney ; ^ or attorney or counsel of one of the parties * or the stenographer of the attorney of one of the parties ; ^ or one who is in any way con- nected in business with such attorney or counsel^ or who occupies the same office with such attorney or counsel.^ Section 899 of the Code of Civil Procedure, which applies to the taking of depositions to be used in the City Court, adds that he must not be so related by reason of affinity or consanguinity to a party or so interested in the event that he would be disqualified from serving as a juror upon the trial of the action within the state ; * that is, he must not be of the sixth degree. cers, of course, but sometimes it is 94, where he was an uncle; Bryant v. diflScult to decide which officer was in Ingraham, 16 Ala. 116, where he was the minds of the legislators wTien they a brother in law. passeid certain acts. 3. Rule 79 of the General Rules of 6. Newell v. Newell (1877), 4 N. Y. Practice. Weekly Digest, 466; People v. Walker 4. N. Y. Code of Civil Proc., § 899; (1856), 23 Barb. 307. Rule 79 of the General Rules of Prae- 1. 21 Am. & Eng. Ency. of Law, 2d tice; N. Y. Code of Civil Proc, § 1166 ed., p. 571; Vol. 9, p. 305; McLean read with Con. Laws, Judiciary Law, V. Adams (1887), 9 N. Y. State Rep. § 15. 819. 5. Knickerocker Ice Co. v. Gray, 165 2. 9 Am. & Eng. Ency. of Law, 2d Ind. 140, ed., p. 305; Bean v. Quimby, 5 N. H. ^18 NOTAEIES AND CoMMISSIONEEa OF DeEDS. FOBM 106. mother (3) (2) daughter (1) son who is notary or commissioner son son son (party.) (♦) (5) (6) In this illustration the notary or commissioner of deeds could not take "the deposition because he and the party are of the sixth degree. See note 4, page 217. § 201. Notary or Commissioner of Deeds Appointed Commis- sioner to Take Deposition May Employ Attorney. — A notary or commissioner of deeds who has been appointed a commissioner to take a deposition by a court of another state may employ an attor- ney to procure from a justice of the supreme court a subpoena requiring the attendance of the witness before such commissioner.^ § 202. Compelling Witness to a Conveyance to Testify. — Under certain conditions a notary public or commi^ssioner of deeds mav compel a witness to a conveyance to come before him and testify. The topic is discussed under sections 193 and 194. 1. Matter of Garvey (1898), 33 App. Div. 134. Depositions. 219 § 203. Whose Deposition May Be Taken. — The deposition of «ither party to an action pending in a court of record or of a per- son who expects to be a party to an action about to be brought in such a court may be taken at his own instance or at the instance of an adverse party or by a coplaintiff or codefendant.' And the deposition of a person not a party may be taken. ^^ In all these cases it is presumed that the parties are not precluded from giving their testimony for any other reason. The testimony of a corpora- tion may be taken by taking the depositions of its officers and agents." In the United States courts the deposition of a party cannot be taken at the instance of his adversary.^ § 204. Whose Deposition May be Taken: Statutes and Cases. — The following references may be of value to the reader in answering questions as to whether certain persons may testify. 'No witness is generally to be excluded by reason of interest.^ A witness need not accuse himself of crime ^ but must testify even though it establishes the fact that he owes a debt.^ A party or per- son interested is not to be examined concerning personal transac- aetions or communications between himself and the deceased against the executor, administrator, etc., in some cases.* A person called upon in a civil action to testify that a thing in action has been bought, sold or received contrary to law, must testify but is protected against criminal proceedings.^ Neither a husband nor wife can be compelled to disclose a confidential communication made by one to the other during their marriage.' Conviction for a crime does not exclude a witness.^ Clergymen are not to disclose confessions.^ Physicians are not to disclose professional infonna- 9. N. Y. Code of Civil Proc, §§ 1. N. Y. Code of Civil Proc., § 828. 870, 887. 2. N. Y. Code of Civil Proc, § 837; 10. N. Y. Code of Civil Proc, §§ N Y. Constitution, art. I, § 6; People 871, 885, 914, 1688e, 887, 2980; Mu- v. Forbes, 143 N. Y. 219. nicipal Court Act of the City of New 3. N. Y. Code of Civil Proc, § 837. York, §§ 205, 216. 4- N. Y. Code of Civil Proc, § 829. 11. N". Y. Code of Civil Proc, § 872, 5. Con. Laws, Penal Law, § 2443. sub. 7. 6- Con. Laws, Penal Law, § 2445. 12. Ex parte Fisk (1884) , 113 U. S. 7. N. Y. Code of Civil Proc, § 832; 722; U. S. Rev. Stats., § 863 and fol- Con. Laws, Penal Law, § 2444. lowing ; Hanks Dental Ass'n v. Tooth 8. N. Y. Code of Civil Proc, §§ 833, -Crown Co. (1903), 194 U. S. 308. 836. 220 NOTABIES AND CoMMISSIONEES OF DeEDS. tion.' Nor are attorneys and counsellors at law to disclose communications/" § 205. Depositions: New York Statutes: In General. — The general subject of depositions is taken up in the Code of Civil- Procedure in three different articles of Chapter Ninth. Article First, comprising sections 870 to 886 of the Code, deals with depositions taken and to be used within the state. Article Second, comprising sections 887 to 913 of the Code, deals with deposi- tions taken without the state, for use within the state. And Article Third of Chapter Ninth, comprising sections 914 to 920 of the 'Code, deals with depositions taken within the state for use with- out the state. As a matter of fact all the sections of Article Third have been repealed except 914, 915 and 919, and these were amended in 1899 so that the present law in regard to depositions taken within the state for use without the state dates from the year 1899. In considering the law under the heads just enumerated it is necessary to find under the article considered all the law applicable to the cases in hand; sections 870 to 886 cannot be used to supple- ment sections 914 to 920 nor can sections 914 to 920 be referred to in connection with sections 887 to 913. The first apply to depo- sitions taken and to be used within the state.; the last apply only to depositions taken within the state to be used without the state, while 887 to 913 apply only to depositions taken without the state to be used within the state.-' As this book is intended only for notaries and commissioners of deeds of New York article second, sections 887 to 913 will not be discussed except as City Court practice as the whole article is adopted by section 3171 of the Code of Civil Procedure.^ By section 2538 of the Code of Civil Procedure sections 870 to 913 are adopted as the practice for the Surrogates' Courts.^ The statutes on depositions taken within the state to be iised within the state, those taken within the state to be used without the state, the statutes governing the taking of depositions to perpetu- ate testimony In connection with real property, the statutes under 9. N. y. Code of Civil Proc, §§ 834, 1. Matter of Searls (1898), 155 N. 838. Y. 333. 10. N. Y. Code of Civil Proc, §§ 2. N. Y. Code of Civil Proc., § S171. 835, 836. 3. N. Y. Code of Civil Proc., § 2538. Depositions. 221 whicli depositions are taken to be used in the City Court of New York City, the statutes governing the taking of depositions to be used in the Municipal Courts of New York City and the statutes relating to commissions to take testimony to be used in the courts of justices of the peace are here treated of. § 206. Depositions: New York Statutes: Continued. — From the statutes referred to in the previous section we learn that a deposition may be taken in three ways. It may be taken under " an order " of the court as set forth in sections 873, 885, 1688f, 2538 of the Code of Civil Procedure ; it may be taken on " a stipu- lation " entered into by the parties to an action as set forth in sections 879, 908, 2538 of the Code of Civil Procedure; or it may be taken on " a commission " issued from a court in some other state or in some foreign country as set forth in section 915 of the Code of Civil Procedure ; on " a commission " issued by the City Court of New York or a judge thereof or by one of the surrogates as set forth in section 887 of the Code of Civil Procedure ; or on " a commission " issued by one of the Municipal Courts of New York City as set forth in section 205 of the Municipal Court Act of New York City ; or on " a commission " issued by a justice of the peace as set forth in section 2980 of the Code of Civil Procedure. § 207. Depositions: "On Order": Code of Civil Procedure, Sections 873, 885, 1688 f, and 2538. — One of the ways in which a person may be authorized to take a deposition is by an order granted by a court or judge to whom an affidavit or petition has been presented by a party to an action or by one who expects to be a party to an action or by one interested in real property. The affidavit or petition must set forth certain facts upon which the court or judge will grant the order.-^ An order may be made by consent in some eases.^ The order will direct the witness to ap- pear before the officer designated and the service of the order and affidavit upon the witness takes the place of a subpoena.^ When an order to take a deposition, properly signed by a court or judge, and the accompanying affidavit showing that service of 1. N. Y. Code of Civil Proc., §§ 872, 3. N. Y. Code of Civil Proc., §§ 873. 885, 1688e. 875. 2. N. Y. Code of Civil Proc, § 908. 222 Notaries and Commissioneks of Deeds. a copy of the order and of the affidavit upon which the order was granted has been duly made as directed in the order, when these are delivered to a notary or commissioner of deeds then it is that the duty of the notary or commissioner of deeds begins.^ The notary or commissioner must then proceed to take the depo- sition of the witness at the time and place specified in the order,' and must follow out to the minutest detail all instructions set out in the order. Under Eule 70 of the Court of Claims of New York depositions may be taken on an order by the court or a judge thereof. § 208. Depositions: "On Stipulation": Code of Civil Proce- dure, Sections 879, 908, 2538, and 3171 : The Municipal Court Act, Section 218. — When the parties to an action stipulate in writing that the deposition of a competent witness, to be used therein, may be taken before a judge or referee at a time and place specified in the stipulation, either orally, or upon interroga- tories, to be agreed upon in like manner, the witness may be sub- poenaed to attend the examination, as upon a trial ; and the judge or referee may take his deposition, as if an order had been made by the court, directing it to be so taken.-' And an order to take depositions may be made by consent in certain cases in the City Court of ~New York,^ and likewise to take a deposition condition- ally in the Municipal Courts of New York.' The attorneys must sign and file a stipulation to that effect when the clerk must enter an order accordingly. The deposition of a person confined in a prison or jail within the state cannot be taken on stipulation.* When the stipulation properly signed by both parties, specifying the time and place of the examination and setting forth the names of the witnesses to be examined is presented to the notary or com- missioner it is then his duty to issue subpoenas to all of the wit- nesses named therein commanding them to appear on the day and at the place agreed upon to give their testimony.* 5. N. y. Code of Civil Proc, §§ 873, 3. Municipal Court Act of New 875, 876, 1688g. York City, § 218. 6. N. Y. Code of Civil Proc., § 876. 4. N. Y. Code of Civil Proc., § 879; 1. N. Y. Code of Civil Proc, § 879. Municipal Court Act of New York 2. N. Y. Code of Civil Proc., §§ City, § 218. 3171, 908. Depositions. 223- § 209. Depositions: "On Commission": Code of Civil Proce- dure, Sections 915, 887, 2980: The Municipal Court Act, Section 205. — Depositions to be used in some sister state or in some foreign country or in New York without New York City are some- times authorized by an instrument known as a commission which recites the reason for the deposition and commands the officer named therein to take the same and make a return as therein set forth.-^ Upon proper application the supreme court, the county court or the city court or a judge of any of them will issue a sub- poena to the witnesses named ^ and upon their appearance it be- comes the duty of the notary or commissioner of deeds named therein to take their depositions as instructed in the commission. If the deposition is taken in New York under section 2980 of the Code of Civil Procedure or section 205 of the Municipal Court Act the justice of the peace or judge may issue the subpoenas.* The commission should be signed or authenticated by the clerk of the court, should bear date as of its issue, should show that it was. issued for the purpose of taking the testimony in New York,* and should bear the seal of the court unless that is done away with by statute.^ § 210. Depositions: Criminal Law: Under the New York Code of Criminal Procedure. — Neither a notary public nor a commissioner of deeds is empowered under any circumstances to- take depositions to be used in criminal trials in the state of New 1. N. Y. Code of Civil Proc, §§ 915, whose deposition was taken are dis- 887. Creamer v. Jackson (1857), 4 similar the deposition will be rejected r Abb. Pr. Eep. 416; Terry v. McNeal Smith v. Westerfield, 88 Cal. 374, 26 (1870), 58 Barb. 241; but see N. Y. Pac. 206. Error in the name of the-. Code of Civil Proc, § 3345. A com- proposed witness is cured by the ap- miasion which is not issued, signed or pearance of the adverse party and sealed, by the court is a nullity. Lam- cross-examination : Waldron v. St.. chick V. Ackerman (1911), 130 N. Y. Paul, 33 Minn. 87, 22 N. W. 4. S. 144. See § 201. 2. If in a witness' name in a com- 3. N. Y. Code of Civil Proc., § 2987; mission a second initial letter or name Municipal Court Act of New Yorlt is omitted, or there is a variation City, § 214. which does not change the sound, the 4. In re Canter (1903), 81 N. Y. S. mistake will be immaterial: McCut- 416. chen V. Lagins, 109 Ala. 457, 19 South. 5. 13 Cyc. of Law & Proc, pp. 882- 810. But if the name in the eommis- 889; Ford v. Williams (1862), 24 IT.- sion and the name of the witness Y. 359. 224 ifrOTAEIES AND CoMMISSIONEES OF DeEDS. York. From sections 204 and 626 of the Code of Criminal Pro- cedure we learn that under certain circumstances depositions to be admitted in evidence for or against the accused may be taken^ but the officers before whom they must be taken are specified aa either a judge of certain designated courts or a magistrate. § 211, Depositions: Criminal Law: Under the Laws of Other States. — Of course, if the criminal procedure of some sister state or of some foreign country specifies a notary public or commis- sioner of deeds as an officer qualified to take depositions to be used in their courts in criminal cases the said officers of New York may take the depositions notwithstanding the fact that they could not take them to be used, in the courts of New York as is stated in the last section.'' § 212. Depositions: Criminal Law.— When a notary or com- missioner of deeds accepts the office to take a deposition he assumes certain responsibilities which he should carry out to the best of his ability. It is his duty to carefully guard the criminal laws and if he learns while sitting as a commissioner that any one con- nected with the taking of the deposition has been guilty of a crime he should bring the facts to the notice of a court of record or to the district attorney. A person who gives or offers or causes to be given or offered to a person taking a deposition a bribe to influence his official action is punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both.^ A per- son who deceives a witness with intent to affect his testimony is guilty of a misdemeanor.^ A person who wilfully prevents or dissuades any person who has been duly summoned or subpoenaed as a witness from attending is guilty of a misdemeanor.' A per- son who bribes a witness is guilty of a felony ; * and a witness who accepts a bribe is guilty of felony.^ A person who suppresses or destroys evidence wilfully is guilty of a misdemeanor.' The law 7. N. Y. Code of Civil Proc, § 914. 3. Con. Laws, Penal Law, § 2441. See § 199. 4. Con. Laws, Penal Law, § 2440. 1. Con. Laws, Penal Law, §§371, 5. Con. Laws, Penal Law, § 379. 378. 6. Con. Laws, Penal Law, §§ 812, 2. Con. Laws, Penal Law, § 2442. 814. Depositions. 225 as to what constitutes perjury will be found on page 126. It is no defense to a prosecution for perjury that the defendant did not tnow the materiality of the false statement.'' Evidence obtained upon the examination of a person as a witness may be proved against such person upon any charge of perjury committed in such examination.* A person who by a subsequent deposition expressly contradicts and falsifies a former one made by him, and in such subsequent deposition expressly admits and alleges that the former one was intentionally false is guilty criminally and may be convicted on the two depositions without any further proof.' A notary or commissioner of deeds sitting as a commissioner to take a deposition cannot summarily commit a witness where it appears probable that he has committed perjury; the Penal Law gives that power only to a. court of record." ISTor can he bind over witnesses or detain documents." He should bring the facts in the case to the immediate attention of the district attorney. Service of subpoenas on Sunday is prohibited ^^ and whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as a holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.^' Witnesses must not be unreasonably detained." § 213. Interrogatories: Oral Examination. — If the deposition is taken under section 873, section 879 or section 1688A. of the Code of Civil Procedure it may be either upon interrogatories or by oral examination ; if it is taken under section 885 it must be by question and answer. If it is taken under section 914-919 of the Code of Civil Procedure the commission will designate the manner in which it is to be taken. If it is taken to be used in one of the Surro- gate's Courts under section 2538 of the Code of Civil Procedure 7. Con. Laws, Penal Law, § 1624. 11. Con. Laws, Penal Law, §§ 1629, 8. Con. Laws, Penal Law, § 1631. 1630. 9. People V. Burden (1850), 9 Barb. 12. Con. Laws, Penal Law, § 2148. 467. 13. Con. Laws, Penal Law, § 2150. 10. Con. Laws, Penal Law, § 1628. 14. Constitution of New York, art. I, § 5. 226 NOTAEIES AND COMMISSIONERS OF DeBDS. or in the City Court of New York imder section 3171 of the Code of Civil Procedure it may be taken upon interrogatories or by oral examination. The commission or order will set forth the manner in which it is to be taken. ^ If it is taken to be used in one of the Municipal Courts of New York City or in a justice of the peace court it must be taken upon interrogatories unless oral questions are consented to.^ We see, then, that in some cases the deposition must be taken upon interrogatories and in other cases it may be taken by oral examination. " Interrogatories " is the name given to a set of questions formulated by one of the parties; the questions formu- lated by the opposing party are known as " cross-interrogatories." If there is any dispute over the form or substance of any question offered by either party, the judge granting the commission or order settles the dispute before the set of questions is finally made up and sent to the notary or commissioner of deeds.^ When the parties are not to be represented at the taking of the deposition interroga- tories are settled; but generally, if counsel are present, the depo- sition is taken by oral examination. After the interrogatories have been settled neither side can with- draw his interrogatories unless the opposing party consents.* I 214. Open Commission. — A commission to take the deposi- tions of witnesses not named is called an open commission, and may be granted in some oases.^ It is sufficient to say here that if a notary or commissioner of deeds receives such a commission it is not for him to question it ; it is his duty to carry out, as far as possible, the instructions of the commission. Whether an open, commission shall be issued lies in the discretion of the judge. The Code sections which govern the taking of depositions to be used in the Surrogate's Courts and in the City Court of New York especially refer to open commissions.* f 1. N. Y. Code of Civil Proc, §§ 4. The Union Bank of Sandusky v. 3171, 2538, 887, 891, 893, 900, 912. Torrey (1855), 2 Abb. Prae. Rep. 269. 2. Municipal Court Act of New S. Anderson's Law Diet.; 9 Am. &• York City, §§ 205, 206; N. Y. Code of Eng. Ency. of Law, 2d ed., p. 319; Civil Proc, §§ 2980, 2981. 13 Cyc. Law & Proc., p. 889. 3. General Rules of Practice, Rule 6. N. Y. Code of Civil Proc., §§ 894, No. 20. 897, 2538, 3171. Depositions. 227 § 215. Time of Taking Deposition. — The notary or commis- eioner should use every endeavor to have the examination begin at the time specified in the order, commission or stipulation.' If any delay occurs it should not be by reason of his absence. The time of the examination may be changed by agreement of the par- ties ; ^ if a serious delay occurs it would be vs^ell to note in the return that the new time is agreed upon by the parties. An examination continued into Saturday afternoon is legal.* Depositions should not be taken on Sunday.^ ^ § 216. Witnesses: Attendance: Subpoenas: Witness Fees. — The attendance of a witness that his deposition may be taken may be obtained in either of two ways. An order of the court directing him to attend before a named officer at a certain time and place', may be served on him or a subpoena issued out of some court or under the hand of the notary or commissioner of deeds appointed^ a commissioner to take his deposition may be served on him. And; in either case the witness may be commanded to bring with him sl. book or paper.^ A subpoena must be served as follows : ' ' 1. The original subpoena must be exhibited to the witness. 2. A copy of the subpoena, or a ticket containing its substance, must be delivered to him. 3. The fees, allowed by law, for travelling to, and returning from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him.' If the deposition is to be used without the state in a court of record the witness is entitled to two dollars for each day's actual attendance and to eight cents for each mile, going to the place of attendance.^ If the deposition is to be used without the state in a court not of 1. The deposition should be taken 3. Carey v. Reilly (1897), 46 N. Y. at the time specified in the notice or S. 449. commission and at no other : Johnson 4. Con. Laws, Judiciary Law, § 5. V. Perry, 54 Vt. 459; Jordan v. Haz- 5. N. Y. Code of Civil Proc, §§ 854, ard, 10 Ala. 221; Veach v. Bailiff, 5 873, 915, 2987; Municipal Court Act Har. (Del.) 379; Young v. MacKall, of New York City, § 214. 4 Md. 362. 6. N. Y. Code of Civil Proc, § 852. 2. Hebron v. Work (1905), 92 N. 7. N. Y. Code of Civil Proc, § 3319. y. S. 149. 228 Notaries and Commissionees of Deeds. • record the witness is entitled to twenty-five cents for each day's actual attendance. Section 3327 of the Code of Civil Procedure relates to justices of the peace taking depositions to be used with- >out the state in courts not of record and section 352 of the Munici- pal Court Act refers to judges of that court but it is presumed the section would govern the case when a notary or commissioner acts as no section of the code covers the case. If the deposition is to be used without the state in a court not of Tecord the fee of the witness is not specified; section 3318 of the Code of Civil Procedure specifies fifty cents as the fee of a wit- ness but it also specifies " before a court of record or a judge thereof." As a notary or commissioner of deeds acting as a com- missioner to take a deposition is neither a court of record nor a judge thereof the section does not apply. If the deposition is to be used within the state before a justice of the peace the witness is entitled to twenty-five cents for each .day's actual attendance.* For a witness to be paid travelling fees it must be shown he -travelled from his residence to the place where the deposition is taken for the purpose of attending as a witness.^ In allowing travelling fees the distance should be estimated by the nearest usually travelled route.^ In taking depositions to be used within the state, sections 870- '886 of the Code of Civil Procedure, a resident of the state cannot be required to attend in any county, other than that in which he resides, or where he has an office for the regular transaction of business, in person. If he is not a resident the deposition must be taken in the county in which he is served with a subpoena unless otherwise ordered by the court.'^ In taking depositions to be used in the City Court of New York, under sections 3171 and 899 of the Code of Civil Procedure, the witness cannot be required to go beyond the boitnds of the city and county of New York, or the counties of Richmond, Kings, Queens or Westchester. When the deposition is taken under sections 914 and 915 of 4. N. Y. Code of Civil Proc., § 3327. 6. Note 5 ; Dunham v. Sherman 5 Wheeler v. Lozee (1856), 12 How. (1860), 11 Abb. Prac. Eep. 152. Prac. Rep. 447. 7. N. Y. Code of ttvil Proc., § 886. ^ Depositions. 229 the Code of Civil Procedure the subpoena must be served upon the vpitness at least two days before the witness is required to appear.* § 217. Witnesses: Subpoenas Duces Tecum. — When it is de- sired that .a witness bring with him a book or paper it is necessary that a subpoena duces tecum or an order of a court or judge order- ing him to attend and bring with him a book or paper be served on him.-' In the case of books of account the subposna duces tecum must be served at least five days before the day when he is required to attend.^ If the book or paper desired is under the control of a corporation the subpoena duces tecum or order should be directed to the president or other head of the corporation, or to the oflScer thereof, in whose custody the book or paper is.' If the personal attendance of a public ofiicer or officer of a corporation is desired together with a book or paper, two subpoenas should be served on him, a subpoena duces tecum and one without the duces tecum, clause.* When a notary or commissioner of deeds while acting as a com- missioner to take a deposition determines that certain documents are necessary to refresh the memory of a witness he has full power to issue a subpoena duces tecum.^ The documents are not to be produced for the purpose of introducing them in evidence with a view to contradicting the witness or otherwise, but for the pur- pose of refreshing the recollection of the witness, to enable him to give the material testimony sought to be obtained.* When the deposition is taken under sections 914 and 915 of the Code of Civil Procedure the subpoena duces tecum must specify the particular books or papers to be produced and whether the witness is required to deliver sworn copies of such books or papers- 8. Rule 17, General Rules of Prac- 4. N. Y. Code of Civil Proc, § 869. tice. 5. Littlefield v. Gansevoort Bank 1. N. y. Code of Civil Proc, §§ 915, (1909), 114 N. Y. S. 769; Franklin 854, 873, 2987; Municipal Court Act v. Judson (1904), 88 N. Y. S. 904. of New York City, § 214 ; In re Water- 6. Gibbons v. San Luis Mining Co. man (1905), 110 App. Div. 115, 97 (1908), 110 N. Y. S. 96, 125 App. Div. N. Y. S. 169; Matter of Dittman 741; Crompton v. Dobbs (1907), 104- (1901), 65 App. Div. 346; Grant v. N. Y. 8. 698; Thompson v. Alden Leopold (1908), 113 N. Y. S. 167. (1909), 119 N. Y. S. 742; In re Lee 2. N. Y. Code of Civil Proc., § 867. (1903), 85 N. Y. S. 224. 3. N. Y. Cede of Civil Proc, § 868. 230 NOTAEIES AND COMMISSIONERS OF DeEDS. to the commissioner or to produce the original thereof and deposit the same with the commissioner.' The subpoena must be served OB the witness at least five days before the witness is required to appear.' § 218. Witnesses: Subpoenas: Forms. — The notary or com- missioner of deeds who desires to issue a subpoena should follow the forms here set out : FORM 107. Subpoena Issned by a Notary or Commissioner of Deeds Acting as » Commissioner to Take Testimony. THE PEOPLE OF THE STATE OF NEW YORK, To John Stiles, I4I East 63rd Street, Borough of Manhattan, New York City. Greeting : We commaiLd you, That all business and excuses being laid aside, you and each of you appear and attend before John Doe, the Commissioneb appointed to take your deposition by the Supreme Court of New York County, on the 10th day of November, 1911, at 10 o'clock in the forenoon, at Room 1028, 165 Broadway, Borough of Manhattan, New York City, State of Neyi York, then and there to give your deposition on behalf of Jane Moe, the plaintiff in a certain cause now pending in the Supreme Court of New York in and for the County of New York, wherein Jane Moe is the plaintiff and Henry Johnson the defendant, and for a failure to attend, you will lay yourself liable for all damages sustained by the person aggrieved, in consequence of the failure, and fifty dollars in addition thereto, and to arrest by the sheriff of the county, and compulsory attendance before the said Commissioner. [ ]l Witness my hand and seal this ^th day of November, 1911. JOHN DOB, ' Commissioner. [Notarial Seal of John Doe.] fThe words in italics must be changed to suit the case.] FORM 108. Subpoena Duces Tecum. ' A subpoena duces tecum would follow the form for the subpoena and add at the point where the brackets are in the form for the subpoena the following or words to like effect setting out specifically the books or papers demanded: 7. Rule 17, General Rules of Prac- when the commissioner wishes to issue tice. a. subpoena duces tecum. See the next I. These brackets show where the form. duces tecum clause is \o be added Depositions. 231 " And you are further directed and commanded to bring with you th& following papers and documents now in your possession or under your con- trol, viz. : A certain letter written by Richard Roe and received by you on or about the 10th day of January, 1908, in reference to the sale of some ■property in Westchester County. [The words in italics must be changed to suit the case.] § 219. Witnesses: Refusal to Attend: Liability. — ^When a proper service of an order or a subpoena as set forth in the preced- ing sections, has been made and the witness refuses to attend, with- out reasonable excuse,' it is then the duty of the notary or com- missioner to prepare an affidavit setting forth all the facts in the case and to present the same to a judge of the court in which the action is pending; or, if no action is pending, to a judge of a court of record or to a judge of a court not of record.^ The judge must thereupon issue a warrant to the sheriff of the county command- ing him to apprehend the defaulting witness and to bring him before the notary or commissioner.' ; A person so subpoenaed or duly served with an order, made by a court or a judge, in an action, before or after final judgment therein, who fails to appear, is liable, unless he has a reasonable excuse, in addition to punishment for contempt, for the damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action or in separate actions. If the person subpoenaed or served with an order is a party to the action, the court may, as an additional punishment, strike out his pleading.* If the commission is one issued out of a justice of the peace court or out of the Municipal 'Court of the City of New York according to section 2987 of the Code of Civil Procedure and section 214 of the Municipal Court Act the commissioner has the same power to compel the attendance of a witness that a justice of the peace or judge of the Municipal Court has in an action pending before him. 'So cases have decided whether sections 298Y and 214 are consti- 1. Matter of Heller (1899), 41 App. 3. N. Y. Code of Civil Proc, § 855. T)iv. 595; Matter of Garvey (1898), See Rule 17, General Rules of Prac- 33 App. Dir. 135; Matter of Dittman tice. (1901), 65 App. Div. 346. 4. N. Y. Code of Civil Proc, § 853. 2. N. Y. Code of Civil Proc, §§ 915, See Rule 17, General Rules of Prao- «74, 1688g; Rule 25, General Rules of tice. '■ Practice. : 232 NOTAEIES AND COMMISSIOHEES OF DeEDS. tutional. The notary or commissioner of deeds is warned against assuming too much power under the said sections. If they are constitutional a notary or commissioner of deeds appointed by either a judge of a municipal court or a justice of the peace could, send a witness who refuses to attend or to answer a question to jail on his own initiative and without any order from any court. § 220. Witnesses : Refusal to Testify : Liability. — If the per- son subpoenaed attends or if he is brought before the notary or commissioner by the sheriff as set forth in the previous section but thereupon, without reasonable cause, refuses to be examined or to answer a legal and pertinent question or to subscribe his deposition after it has been correctly reduced to writing, it is then the duty of the officer taking the deposition ,to present the matter to a judge of the court in which the action is pending; or if n& action is pending, to a judge of a court of record or a court not of record.'' This should be done by an affidavit setting forth all the facts in the case whereupon the judge may by warrant commit the offender to jail, there to remain, until he agrees to give his testi- mony or subscribe the deposition.^ A person who, as above set out, refuses to obey the subpoena or order is liable, in addition to punishment for contempt, for the damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was subpoenaed, the court may, as an additional punishment, strike out his pleading.^ As to the powers of commissioners appointed by judges of the Municipal' Court of the City of New York or justices of the peace, see the last section. § 221. Deposition: How Taken. — When at the time* and place ' specified in the order, commission or stipulation or in the subpoena issued, the witness appears before the notary or commis- 1. N. Y. Code of Civil Proc, §§ 915, Rule 17, General Eules of Practice; 874, 1688g, Rule 25, General Rules of Smith v. Griffith (1842), 3 Hill 334. Practice. 4. See § 215. 2. N. Y. Code of Civil Proc, § 856; 5. The deposition should be taken Hule 17, General Rules of Practice. at the place specified in the notice or 3. N. Y. Code of Civil Proc, § 853 ; commission and at no other : Beach i V. Workman, 20 N. H. 379. Depositions. 233 sioner of deeds ready to testify, the first duty of the notary or commissioner is to swear or affirm the witness.^ The officer must publicly * administer to each witness examined an oath or affirma- tion to testify the truth, the whole truth, and nothing but the triith, as to the matters respecting which the witness is to be ex- amined.^ Before proceeding to take a deposition under sectiona 873, 898, 2538 or IGSS^r of the Code of Civil Procedure' or sec- tion 219 of the Municipal Court Act^ the officer should require proof that due notice of the hearing has been given in accordance with the directions in the order.* If the deposition is to be taken by interrogatories the notary must then put the questions as set forth in the interrogatories and cross-interrogatories, one at a time, to the witness. As the wit- ness answers, his testimony must be written by the officer himself or by some disinterested person in the presence and under the direction of the notary or commissioner.' Under the United States Eevised Statutes the witness may write out his deposition.-"' A deposition to be used on a motion must be by question and answer.^ Upon the examination of a witness without written interroga- tories the substance of the witness's testimony may be taken down in the narrative form imless there are instructions in the com- mission or order that it should be taken in the form of questions and answers or some person representing one of the parties de- mands that it should be so taken. ^^ 3. The officer should make sure that strictly followed: Bacon v. Bacon, 33c the person named as a witness and Wis. 147. the person about to testify are one and 5. Fryatt v. Lindo (1838), 3 Edw. the same. He should also make sure Oh. 239; see chap, on "Oaths;" N. Y- that the names of witnesses are cor- Code of Civil Proc, §§ 915, 901,, 2984; rectly written. Mun. Court Act of N. Y. City, § 209. 4. The oath must be publicly admin- 6. N. Y. Code of Civil Proc, §§ 873, istered: Halleran v. Field, 23 Wend. 898, 1688g, 2538. (N. Y.) 38; Ford v. Cheever, 105 7. Mun; Court Act of N. Y. City^ Mich. 679, 63 N. W. 975. § 219. Tlie statutory oath must be strictly 8. N. Y. Code of Civil Proc, § 876. followed: . 9 Am. & Eng. Ency. of 9. N. Y. Code of Civil Proc, § 901; Law, 2d ed., p. 331; 13 Cyc Law & McDonald v. Garrison (1859), 18 How. Proc, p. 941; in New York the oath Pr. 250. must be administered before the depo- 10. U. S. Eev. Stats., § 865. sition is taken, as the statute must be 11. N. Y. Code of Civil Proc, § 885. 12. N. Y. Code of Civil Proc, § 900. 234 NOTAEIES AND CoMMISStONEKS OF DeEDS. After it has been carefully read to or by the witness it must bet subscribed by him.^* He must likewise subscribe each exhibit referred to in his testimony." "When the deposition is read to or ty the witness previous to signing it, he shall be permitted to amend his answer to any question, or any part of his deposition. Any amendment made, however, unless both parties shall other- wise agree, shall not be made by way of interlining or erasing, but shall be added at the end of the deposition under the title "Amend- ment by the Witness," and such amendment shall intelligibly refer to the part so amended.^^ When the deposition is taken without written interrogatories, unless the commission or order otherwise directs, the person, ap- pearing for either party, may ask any question he deems proper, and the witness's answer must be taken down, unless the commis- sioner decides that the question could under no possibility be com- petent.^^ The competency of the evidence or its admissibility upon the trial of the 'action are matters for determination of the court at the trial. If the question can be conceived of as being relevant Tinder any possible circumstances the commissioner should allow it." It is not necessary to note oibjections made to questions unless the deposition is to be used without the state for the deposition has the same effect and no other as the oral testimony of the wit- ness would have. On the trial an objection to the competency or credibility of the witness, or to the relevancy, or substantial com- petency, of a question put to him, may be made, as if the witness were then personally examined.^^ The parties have the same right to appear by counsel on the taking of a deposition as on the trial of a cause ; but a witness has no right to the assistance of counsel.*' If on the examination the witness refuses to answer any ques- 13. Faith v. Ulster and Del. R. R. S. 1089; Matter of Dittman (1901), O. (1902), 70 App. Div. 305; Foster 65 App. Div. 346. V. Bullock (1877), 12 Hun 200. 18. N. Y. Code of Civil Proc, §| 14. N. Y. Code of Civil Proc, § 901. 911, 2986; Mun. Court Act of N. Y. 15. Creamer v. Jackson (1857), 4 City, § 226. Abb. Pr. Rep. 418. 19. The Union Bank of Sandusky 16. Bankers' Money Order Ass'n v. v. Torrey (1855), 2 Abb. Prac., § 269. Nachod (1907), 105 N. Y. S. 773; ao. Reynolds v. Parkes (1884), 2 N. Y. Code of Civil Proc, §§ 880, 900. Dem. (Surr. Ct.) 399. 17. In re Randall (1904), 85 N. Y. Depositions. 235 tion that fact should be reported to the court or judge who must determine whether the question is relevant and whether the wit- ness is bound to answer it.^^ If he determines the question to be relevant and that the witness must answer and the witness still refuses the judge may commit the offender to jail until he is will- ing to answer. ^^ If any witness declines to answer a question on the ground that it will tend to incriminate himself, that fact must be noted after the question. The ofScer taking the deposition should demand that the answers be direct, responsive and complete.^' Any directions which are contained in the commission, order or stipulation for taking a deposition should be carefully followed. If the deposition is taken under sections 3171 or 2980-2984, sec- tions 900, 901 and 902 of the Code of Civil Procedure must be annexed to each order and commission. § 222. Deposition: How Taken: Irregularities. — In taking a deposition the notary or commissioner should very carefully fol- low all instructions given him and allow no deviation in any way from the legal manner of taking the deposition unless all the par- ties interested are represented and they all consent. The consents should be read into the deposition ^ and it would not be improper for the officer to demand that they sign the consent. Otherwise, the officer should not change the time or place of taking the depo- sition ; neither should he take the testimony of a witness in narra- tive form if interrogatories are attached.^ It is the officer's duty to know that all the questions set out are answered ; otherwise one of the parties may object at the trial to the deposition on the ground that it was not completed. If counsel are present and the examination is oral objection should be made by counsel to the fact that the witness has not answered a question ; otherwise the omis- sion will be disregarded.' 21. N. Y. Code of Civil Proc, §§ Co. (1886), 39 Hun 585; In re Tifft'a 880, 915; Mun. Court Act of the City Will (1906), 101 N. Y. S. 1072. of New York, § 224. 1. The Union Bank of Sandusky v. 22. N. Y. Code of Civil Proc, §§ Torrey (1855), 2 Abb. Prac. Rep. 270. 856, 915. 2. Grissen v. Southworth (1892), 19 23. The Union Bank of Sandusky N. Y. S. 437. V. Torrey (1855), 2 Abb. Prac. Rep. 3. Kimball v. Davis (1838), 19 270; Murray v. Great Western Ins. Wend. 437; Brown v. Kimball (1840). 25 Wend 259. 236 NOTAEIES AHD CoMMISSIONEES OF DeBDS. § 223. Deposition: How Taken: Influencing Testimony. — It is improper practice for the attorney of either party to place the interrogatories and cross-interrogatories in the hands of a witness before the deposition is actually taken.-' If such a fact is shown on the trial the court may deprive the party thus abusing the process of the court of the benefit of the deposition,^ § 224. Deposition: How Taken: Interpreters. — If the witness whose deposition is to be taken does not speak the English lan- guage an interpreter should be employed by the notary or commis- sioner of deeds. The interpreter should be sworn before the depo- sition is taken ' which fact should be stated in the return and the deposition should be subscribed by the interpreter as well as by the witness. The answers must be recorded as translated by the ewom interpreter.* § 225. Deposition: How Returned. — After all the questions set forth in the interrogatories have been asked and the answers written down; or, if the parties are present and the questions are oral, after both parties have asked all the questions they desire and the answers have been written down; and after the witness has read his testimony, made any amendments he desires, and sub- scribed the testimony and all exhibits referred to by him, then it becomes the duty of the notary or commissioner of deeds to make return of the deposition as directed in the commission or order. Each direction should be very carefully followed down to the minutest detail. 1. The answers to be given by a (1839), 2 Edw. Ch. 295; Com. Bank witness on the taking of a deposition of Penna. v. Union Bank of N. Y. should not be written out before by (1853), 19 Barb. 404. the attorney for either party. Sum- 2. Nordlinger v. Anderson ( 1889 ) , mers v. McKim (1825), 12 S. & R. 24 Sup. Ct. Rep. 240; Oimmercial (Pa.) 410; Graham v. Carleton Bank v. Union Bank (1854), 11 N. Y. (1890), 9 N. Y. S. 393; Butler v. 210. Flanders (1878), 44 N. Y. Super. Ct. 3. See § 119. 531; In the Matter of Eldridge 4. Euberweg v. La Compagnie (Jen- (1880), 82 N. Y. 170; Creamer v. erale Transatlantique, 35 Fed. 530; Jackson (1857), 4 Abb. Pr. Rep. 419; People v. Dowdigan, 67 Mich. 95, 38 Underbill v. Van Cortlandt (1817), 2 N. W. 920. j6hnB. Ch. 346; Banta v. Banta Depositions. 237 If no instructions are found with the commission or order the officer should comply with the law of New York. He should sub- scribe his name to each half sheet of the deposition and to each one of the exhibits and annex all the depositions and exhibits to the commission or to a certified copy of the order for taking the deposition with a certificate as set out in section 226. He should then make a packet and bind with tape all the papers and exhibits, viz. : the commission, stipulation or order, all affidavits, proofs of service, the directions, the interrogatories, cross-interrogatories, depositions and exhibits. The officer should then seal the packet at the several meetings or crossings of the tape and indorse his name on the outside. If no directions as to its return are found in the commission or order the notary or commissioner sihould immediately mail it to the clerk of the court at his official residence. Before mailing he should indorse on the packet: Deposited in the post-office at Vew York City this Z^th day of Jv/ne, 1911, at S P. M., by me personally. JOHN DOE, Commissioner, 165 Broadway, New York City. [The vfords in italics must be changed to suit the case.] be careful to pay sufficient postage thereon and personally place the same in the post-office proper or in one of the letter boxes under the control of the Post-office Department.* The deposition to be used on a motion, unless the order other- wise provides, must be delivered to the attorney for the party who 1. A statement of facts in writing, by a certificate of a competent official, without date or venue, purporting to from which compliance with any of the iave been signed by a- witness, but requisites for the taking of deposi- giving neither age nor residence of tions in judicial proceedings can be such witness, which statement is not inferred, is not a, deposition, although shown to have been made under oath, so labeled and filed in a suit pending nor the oath waived, nor to have been in court: Lutcher v. United States, taken on notice or in the presence of 72 Fed. 968, 19 C. O. A. 259; N. Y. parties, nor to have been taken before Code of Civil Proc!, §§ 880, 1688h, any official authorized to administer 901, 2984; Municipal Court Act of N. oaths, and which is not accompanied Y. City, § 209. 238 Notaries and Oommissionees of Deeds. procured the order.^ If no action is pending the deposition should be sent to the clerk of the county in which it was taken/ It would be well for the oflBcer to indorse on the back of the order or commission the following : The execution of this Commission appears in certain schedules hereunto annexed. JOHN DOE, Commissioner. in order to comply with statutes in some states that the execution of the commission or order must be indorsed thereon.* § 226. Deposition: Certificate of Execution. — The officer be- fore whom a deposition is taken must annex to the deposition a certificate which sets out the facts necessary to show that the depo- sition was taken according to law. The certificate should contain a venue and should state that the officer, naming him, certifies that the witness, naming him, personally appeared before the officer at a certain time and place, designating them, whereupon the witness was duly sworn, and did depose to the matters contained in the deposition attached, subscribed the deposition and indorsed the exhibits annexed. The officer should also state in the certificate that he subscribed his name to each half sheet of the deposition and to each exhibit and name the persons who appeared at the examination in behalf of the various parties. In the next section will be found a complete form for a deposi- tion in Vhich there is a certificate containing all the requisites. § 227. Deposition: Form. — The following form contains all the statements which ordinarily are to be found in a deposition : ^ 2. N. Y. Code of Civil Proc., § 885. the commission be endorsed. The cer- 3. N. Y. Code of Civil Proc., § 880. tifieate in the next section is con- 4. Creamer v. Jackson (1857), 4 sidered a sufficient return. Abb. Pr. Rep. 418. The present stat- 1. Rule 19, General Rules of Prac- Mtes in New York do not demand that tice. Depositions. 239 FORM 111. 2Veto York Supreme Court, County of Ulster. Bicha/rd Roe, Plaintiff, vs. John Stiles, Defendant. Depositions, State of New York, 1 County of Ulster. i **• •" Be it remembered that pursuant to a commission hereunto annexed issued out of the above entitled court m « certain cause therein pending and at issue between the parties above named and on the 20th day of July, 1911, in Boom, 103 at No. Jt21 First Avenue, in the City of Kingston, County of Ulster and State of New York, before me, John Doe, a notary public duly appointed, commissioned and sworn, and authorized to administer an oath, personally appeared William Stiles, a witness produced on behalf of the plaintiff, who, being first duly and publicly sworn pursuant to the directions in the said commission, doth depose and say that he resides at No. 200 Maim Street in the City of Kingston, County of Ulster and State of New York, that he is aged twenty-one years and upwards and that he is engaged in the stove business in the said City of Kingston, and doth further depose and say aa follows : Interrogatories : FiBST — To the first interrogatory, he saith [Insert the answer of witness.] Second — To the second interrogatory he saith [Insert the answer of wit- ness.] Thibd — To the third interrogatory he saith that he knoweth not. Cross-Interrogatories : FlBST — To the first cross-interrogatory he saith [Insert ttie answer of witness.] Amendments : The witness desires on reading over the answers as they are written to correct the wording of the answer to the second interrogatory that it may read as follows: [Insert the corrected answer of witness.] WILLIAM STILES. :^40 Notaries and Commissiowess of Deeds. State of New York, County of Ulster. J ss. : I, John Doe, do certify that William SUles, the witness, personally ap- peared before me on the 20th day of July, 1911, at 10 o'clock in the forenoon, in my office, Room 103, at Jio. 421 First Avenue, in the City of Kingston, County of Ulster and State of New York and after being sworn to testify the truth, the whole truth, and nothing but the truth, did depose to the matters contained in the foregoing deposition, and did, in my presence subscribe the same, and indorse the exhibits annexed thereto; and I further certify that I have subscribed my name to each half sheet thereof, and to each exhibit; and I further certify that Henry Jones appeared in behalf of the plamtiff and that John Johnson appeared in behalf of the defendant. [Notarial Seal] JOSW DOE, Commissioner. [The words in italics must be changed to suit the case.] If the deposition is to go to some other state or to some foreign country the notary or commissioner of deeds should attach his seal and add under his name, not only the word commissioner but his official title, his jurisdiction and the time his commission expires. In addition to the certificate as set out in this form the commis- sioner should write on the back of the commission or order the :f olio wing : FORM 112. The execution of this commission appears in certain schedules hereunto -annexed. JOHN DOE, Commissioner. § 228. Deposition: Exhibits. — If an exhibit is produced and proved, the exhibit, or, if the witness, or other person having it in his custody, does not surrender it, a copy thereof,^ must be an- nexed to the deposition to which it relates, subscribed by the wit- ness proving it, and numbered or otherwise identified, in writing thereupon, by the commissioner, or person taking the deposition, •who must subscribe his name thereto.^ 1. Com. Bank of Penna. v. Union identified to be admissible in evidence. Bank of N. Y. (1853), 19 Barb. 392; Susquehanna, etc. Co. v. Quick, 61 Pa. Wright V. Cabot (1882), 89 N. Y. 577. St. 328; N. Y. Code of Civil Proc, |§ 2. A paper pinned to a deposition, 901, 919, 2984; Mun. Court of N. Y. not referred to in it, without evidence City, § 209; Bruraskill v. James that it has been attached by the jus- (1854), 11 N. Y. 294. tioe, is not an exhibit sufficiently Depositions. 241 Letters, papers or physical objects do not become exhibits until they have been " produced and proved." If they have been shown the witness merely for identification but have not been offered as evidence and the other side have not had an opportunity to cross- examine the witness called to prove their identity they cannot be considered to have become exhibits.' The following is a form which may be followed in indorsing exhibits if the commission or order does not set out a form : FORM 113. At the execution of a Commission issued out of the Supreme Court, Kings County, for the examination of witnesses in an action between Richard Boe, Plaintiff, and John Stiles, Defendant, this exhibit numbered seven and hereto annexed, was produced and shown to Henry Jones and by him deposed unto, and subscribed by him at the time of his examination, before me on July 21, 1910. JOHN DOB, Commissioner. [The words in italics must be changed to suit the case.] If possible the exhibits should be attached to the other papers ; if not, they should be enclosed under seal.* §'229. Deposition: How Amended. — As soon as a deposition, has been sent to the officer or person designated in the order, stipu- lation, or commission the duties and powers of the notary or com- missioner are ended. He would have no right to have them re- turned for correction or to correct them personally, if they are on file in some court, without an order from the court allowing such correction.^ But it is probable that a correction could be made if all the parties stipulate thereto.^ § 230. Fees of Commissioner. — Usually an understanding is had with a notary or commissioner before he takes a deposition as "to what he is to receive for his work. Probably because of this fact 3. Kelley v. Weber (1880), 9 Abb. man v. Colgate, 69 Tex. 88, 6 S. W. N. C. 63. 553. 4. 9 Am. & Eng. Ency. of Law, 2d 1. N. Y. Code of Civil Proc, § 727; ed., p. 337. The fact that the docu- Risley v. Harlow (1905), 48 Misc. ments are very voluminous is no ex- Rep. 277, 96 N. Y. S. 728; Wells v. cuse for not exhibiting them: Cole- Hub Pub. Co., 12 Week. Dig. 425. 2. N. Y. Code of Civil Proc, S 909, 242 Notaries and Commissionees of Deeds. no fee has been fixed upon as in most other cases of official work. It was held in the case of Beichel v. New York Central and Hud- son River R. R. Company, that a commissioner appointed to take a deposition may be paid a reasonable compensation together with his reasonable and necessary expenses, including actual travelling expenses.^ In a justice of the peace court the disbursements on a commis- sion to take a deposition are limited when a party is recovering costs to the following: commissioners' fees for taking and return- ing testimony, one dollar; each subpoena issued, or oath adminis- tered by the commissioner, six cents; postage for sending and re- turning the commission and papers annexed thereto, one dollar.^ When testimony is taken on commission at the instance of the- claimant to be used in the Court of Claims the expense thereof including the fees of the commissioner, shall be paid by the claim- ant ; and when taken at the instance of the state they shall be paid by the Court of Claims.' 1. Reichel v. N. Y. C. & H. R. E. R. 2. N. Y. Code of Civil Proc, § 3325. Co. (1890), 29 N. Y. St. Rep. 841; N. 3. N. Y. Code of Civil Proc., § 272. Y. Code of Civil Proc, § 3256. Peotesting Negotiable Instruments. 24S OHAPTEE X. Peotesting Negotiable Insteuments. S 231. History of Bills and Notes. 5 232. Notary's Powers and Duties in Protesting. § 233. Definitions. Presentment for Acceptance. § 234. When Presentment is Necessary. § 235. Wlio May Present. § 236. Presentment to Wliom. § 237. — : When Infectious or Contagious Dis- ease Has Caused the Board of Health to Prohibit Communication With Portions of New York City. § 238. Time Presentment Should be Made. § 239. Manner of Presentment. § 240. Acceptance: Definition. § 241. • : Different Kinds. § 242. : Qualified: Need Not Accept. § 243. How Acceptance is Shown. S 244. Dishonored by Non- Acceptance. § 245. Effect of Dishonor. § 246. Protest for Non-Acceptance. Presentment for Payment. § 247. When Presentment is Necessary. § 248. Who May Present. I 249. Presentment to Whom. § 250. : When Infectious or Contagious Dis- ease Has Caused the Board of Health to Prohibit Communica- tion with Portions of New York City. § 251. Time Presentment Should be Made. § 252. Place of Presentment. § 253. Manner of Presentment. § 254. Payment. § 255. : Computation of Interest. § 256. : What is Money? § 257. Protest for Non-Payment. Protest for Jfon-Acceptance or Non-Payment. J 258. Protest: Definition. I 259. : What Law Governs. I 260. Necessity of Protest. 34r4l NOTAKIES AND COMMISSIONEES OF DeEDS. / § 261. Purpose of Protest. § 262. Notary May Protest. § 263. Place of Protest. § 264. Time Protest Must be Made, § 265. Steps in Protest. S 266. : Presentment of the Instrument. § 267. : The "Noting." § 268. : The Protest. § 269. Form of Protest. § 270. Waiver of Protest. Protest for Better Security. § 271. When Allowed. Acceptance for Honor. § 272. When Allowable. § 273. Form: Presumption. § 274. When Acceptor for Honor Liable. § 275. Maturity of BUI Payable After Sight. § 276. Time of Presentment to Acceptor for Honor. I 277. Protest Necessary When Acceptor for Honor Dishonors. Payment for Honor. § 278. Who May Make. ^ 279. Notary's Attestation: Declaration by Payer. § 280. Preference of Parties Offering Payment. Notice of Bishonor. 5 281. Necessity for Notice. § 282. Notary May Give Notice. § 283. Notice to Whom. § 284. : When Infectious or Contagious Disease Has Caused the Board of Health to Prohibit Communication With Portions of New York City. § 285. Time Notice Must be Sent. § 286. Place of Giving Notice. § 287. Manner of Giving Notice. § 288. Form of Notice. § 289. Certificate of Notary That Notice Was Given. § 290. Waiver of Notice. Referee in Case of Need. 5 291. Who Names. Records. § 292. Notary's Register of Protest. § 293. Notary's Records as Evidence. Pkotesting Negotiable Instetjments. 245 CiTil Liability of Notary. § 294. Civil Liability of Notary in Matters of Protest. Criminal Liability of Notary. § 295. Negotiable Instruments: Criminal Statutes. Miscellaneous Statutes. § 296. Protest of Bank Notes. ' ' i 297. Warehouse Receipts. § 231. History of Bills and Notes. — The history of bills of exchange and promissory notes, which are now generally classed Tinder the heading " Negotiable Instruments," begins somewhere^ in the twelfth or thirteenth century.^ We know that in 1394, the- city of Barcelona, by ordinance, regulated the acceptance of bills; of exchange ; and that they are mentioned in a passage of the Jurist Baldus of the date of 1328.^ The first bank of exchange and de- posit in Europe was established at Barcelona in 1401, and it was made to accommodate foreigners as well as citizens.' In England reference was made in the statute of 5 Kichard II, chapter 2 (1382), to the drawing of "foreign bills." ^ It was not until 1698,^ however, that " inland bills," were put upon the same foot- ing as " foreign bills," except that no protest is requisite. A few years later, 1705,^ a statute was passed making promissory notes, payable to a person, and to his order, or bearer, negotiable like " inland bills," according to the custom of merchants. This latter statute was passed because of the decisions of Lord Holt, that prom- issory notes were not within the operation of the law merchant, and so were not negotiable.' There is a dispute as to that question^ some authorities holding that they were negotiable before the stat- ute.^ The statute of 1705 was superseded in 1882 by the English " Bills of Exchange Act,* which was the model for our modern 1. Cockburn, C. J., in Goodwin v.-' 8. Note, 1 Crancli (U. S.), 367. The Roberts, L. K. 10 Exch. 337. question is of no practical importance 2. Kent's Com., p. *73, and note. at present; but it would become im- 3. See note 2. portant if we had no statute similar 4. See note 2. to the statute passed in England in 5. 9 & 10 William III, c. 17. 1705 known as 3 & 4 Anne, c. 9. 6. 3 & 4 Anne, c. 9. ». 45 & 46 Victoria, c. 61. 7. Gierke v. Martin, 1 Salk MS; Buller V. Crips, 6 Mod. 29. 246 Notaries and Oommissioneks of Deeds. " Negotiable Instruments Law." Colorado, Connecticut, Florida; and New York were the first to pass the law ; they adopted it in 1897. More than half of the states have now adopted the law prac- tically in the same form. § 232. Notary's Powers and Duties in Protesting. — Having learned of the origin of the bill of exchange and promissory note, we now come to the duties incumbent upon a notary when the bill ■of exchange is not accepted or the promissory note or bill of ex- change is not paid at the stated time. A notary has no more re- sponsible powers than those in connection with negotiable instru- ments; neglect or ignorance on his part leads to grave complica- tions. Of course, damage must follow; and it will fall either on the notary himself or on his bondsmen.^ Therefore, the more a notary knows concerning the law of protests the better fitted he will be to do his work as the law of negotiable instruments demands. A notary becomes a public officer with certain duties to perform when a holder of a bill of exchange, promissory note, or national bank note delivers to him the said instrument for him to protest it He immediately becomes the agent of the owner of the paper, and of all others who have any interest in it. § 233. Definitions. — It will be well to consider a few technical words before beginning the discussion proper of the duties and powers of a notary in respect to the presentment of bills and notes and the protesting of them upon refusal of acceptance or payment. A bill of exchange is a written order from one person to another, directing the person to whom it is addressed to pay to a third per- son a certain sum of money therein named.^ The following is a " bill of exchange " : 1. No bon4 is demanded by the 2. Bouv. Law Diet. (Rawle's Rev.), State, but some banks demand a bond tit. " Bills of Exchange ; " Byles on of their notaries. Bills, 1. Peotesting ^N^egotiable Instkxjments. 247 FOEM 114. Bill of Exchange. $1000 00/100 New York City, N. Y., Nov. 10, 1910. At thirty days sight, Pay to the Order of William Stiles, One thousand 00/100 Dollars. Value received and charge the s same to the account of To Framk Smith. No. . San Francisco, Cal. JOHN JONES. " Bills of exchange," we learned,^ came into use very early ; they came through what is known as the " law merchant." The " law merchant " originated in the unwritten customs of mer- chants, and was at first confined to transactions of merchants re- siding at different places.' If we assume that John Jones lives in New York and William Stiles and Frank Smith in California, and that Jones owes Stiles one thousand dollars and Smith owes Jones one thousand dollars, we will have the simplest case of the use of a *' bill of exchange." Smith °^es $1,000 to Stiles to $1,000 owes Now if Jones orders Smith to pay Stiles, the two debts wiU be wiped out and it will not be necessary for the one thousand dollars 2. Previous note; also § 231; 7 Cyc. ha.w & Proc, p. 520. 3. " Bills of exchange at first ex- tended only to merchant strangers trafficking with English merchants; and afterward to inland bills between merchants trafficking the one with the other in England; and afterward to all traders, and then to an persons, whether traders or not; and there was then no need to allege any custom of merchants;'' Bromwich v. Loyd, 2 Lutw. 1582. 248 Notaries and Commissiokees of Deeds. to be sent across the country twice. The merchants in Italy, soon after the Dark Ages/ saw the advantage of such a transaction and ever since that time it has been in use over all the world. The drawer is the person who makes a bill of exchange (Jones).* The payee is the person in whose favor a bill of exchange is made payable (Stiles)." The drawee is the person to whom a bill of exchange is addressed, and who is requested to pay the amount of money therein men- tioned (Smith).' The acceptor is one who accepts a bill of exchange.^ (In this case the bill would be presented to Smith for acceptance.) Acceptance is the engagement to pay the bill in money when due.' (If, when presented to Smith, he would express his willing- ness to pay the bill of exchange when due, he should write : rOBM 115. Accepted December 10, 1910. Prank Smith." across the face of the bill.) Indorsement is the writing one's name on the back of a bill of exchange or promissory note.-'" It is generally made primarily for the purpose of transferring the rights of the holder of the instru- mient to some other.''^ (Following out the Jones-Smith-Stiles illus- tration, if Smith has accepted and Stiles desires to raise some money on the bill of exchange before the time for payment arrives, he could indorse the bill by writing his name across the back of the bill. Then by handing it to Henry Johnson he would be transfer- ring all rights which he [Stiles] has in the bill.) Indorser is the person who makes an indorsement by writing on. the back of the bill.'^ 4. 4 Am. & Eng. Enoy. of Law, 2d 9. Byles on Bills, 288. ed., p. 79. lO. 20 Vt. 499. "An indorsement 5. Bouv. Law Diet. (Rawle's Rev.), written in pencil is sufficient." Brown tit. " Drawer.'' v. The Butchers' and Drovers' Bank 6. Bouv. Law Diet. (Rawle's Rev.), (1844), 6 Hill 443. tit. "Payee." 11. Bouv. Law Diet. (Rawle's 7. Bouv. Law Diet. ( Rawle's Rev. ) , Rev. ) , tit. " Indorsement." tit. "Drawee." IZ. Bouv. Law Diet. (Rawle's 8. 3 Kent's Com., p. *75. Rev. ) , tit. " Indorser." Protesting Negotiable Insteuments. 249 A foreign bill of exchange is one of which the drawer and drawee are residents of countries foreign to each other. In this respect the states of the United States are held foreign as to each other.''' (The Jones-Smith-Stiles bill is a foreign bill of exchange.) lAn inland bill of exchange is one of which the drawer and drawee are residents of the same state or country." A draft is an order for the payment of money, drawn by one per- son on another.^' A sight draft is one payable on presentation, or at sight. A time draft is one payable a certain number of days after sight and must be accepted by the party on whom it is drawn. (The Jones-Smith-Stiles bill of exchange is an example of a " time draft.") A check is a bill of exchange in which a bank is always the drawee, and it is always payable on demand. It is a written order to a bank by a person who has money on deposit, asking the bank to pay to the person named in the check or his order or to bearer the sum of money mentioned. The following is a check : FOBM 116. Check. No. 43. New York City, N. Y., Dec. 10, 1910. Pay to the order of William Stiles $1000 00/100 One thousand 00/100 Dollars. To the Georgetown National Bank, Yonkers, New York. JOHN JONES. The drawer of a check is the maker (Jones). The drawee of a check is the bank on which it is drawn (George- town National Bank). The payee of a check is the one to be paid the money by the bank (Stiles). The indorser of a check is a person who signs his name on the back of the check the same as the indorser of a bill of exchange. 13. Bouv. Law Diet. (Rawle's 15. Bouv. Law Diet. (Rawle'a Rev.), tit. "Bill of Exchange." Rev.), tit. "Draft." 14. See note 13. 250 NOTAEIES AND COMMISSIONERS OF DeEDS. A promissory note is a written promise to pay a certain sum of money at a future time unconditionally." The following is a promissory note : FORM 117. Promissory Note. $1000 = New York City, N. Y., Dec. 10, 1910. 1 Three months after date I promise to pay to the order of WilUam \ Stiles. One thousand 00/100 . . Dollars. At Georgetown National Bank. No Due JOHN JONES. The maker of a promissory note is the one who makes it (Jones). The payee of a promissory note is the one to whom the money is payable (Stiles). Indorsement of a promissory note is the same as indorsement of a bill of exchange. Negotiable is a term applied to that right which is capable of being transferred, by assignment, indorsement, or by delivery." Bills of exchange, checks and promissory notes are negotiable if they read " to A or his order," or " to A or bearer." In transfer- Ting such instruments the owner transfers not only the paper in- strument, but also transfers to the new owner the right to sue on it in his own name. In the former " to A or his order," the instru- ment must be indorsed ; in the latter, " to A or bearer," no indorse- ment is necessary ; in both cases there must be delivery.''* "Originally all instruments, including checks, notes and bills of exchange were non-negotiable, in the sense that the maker could, when asked for payment, deduct from the amount due on the in- strument any just claim that he had against the original owner. Such just claim would then be termed a counterclaim, or setoff. In the revival of commerce in Italy, in the eleventh century, merchants land traders, feeling the necessity of a moneyed instrument that 16. Bouv. Law Diet. (Rawle's per of a corporation negotiable In Rev.), tit. "Promissory Note." form does not lose the quality of ne- 17. 148 Pa. 583. gotiability by having attached thereto 18. Bouv. Law Diet. (Rawle's the corporate seal. Chase National Her.), tit. "Negotiable." See Neg. Bank v. Faurot (1896), 149 N. Y 532. Instr. Law, § 20. The commercial pa- Peotesting Negotiable Instruments. 251 could be used in barter and trade, to a limited extent, in the same way that bank bills are now used — and appreciating that no such instrument could be circulated or sold readily, no matter how financially strong the maker was, if he, the maker, could always insist on adjusting accounts with the original owner — adopted a custom, known as the ' custom of merchants,' which soon after be- came, or had the force of, a law known as the ' law merchant,' un- der which notes, checks, drafts, and bills of exchange, drawn in certain prescribed forms, and in the hands of a bona fide purchaser, could be enforced to their full extent against the maker, regardless of any defenses or counterclaims that the maker might have against the original holder ; such instruments are ' negotiable instruments.' Negotiable instruments are thus given many of the peculiarities of money — i. e., gold and silver coin and bank bills. Neither coined money nor bank bills are termed negotiable instruments or commercial paper, but they are in the highest sense, negotiable." " ■A non-negotiable instrument is one payable only to a payee, which does not contain the words " to order " or " to bearer." A protest is a formal paper signed and sealed by a notary where- in he certifies that on the day of its date he presented the original iDill attached thereunto, or a copy of which is attached, to the ac- ceptor, or the original note to the maker thereof, and demanded payment, or acceptance, which was refused, for reasons given in the protest, and that thereupon he protests against the drawer and indorsers thereof for exchange, re-exchange, damages, costs, and interest.** Peesbntment foe Acceptance. § 234. When Presentment is Necessary. — Presentment must te made when the bill is payable after sight, or in any other case where presentment for acceptance is necessary in order to fix the maturity of the instrument. It is also necessary when the bill ex- pressly stipulates that it shall be presented for acceptance. And, when the bill is drawn payable elsewhere than at the residence or place of business of the drawee, it must be presented.^ 19. McMaster's Irregular and Regu- 1. Con. Laws, Neg. Instr. Law, S lar Commercial Paper. 240. aO. Bouv. Law Diet. (Rawle'i Eev.), tit. "Protest." 252 Notaries and Commissionees of Deeds. A bill payable " at sight " must be presented to fix the date wheii due.* It is not necessary where the bill is payable on demand or at a certain designated time.' § 235. Who may Present. — The rightful holder or some per- son authorized by him to receive payment on his behalf may make the presentment.' If the holder is a mere agent for the real owner, that fact does not dispense with a proper presentment.^ Present- ment is very often in the United States, as in foreign countries, • made by a notary. He is then an agent for the holder, and if he neglects to make due presentment for acceptance, he is liable to his principal in damages.^ An agent's authority to make presentment for acceptance ends like any other agency with the death of his principal and a presentment after that time will not be good.* § 236. Presentment to Whom. — The presentment of the bill for acceptance must be made to the drawee or to some person au- thorized to accept or refuse acceptance on his behalf.^ If the bill is addressed to two or more drawees who are not partners, present- ment must be made to them all, unless one has authority to accept or refuse acceptance for all, in which case presentment may be made to him only. If the drawee is dead, presentment may be made to his personal representative. If the drawee has been adjudged a bankrupt or an insolvent, or has made an assignment for the bene- fit of creditors, presentment may be made to him or to his trustee or assignee.' Presentment to one of a partnership, if the bill is addressed to the firm, is sufficient.' 8. Hart v. Smith, 15 Ala. 807, 50 320, 33 Am. Rep. 618; 7 Cyc. Law & Am. Dec. 161; Cox v. New York Na- Proc, p. 753. tional Bank, 100 U. 8. 704, 25 L. ed. 4. Gale v. Tappan, 12 N. H. 145, 37 739. Am. Dec. 194. 9. 7 Cyc. Law & Proc, p. 753 ; 5. " The holder must be careful, Townsley v. Sumrall, 2 Pet. (U. S.) when he does not find the drawee in 170, 7 L. ed. 386; Plato v. Reynolds, person, to assure himself that the 27 N. y. 586. party to whom he presents the bill 1. Con. Laws, Neg. Instr. Law, § for acceptance is his authorized 242. agent." Daniel on Neg. Instr. 5th ed., 2. Walker v. State Bank, 9 N. Y. § 546. 582. 6. Con. Laws, Neg. Instr. Law, § 3. Meadville First Nat. Bank v. 242. New York Fourth Nat. Bank, 77 N. Y. 7. Gates v. Beecher, 60 N. Y. 518, 19 Am. Rep. 207. Peotestiitg ITegotiable Instruments. 253 § 237. Presentment to Whom: When Infectious or Contag- ious Disease has Caused the Board of Health to Prohibit Com- munication with Portions of New York City. — The following^ sections of the Charter of New York City will direct the owner or agent how to make presentment for acceptance or payment of all negotiable instruments when the Board of Health has prohibited communication with portions of the city because of an infectious or contagious disease : " Whenever the hoard of health shall, by puhlic notice, designate any portion or district of the City of New York as heing the seat of any in- fectious or contagious disease, and declare communication with such portion or district dangerous, or shall prohibit such communication, it shall be the duty of the city clerk during the continuance of such disease in such district, to provide and keep in his office a book for the purpose of registering, in alphabetical order the names, firms and places of busi- ness of any inhabitant of the city who shall desire such registry to be made." Charter of New York City, Section 1499. "It shall be the duty of all persons and firms usually resident or doing business within such infected district to register, in the book so provided by the said city clerk, their names or firms, with the place or places out of such infected district, but within the City of New York to which they may have removed the transaction of their business, or to which they may desire any notices to be sent or served, or any notes, drafts, or bills to be presented for acceptance or for payment. The sum of twenty-five cents may be claimed and received by the said clerk for every such registry; but the book in which the same shall be entered shall be, at all times during ofiice hours, open to public examination, free of all charges." Charter of New York City, Section 1500. " During the continuance of any such disease in such infected district, all drafts, notes.and bills, which by law are required to be presented for acceptance or for payment, may be presented for such purpose at the place so designated in such registry, and all notices of non-acceptance and non-payment of any note, draft or bill, or of protest, for such non- acceptance or non-payment, niay be served by leaving the same at the place so designated." Charter of New York City, Section 1501. " In case any person or firm usually resident or doing, business within such infected district shall neglect to make and cause to be entered In the book so provided, the registry herein required, all notes, drafts, or bills which by law are required to he presented to such person or firm for acceptance or for payment, may be presented to the said city clerk during the continuance of such disease, at any time during office hours, and demand of acceptance or payment thereof may be made of the said clerk, to the same purpose and with the same effect as if the same had been presented, and acceptance or payment demanded of such persoa 254: NOTAKIES AND CoMMISSIONEKS OF DeEDS. or firm at their usual place of doing business." Charter of New York City, Section 1502. "In case of the omission to make the registry herein required, all notices of the non-acceptance or non-payment of any note, draft, or bill, or of protest for such non-acceptance or non-payment, may be served on any person or firm usually resident or doing business within sucn in- fected district, by leaving the same at one of the post offices for the said city, which service shall be as valid and effectual as if the notices had been served personally on such person or one of such firm at his or their usual place of doing business." Charter of New York City, Section 1503. " Whenever proclamation shall be made by the Board of Health or other proper authority of the city, that an infectious or contagious disease in such infected district has subsided, it shall be deemed to have subside 1, for all purposes contemplated in this title." New York City Charter, Section 1504. § 238. Time Presentment Should be Made. — The general rule is that the holder of a bill payable at or after sight, or one which otherwise must be presented for acceptance, must either present it for acceptance or negotiate it within a " reasonable time." If he fail to do so, the drawer and all indorsers are discharged. Present- ment must be made at a " reasonable hour," on a business day and before the bill is overdue.^ To determine what a " reasonable time " is all the circumstances of the case must be considered. Some facts which might affect the question are the following: De- lay in the mail or other means of communication ; ^ the outbreak of war ; ' the loss of the bill ; * the character of the bill,^ or the circula- tion of the bill,^ which is perhaps the one most important. Laches might be charged if the bill remained in the hands of the payee ; while, if it were in circulation, there would be no grounds for such charge.' A " reasonable hour " would not be after the family has retired for the night.* The presentment must be on a business day ; if the day of maturity falls upon Sunday or a holiday, the in- strument is payable on the next succeeding business day. When Saturday is not otherwise a holiday, presentment for acceptance 1. Con. Laws, Neg. Instr. Law, §5 5. Shute v. Robbins, 3 Car. & P. 80. 241, 242. 6. 7 Cye. Law & Proc, p. 755. 2. Walsh V. Blatchley, 6 Wis. 422, 7. Wallace v. Agry, 5 Mason (U. 70 Am. Dee. 469. S.) 118, Fed. Cas. No. 17,097; see 3. United States v. Barker, 1 Paine note 5. (U. S.), 156, Fed. Cas. No. 14,517. 8. Dana v. Sawyer, 22 Me. 244, 39 4. Aborn v. Bosworth, 1 R. I. 401. Am. Dec. 574. Pkotestinq Negotiable Instktjments. 25& may be made before 12 o'clock noon on tbat day.' As to what days are holidays in New York see section 251. Where the holder of a bill drawn payable elsewhere than at the place of business or the residence of the drawee has not time with the exercise of reasonable diligence to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by present- ing the bill for acceptance before presenting it for payment is ex- cused and does not discharge the drawers and indorsers.'" In determining what is a " reasonable time " or an " unreason- able time," regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instru- ments, and the facts of the particular case." A check is a bill of exchange drawn on a bank, payable on de- mand. Except as herein otherwise provided, the provisions of thia chapter applicable to a bill of exchange payable on demand apply to a check.^ § 239. Manner of Presentment. — As a safe rule to follow it might be said that the bill should be shown to the drawee when it is presented for acceptance.^ This is not necessary if on making the demand the person has the bill ready to produce if it is called for ; ^ or if the drawee can give an intelligent answer without seeing the bill.' The presentment must be made once and absolutely ; it can- not be made and then withdrawn, offering to call again the next day.* Only one part of a set of two or more is presented.^ § 240. Acceptance: Definition. — Acceptance is an agreement by the drawee of a bill to pay it when it comes due. He must agree to pay it at the time it comes due and in money, and also at the place named in the bill. The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The accept- ance must be in writing and signed by the drawee. It must not ex- 9. Con. Laws, Neg. Instr. Law, § 2. Burlington First Nat. Bank v. 243. Hatch, 78 Mo. 13. 10. C!on. Laws, Neg. Instr. Law, S 3. Fisher v. Beckwith, 19 Vt. 31, 16 244. Am. Dec. 174. 11. Con. Laws, Neg. Instr. Law, § 4. 4. Case v. Burt, 15 Mich. 82. 12. Con. Laws, Neg. Instr. Law, 5 5. Downes v. Church, 13 Pet. (U. 321. S.) 205, 10 L. ed. 128. 1. Fall Eiver Union Bank v. Wil- lard, 5 Met. (Mass.) 216. 256 EOTAEIES AND CoMMISSIONEES OF DeEDS. press that the drawee will perform his promise by any other means than the payment of money/ The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill, and, if such request is refused, may treat the bill as dis- honored.^ Where the acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in favor of a person to whom it is shown, and who, on the faith thereof, receives the bill for value.' The drawee is allowed twenty-four hours after present- ment in which to decide whether or not he will accept the bill ; but the acceptance if given dates as of the day of presentation.* Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or nonaecepted to the holder, he will be deemed to have accepted the same.^ § 241. Acceptance: Different Kinds. — An acceptance is either general or qualified. A general acceptance assents without quali- £cation to the order of the drawer. A qualified acceptance in ex- press terms varies the effect of the bill as drawn.' An acceptance to pay at a particular place is a general acceptance, unless it ex- pressly states that the bill is to be paid there only and not else- where.^ An acceptance is qualified, which is: (1) conditional, that is to say, which makes payment by the acceptor dependent on the fulfillment of a condition therein stated: (2) partial, that is to say, an acceptance to pay part only of the amount for which the bill is 1. Con. Laws, Neg. Instr. Law, § the drawee, and not to cases in which 220. the bill is willingly left in the hands 2. Con. Laws, Neg. Instr. Law, § of the drawee by the holder, and no 221. demand therefor is made. Matteson v. 3. Con. Laws, Neg. Instr. Law, J Moulton (1877), 11 Hun 268, affirmed 222. 79 N. Y. 628. 4. Con. Law», Neg. Instr. Law, § 6. Con. Laws, Neg. Instr. Law, § 224. 227. 5. Con. Laws, Neg. Instr. Law, § 7. Con. Laws, Neg. Instr. Law, J 225. Section 225 applies only to cases 228; Niagara Dist. Bank v. Fairman in which the acts of the drawee are of Co. (1860), 31 Barb. 403; Troy City a tortious character, and imply an un- Bank v. Lauman (1859), 19 N. Y. authorized conversion of the bill by 477. Protesting ITegotiable Instruments. 257 drawa; (3) local, that is to say, an acceptance to pay only at a par- ticular place; (4) qualified as to time; (5) the acceptance of some one or more of tlie drawees, but not of all.^ § 242. Acceptance : Qualified : Need not Accept. — The holder may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance, he may treat the bill as dishonored by nonacceptance. Where a qualified acceptance is taken, the drawer and indorsers are discharged from liability on the bill, unless they have expressly or impliedly authorized the holder to take a quali- fied acceptance, or subsequently assent thereto. When the drawer or an indorser receives notice of a qualified acceptance, he must, within a reasonable time express his dissent to the holder, or he will be deemed to have assented thereto.-' "An agent who, in pre- senting a bill for acceptance, receives anything short of an explicit and unqualified acceptance, becomes liable to his principal if loss § 243. How Acceptance is Shown. — If, when the bill is pre- sented to the drawee, he desires to accept, he should write across the face of the bill : FORM 118. ■' Accepted. John Doe. Nov. 29, 1910." Any words of the drawee which show an intention to pay will operate as an acceptance.' Some authoritiee hold that any word or words written on the bill which do not clearly negative the inten- tion to pay will be considered an acceptance.* Where a bill is drawn in parts the acceptance should be written. 5. Con. Laws, Neg. Instr. Law, § (1842), 2 Hill 582. Examples of suf- 229. ficient acceptances: " Honored," 1. Con. Laws, Neg. Instr. Law, § Peterson v. Hubbard, 28 Mich. 197; 230. "Presented," Barnet v. Smith, 30 N. 2. Walker v. Bank of the State of H. 256, 64 Am. Dec. 290; "Excepted" New York (1854), 9 N. Y. 582. written, "Accepted" intended, Meyer 3. Ward v. Allen, 2 Met (Mass.) v. Beardsley, 30 N. J. L. 236. Ex- 63, 35 Am. Dec. 387; Espy v. Cincin- amples of sufficient refusals: "I pro- nati Bank, 18 Wall. (U. S.) 604, 21 test the above," Pridgen v. Cox, 13 L. ed. 947. Tex. 257; "Kiss my foot," Norton v. 4. Spear and Patten v. Pratt Knapp, 64 Iowa, 112, 19 N. W. 867. 258 Notaries and Commissionees of Deeds. on one part only ; it would make no difference which part.' Where a cheek is certified by the bank on which it is drawn, the certifica- tion is equivalent to an acceptance.* An acceptance may be by tele- graph.^ The acceptance can be made by the drawee only. If " E. C. H." is the drawee it is not an acceptance for him to write "Ac- cepted payable at Am. Ex. Bank, Clayville Mills, by E. C. H.,, Treas." " § 244. Dishonored by Nonacceptance. — Presentment for ac- ceptance is excused and a bill may be treated as dishonored by non- acceptance in either (any) of the following cases: (1) Where the drawee is dead, or has absconded, or is a fictitious person, or a per- son not having capacity to contract by bill ; (2) where, after the exercise of reasonable diligence, presentment cannot be made; (3) where, although presentment has been irregular, acceptance has been refused on some other ground.^ A bill is dishonored by nonacceptance : (1) When it is duly pre^ sented for acceptance and such an acceptance as is prescribed by this act is refused or cannot be obtained; or (2) when presentment for acceptance is excused and the bill is not accepted.^ Where a bill is duly presented for acceptance, and is not accepted within the prescribed time, the person presenting it must treat the bill as dis- honored by nonacceptance or he loses the right of recourse against the drawer and indorser.' § 245. Effect of Dishonor. — Where a bill is duly presented for acceptance, and is not accepted within the prescribed time, the pei^ son presenting it must treat the bill as dishonored by nonacceptance or he loses the right of recourse against the drawer and indorser."* 3. Con. Laws, Neg. Instr. Law, § for treating the bill as accepted. Wal- 313. ker v. Bank of the State of New York 4. Con. Laws, Neg. Instr. Law, § (1852), 13 Barb. 637 (1854), 9 N. Y. ,323. 582. 5. Molson's Bank r. Howard (1875), 40 N. Y. Super. Ct. 15; Loui- siana Nat. Bank v. Schuchardt (1878), 15 Hun 409; Johnson v. Clark (1868), 39 N. Y. 218; Daniel on Neg. Instr. 5th ed., § 496. 6. The notary acting as agent of the holders was held liable in this case 1. Con. Laws, Neg. Instr. Law, § 245. 2. Con. Laws, Neg. Instr. Law, 1 246. 9. Con. Laws, Neg. Instr. Law, § 247. 10. Con. Laws , Neg. Instr. Law, § 247. Peotesting ITbgotiable Instruments. 259 "When a bill is dishonored by nonacceptance, an immediate right of recourse against the drawers and indorsers accrues to the holder^ and no presentment for payment is necessary.' § 246. Protest for Nonacceptance. — Where a foreign bill ap- pearing on its face to be such is dishonored by nonacceptance, it must be duly protested for nonacceptance. * * * If it is not so protested, the drawer and indorsers are discharged. Where a bill does not appear on its face to be a foreign bill, protest thereof iir case of dishonor is unnecessary.^ Where any negotiable instrument has been dishonored, it may be protested for nonacceptance or non- payment, as the case may be ; but protest is not required except in the case of foreign bills of exchange.^ «■- '*'♦•'?' Peesentment foe Payment. ■'^"' "'"■ " § 247. When Presentment is Necessary. — As a general rule presentment for payment and demand are necessary in order to charge the indorsers of any negotiable instrument. Presentment for payment is not necessary in order to charge the person prima- rily liable on the instrument ; but if the instrument is, by its terms^ payable at a special place, and he is able and willing to pay it there' at maturity, such ability and willingness are equivalent to a tender of payment upon his part. But except as herein otherwise pro- vided, presentment for payment is necessary in order to charge the' drawer and indorsers.' Presentment for payment is not required in order to charge tho drawer where he has no right to expect or re- quire that the drawee or acceptor will pay the instrument.* Pre- sentment for payment is not required in order to charge an in- dorser where the instrument was made or accepted for his accom- modation, and he has no reason to expect that the instrument will be paid if presented.^ Presentment for payment is dispensed with :: 6. Con. Laws, Neg. Inatr. Law, § anee, if it be for non-acceptance."' 248. Daniel on Neg. Instr., 5th ed., §§ 936, 1. Con. Laws, Neg. Instr. Law, § 909. 260. 3- Cton. Laws, Neg. Instr. Law, § 2. Con. Laws, Neg. Instr. Law, § 130. 189. *• Con. Laws, Neg. Instr. Law, §; Protest is controlled by " the law 139. of the place of presentment for accept- 5. Con. Laws, Neg. Instr. Law, g 260 NOTAEIES AND COMMISSIONEES OF DeEDS. (1) Where, after the exercise of reasonable diligence, presentment 3.S required by this act cannot be made; (2) where the drawee is a fictitious person; (3) by waiver of presentment, express or im- plied.* Some cases in which presentment for payment may be dis- pensed with or delayed are given in note [a]. As to what " reasonable diligence " means will depend on the facts of each case. It means such diligence as under ordinary cir- cumstances would be exercised by a person to discover the existence of a fact which it might be important for him to correctly ascer- tain.^ The question of what is meant by " reasonable, diligence " is taken up more fully under section 281. [a] If the maker of a promissory note, payable generally, and not at any- particular place, remove from the state before maturity of the note, the holder is excused from making presentment. Adams v. Leland (1864), 30 N. Y. 309; Foster v. Julien (1861), 24 N. Y. 36. Delay In making presentment for payment will be excused in the fol- lowing cases: War between the country where the holder is domiciled and that where the party to whom presentment should he made or notice given is domiciled. Woods v. Wilder, 43 N. Y. 164; Griswold v. Wadding- ton, 19 Johns. 438: Occupation of country by a public enemy so that the parties are separated from each other by a hostile line: Political dis- turbances which interfere and obstruct the ordinary negotiations of trade: Prevalence of a malignant disease, Tunno v. Lague, 2 Johns. Cas. 1: Overwhelming calamity and unavoidable accident: Miscarriage or de- lay in transmission by mail, Schofield v. Bayard, 3 Wend. 488: When the cause of delay ceases to operate, presentment must be made with reasonable diligence. § 248. Who may Present. — Presentment for payment, to be ■sufiicient, must be made by the holder, or some person authorized to receive payment on his behalf.*^ In the case of a foreign bill a number of states have held that the demand for payment must be made by a notary in order that he may make the protest. Some courts have held that a clerk or deputy of a notary may present a bill or note, and later, if not paid, the notary may protest ; but the weight of authority is against that mode of presentment.^ A ma- 140; Moore v. Alexander (1901), 63 1. Con. Laws, Neg. Instr. Law, § App. Div. 105. 132. 4. Con. Laws, Neg. Instr. Law, 8 2. Ocean Nat. Bank v. Williams, 142. 102 Mass. 141. 5. Packard v. Lyon (1855), 5 Duer 85. Peotesting Negotiable Instruments. 261 jority of the courts hold that the notary must make the presentment personally in order to protest it later unless there is an established xtsage or statute to the contrary.* The question wiiether a notary in New York must make a de- mand personally or whether his deputy can act for him previous to his making his certificate of protest is discussed in section 66. § 249. Presentment to Whom. — Presentment for payment, to be sufficient, must be made to the person primarily liable on the in- strument, or, if he is absent or inaccessible, to any person found at the place where the presentment is made.^ Where the person pri- marily liable on the instrument is dead, and no place of payment ia specified, presentment for payment must be made to his personal representative if such there be, and if, with the exercise of reason- able diligence, he can be found. ^ Where the persons primarily liable on the instrument are liable as partners, and no place of pay- ment is specified, presentment for payment may be made to any one of them, even though there has been a dissolution of the firm.* Where there are several persons, not partners, primarily liable on the instrument, and no place of payment is specified, presentment must be made to them all.* Where paper is payable at a bank, presentment may be made to the president, where the bank is closed ; ^ to its last manager, where it has ceased to exist ; ' to the cashier, if the presentment is made at the bank.' 8. Nelson v. Fortterall, 7 Leigh 2. Con. Laws, Neg. Instr. Law, $ (Va.) 179; Atwell t. Grant, 11 Md. 136. 101; Lee v. Buford, 4 Met. (Ky.) 7; 3. Con. Laws, Neg. Instr. Law, § Sheegog v. James, 26 Tex. 501. 137; Gates v. Beecher, 60 N. Y. 522, " It is well established that the pre- 4. Con. Laws, Neg. Instr. Law, § sentment and demand must be made 138. An informal demand on one of by the same notary who protests the two joint makers is not a basis for bill; it cannot be done by a clerk, or charging indorsers. State of New by any other person as his agent, York Nat. Bank v. Kennedy (1911), though he be also a notary." Com- 130 N. Y. S. 412. mercial Bank of Kentucky v. Barks- 5. Niblack v. Park Nat. Bank, 1C9 dale (1865), 36 Mo. 563. 111. 517, 61 Am. St. Rep. 203, 48 N. 1. Con. Laws, Neg. Instr. Law, § E. 438, 39 L. E. A. 159. 132; Hunt V. Maybee (1852), 7 N. Y. 6. Waring y. Betts, 90 Va. 46, 44- 369; Bank of Cooperstown v. Woods Am. St. Rep. 884, 17 S. E. 739. (1864), 28 N. Y. 566. 7 Crenshaw v. McKiernan, Minor (Ala.) 295. 262 ITOTAEIES AND CoMMISSIONEES OF DeEDS. A note payable two years after demand at a designated bank with interest does not require the demand for payment to be made at the designated bank, but only makes the note payable at such bank, and, after the death, of the maker, the demand is properly made on his administrator in another state.' § 250. Presentment to Whom: When Infectious or Conta- gious Disease has Caused the Board of Health to Prohibit Com- munication With Portions of New York City. — This topic is taken up and the sections of the New York City Charter set out in full under section 237. § 251. Time Presentment Should be Made. — Where the in- strument is not payable on demand, presentment must be made on the day it falls due. Where it is payable on demand, presentment must be made within a reasonable time after its issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof.-' Presentment for payment to be sufficient, must be made at a reasonable hour on a business day.^ Where the instrument is payable at a bank, presentment for payment must be made during banking hours, unless the person to make payment has no funds there to meet it at any time during the day, in which case present- 5iient at any hour before the bank is closed on that day is sufficient.' Delay in making presentment for payment is excused when the de- lay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence. When the ss. : FORM 130. Proof of Loss. County of Ulster. Be it known, that on this 10th day of December, 1911, before me, John Doe, a notary public, duly appointed, commissioned and sworn, and residing in the county and state aforesaid, personally appeared Richa/rd Boe, who, being duly sworn, says that the following statement and the papers therein referred to and signed with his own hand contain a particular, just and true account of his loss in the words and figures following, to wit: I. That on the 5th day of January, 1910, the Hudson Insurance Company, by their policy of insurance, numbered 64">,3ol, did insure the party herein and therein named against loss or damage by fire to the amount of one thousand dollars on a certain two-story frame huilding, knoicn as number 236 First Avenue, Kingston, New York, for the term of three years from the 5th day of January, 1909, to the 5ih day of January, 1912, at noon. II. That in addition to the amount covered by said policy of said com- pany, there was other insurance made thereon to the amount of one thousand dollars, as specified in the following schedule, besides which there was no other insurance thereon: Policy in the Western Insurance Company dated January 6, 1909, for three years, in amount one thousand dollars, and covering the same property, vi~. : 1. Glazer v. Home Ins. Co. (1907), payable to M., mortgagee, as his in- 190 N. Y. 11. terest may appear" and the owner re- in the case of McDowell v. St. Paul fuses to make proof of loss, the mort- Fire and Marine Ins. Co. (1911), 130 gagee may make the required proof of N. Y. S. 294, the court held that, if loss. the policy reads " loss, if any, first 2. Oon. Laws, Penal Law, § 1202. 308 ISTOTAEIES AND CoMMISSIONEES OF DeeDS. one two-story frame building hnovm as number 236 First Avenue, Kingston, New York. III. That the property insured belonged to Richard Roe amd was encum- bered with no mortgages or otherwise; nor has there been any change in the title, use, occupation, location, possession or exposures thereof since the said policy was issued. IV. That the building insured or containing the property destroyed or dam- aged was occupied at the time of fire in its several parts by the parties hereinafter named, and for the following purposes, to wit: John Stiles occupied the entire building as his home. V. That the actual cash value of the property so insured amounted to the sum of three thousand dollars at the time immediately preceding the fire, as set forth in the following schedule: A two-story f ramie dwelling, with porch across the entire front. Size liOxSO ; four rooms on first floor; five rooms and bath on second floor ; finished in ha/rd woods, ash and cherry, on first floor; mantle im living-room; chandeliers in living-room a/nd dining room; built-in book-eases in living-room. That on the 8th day December, 1911, a fire occurred by which the property insured was injured or destroyed to the amount of two thousand dollars, as set forth in the following schedule, which the deponent declares to be a just, true and faithful account of his loss as far as he has been able to ascertain the same: (Here should be scheduled in full all property damaged or destroyed, show- ing the cash value of each item thereof and the amoujit of loss thereon.) And the insured claims of the Hudson Insurance Company the sum of one thousand dollars. (If the policy contains any subdivisions, a statement should be placed here of the amount claimed under each subdivision.) VI. That the fire originated from the lace curtains in the living-room being blown by the wind into the gas flame about 9:30 o'clock on the night of the 8th of December, 1911. That the family were away from home at the time, and the gas was lighted and icindow opened by one of the maids. And the said deponent further declares that the said fire did not originate by any act, design or procurement on his part, or in consequence of any fraud or evil practice done or sufi'ered by him, and that nothing has been done by or with his privity or consent to violate the conditions of insurance or render void the policy aforesaid. RICHARD ROE. Sworn and subscribed to before me this 10th day of December, 1911. [Notary's Seal] JOHN DOE, Notary Public, Ulster County. [The words in italics must be changed to suit the case.] I 306. Certificate by Nearest Notary. — The proof of loss sworn to before a notary or commissioner of deeds as considered in the previous section need not be written by a notary or commis- sioner; it may be filled out by the insured or by anyone else so NOTAEIBS AND INSURANCE. 309 long as it is sworn to by the insured before a notary or some other officer authorized to administer oaths. But the last part of the policy as set out in section 304 puts a new power in the hands of notaries. The policy says, lines 77-80 : "And shall also, if required, furnish a certificate of the magis- trate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify." This portion of the standard policy has been passed on by courts in a number of cases throughout the United States. They have held that " the certificate of a magistrate or notary " is not part; of the proofs of loss ^ and need not be furnished unless it is specifi- cally asked for by the company.^ But they have also held that; the company has a perfect right to demand such a certificate where the policy contains the above clause.' It then becomes necessary for the insured to decide who the " nearest " notary or magistrate * is, keeping in mind that he must be one " living nearest " and not one whose " office is nearest " and also that he must not be " in- terested in the claim as a creditor or otherwise, nor related to the insured." In ISTew York the courts have said in three cases that " living nearest " may be taken in some cases to mean where he lives officially, in other words, where his office is.^ The courts have divided on the question whether it is absolutely necessary for the magistrate or notary " living nearest " to make the certificate. Some courts have held that it is a condition prece- 1. Merchants' Ins. Co. v. Gibbs, 56 a certificate it should tell the insured N. J. L. 679, 44 Am. St. Rep. 413, 29 the name and address of the nearer Atl. 485 ; Jones v. Ho'vard Ins. Co. notary : Paltrovitch v. Phenix Ins. Co, (1889), 117 N. Y. 100; :\rcNally v. (1894), 143 N. Y. 77. Phenix Ins. Co. (1893), 137 N. Y. 391. 4. Craighton v. Agriculural Ins. Co. 2. Burnett v. Amer. Ins. Co., 68 Mo. (1886), 39 Hun 321. App. 343. 5. Smith v. Home Ins. Co. (1888), 3. 19 Cyc. Law & Proc, p. 852; 13 47 Hun 41; Lang v. Eagle Fire Ins. Am. & Eng. Ency. of Law, 2d ed., p. Co. (1896), 42 N. Y. S. 539;Turley v. 352; Gilligan v. Commercial Fire Ins. N. American Fire Ins. Co. (1841), 25 Co. (1880), 20 Hun 97; (1882) 87 N. Wend. 374; Paltrovitch v. Phenix Ins. Y. 626; but when the company rejects Co. (1894), 143' N. Y. 76. 310 NOTAEIES AND CoMMISSIONEES OF DeeDS. dent which must be strictly complied with/ and if the insured cannot get such certificate from the "nearest" notary -or magis- trate, notwithstanding repeated efforts, he cannot recover.'' Other courts, including those of ISTew York, have held that such a con- struction is too strict, and that a clause of that kind must be inter- preted reasonably/ They hold also that if the " nearest " notary or magistrate refuses to give such a certificate, one by the next nearest will be accepted.' And Kentucky courts have held that the whole clause is invalid." It is good practice, however, for the insured to comply strictly with the demands of the policy. In earlier policies the words " notary public " did not appear, and it was held in Cayon v. Dwelling House Insurance Company, a Wisconsin 'case," that a notary was not a " magistrate." In deciding who the " nearest " notary or magistrate is precise meas- urements as to a few feet will not be indulged in, where it can be shown, that the insured attempted to carry out the spirit of the policy.^^ From the above it will be seen that the law has conferred on notaries a power which they did not enjoy at common law. They become, in a way, officers of the insurance companies. The ques- tion as to when they are disqualified is taken up in the next section. § 307. When Disqualified to Make Certificate. — In the last section we learned that the notary must not be " interested in the claim as a creditor or otherwise, nor related to the insured." In one case it was held the fact that the magistrate was a getferal cred- itor only of the insured would not disqualify him.* But in a Wis- consin case it was held that a magistrate was disqualified whose house was not insured and was destroyed by fire communicate'd from the property of the insured, and before whom complaint had G. 13 Am. & Eng. Ency. of Law, 2d Morris, 100 Ky. 29, 66 Am. St. Rep. ed., p. 352. 324, 37 S. W. 267. 7. Walker v. Phenix Ins. Co., 62 11. Cayon v. Dwelling House Ins. Mo. App. 209. Co., 68 Wis. 510, 32 N. W. 540. 8. See note 5, p. 309. 12. Williams v. Niagara Fire Ins. 9. Walker v. Phenix Ins. Co., 62 Co., 50 Iowa, 561. Mo. App. 209; McNally v. Phenix Ins. 1. Dolliver v. St. Joseph F. & M. Oo. (1893), 137 N. Y. 391; Lang v. Ins. Co., 131 Mass. 39. Eagle Fire Co. (1896), 42 N. Y. S. The insured cannot qualify himself 539. to act as a notary by assigning all his 10. Grerman American Ins. Co. v. interest in the claim. Stevens v. Phoenix Ins. Co., 32 N. B. 394. ISTOTAEIES AND INSURANCE. 311 "been entered, charging the insured with setting the fire.^ And in New York we find a case with nearly the same state of facts. ^ It has been held that a notary who has married the first cousin of the insured is " related to " him, within the meaning of the policy.* It is not necessary that the notary be acquainted personally with the insured ; he may certify to his character and the circumstances as he believes them though his knowledge upon the subject be de- rived wholly from inquiry and proof submitted to him.^ I § 308. Notary's Certificate. — The certificate should follow the words of the policy and clearly set forth the facts the insurance company desires to know. The following is a form which, of course, may be varied to suit the occasion : FOKM 131, Certificate of Ifotary. State of New York, I County of Ulster. f *^- •' This is to certify that I, John Doe, am a notary public of the county of Ulster, State of New York, having been duly appointed, commissioned and sworn; that I live at 100 Fairview Avenue, Kingston, New York, and did on the 8th day of Decemher, 1911, live at that address; that I am not personally acquainted with Richard Roe who owned the two-story frame house, situated at 336 First Avenue, which was burned on the night of the 8th day of December, 1911, and am in no way related to him; that I am interested in no manner, as a creditor or otherwise, in the claim he has against the Hudson Insurance Company; that I believe I live nearer to the aforesaid house that was burned than any magistrate or other notary. And I further certify that I have examined the circumstances of the afore- said fire and believe that the insured, Richard Roe, has honestly sustained loss in the said fire, and that the said loss will amount to two thousand dollars. In witness whereof I have hereunto set my hand and affixed my official seal this 12th day of December, nineteen hundred and eleven. [Notary's Seal] JOHN DOE, [The words in italics must be changed to suit the case.] 2. Wright V. Hartford Ins. Co., 36 1. Where the policy required that Wis. 522. tlie proof should be sworn to before 3. Jones v. Howard Ins. Co. (1889), the notary public nearest the place of 117 N. Y. 109. fire, a. certificate with no venue is fa- 4. People's Bank of Greenville v. tally defective: McManus v. West As- Aetna Ins. Co., 74 Fed. 507, 20 C. C. surance Co., 43 App. Div. 550, 48 N. A. 630. Y. Supp. 820, 60 N. Y. Supp. 1143, 5. Turley v. N. Amer. Fire Ins. Co. affirmed 60 N. E. 1115, 167 N. Y. G02. (1841), 25 Wend. 373. 312 NOTABIBS AND 'COMMISSIONEES OF DeeDS. CHAPTER XIII. Wills. S 309. Purpose of Chapter. ^ § 310. Who May Make a Will. § 311. Who May Take by Will. § 312. Child Born After Will is Made. § 313. What May he Disposed of by Will. § 314. Devise or Bequest to Benevolent, Charitable, Scientific or other Societies, Associations and Corporations and to Aliens. § 315. Devise or Bequest to Subscribing Witness. § 316. How Will is Made. § 317. Form of Will. § 318. How a Will May be Removed or Cancelled. § 319. Who May be Named as Executor. § 309. Purpose of Chapter. — This chapter is added because a notary or commissioner of deeds often is called upon hurriedly to write a person's will when no attorney can be reached. If pos- sible, the person desiring to make a will should consult an attorney and talk over the disposition of his property. It is an act that should be done with great consideration. It is impossible to go into the subject in this book. § 310. Who May Make a Will. — "Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing." * And " all persons, except idiots, persons of un- sound mind and infants, may devise their real estate, by a last will and testament, duly executed, according to the provisions " of 'section 316.^ "A minor (infant) is a person under the age of twenty-one years." ' If the person who desires to make a will has suiEcient intelligence to comprehend the condition of his prop- 1. Con. Laws, Decedent Estate Law, 3. Con. Laws, Domestic Belations § 15. Law, § 2. 2. Con. Laws, Decedent Estate Law, § 10. Wills. 313 erty, his relations to those who are the natural objects of his bounty and the nature and consequences of his act in, executing a will, the courts will consider his act valid if it is freely executed.^ From advanced age or enfeebled condition of the mind or body the law will not infer a lack of testamentary capacity.^ § 311. Who May Take by Will. — "A devise of real property may be made to every person capable by law of holding real estate ; but no devise to a corporation shall be valid, unless such corpora- tion be expressly- authorized by its charter, or by statute, to take by devise." * A bequest of personal property may be made to any person capable by law of holding personal property. § 312. Child Bom After Will is Made. — "Whenever a testa- tor shall have a child bom after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child, so after-born, unprovided for by any settlement,' and neither provided for, nor in any way mentioned in such will, every such child shall succeed to the same portion of such parent's real and personal estate, as would have descended or been distrib- uted to such child, if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will." ^ § 313. What May be Disposed of by Will. — Personal estate may be bequeathed ^ and " every estate and interest in real prop- erty descendable to heirs, may be * * * devised." ^ § 314. Devise or Bequest to Benevolent, Charitable, Scientific or other Societies, Associations and Corporations and to Aliens. — •" ISTo person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevo- lent, charitable, literary, scientific, religious or missionary society, 3. In re Iredale's Will (1900), 65 1. Con. Laws, Decedent Estate aw, N. Y. S. 533. § 15. 4. Con. Laws, Decedent Estate Law, 2. Con. Laws, Decedent Estate Law, § 12. I 11. 5. Con. Laws, Decedent Estate, Law, § 26. -314 iN'OTAEIES AND CoMMISSIONEES OF DeeDS. association or corporation, in trust or otherwise, more than one- half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more." ^ A devise of any interest in real property to a person who, at the time of the death of the testator, shall be an alien, not authorized by statute to hold real estate is void.^ § 315. Devise or Bequest to Subscribing Witness. — "If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness, and such yfiil cannot be proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far - only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to tes- tify respecting the execution of the said will, in like manner as if no such devise or bequest had been made." ' " But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been dis- tributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them." * § 316. How Will is Made. — "Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner : 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator in the pres- -ence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses." 3. The testator, at the time of making such subscription, or at 1. Con. Laws, Decedent Estate Law, 4. Con. Laws, Decedent Estate Law, I 17. § 27. 2. Con. Laws, Decedent Estate Law, 5. See In re Kivlin's Will (1902), S 13. 74 N. Y S. 937. 3. N. Y. Code of Civil Proc, § 2544. Wills. 315 "the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator." ^ " The witnesses to any will, shall write opposite to their names their respective places of residence ; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Who- ever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue for the same. •Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid, be excused or incapaci- tated on that account, from testifying respecting the execution of such will." ' An illiterate person should sign his will in the same manner he ■would sign any other instrument* See section 139 for the manner in which an illiterate person should sign his name. There is only one way to execute a will and that is as set out in this section. A will cannot be acknowledged in the manner a deed or other conveyance is.^ § 317. Form of Will. — The following is a form of will that is sometimes used : FORM 132. Last Will and Testament of Jane Boe. I, Jane Roe, of Maple Grove, in the county of Otsego, and state of New York, being of sound and disposing mind and memory, do make, publish and declare this to be my last will and testament, hereby revoking any and all former wills by me at any time heretofore made. 1. I devise and bequeath to my son John the home we live in. 2. I bequeath to my daughter Mary all my bank stock. 3. I bequeath to m,y cousin Jane Doe the set of dishes trimmed in gold. 4. All the rest, residue and remainder of my estate, real, personal, and mixed, I give, devise and bequeath to my tioo children, share and share alike. 2. See p. 314, note 5; Con. Laws, 4. In re Beneventano's Will (1902), Decedent Estate Law, § 21. 77 N. Y. S. 651. 3. Con. Laws, Decedent Estate Law, 5. N. Y. Code of Civil Proc, § 937. § 22. 316 Notaries and Commissioners of Deeds. I make, constitute and appoint my son John to be my executor of this my last will and testament. In witness whereof, I have hereunto subscribed my name and affixed my eeal this tenth day of December, in the year of our Lord one thousand nine hundred ten. JANE ROE. [Seal.] The above written instrument, consisting of two pages was subscribed by the said Jane Roe in our presence, and acknowledged by her to each of us; and she at the same time declared the above instrument so subscribed to be her last will and testament; and we at her request, in her presence, and in the presence of each other, have signed our names as witnesses hereto, and written opposite our names our respective places of residence, on the day and year last above written, this attestation clause having been first read aloud. JOHN JONES, Residing at 27 Mam Street, Maple Orove, New York. HENRY THOMAS, Residing at Ford Road near Maple Orove, Otsego County, New York. [The words in italics must be changed to suit the case.] § 318. How a Will May be Revoked or Cancelled. — "No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formal- ities with which the will itself was required by law to be executed ; or unless such will be burnt, torn, cancelled, obliterated or de- stroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses." ^ § 319. Who May be Named as Executor. — "No person is com- petent to serve as an executor who, at the time the will is pro- vided, is : 1. Incapable in law of making a contract 2. Under the age of twenty-one years. 3. An alien not an inhabitant of this state; or 4. Who shall have been convicted of an infamous crime; or 1. Con. Laws, Decedent Estate Law, 5 34. Wills. 317 5. Who, on proof, is found by the surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, dis- honesty, improvidence or want of understanding. If any such per- son be named as the sole executor in a will, or if all the persons named therein as executors be incompetent, letters of administra- tion with the will annexed must be issued as in the case of all of the executors renouncing. A surrogate, in his discretion, may refuse to grant letters testamentary or of administration to a per- son unable to read and write the English language." ^ 1. Ck»de of Civil Proc., § 2612. GENERi^L INDEX. IjSPORTANX EXPIAIVATION. To use this index to advantage the whole list of topics here given. should first be read over and a note made of those headings under which any particular subject would naturally be classed; and then- only those headings of the index examined. If the reader will follow this suggestion it will not only save his time but very ma- terially aid him in finding what he wants. [References are to Pages.] Acknowledgments 321 Affidavits 323 Affirmations 325 Agent 326 Aliens 326 Attorney at Law 326 Authentication 326 Bank 326 Bankruptcy 327 Certified Copy 327 Clerk 327 Oommissioners of Deeds 327 Consul's Certificate 329 Corporation 329 County Clerk's Certificate 329 329 329 329 330 330 330 Criminal Law. . Cuba Damages Deaf and Dumb Persons Deed Definitions Depositions 332 De Facto 333 Escrow 333 Fees 333 Forms 334 History 338 Holiday 338 HoAV to do Various Things 339 Idiot 330 Infant 339 Insane Person 339 (319) Insurance 339 Interpreter 339 Intoxicated Person 339 Jurat 339 Jurisdiction 340 Legislator 340 Letters Rogatory 340 Marriage , . . . . 340 Minor 340 Names 340 Notary Public 340 Oaths 344 Partnership 345 Philippine Islands 345 Police Magistrate 346 Porto Rico 346 Proof 346. Protesting 34T Residence 349 Seal 349 Separate Examination of Wife.. 349 Sheriff 349 Special Statutes 349 Subpoenas 349 Sunday 350 Sworn Copy 350 Telephone 350 Venue 350 Wills 350 Witnesses 350 Women 350' INDEX [See Important Explanation on Page 319.] ACKNOWLEDGMENT— See " Proof." Page taking an, a ministerial act 20 private examination of wife, law repealed 20 notary may take 17, 53 for use In foreign countries 37 to bills of sale, hypothecations, conveyances, discharges of mort- gages or other encumbrances of any vessel 47 under homestead, pre-emption, timber-culture, desert land, and timber and stone acts 47 to assignment of a patent 47 to assignment of a trade-mark 47 to an agreement under Interstate Commerce Law 47 under Bankruptcy Act . 47 power of notary to take, under laws of other states 50 when notary or commissioner of deeds disqualified to take 57 notary or commissioner of deeds cannot take, to marriage con- tract 60 how interlineations and erasures should be made in an instru- ment acknowledged 142 object of 161 includes proof 161, note agreement to convey needs no 162 importance of 162 what may be acknowledged 164 will not to be acknowledged 164 promissory note not to be acknowledged 164 " conveyance " means what 164 nature of an . . 164 notary and commissioner of deeds may take 165 who may take 165-169 disqualification of officer to take 166 jurisdiction of officer in taking tf 6 who may make 167, 168, 169 certificate of, should show what 1(>7 signature of one acknowledging 170 seal of corporation needed to an IVi/ when instrument should be witnessed 170 when instrument may be acknowledged 171 how taken 172-175 in general 172 (321) 322 Index. ACKNOWLEDGMENT— Contimued. Page identity 172 explanation of instrument 174 unequivocal acknowledgment 175 contents of certificate of 176 when individual known to officer ^ . . 177 of corporation 177 when taken out of New York 177 when taken in Porto Rico, Philippine Islands or in Cuba. . . . 178 seal must be attached to, when 178 certificate of, by whom written 190 time of writing 190 position of . . . . . . . .^ 190 venue of 190, 191, 192 " ss." of 190 date of 190 signature of officer in 192 designation of officer in 192 seal of officer in 192 delivery of Instrument 192 delivery in escrow 195 special statutes, recognizance of bail 195 bonds filed with surrogate 195 citation or subpoena 195 ancillary letters testamentary 195 power in a will 195 renunciation to right of administration 195 renunciation to right of executorship 195 waiver of citation 195 arbitration and award 195 case submitted 195 person on whom to serve summons 195 proof of service of summons 195 cancelling judgments 195 satisfaction piece 196 assignment of judgment 196 bond or undertaking 196 guardian ad litem 19$ conveyances and mortgages _ 196, 197 contracts in contemplation of marriage 197 leases or grants of agricultural lands 197 purchases from Indians 197 mines in St. Lawrence county 197 property adversely possessed 197 conveyances by tenants for life or years of greater estate than possessed 197 Indians cannot sell land when 200 Index. 323 ACKNOWLEDGMENT— ComEED— how corrections should be made in 208 cannot be given, when Indian is grantor 200, 197 when person not in possession 200, 197 ■ fraud under Torrens Law 200 personation of another 200 deemed mortgage ._ 198 when property is leased 198 bargain and sale 198 lease and release 198 must show residence of grantee 196 may be recorded, when 199 compelling witness to prove 201 explanation of short forms of 197 description of grantors and grantees 196 of mines in St. Lawrence county 197 by tenant for life or years of greater estate than possessed 197 short form of 208 JDEFINITIONS— acceptance 248, 255 acceptor 248 accessory to a crime 62 acknowledgment 163 affidavit 16, 128 affirmation Ill apostolical notary 6 attempt to commit a crime 62 attest 17 bachelor 197 bill of exchange 246 certifies 17 check 249, 255 commissioner of deeds 91 compounding a crime 63 conditional acceptance 256 conveyance 164 crime 62 cross-interrogatories 226 de facto notary 78 deposition 211 distance 213 Index, 331 DEFINITIONS— CowfireMed. Page draft 249 drawee 248, 249 drawer 248, 249 ecclesiastical notary 6 escrow 193 et al 135 exhibits 241 fee to the State 28 felony 62 foreign bill of exchange 249 general acceptance 256 holiday 263 indorsement 248, 250 indorser 248, 249 infant 167, 168 inland bill of exchange 249 interrogatories 226 jurat 147 " law merchant " 40, 247 leap year 265 local acceptance 257 maker 250 man's name . 146 marriage , 59 ministerial act 20 minor 20, 167, 168 misdemeanor 62 money 268 name 146 negotiable 250 I non— negotiable Zcl notary public 16, 17 " noting " 273 oath 110 oath of office 27 partial acceptance 256 payee 248, 249, 250 payment 267 person primarily liable 270 person secondarily liable 271 principal of a crime 62 private seal 29 promissory note 250 proof 163 protest 17, 251, 269 public seal 29, 30 qualified acceptance 25K 332 Index. DEFINITIONS— Oowtwi«ed. Page " reasonable diligence " 260, 282, 283 ■' reasonable hour " 254 •■ reasonable time " 254, 255, 263 residence 21, 212 seal 17 seal of a corporation 29 sight draft 249 signature 170 spinster 197 " ss." : 138 standard time 264 supra protest 278 swear Ill taking an acknowledgment 17 time draft 249 title of an affidavit 135 unmarried 197 venue 136 woman's name 146 year 264 BEPOSITIONS— notary taking, a judicial officer 19 for use in foreign countries 37, 40 notary may take 48 when may be taken under federal Statutes 48 in contested election cases 48 when witness is infirm and lives at a distance, etc 48 by order of United States Court 48 in naturalization papers 48 for use in the land office 48 in patent cases 48 in proceedings in bankruptcy 48 to be filed with Interstate Commerce Commission 48 notary may take by virtue of laws of other States when 51 notary may take under laws of New York 53 when officer is incompetent to take 58 cannot be taken on Sunday 85 when may be taken, to be used in foreign country 212 to be used in courts of United States 212 to be used in some sister State 213 to be used in courts of New York 213 to be used In Surrogate's Court 214 to be used in City Court 214 to be used in Municipal Courts 214 ■who may take 215 Index. 333 DEPOSITIONS— CoratraMed. Page when notary or commissioner of deeds cannot take a deposition . . 217 wtien one appointed to take, may employ attorney 218 whose, may be taken 219 rules to guide officer 219 special statutes 220 may be taken, " on order " 221 " on stipulation " 222 " on commission " 223 cannot be taken by notary or commissioner of deeds in criminal cases 223 crimes in connection with 224 interrogatories 225 oral examinations 225 open commission 226 time of taking 227 witnesses to 227-232 attendance 227 refusal to attend 231 subpoenas 227 refusal to testify 232 witness fees 227 liability of, in not attending 231 how subpoenas should be served 227 subpoenas duces tecum 229 how deposition is taken 232 irregularities 235 influencing testimony 236 interpreters 236 how returned 236 certificate of execution 238 a complete deposition 239 exhibits 240 how, may be amended 241 fees of commissioner (notary or commissioner of deeds) 241 how distance is computed 213 residence of a witness 212 DE FACTO — See " Notary Public " and " Commissioner of Deeds." ESCEOW— delivery in escrow 193 FEES — See " Notary Public." 334: Index. FORMS— PagD 1. Letter requesting application blank for appointment as notary. 23 2. Application blank for appointment as notary 24 3. Oath of office of notary public 27 4. Notary's seal 33 5. Power of attorney to be used in England 38 power of attorney 38 county clerk's certificate 39 consul's certificate 39 6. Marine note of protest 42 7. Marine protest 42 8. Record of protest 72 9. Oath of office of commissioner of deeds 95 10. Seal for commissioner of deeds in any city of New York 97 11. Seal for commissioner of deeds in some sister State or foreign country 98 12. Oath taken on the Gospels on the taking an affidavit 120 13. Oath taken on the Gospels on the taking of a deposition 120 14. Oath taken on the Gospels when a subscribing witness swears. 120 15. Oath taken on the Gospels when a witness to identity of party swears 120 16. Oath taken on the Gospels when a witness to identity of sub- scribing witnesses swears 121 17. Oath taken in the presence of the ever-living God on the tak- ing an offidavit 121 18. Oath taken in the presence of the ever-living God on the tak- ing of a deposition 121 19. Oath taken in the presence of the ever-living God when a sub- scribing witness swears 121 20. Oath taken in the presence of the ever-living God when a wit- ness to identity of party swears 121 21. Oath taken in the presence of the ever-living God when a wit- ness to identity of subscribing witnesses swears 122 22. Affirmation on the taking an affidavit 122 23. Affirmation on the taking of a deposition 122 24. Affirmation when a subscribing witness affirms 122 25. Affirmation when a witness to identity of party affirms 122 26. Affirmation when a witness to identity of subscribing witnesses I affirms 123 27. Interpreter's oath taken on the Gospels on taking an affidavit of a person 124 28. Interpreter's oath taken in the presence of the ever-living God on the taking of a deposition 124 29. Interpreter's affirmation when a person proves a deed 124 30. Introduction to affidavit of a member of a partnership I3i 31. Introduction to affidavit of a corporation 131 32. Title of an affidavit in Supreme Court 135 33. Title of an affidavit in a Municipal Court 135 Index. 335 rOBJffS — Continued. Page 34. Title of an affidavit with several parties 135 35. Title of affidavit in case on appeal 136 36. Venue in New York county 136 37. Venue in Kings county 136 38. Venue in city of Troy 137 39. Venue in Southern District of New York for United States Court 137 40. Venue in United States Court 138 41. Venue in United States Court 138 42. Introduction to body of affidavit: title necessary 140 43. Introduction to body of affidavit: title unnecessary 140 44. Introduction to body of affidavit setting forth date and place. . 140 45. Introduction to body of affidavit stating residence 141 46. Signature of ignorant person or one unable to write 144 47. Statement to be made in jurat when affiant unable to write . . 145 48. Legal name of a man 146 49. Legal name of a married woman 146 50. Jurat 148 51. Jurat when affirmation taken 151 52. Jurat when oath taken 151 53. Jurat when illiterate person is sworn 151 54. Jurat when interpreter is used 152 55. Jurat used in protests 152 56. Jurat when notary has certificate filed in another county 152 57. Complete jurat 152 58. Jurat of a commissioner of deeds of New York living in some other State or country 153 59. Affidavit of correctness of a copy 154 60. Affidavit of service of summons 155 61. Affidavit of alien residing in New York made to enable him to hold real property 156 61. Affidavit showing how corrections should be made 156 62. Proof of unsecured debt in bankruptcy 156 63. Proof of a secured debt in bankruptcy 157 64. Certificate of acknowledgment: Individual known to officer. . . 179 65. Certificate of acknowledgment: Two or more individuals known to officer 180 66. Certificate of acknowledgment: Husband and wife known to officer 180 67. Certificate of acknowledgment: One of several individuals known to officer 180 68. Certificate of acknowledgment: Attorney-in-fact known to officer: Power of attorney recorded 181 69. Certificate of acknowledgment: Attorney-in-fact known to officer: Power of attorney not recorded 181 70. Certificate of acknowledgment: Referee, receiver, executor, administrator, trustee, or sheriff known to officer 181 336 Index. VOmiH— Continued. Pa.gb 71. Certificate of acknowledgment: Deputy sheriff or under sheriff known to officer 182 72. Certificate of acknowledgment: By partner of firm known to officer • 182 73. Certificate of acknowledgment: By corporation: Officer of cor- poration known to officer 183 74. Certificate of acknowledgment: Another form by two officers of corporation: Officers of corporation known to officer 183 75. Certificate of acknowledgment: By grantor to confirm deed executed during minority 184 76. Certificate of acknowledgment: Individual not personally known to officer: Known to personal acquaintance of officer. 184 77. Certificate of acknowledgment: Individual not personally known to officer: Identity satisfactorily proven by oath of another , 185 78. Certificate of acknowledgment: Individual not personally known to officer: Identity satisfactorily proven by oaths of two persons 185 79. Certificate of acknowledgment: Two individuals: One known and one unknown to officer: Identity proven by brother 186 80. Certificate of acknowledgment: When grantors are referred to as husband and wife: Husband known, wife unknown to officer : Identity proven 186 81. Acknowledgment for all States 187 82. Certificate of proof: By a subscribing witness known to officer. 189 83. Certificate of proof: By a subscribing witness not personally known to officer: Known to personal acquaintance of officer. 190 84. Venue when acknowledgment is taken by notary in Kings county . . 190 85. Venue when acknowledgment is taken by notary in Oneida county 191 86. Venue when acknowledgment is taken by notary in Brie county 191 87. Venue when acknowledgment is taken by a commissioner of deeds of the city of Syracuse 191 88. Venue when acknowledgment is taken by a commissioner of deeds of the city of Albany 191 89. Venue when acknowledgment is taken by commissioner of deeds of New York for San Antonio, Tex 191 90. Venue when acknowledgment is taken by commissioner of deeds of New York for the city of Vevey, Switzerland 191 fll. Venue when acknowledgment is taken by a commissioner of deeds of New York for the State of Kansas 191 ■92. Venue when acknowledgment is taken by a commissioner of deeds of New York for the county of Peterborough, Ontario, Canada 191 93. Venue when officer is acting under federal statutes in South- ern District of New York 191 Index. 33T FORMS— Contintied. Page 94. Signature of notary or commissioner of deeds l'J3 95. Statement after signature of notary or commissioner of deeds. 192 96. Description of grantors and grantees in deeds 196 98. Petition tliat notary public or commissioner of deeds issue subpoena requiring a subscribing witness to attend and tes- tify before him concerning the execution of the conveyance . . 202 99. Subpoena issued by notary or commissioner of deeds to compel subscribing witness to appear and testify 203 100. Affidavit of service of subjoena 204 101. Warrant to officer to arrest witness and to bring him before the notary or commissioner of deeds 205 102. Warrant to officer to arrest witness and to deliver him to the sheriff of the county, or to the keeper of the city prison of the city and county of New York, for refusal to answer and to such sheriff, or keeper of the prison to detain him 205 103. Commitment when officer other than sheriff arrests or when arrest is made in New York county 206 104. General letter of attorney in fact when creditor is not repre- sented by attorney at law in bankruptcy matter 207 105. Deed, short form 208 106. Example of how corrections should be made in a deed 208 107. Subpoena issued by a notary or commissioner of deeds acting as a commissioner to take testimony 239 108 Subpoena duces tecum 234 109. Indorsement on packet in returning deposition 237 110. Indorsement on back of order or commission 238 111. Deposition ... 112. Indorsement on order or commission 24^ 113. Indorsement of exhibits 241 114. Bill of exchange 247 115. Acceptance of a bill of exchange- 248 116. Check 249 117. Promissory note . 250 118. Acceptance of bill of exchange 257 119. Computation of days 264 120. " Noting: " First step in a protest 273 121. Protest ... 276 122. Waiver of protest 277 123. Acceptance for honor 279 124. Simple form of acceptance for honor 279 125. Another form of acceptance for honor 280 126. Notarial act of honor 281 127. Notice of protest 294 128. Waiver of protest 295 129. Notice to a fire insurance company of claim for loss or damage by fire . . 30€^ 338 Index. VOBMS—Contmued. Page 130. Proof of lOBS 307' 131. Certificate of notary "living nearest " the fire 311 132. Last will and testament of Jane Roe 315 HI8T0KT— origin of notary public 1, 18 tabularius . . 1 original of word " notary " 1, 2 notarius 1, 2 notary in western Europe 2 origin of attorney at law 2 notary in France a notary in England 3, i law merchant . 4 papal notary . . 4, & of appointment of notaries ._ 5 notary in Scotland 5 apostolical notary . . g ecclesiastical notary 6 notary in United States 7 notary in New York 9-14 fee to the State 28 ■ bond to the State 28 of seals in general 29 of seal in New York 29 seal of notary under common law ; 30 jurisdiction of notaries 36 of bills of exchange 41 of promissory notes 41 of commissioners of deeds -87 of commissioners of deeds in New York 87 of oaths . . 109 of affirmations . 110 of attorney taking oath of his client 133 the form of an aflSdavit 134 of venue 137 of " ss." . 138 of acknowledgment . . 172 of depositions 211 of bills and notes 245, 246, 247, 250 flOLIDAT— See " Sunday." , what days are 263 presentment of negotiable instruments 254, 272 Index. 33» HOW— Page ' to use this index 319 to be appointed a notary 20-34 to be appointed a commissioner of deeds 93-96 to administer an oath 112-116 to administer an affirmation 112-116 , to talie an affidavit 148-150 to take an acknowledgment 172-175 to take a proof 175-176 to hold an escrow 193-195 to take a deposition 232-241 to present a bill of exchange for acceptance 251-258 to present a bill of exchange or promissory note for payment- .259-269 to protest . 272-277 to give notice of dishonor 281-295 to proceed under insurance law 305-311 to execute a will 314-316 IDIOT— cannot transfer real estate 167 cannot acknowledge 167 INFANT— See " Minor." INSANE PERSON— See " Idiot." INSUBANCE— standard fire policy 305 notice to company of fire 306 proof of loss 306 certificate of " nearest notary " 308, 311 when notary Is disqualified to make certificate 310 notary public a judicial officer under, law 19 INTEEPRETEK— should be sworn 114 how jurat should appear 150 in taking acknowledgment 174 in taking deposition 236 INTOXICATED PERSON— when cannot acknowledge 168 JUBAT — See "Affidavits." 34:0 Index. Paob JURISDICTION— See "Notary Public" and "Commissioner of Deeds." lEGISLATOE^ cannot be appointed notary 22 oath of 44 cannot be appointed commissioner of deeds 91 LETTERS EOGATOEY— See " Depositions." MABBIAGE— notary or commissioner of deeds cannot take acknowledgment to contract of 59 MUrOR- . cannot transfer real estate 167, 169 cannot acknowledge . 167, 169 Jf AMES — See " Notary Public," " Definitions," "AffidaviU." aOTABT PUBLIC— in general, a State officer 18, 20, 21, 32, 36, 53, 77 a local officer 18, 20, 21, 32, 36, 53, 77 a public officer. 18, 54 a judicial officer 19, 20, 164 a ministerial officer 19, 20, 164 plural form of " notary public," 1 " notary " equivalent to 1, 16 purpose of the office 15-17 necessity of the office 16, 17 nature of the office 18, 19 procedure to make officer administer oath to duly appointed notary . . 55 notary may be compelled to act 69 should keep records 69, 295, 72 records of, as evidence 71, 296 vacancy in office of 76 resignation of 77 removal of 77 reappointment of . . 78 validating acts 81 notary cannot delegate his authority 82 no partnership between notaries 84 isBEX- 341 SOTAST YTfOJC—CoiHimmed. Page certificate sbonld be asthentieated vbes .^^ S4 duties irhen actios as dqioeitaiy for instrmiieBt ia escrow- . 193 clerk of notaiy cannrt act Cor Inm 82, 260 appointment, women . . 7 nttmber to be apptniited 23 racancies 22 application fcr - 23 made by goremor ^ steps in S eonfirmatifln by senate S notary's cammission . . 26 final qualification . 26 when reroked .. 2T oath of oSce, administered by whom 27 filed where 27 tezmof oSce, set ont by statute 35 notary not to hold otct afto* 3g gnQty of a crime if he acts after Ids 35 same of notary, he shonid hare oScial form 34 woman's name when married during term of office 35 importance of S5 bond, in New York 28 fee to the State, in Xew York city, in other cities and elsewhere 28 Cling certificate in other counties, fee on.. -- 28 fee for filing in New York coimty 28 r^ister's fee 28 jttrisdiction of notary what 36, .53 Jurisffiction of, in general . 18,35, 139 as State officer 36 as local officer 30_ 137^ i3g where county has a register 35 U in general . . g notary's official seal 29-34 priTate seal of i>erson 29, 170 of corporation 29 pabHc seal 30 how seal is put on pajter 30, 154 necessityof . ..,30,31, 153 342 Index. JVOTAET VVBLIC— Continued. Paob notary cannot use, of some other officer 3* importance of . 31 not necessary on proofs of claim in bankruptcy 31 form of notary's seal 32, 33, 34 place of seal on an instrument 34 of grantor . 17* as to when commissioner of deeds must attach his seal, see topic " Commissioners of Deeds." iees of, criminal to ask more than legal fee 66 notary and commissioner of deeds under federal statutes- • • • 48 schedule of . . 72 notary who occupies a position in a public office 75 cannot bargain with a bank for 304 de facto notaries, woman appointed in New York is at least a 21 one who acts after his term of office is a 35 validity of his acts 79 ex-officio notaries, who are 80 •eligibility and qualifications, citizen of United States 20, 21 residence 20 age . . . 20 removed as commissioner of deeds of New York city 21 women . . 21 not incompatible with other offices 22 notary may be librarian or messenger 22 legislator cannot be a notary 22 sheriff or deputy sheriff cannot be a notary 22 •referee in bankruptcy may be a notary 22 to seal up contents of any safe, vault or box 54 disqualifications, because of interest 57, 58, 59, 132 grantee or mortgagee 57 relationship . 58, 59 when attorney of record 58 law partner . . 58 .stenographer of one of attorneys 58 when witnesses to conveyance are dead 59 to take affidavit that books and papers have been turned over to a public officer 59 ■cannot marry persons 59 cannot practice as attorney 60 when, is disqualified to take affidavit 132 when, is disqualified to take acknowledgment 166 when, is disqualified to take deposition 217 cannot take deposition in criminal cases 223, 224 Index. 343 JSOTAET rVBLIC— Continued. Page ■when notary disqualified to act under insurance law 310 bank officers cannot act as notaries 7, 19 powers and duties of 8 in general, in France 3 In England . . 4 parish clergymen in Scotland 6 under international law 6, 7, 37 explanation of . . 16 in New York 17, 53 power to commit to prison 19 under law merchant 40 notary's duty to act if requested 54, 61 under international law, officer under 6^ 7 powers under 37, 53, 132, 166, 215, 252 to act on Sunday 84 under law merchant, officer under . 41 powers under . 41, 53, 132, 215, 252, 285 to act on Sunday 84 Hnder federal statutes, power to administer oaths and affirmations 44, 53 power to take affidavits 46, 53, 132 power to take acknowledgment and proof 47, 53, 166 power to protest 47, 53 power to take depositions 48, 53, 215 fees 48 criminal law 49 to act on Sunday 84 under laws of other States, to take acknowledgments 50 I to take affidavits 51, 132 to take depositions 51, 215 to administer oaths ■ ■ 52 to protest . . 52 to act on Sunday 84 to make presentment of negotiable paper 252 under laws of New York, powers enumerated 53, 54, 132, 165, 215, 285, 252, 271 what certified copies he can make 54 : may make sworn copies 54 sealing up contents of any safe, vault or box 54 duty to act when required 61 I to act on Sunday 84 delivery to notary of an instrument in escrow 193 under insurance law. 308, 309 344: Index. ]!r©TABY VUBLIC— Continued. Page liability, civil, when liable 29, 60, 61, 199, 296 for treating bill of exchange as accepted 258. criminal, under federal statutes 49 for practicing as attorney 60 for refusing to act .' 61 in general . . 62 when person intrudes himself into the office of 65 acts of, which are 65, 75, 200, 297 miscellaneous acts 68 limitation of actions, when action barred 61, 64 OATHS— administering, ministerial . 20 notary may administer 17, 53, 116 who may administer, to notary 27 public officer may be compelled to administer, to one appointed notary . . 28 for use in foreign countries 37 under federal statutes 44, 100 to person elected to office 44 to members of State legislatures and to State officers 44, 100 in departmental matters 45, 100 to inspectors of steam vessels 45, 100 in patent cases 45, 100 under Bankruptcy A'ct 45, 100 to officers of national banks under § 5211 of Revised Statutes. .45, lOO under homestead, timber-culture, desert land and timber and stone acts 45, 100 in post-office department 45 oaths generally under federal statutes 45 to United States judges 45, 100 to United States marshals 45, 100 to court clerks of United States courts 45, 100 to appointee of West Point 45 to applicants for citizenship 45 to collector of duties 46 under Interstate Commerce Commission 46 power of notary to administer, under laws of some other State . . 52 when officer disqualified 58 word " oath " includes " affirmation " Ill administration of . . 112 cannot be administered over telephone 113 affirmation accepted under statutes of United States 112 Inbex. 345 9ATHS — Continued. Page administering, to persons who do not speak English or who are deaf and dumb 114 who may take an 114 swearing interpreter 114 when infant may take 115 when person of weak intellect may take 115 deaf and dumb person may take 115- atheist or infidel may take 115 corporation cannot take 116 partnership cannot take 116 notary cannot administer certain 116 must be administered by officer when he is so requested 117, 125 special oaths 117 administration of, ministerial 119 disqualification of officer to administer 119 power to administer, cannot be delegated 119 evidence of an 119 contents of certificate of officer on administering an oath 119 forms of, and affirmations 120 when peculiar forms of ceremony may be used 123. particular forms of, laid down by statute must be strictly fol- lowed 12S fees for administering 124 civil liability of officer in connection with 125. criminal liability of officer in connection with 125 false, criminal liability of affiant or affirmant 12& special statutes, oath of office 117 arbitration . . 117 referee, §§ 1011-1026 Code llg referee in supplementary proceedings llg commissioners in partition 118 dower . . 118 lunatic, idiot, drunkard 118 executor, administrator, guardian llg Condemnation Law llg rABTNEBSHIP— cannot take oath 116 cannot take affidavit 131 how acknowledgment is taken 168, 178 presentment of negotiable instruments to 252 no, between notaries 84 PHILIPPINE ISLANDS— who may take acknowledgments in 165 eontents of certificate of acknowledgment 17S 346 Index. POLICE MAGISTRATE— Paqb cannot take acknowledgments 165, note POETO KICO— who may take acknowledgments in 165 contents of certificate of acknowledgment in 178 -PKOOF— See "Acknowledgment." notary may take, of deeds and other written instruments 17, 53 for use in foreign countries 37 when notary disqualified to take 57 notary or commissioner of deeds cannot take, when witnesses to a conveyance are dead 59 how interlineations and erasures should be made in an instru- ment 142 object of 161 importance of 162 what may be proved 164 nature of . 164 who may make 169, 171 when instrument should be witnessed 170 time of taking 171 when instrument may be proved 171 how taken 175-176 identity . . 175 signed at execution. 175, 176 witness not interested 175, 176 competent 175 knew grantor 175 oflicer knows witness 175 contents of certificate 187, 188 taken in New York 187 taken out of New York 187 when witnesses are dead 189 certificate of, by whom written 190 time of writing 190 position of 190 venue in 190, 191, 192 " ss." of 190, 192 date of 190, 192 signature of officer 192 official designation 192 seal of officer 192 special statutes: See same topic under "Acknowledgments." .certificate of authenticity 198 Index. 34T TROOF— Continued. Page amenaiueiit oi certificate of 198 certificate of, when evidence 198 instrument duly proved may be recorded 199 compelling witness to prove conveyance 201 PEOTESTIIVG— national bank notes, notary may protest 47, 53, 298 marine protests, under " law merchant " 41 for use in foreign countries 37 when should be made 42 notary may take 47, 53 records should be kept 72 negotiable instruments, notary may protest 17, 53 for use in foreign countries 37 under "law merchant " 41 under laws of other States 52 when notary disqualified to protest 59 records should be kept 72 purpose of . 270 responsible power of notary 24S explanation and discussion of 246-251 presentment for acceptance 251 when necessary 251 who may present 252 to whom made 252 to whom made in case of quarantine in New York city 253 time, should be made 254 manner of 255 acceptance on, definition 255 different kinds of acceptance 256 may refuse qualified acceptance 257 how acceptance is shown 257 acceptance by telegraph. 258 dishonored by nonacceptance 258 effect of dishonor 258 protest for nonacceptance 259 presentment for payment 259 when necessary 259 who may present 260 clerk of notary cannot present 260, 82 presentment to whom 261 where paper payable at a bank 261 when New York city or part of it is quarantined 262 348 Index. FROTESTING— Oomimued. Page time presentment should be made 262 how to compute years, months and days 264 standard time . 264 place of presentment 265 manner of presentment 266 cannot be made over telephone 266 why instrument must be exhibited 266, notes how payment is made 267 protest for nonpayment 268 payment, how made 267 computation of interest 267 what is money 268 check not legal tender 268 protest for nonacceptance or nonpayment 269 what is . 269 how, should be made M9 necessity of . 269 purpose of 270 who may protest 271 place of . . 272 time, must be made 272 steps in 272 (1) presentment 2"3 (2) noting . 273 (3) protest 274 examples of reasons " noted " 273 protest . 274 what law governs 275 complete protest . 276 waiver of protest 277 protest for better security, when allowed 278 acceptance for honor 278 when allowed . 278 form of 279 presumption that, is for whom 179 when acceptor liable 280 ->-., how maturity of bill payable after sight is calculated 280 time of presentment 280 protest necessary when 281 payment for honor 281 who may make 281 notary's attestation . 281 declaration by payer 281 preference of parties 281 notice of dishonor 281 necessity for notice 281 Index. 349 PROTESTING— 0(wfin«erf. I'a-o® meaning of " reasonable diligence " in attempting to give- • . • 282 notary may give notice 285 given to whom 286 to whom given when part of New York city is quarantined- • 288 time it must be sent 288 place of sending or giving 289 manner of giving notice 290 cannot be given over the telephone 290 form of . 292 certificate of notary of 294 waiver of . 294 referee in case of need 295 records of protests of notary 295 notary's records as evidence 296 civil liability of notary 296 criminal liability of notary 297 warehouse receipts 298 BESEDENCE— of grantees must now be given In deeds 198 SEAL— See " Notary Public." SEPARATE EXAMIIf ATION OF WIFE— law abolished 169, note, 177 SHERIFF— cannot be a notary 22 deputy, cannot be a notary 22 SPECIAL STATUTES— See "Oaths," "Affidavits." "Acknowledg- ments," " Depositions." SUBPOENAS— may issue, when 19 records to be removed by notary when 71 acknowledgment of service of 195 in compelling witness to prove deed 203 affidavit of service of 204 must not be served on Sunday 225 in taking deposition 227-23ft 350 Index. SUNDAY— Page what may be done by ofBcer on 84, 106, 172, 254 SWORN COPT— who may make 54, 101, 102 TELEPHONE— presentment for payment cannot be made by 266 notice of nonacceptance or nonpayment cannot be made over • . 29ft TENUE — See "Affidavits," "Acknowledgments." TOLLS— purpose of chapter on 312 who may make a will 312 who may take by will 313 child born after will is made 313 what may be willed 313 devise or bequest to societies 313 devise or bequest to subscribing witness 314 how will is made 314 form of will 315 how, may be revoked or cancelled 316 who may act as executor 316 "WITNESSES— when necessary to an instrument 170 to execution of an instrument may make proof 176 WOMEN— may be notary 21, 7 how she should sign her name when married after appointment. 35 when she is notary de facto 79 how she should sign her name 145, 146 may make acknowledgment 169, 170 [Total Number of Pages 365.]