^^^IS^Si'^i:, ((ornfU ICauJ ^rijnol ffitbrar^ Cornell University Library KF 8797. J65 1922 John's American notary and commissioners 3 1924 020 043 570 A Cornell University J Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020043570 JOHN'S AMERICAN NOTARY AND COMMISSIONER OF DEEDS MANUAL THE GENERAL AND STATUTORY REQUIREMENTS OF THHSB OFFICERS PERTAINING TO ACKNOWLEDGMENTS, AFFIDAVITS, OATHS, DEPOSITIONS AND PROTESTS, WITH FORMS THIED EDITION BT FREDEEICK M. HINGH CHICAGO CALLAGHAN & COMPANY 1922 Entered according to Act of Congress, la the year 1898. By CALLAGHAN & COMPANY, In the Office of the Librarian of Congress, at Washington, D. C. Copyright 1904 By CALLAGHAN & COMPANY. Copyright 1922 By CALLAGHAN & COMPANY. PEEFAOm While lawyers are usually disposed to give attention to detail and form in the execution of instruments and the per- formance of their duties, their efforts along this line do not meet with favor as a general rule, because there exists a pre- vailing, and unfortunately gradually increasing, tendency among American citizens in general to ignore or evade such matters of form. Most lawyers are notaries, but it does not follow that all notaries are lawyers, and it is to this latter class that this work is particularly addressed. In the per- formance of a notary's duties, temptations are many, and the greatest temptation is the one continually presented, that the work is unimportant, that it is a mere "matter of form," and that no penalty, liability or improper result will occur, even if details are disregarded, and the work done hurriedly and carelessly. Contrary to the general impression, it may be stated here, though it is also repeated in the work itself, that the performance of a notary's duty is of the utmost import- ance, that it requires the greatest attention to detail, and that negligence in any form is absolutely prohibited. In an effort to impress this fact, this edition of the work has been elaborated extensively insofar as it deals with the liabilities of notaries, both civil and criminal, and at the risk of repetition, the penalties of neglect, misconduct and mal- conduct are continually referred to. This extension has ne- cessitated elaboration in the concurrent matter of the manner of performance of a notary's duty, and such matters as taking acknowledgments or administering oaths over the telephone, the necessity of the presence of the person acknowledging or the affiant, the manner of writing certificates, and mistakes made in such certificates, and all similar matters, have been stated in detail. iii IV PREFACE. In the writing of the text, language of common usage haa been used, and the intricate, technical legal matters, or -words and phrases, have been avoided, as far as possible. When necessary, the legal terms used have been defined, and a ref- erence to the index "will show the extensions in this regard. It is sincerely hoped that this style will in no way detract from the work, and that it AviU be of great value to the notaries who are lawyers as well as those who are not. The book has been completely revised, re-annotated, re- compiled and re-indexed. In so doing the author must join with the general public in praising the original work by Edward Mills John of the Chicago Bar, a book of such merit as to be internationally famous. In this third edition credit is due to the Cyclopedic Law dictionary, for many valuable definitions, to WarveUe on Abstracts, 4th ed., for references to portions of that work dealing with mistakes in the execu- tion of instruments, showing that examiners of title discover mistakes of notaries, and to Bays Commercial Law, a work which has been of material assistance as showing the proper manner of the execution of instruments, how real estate is sold, and similar matters. FEEDBRICK M. HINCH. TABLE OF CONTENTS. CHAPTEE I. Thh Office and Its Rhquieements. Page. S 1. Definition 1 § 2. Origin and history 1 § 3. Notaries in the United States 3 $ 4. Notaries as public officers 3 § 5. Notaries as agents 4 § 6. Appointment 5 § 7. Commission or certificate of authority; duty to issue 5 § 8. Eligibility and qualifications 5 § 9. Women as notaries 6 § 10. Incompatible officies 7 § 11. Oath of office 8 § 12. Bond '. 8 § 13. Term of office ^. 8 § 14. Removal from office; suspension or forfeiture 9 § 15. Officers ex officio notaries 9 § 16. De facto notaries 10 § 17. Jurisdiction; place of performing duties 11 § 18. Delegation of duties; deputies and clerks 11 § 19. Powers and duties in general 12 § 20. Importance of office 13 § 21. Disqualification because of interest In transaction, or rela- tionship to parties 14 § 22. Record of acts 17 § 23. Certificate 17 § 24. Signature; noting expiration of commission; designation of official character 18 § 25. Official seal 19 § 26. Necessity of seal 20 § 27. 'Additional authentication; proof of official character 22 § 28. Effect of notary's certificate; impeachment of certificate , 23 § 29. Presumptions as to acts of notaries 24 § 30. Judicial notice 25 § 31. Laabilities 26 n TABLE OF CONTENTS. Page. § 32. —In general 25 § 33. — ^Liabilities on official bonds 28 § 34. —Penal liabilities 30 § 35. Taxation of notaries 30 § 36. Compensation and fees of notaries 30 STATUTOBT KEQUIKBMENTS. § 37. Alabama 33 § 38. Alaska 33 § 39. Arizona 34 § 40. Arkansas 34 § 41. California 35 § 42. Colorado 36 § 43. Connecticut 36 § 44. Delaware 37 § 45. District of Columbia 37 § 46. Florida 38 § 47. Georgia 38 § 48. Hawaiian Islands 39 § 49. Idaho 40 § 50. Illinois 41 § 51. Indiana 42 § 52. Iowa 42 § 53. Kansas 43 § 54. Kentucky 44 § 55. Louisiana 44 § 56. Maine 45 . § 57. Maryland 46 § 58. Massachusetts 47 § 59. Michigan 47 § 60. Minnesota 48 § 61. Mississippi 49 § 62. Missouri 49 § 63. Montana 50 § 64. Nebraska 50 § 65. Nevada 51 § 66. New Hampshire 52 § 67. New Jersey 52 § 68. New Mexico 53 § 69. New York 53 § 70. North Carolina 54 § 71. North Dakota 55 § 72. Ohio 55 § 73. ' Oklahoma 56 § 74. Oregon 67 § 75. Pennsylvania 57 TABLB or CONTENTS. Vll Page. § 76. Philippine Islands 59 § 77. Porto Rico 59 § 78. Rhode Island 60 § 79. South Carolina 60 § 80. South Dakota 61 § 81. Tennessee 61 § 82. Texas 62 § 83.. Utah 62 § 84. Vermont 63 § 85. Virginia 63 § 86. Washington 64 § 87. West Virginia 65 § 88. Wisconsin 65 § 89. Wyoming 66 S 90. Canada 67 CHAPTEE II. Affidavits, Oaths and Affirmations. S 91. Oaths, affirmations and affidavits; definitions and dis- tinctions 68 § 92. Who may administer oaths; power of notaries 69 § 93. —In general \ .' 69 § 94. — Oaths under United States laws 70 § 95. — ^United States government claims 71 § 96. — ^Adverse claimants to United States mineral lands 71 § 97. — Applicants for United States pensions 71 § 98. — Oaths of national bank officers 71 § 99. Disqualification preventing notary from acting 71 § 100. Manner of administration of oath; sufficiency In general.. 73 § 101. Administration of oath over telephone 75 § 102. Form of oath of United States government officers 76 § 103. Oaths of state and other officers 77 § 104. Oaths of witnesses ; 78 § 105. Administration of oaths by United States government employees; fees '. 78 § 106. Oaths of corporations 78 § 107. Necessity and propriety of affidavits 78 § 108. Affidavits required in examination of abstracts of title. ... 79 § 109. Sufficiency of affidavits 79 § 110. Statements on Information and belief 80 § 111. Venue, or caption 81 § 112. Signature of affiant 82 § 113. Jurat 83 Vlll TABLE OF CONTENTS. Page. § 114. Certificate of authority to administer oaths 8^ § 115. Perjury 88 8TATDTOBT BEQtnREMENTB. § 116. Alabama 90 i 117. Alaska 90 § 118. Arizona .., 90 § 119. Arkansas 91 § 120. California 91 § 121. Colorado 91 i 122. Connecticut 91 § 123. Delaware 91 § 124. District of Columbia 91 § 125. Florida 91 § 126. Georgia 92 § 127. Hawaiian Islands 92 i 128. Idaho 92 § 129. Illinois 92 § 130. Indiana 92 § 131. Iowa 93 § 132. Kansas 93 § 133. Kentucky 94 § 134. Louisiana 94 § 135. Maine 94 § 136. Maryland 94 § 137. Massachusetts 95 § 138. Michigan 95 § 139. Minnesota 95 § 140. Mississippi 95 § 141. Missouri 95 § 142. Montana 96 § 143. Nebraska 96 § 144. Nevada 96 § 145. New Hampshire 96 § 146. New Jersey 96 § 147. New Mexico 97 § 148. New York 97 § 149. North Carolina 97 § 150. North Dakota 97 § 151. Ohio ; 97 § 152. Oklahoma gg § 153. Oregon 98 § 154. Pennsylvania •. 98 § 155. Philippine Islands gg § 156. Porto Rico gg § 157. Rhode Island 59 TABLE OF C0KTENT8. IX Page. § 158. South Carolina 99 § 159. South Dakota 99 § 160. Tennessee 99 § 161. Texas 99 § 162. Utah 100 § 163. Vermont 100 § 164. Virginia 100 § 165. Washington 101 § 166. West Virginia 101 § 167. Wisconsin 101 § 168. Wyoming 102 § 169. Canada 102 CHAPTEE III. CONVBTANCBS AND ACKNOWIiBDOMHNTS. § 170. Scope of chapter 103 § 171. Contracts; elements and definition; requisites of writing; statute of frauds 103 § 172. Bills of sale; conditional sales and chattel mortgages 104 § 173. How real estate is sold 105 § 174. Conveyances 105 .§ 175. — In general 105 § 176. — Fraudulent conveyances 106 § 177. — Voluntary conveyances 106 § 178. Estates in realty 106 § 179. — In general 106 § 180. — ^Fee simple estates; determinable fees; fee tail estates; remainders * 107 § 181. —Life estates 107 § 182. — Dower and curtesy 107 § 183. —Trust estates 108 § 184. — Merger of estates 108 § 185. — Joint tenants and tenants in common 108 § 186. Homesteads 108 § 187. Easements . . . : 109 § 188. Emblements 109 § 189. Titles to real estate 109 § 190. — In general 109 § 191. — Good and marketable title? 109 § 192. — Modes of acquisition of title 110 S 193. — Titles by descent HO § 194. —Heirs; relationship by affinity and consanguinity 110 § 195. — Titles by purchase HI X TABLE OF CONTENTS. Page. § 196. — Prescription and limitations; adverse possession HI § 197. Eminent domain 112 § 198. Defeasance *. 112 § 199. Abstracts of title 112 § 200. Examination of titles 112 § 201. Surreys 113 § 202. Inception of title; patents. 115 I 203. Deeds 116 § 204. — Definition; construction US § 205. —Kinds of deeds 116 § 206. — Form of deed; formal parts 117 § 207. —Requisites of deeds 117 § 208. —Parties 117 § 209. — Descriptions of realty; boundaries 118 § 210. —Consideration 118 § 211. — Delivery; escrow agreements 118 § 212. —Covenants for title 119 § 213. —Witnesses; seal ' 119 S 214. — Erasures and errors 119 § 215. Validity of deeds; effect of duress, fraud or undue in- fluence and intoxication 120 § 216. Recording of deeds 120 § 217. Essentials to recording; proof of deeds 121 § 218. Registration of titles 121 § 219. Agent's contracts concerning realty; powers of attorney... 122 § 220. Conveyances of partners 122 § 221. Contracts and conveyances between husband and wife; "coverture" and "feme sole" 123 § 222. Conveyances by married women 123 § 223. Mortgages 124 § 224. Satisfaction of mortgages ,. 124 § 225. Mortgage foreclosure; redemption 124 § 226. Judicial sales 125 § 227. Action for recovery 125 § 228. Judgments and writs of execution 126 § 229. Liens 126 § 230. — In general : 126 § 231. — Mechanics' liens 127 § 232. Taxes and tax sales 127 § 233. Lis pendens 127 § 234. Caveat emptor 127 § 235. Waiver , 127 § 236. Releases and assignments 128 § 237. • Leases .' 128 § 238. Wills ' 128 § 239. — In general 128 § 240. — Codicils 129 TABLE OF OONTEIilTS. 21 Page. S 241. — Persons who can devise; what may be devised 129 S 242. —Execution of wills; form 129 § 243. — Executors and administrators; probate of wills 130 § 244. Acknowledgments 130 § 245. —Definition 130 5 246. — Certificate of acknowledgment 130 § 247. — Necessity and purpose 131 § 248. — Nature of taking of acknowledgment; care required of officers ; negligence 132 § 249. — Essentials of acknowledgments 134 § 250. — Necessity of knowledge of identity of grantor or person appearing; introductions 134 § 251. — False certificates 137 § 252. — Necessity of personal appearance of person acknowl- edging 138 I 253. — Taking acknowledgments by telephone 139 i 254. — ^Acknowledgments of married women; private exam- ination 139 § 255. — ^Necessity of conformity with statutory provisions 140 § 256. : — Place for certificate of acknowledgment on instrument. . 140 § 257. — ^What officers may take acknowledgments 140 § 258. — Place of acknowledgment; jurisdiction of officer 141 § 259. — Clerical errors in statement of fact of acknowledgment. . 142 § 260. — Signature of officer; designation of official character.... 143 § 261. — Amendment or correction of certificate 144 § 262. — Acknowledgments as evidence 145 § 263. — Probate of deed 145 § 264. Acknowledgments of particular instruments 145 § 265. — Chattel mortgages 145 § 266. — Town plats 145 § 267. Impeachment of certificates of acknowledgment 146 § 268. Disqualification of notaries to take acknowledgments 146 § 269. —In general 146 § 270. —Stockholders 147 § 271. — Officers of corporations 148 STATUTOET EBQDIEEMENTS. § 272. Alabama 149 § 273. Alaska ;... 149 § 274. Arizona 150 § 275. Arkansas 150 § 276. California 151 i 277. Colorado 152 § 278. Connecticut 153 § 279. Delaware 153 6 280. District of Columbia 154 Ill TABLE OP CONTENTS. Page. S 281. Florida ^^^ §282. Georgia ^^^ § 283. Guam 1^^ § 284. Hawaiian Islands 1^"^ § 285. Idaho ^^'' § 286. Illinois 1^'^ § 287. Indiana 1^^ § 288. Iowa 159 § 289. Kansas l^'' § 290. Kentucky 161 § 291. Louisiana 161 § 292. Maine 162 § 293. Maryland 163 § 294. Massachusetts 163 § 295. Michigan 164 i 296. Minnesota 165 § 297. Mississippi 166 § 298. Missouri 167 § 299. Montana 167 § 300. Nebraska 168 § 301. Nevada 169 § 302. New Hampshire 170 § 303. New Jersey 170 § 304. New Mexico 171 § 306. New York 172 § 306. North Carolina 174 § 307. North Dakota 175 § 308. Ohio 175 § 309. Oklahoma 178 § 310. Oregon 176 § 311. Pennsylvania 177 § 312. Philippine Islands 178 § 313. Porto Rico 178 § 314. Rhode Island 180 § 315. South Carolina 180 § 316. South Dakota 181 § 317. Tennessee 182 § 318. Texas 182 § 319. Utah 183 § 320. Vermont 184 § 321. Virginia 185 § 322. Washington 185 § 323. West Virginia 185 § 324. Wisconsin 187 § 325. Wyoming 188 I 326. Canada 188 TABLE OF CONTENTS, Xlll CHAPTEB IV, Depositions. Page. § 327. Definitions 189 § 328. Nature of right to take depositions; compliance with statute 190 § 329. What witnesses or persons may be examined by deposition 191 § 330. Manner of taking depositions 191 § 331. Taking depositions for United States courts 192 I 332. Interrogatories 193 § 333. Who can take depositions; issuance of commissions 194 § 334. Authority of ofiBcer to take deposition 196 § 335. Taking depositions outside of state 196 § 336. Disqualification preventing notaries from acting 197 § 337. Affidavit to take deposition 198 § 338. Notice to take deposition 198 § 339. Compelling attendance of witnesses; refusal to testify; contempt proceedings 199 § 340. Administration of oath 201 § 341. Interpreters 202 § 342. Writing of depositions; stenographers; reading to wit- ness; signing by witness 202 § 343. Certificate; caption and form; signature of officer; seal... 203 § 344. Clerical errors 204 § 345. Correction of errors 204 § 346. Return of depositions; lost depositions 204 § 347. Fees of officers 206 § 348. Objections to taking of depositions 206 § 349. Waiver of objections 207 STATUTOBY EBQUIEBMENTS. i 350. Alabama 20i8 § 351. Alaska 208 § 352. Arizona 209 § 353. Arkansas 209 § 354. California 210 § 355. Colorado 211 § 356. Connecticut 211 § 357. Delaware 212 $ 358. District of Columbia 212 i 359. Florida 213 § 360. Georgia 213 § 361. Hawaiian Islands ^ .• 215 § 362. Idaho 216 § 363. Illinois 216 XIV TABLE OF CONTENTS. Page. § 364. Indiana 221 § 365. Iowa 222 § 366. Kansas 223 § 367. Kentucky 224 § 368. Louisiana 225 § 369. Maine 226 § 370. Maryland 228 § 371. Massachusetts 228 § 372. Michigan 229 § 373. Minnesota 230 § 374. Mississippi 230 i 375. Missouri 231 i 376. Montana 232 § 377. Nebraska 233 § 378. Nevada 234 § 379. New Hampshire 235 § 380. New Jersey 235 § 381. New Mexico 236 § 382. New York 237 § 383. North Carolina 238 § 384. North Dakota 239 § 385. Ohio 239 § 386. Oklahoma 241 § 387. Oregon 242 § 388. Pennsylvania 243 § 389. Philippine Islands 244 § 390. Rhode Island 244 § 391. South Carolina 246 § 392. South Dakota 247 I 393. Tennessee 247 § 394. Texas 249 § 395. Utah 250 i 396. Vermont 251 § 397. Virginia 252 § 398. Washington 253 § 399. West Virginia 254 § 400. Wisconsin 255 § 401. Wyoming 256 § 402. Canada 257 CHAPTEE V. Negotiable Instruments. § 403. Definition and nature of negotiable instruments; parties.. 258 § 404. — Negotiable paper in general 258 TABLE OF CONTENTS. XV Page. 405. — Promissory notes 258 406. — Certificates of deposit 259 407. — Bills of exchange 259 408. —Checks 260 409. —Drafts 261 410. — Days of grace 261 411. Legal holidays 261 CONTBACTS OF PABTIES ; UABILITIES. 412. Maker of note 262 413. Drawer of bill 262 414. Drawee of hill or check 262 415. Acceptor 262 416. Indorsers 263 417. Damages 264 DUTIES AND LIABIUTIES OF NOTAEIES. 418. Notary's duties concerning negotiable instruments 264 419. Liabilities of notaries 265 420. Liability of bank employing notary public 266 PEESENTMENT OF BILL FOE ACCEPTANCE. 421. Definition of acceptance 267 422. Necessity of presentment for acceptance 267 423. Sufficiency of presentment for acceptance 268 424. Manner of acceptance 269 425. Presumption of acceptance from retention of bill 270 PBESENTMBNT FOE PATMENT. 426. Necessity of presentment for payment at maturity 270 427. Sufficiency of presentment 271 428. — By whom presentment must be made 271 429. —Time 271 430. — Excuses for delay 272 431. — Place of presentment , . 273 432. — To whom presented 273 433. — Manner of presentment 274 434. — Bank's duty to apply funds of party liable 274 PEOTEST. 435. Definition; nature and object 274 436. Necessity of protest 275 XVI TABLE OF CONTENTS. Page. § 437. Who authorized to make protest 275 i 438. Time, place and manner of protest 278 § 439. Record of protest as prima facie evidence 278 § 440. National bank notes 278 { 441. Marine protest 279 NOTICE or DISHONOR. § 442. Necessity of notice of dishonor 280 § 443. Excuses for not giving notice 281 § 444. Waiver of notice 282 § 445. Form of notice; sufficiency 283 § 446. To whom notice is given 285 § 447. Who may give notice 287 § 448. Manner of giving notice 287 § 449. Time of notice 289 5 450. Notary's certificate as evidence 290 UNIFOBM NEGOTIABU: INSTRUMENTS LAW. Text of act 291 STATUTOET EEQDIEEMENTS. § 451. Alabama 814 § 452. Alaska 314 § 453. Arizona 314 § 454. Arkansas 315 § 455. California 315 § 456. Colorado 315 I 457. Connecticut 316 § 458. Delaware 316 § 459. District of Columbia 316 § 460. Florida 316 § 461. Georgia 316 § 462. Hawaiian Islands 317 § 463. Idaho 317 § 464. Illinois 31g § 465. Indiana 319 § 466. Iowa 319 § 467. Kansas 319 § 468. Kentucky 320 § 469. Louisiana 320 § 470. Maine 320 § 471. Maryland 32i § 472. Massachusetts 32i § 473. Michigan 32i TABLE OF CONTENTS. XVI] Page. 474. Minnesota 322 475. Mississippi 322 476. Missouri 322 477. Montana 323 478. Nebraska 323 479. Nevada 323 480. New Hampshire 323 481. New Jersey 323 482. New Mexico 323 483. New York 324 484. North Carolina 324 485. North Dakota 324 486. Ohio 325 487. Oklahoma 325 488. Oregon 325 489. Pennsylvania 325 490. Philippine Islands 326 491. Porto Rico 326 492. Rhode Island 326 493. South Carolina 826 494. South Dakota 327 495. Tennessee S27 496. Texas 327 497. Utah 328 498. Vermont 328 499. Virginia 328 500. Washington 329 501. West Virginia 329 502. Wisconsin 329 503. Wyoming 329 504. Canada 330 CHAPTER VI. COMMISSIONHE OF DhHDS. 505. Commissioners of deeds S31 506. Acknowledgments 331 507. Administration of oaths ; affidavits 332 BTATUTOBT EEQUIEEMBNTS. 508. Alabama 333 509. Alaska 338 510. Ariisona 383 XTIU TABLB OF CONTIINTf. Page. § 511. Arkansas ^^^ § 512. California 333 § 513. Colorado 334 § 514. Connecticut 334 § 515. Delaware 334 § 516. District of Columbia 334 § 517. Florida 334 § 518. Georgia 335 § 519. Idaho 335 § 520. Illinois 335 § 521. Indiana; 335 § 522. Iowa '• 335 § 523. Kansas : 336 § 524. Kentucky 336 § 525. Louisiana 336 ■ { 526. Maine 337 § 527. Maryland 337 § 528. Massachusetts 337 § 529. Michigan 338 § 530. Minnesota 338 I 531. Mississippi 338 § 532. Missouri 338 § 533. Montana 339 § 534. Nebraska 339 § 535. Nevada 339 § 536. New Hampshire 339 § 537. New Jersey 340 i 538. New Mexico 340 § 539. New York 341 § 540. North Carolina 341 § 541. North Dakota 342 § 542. Ohio 342 § 543. Oklahoma 342 I 544. Oregon 342 § 545. Pennsylvania 343 § 546. Porto Rico 343 § 547. Rhode Island 343 § 548. South Carolina 343 § 549. South Dakota 344 § 550. Tennessee 344 § 551. Texas 344 § 552. Utah 344 § 553. Vermont 345 § 554. Virginia 345 S 555. Washington 345 § 556. West Virginia 345 § 557. Wisconsin 345 TABLE OF CONTENTS. XIX Page. .. 346 § 559. Canada 246 558. Wyoming . . . .' J46 CHAPTER VII. Forms. § 560 847 Index 421 NOTARIES PUBLIC CHAPTER I. THE OFFICE AND ITS REQUIREMENTS. § 1. Definition. — ^A notary or notary public is an officer ap- pointed by the executive or other appointing power, under the laws of different states, having power generally to attest writ- ings for the purpose of establishing their authenticity, to administer oaths, and to perform similar duties.^ § 2. Origin and History. — Notaries are of ancient origin, long known to the civil and common law. Originally he was a mere scribe, taking notes or minutes, and making drafts of writings and public instruments,* but his duties were extended with the growth of commerce, and became more frequent in attestation and authentication of instruments peculiar to mari- time law, or the law merchant. At this day, in most countries, a notary public is one who publicly attests deeds or writings, to make them authentic in another country; but principally in business relating to merchants.* 1 Cyc. Law Diet. 636. Gharst v. St. Louis Transit Co., A notary is an officer whose duty 115 Mo. App. 403, 91 S. "W. 453. it is to attest the genuineness of Notarius in English law is a deeds or writings in order to ren- notary; in civil law, one who took der them available as evidence of notes or draughts in shorthand of the facts therein contained; a pub- what was said by another, or of lie functionary authorized to re- proceedings in the senate or in a ceive all acts and contracts to court. One who draughted written which parties wish to give the instruments, wills, conveyances, character of authenticity, attached etc. Cyc. Law Diet. 636. to the act of public authority. S Carroll v. State, 58 Ala. 396; Nolan V. Labatut, 117 La. 431, 41 Kirksey v. Bates, 7 Port. (Ala.) So. 713. 529. 2 Carroll v. State, 58 Ala. 396; 2 NOTARIES PUBLIC. [§ 2 OfRcers whose duties correspond closely to those of notaries public are traceable to the Eoman Eepublic, although their duties differ very largely now.* The office was known in England before the Conquest,* and is mentioned in the statutes enacted during the reign of Ed- ward the Third.^ The English notary is an ecclesiastical officer, although his duties are mainly secular, having at one time been appointed by the Popes, which right was subse- quently denied by the kings who assumed their control.' In Scotland, papal and imperial notaries practiced until 1469, when an act was passed declaring that notaries should be made by the King. It appears, however, that for some time after- wards, there were both legal and clerical notaries. In 1563, it was declared by law that no person should take on the office, under pain of death, unless created by the sovereign's special letters, and thereafter examined and admitted by the lords of session. The position of notary is somewhat higher in Scotland than in England. The Prankish kings at an early date appointed them. In France they have always been important personages, having been appointed by the King and also the Popes. In Prance, notaries receive all acts and contracts to which the parties thereto must give or desire to give the authenticity attached to the acts of public authority; they certify the date, preserve the originals and give copies or duplicates. They are nominated by the president of the republic on the recommenda- 4 In Eoman law the notarius was 6 Statute of Provisors, 25 Ed- originally a slave or freedman who ward IH, 4. took notes of judicial proceedings The of&ce is mentioned in in shorthand. The modern notary Shakespeare's Merchant of Venice, corresponds rather to the tabellio 1 Notaries are nominated, since or tabellarius than to the notarius. the Peterpence Dispensations Act, Encyclopedia Britannica (11th Ed. 1533-1534, by the archbishop of XIX), p. 822. Canterbury, through the master 0|f 6 ' ' The office originated in the faculties (now the judge of the early Eoman jurisprudence, and provincial courts of Canterbury was known in England before the and York). Encyclopedia Britan- Conquest. " ' Teutonia Loan & niea (11th Ed. XIX), p. 822; Opin- Building Co. v. Turrell, 19 Ind. ion of Justices, 150 Mass. 586, 23 App. 469, 49 N. E. 852, 65 Aia.. St. N. E. 850, 6 L. B. A. 842. Bep. 419. § 4] THE OFFICE AND ITS EEQUIKEMENTS. 3 tion of the keeper of the seals, must not engage in business, and serve an apprenticeship before being appointed. In Italy during the Middle Ages they were appointed by the Emperor or the Pope. In Germany, in some states the notarial office is combined with that of advocate, in other states there are no notaries, and in most states, the office forms a distinct class. § 3. Notaries in the United States. — In the United States, notaries are state officers, usually appointed by the governor. The manner of appointment, powers and duties, and liabilities are regulated by statutes, and differ but slightly in the various states and territories. § 4. Notaries as Public Officers. — ^Because of the credence which all civilized nations attach to the attestation and au- thentication of acts by notaries to facilitate commercial inter- course, it is said that he is an officer known to the law of nations.' In a large number of decisions of courts of last resort, notaries have been recognized as public officers,' and because SKirksey v. Bates, 7 Port. ham, 14 La. Ann. 389; Opinion of (Ala.) 529. Justices, 150 Mass. 586, 23 N. E. "A notary public is considered 850, 6 L. R. A. 842; State v. Zehn- not merely an of&cer of the country der, 182 Mo. App. 161, 168 S. W. where he is admitted or appointed, 661; In le Opinion of Justices, 73 but as a kind of international offi- N. H. 621, 62 Atl. 969, 5 L. E. A. cer, whose ofScial acts, performed (N. S.) 415, 6 Ann. Cas. 283; Peo- ii; the state for which he is ap- pie v. Eathbone, 145 N. Y. 434, 40 pointed, are recognized as author- N. E. 395, 28 I/. E. A. 384; State itative the world over." Wood v. v. Clarke, 21 Nev. 335, 31 Pac. 545, St. Paul City Ey. Co., 42 Minn. 411, 18 L. E. A. 313; 37 Am. St. Eep. 44 N. W. 308, 7 L. E. A. 149. 517; Attorney General v. Knight, 9 Carroll v. State, 58 Ala. 396; 169 N. C. 333, 85 S. E. 418, X,. B. Kirksey v. Bates, 7 Port. (Ala.) A. 1915P 898, Ann. Cas. 1917D 517; 529; State v. Hodges, 107 Ark. 272, Nicholson v. Eureka Lumber Co., 154 S. W. 506; Sonfield v. Thomp- 160 N. C. 33, 75 S. B. 730, Ann. son, 42 Ark. 46, 48 Am. Eep. 49; Cas. 1914C 202; State v. Adams, Ashcraft v. Chapman, 38 Conn. 58 Ohio St. 612, 51 N. E. 135, 11 232; Ohio Nat. Bank of Washing- L. E. A. 727, 65 Am. St. Eep. 792; ton V. Hopkins, 8 App. Cas. (D. 0.) Clapp v. Miller, 56 Okla. 29, 156- 14 6; Smith v. Meador, 74 Ga. 416, Pac. 210, 11 N. C. C. A. 581; Butts 58 Am. Eep. 438; Keeney v. Leas, v. Purdy, 63 Ore. 150, 125 Pac. 313, 14 Iowa 464; Emmerling v. Gra- 127 Pac. 25; State v. Davidson, NOTARIES PUBLIC. [§ 5 of this fact women have been held disabled from holding such offices.^" Becoming important to the commercial world, their appointment was provided for and their duties regulated by public law, and they became sworn public officers,^* recognized as necessary in nearly all civilized countries. § 5. Notaries as Agents. — The employment of a notary to take an acknowledgment does not constitute him an agent.^* In protesting notes, notaries act independently for the owner of the note they protest, and not as agent of the bank placing the same in their hands.^* The act is rather an official duty, than "the employment of an agent,^* and, in general, notaries do not act as agents. The purchaser of property who, without authority, pays the price into the hands of the notary, incurs the risk of the deposit, and if the notary embezzle the money, the purchaser must sustain the loss.^* Of course, the relation of principal and agent may exist under certain circumstances, and a bank is liable for the acts of a notary when he acts as its agent.^8 92 Tenn. 531, 22 S. "W. 203, 20 L. E. A. 311; Pierce v. Indseth, 106 U. S. 546, 27 L. Ed. 254, 1 Sup. Ct. 418; Britton v. NiccoUs, 104 U. 8. 766, 26 L. Ed. 918; Bettman Y. Warwick, 47 C. C. A. 185, 108 Fed. 47. A notary public is a public offi- cer and cannot be the agent of either party. Cason v. Cason, 116 Tenn. 173, 93 S. "W. 89. 10 See post, § 9. Women as Notaries. 11 In re Opinion of Justices, 73 N. H. 621, 62 Atl. 969, 5 L. B. A. (N. S.) 415, 6 Ann. Cas. 283. IZBorehers v. Barckers, 158 Mo. App. 267, 138 S. W. 555; Ely Walker Dry Goods Co. v. Smith, Okla. , 160 Pac. 898. ISKrst Nat. Bank v. Butler, 41 Ohio St. 519, 52 Am. Rep. 94. See Ohio Nat. Bank of Washington v. Hopkins, 8 App. Cas. (D. C.) 146. 14 See post, §§ 21, 36. Notaries are liable for negli- gence to the holder for commercial paper placed in their hands for protest by a bank. The bank is not liable in such cases. Bowling V. Arthur, 34 Miss. 41; Tiernau v. Commercial Bank of Natchez, 7 How. (Miss.) 648, 40 Am. Dec. 83; First Nat. Bank v. Butler, 41 Ohio St. 519, 52 Am. Rep. 94; City Nat. Bank of Dayton v. Clinton Cdunty Nat. Bank, 49 Ohio St. 351, 30 N. B. 958; First Nat. Bank of Manning V. German Bank, 107 Iowa 543, 78 N. W. 195, 44 li. E. A. 133, 70 Am. St. Eep. 216. IB Brown v. Schmidt, 7 La. Ann. 349; Saloy v. Hibernia Nat. Bank, 39 La. Ann. 90, 1 So. 657. 16 Wood I^iver Bank v. First Nat. Bank of Omaha, 36 Neb. 744, 55 N. W. 239. § 8] THE OFFICE AND ITS REQUIEEMENT8. 6 § 6. Appointment. — ^In the United States, appointments of notaries are usually made by the governor, and in many states the advice and consent of the senate or council is necessary.^' In England they are appointed by the Court of Faculties and are obliged to serve an apprenticeship of five years, and then furnish a certificate from two notaries stating fitness for the office. A penalty is imposed for acting without authority. In London seven years' apprenticeship is required. The duties are similar to those in the United States. On the continent of Europe they are appointed by the executive. § 7. Commission or Certificate of Authority; Duty to Issue. — A notary's official authority to act, or certificate of appoint- ment is represented by his commission, which is issued on the filing of his bond and oath of office, and for which a fee, vary- ing in the different states, is required. The commission is signed by the appointing power, and the issuance of a commis- sion is essential to the completeness of the appointment.'* Usually the commission is issued by the secretary of state after the appointment is made. In states where this plan is followed, the issuance of the commission is a ministerial act, and if the secretary refuses to perform the duty, he may be compelled to do so by a writ of mandamus.^' § 8. Eligibility and Qualifications. — ^Persons are eligible to the office of a notary if they possess the qualifications usually required of public officers. In general they must be of legal age, citizens of the state, and persons of good moral character.'" If there is no provision in the constitution or statutes of a state making an infant, a person who has not attained the age of twenty-one years, ineligible to the office of notary, such a minor may hold the office. This is upon the theory that the office is ministerial, and does not concern the administration of jus- tice, which offices might be held by infants at the common law.^i 17 See post, §§ 37-90. 21 United States v. Bixby, 9 Fed. 18 Draper v. State, 175 Ala. 547, 78. See Freeman v. Port Arthur 57 So. 772, Ann. Cas. 1914D 301. Sice & Irrigation Co., — Tex. Civ. 10 State V. Hodges, 107 Ark. 272, App. — , 188 S. W. 444, where an 154 S. "W. 506; State v. Lyon, 63 affidavit taken by a notary under Okla. 285, 165 Pac. 419. 21 was held not defective. 20 See post, §§ 37-90. 6 NOTAKIES PUBLIC. [§ 9 An alien who secures the commission of notary and otherwise qualifies, has been held to be a de facto officer.^ Some of the statutes expressly require an applicant for a commission as notary to prove his qualifications, and to secure the recommendation of certain officers. The statutes vary largely in this respect, but, even in the absence of statute, the matter rests in the discretion of the appointing officer, and commissions are not issued in a haphazard manner. Frequently, rules are promulgated by the appointing officer, such as the governor, which rules operate in the same manner as statutory requisites, and compel the applicant to procure the recommen- dation of responsible citizens, and otherwise prove his ability and character.^ § 9. Women as Notaries. — ^At the common law, women were disabled from holding public office, and because the place of a notary public is a public governmental office, women have been held ineligible for the position.^* The question is one involv- ing constitutional law, as the constitutions of the various states frequently contain provisions respecting the qualifications of public officers, or specifically naming notaries. Under such provisions the legislatures have been held unable to authorize the appointment of women.^^ Thus, statutes enacted in some of the states authorizing the appointment of women as notaries have been held invalid, because such women were not electors, and public officers are required to be electors.^® In the absence of constitutional restriction, it has been held that the legisla- ture has full power to abolish the common-law rule, and to 22 See § 16, post. ion of Justices, 150 Mass. 586, 23 23 See Pilkington v. Potwin, 163 N. E. 850, 6 L. E. A. 842. Iowa 86, 144 N. W. 39, where a 26 In re Opinion of Justices, 165 notary's commission was denied Mass. 599, 43 N. B. 927, 32 !». E. temporarily because of the failure A. 350. to submit the recommendation re- 26 State v. Hodges, 107 Ark. 272 quired by the rules of the govern- 154 S. W. 506; State v. Adams, 58 or's office. Ohio St. 612, 51 N. E. 135, 11 L. Statutory requirements, see §§ B. A. 727, 65 Am. St. Eep. 792; 37-90, post. Attorney General v. Knight, 169 N. 24 In re Opinion of Justices, 73 0. 833, 85 S. E. 418, L. E. A. N. H. 621, 62 Atl. 969, 5 L. E. A. 1915 F 898, Ann. Gas. 1917D 517. (N. S.) 415, 6 Ann. Gas. 283; Opin- § 10] THE OFFICE AKD ITS REQUIREMENTS. 7 provide for the appointment of women as notaries,*' although it seems that express legislative enactments are necessary be- fore women may be appointed.*** In some states, it has been held, however, where the office was created by statute, that women might be appointed, there being no provision excluding them,*^ and elsewhere the acts of a woman notary have been held not subject to collateral at- tack; that she was a de facto officer, whose acts could not be objected to by third persons.'" Kegardless of the earlier decisions, many states have now enacted statutes specifically authorizing the appointment of women as notaries,'^ and with the advent of women 's suffrage, rendering them electors, and placing them on an equality with men, it may be stated that these disqualifications because of sex have been removed; that women are now, or will be in a very short time, fully eligible to this office in all of the states. § 10. Incompatible Offices. — The office of a notary may be incompatible with other offices and duties. Thus, under a con- stitutional provision providing that anyone holding a lucra- tive office under the government of the United States, or any other power, shall be ineligible to any civil office of profit in the state, it has been held that a notary public became incom- petent to retain his office when appointed to another federal lucrative office.'** Some statutes also prohibit notaries from holding such lucrative offices, and the acceptance of the incom- patible office operates to vacate the notary's office." In the 27 In re Opinion of Justices, 78 Gas. 19140 202; Van Dorn v. Men- N. H. 621, 99 Atl. 999, L. R. A. gedoht, 41 Neb. 525, 59 N. "W. 800. 1917D 286. See Terry v. Klein, 31 State v. Davidson, 92 Tenn. 133 Ark. 366, 201 S. "W. 801. 531, 22 S. W. 203, 20 L. E. A. 311. 28 Third Nat. Bank of Chatta- See post, §§ 37-90. nooga V. Smith (Tenn.), 47 S. W. 32 State v. Clarke, 21 Nev. 333, 1102; State v. Davidson, 92 Tenn. 31 Pae. 545, 18 L. B. A. 313, 37 531, 22 S. "W. 203, 20 L. E. A. 311. Am. St. Eep. 517; Biencourt v. 29 Harbour-Pitt Shoe Co. v. Parker, 27 Tex. 558. Dixon, 22 Ky. L. Eep. 1169, 60 S. 33 The position of a deputy au- W. 186. ditor of a county is a lucrative of- SO Third Nat. Bank of Chatta- fice -within a statute, so that the noca V. Smith (Tenn.), 47 S. W. acceptance of such office vacates 1103; Nicholson v. Eureka Lumber the notary's office. Sharp v. State, Co., 160 N. C. 33, 75 S. E. 730, Ann. 54 Ind. App. 182, 99 N. B. 1072. 8 NOTARIES PUBLIC. [§ H •aine way, notaries may be disqualified from acting when a transaction is involved in which they are personally interested.** A person holding a subordinate ofSce as messenger or libra- rian in the office of a district attorney has been held not pre- vented from also acting as a notary public, as the offices were not incompatible.** Similarly, the office of deputy county clerk and that of notary have been held not incompatible.** And a county attorney has been held not disqualified from being a notary, although a constitutional provision existed preventing officers from holding two positions.*'' § 11. Oath of Office. — ^Like other public officers, notaries are usually required to take an oath of office. Such oath is usually subscribed by the notary and attached to the bond, when filed. The failure of a notary to properly take his oath may render him a mere de facto officer.** § 12. Bond. — Notaries are usually, if not always, required to file a bond for a given sum, with sureties, approved by some state officer, usually the secretary of state, assuring the faith- ful performance of their duties.** In Louisiana, notaries public continue in office so long as they renew their bonds, unless suspended by the court. Fail- ure to file their bond with the auditor of public accounts may be a just cause for their suspension.** § 13. Term of Office.— The term of office of a notary, as fixed by statute, varies in the different states. Usually these officers are appointed at large, and do not succeed any particu- lar notary whose term has expired. Death terminates the office, and there is no vacancy for which another notary may be ap- pointed.*! In some states, however, they are appointed for a fixed period of time, or until their successors are qualified. Under such a statute it has been held that a notary may con- tinue in the discharge of his duties for a reasonable length of 34 See post, § 21. 88 See § 16, post. 86 Merzbach v. City of New York, 39 See § 31 et seq., post. 163 N. T. 16, 57 N. B. 96. 40 Monroe v. Liebman, 47 La. 36 Friedman v. Craig, 77 W. Va. Ann. 155, 16 So. 734. 223, 87 S. E. 361. 41 People v. Edleman, 153 Cal. 87 Figures v. State (Tex. Civ. 317, 92 Pae. 846. 4.pp.), 99 S. "W. 412. § 15] THE OFFICE AND ITS REQUIREMENTS. 9 time after his connnission has expired, but the hold-over clause of the statute is not to be construed as authorizing unlimited terms.*^ The question is one involving de facto officers,*' and notaries should not perform acts after their term of office has expired, but should immediately seek a renewal of their com- mission. § 14. Removal from Office; Suspension or Forfeiture. — Where the term of office of a notary is at "the pleasure of the governor," he is subject to removal, but if the statute fixes a definite period of time as his term of office, the governor is powerless to remove the notary until such time expires.** Some statutes contain more or less definite provisions concerning re- moval, providing for hearing and notice. And in fact the usual proceedings are by a hearing before a referee, after which the governor acts. An appeal to the courts may be had by the removed officer, after the action of the governor.*^ Such pro- ceedings are usually for some breach of official duty, or mal- feasance, and under some statutes, notaries may be suspended for just cause,*^ and in one state proceedings were brought to forfeit the office for a breach of a constitutional provision prohibiting public officers from accepting free passes.*' On removal from office, by expiration of term, death or other- wise, the statutes frequently require the notary or his repre- sentative to deposit with some public officer, usually the clerk of the county, all records and papers of an official character, within a certain period after such removal. § 15. Officers Ex Officio Notaries. — In a number of states, various officers are ex officio notaries and have the powers and 42 Sandlin v. Dowdell, 143 Ala. 46 State v. Laresche, 28 La. Ann. 518, 39 So. 279, 5 Ann. Cas. 459. 26. In Louisiana, notaries public 48 See § 16, post. continue in office so long as they 44 People V. Jewett, 6 Cal. 291. renew their bonds, unless suspended A constitutional provision authoriz- by the court. Failure to file their ing the removal of officers at pleas- bond may be just cause for suspen- ure, if their term was not fixed by sion, but the code does not provide the constitution or declared by law, for its vacating the office. Monroe would not apply to notaries whose v. Liebman, 47 La. Ann. 155, 16 term of office was fixed at two So. 734. years. People v. Jewett, 6 Cal. 291. 47 People v. Eathbone, 145 N. Y. 46 Cohn V. Butterfleld, 89 Neb. 434, 40 N. E. 395, 28 L. E. A. 384. 849, 132 N. W. 400. 10 NOTAKIES PUBLIC. [§ 16 duties of regnlarly appointed notaries. Thus justices of the peace have been held to be ex officio notaries under some stat- utes.** It has been said, however, that foreign governments re- fuse to recognize the acts of such ex officio notaries.*® § 16. De Facto Notaries. — ^A de facto officer is one who per- forms the duties of an office with apparent right, and under claim and color of an appointment, but without being actually qualified in law so to act.^" Under this definition, de facto notaries may exist, as, where a notary who is commissioned, holds himself out as such, performs the usual acts of a notary, and is reputed to be a notary.^^ The performance of a single act as notary is not sufficient to constitute a notary a de facto officer. There must be proof of other acts, or a general recog- nition of the notary as sueh.*** As instances of de facto notaries, are those officers who are appointed and act as notaries but who are ineligible because of sex,^* or who are not citizens,** notaries who are not duly commissioned,*^ who fail to properly take their statutory oath,*^ or to file their bond,*' who act after 48 Goree v. Wadsworth, 91 Ala. 416, 8 So. 712; Dennistoun & Co. V. Potts, 26 Miss. 13; Rule v. Ricli- aras, — Tex. Civ. App. — , 149 S. W. 1073; Gilleland v. Drake, 36 Tex. 676. 49 Gilleland v. Drake, 36 Tex. 676. BO Cyc. Law Diet. 249. 51 Davenport v. Davenport, 116 La. 1009, 41 So. 240, 114 Am. St. Rep. 575; Third Nat. Bank of Chattanooga v. Smith (Tenn.), 47 S. W. 1102. 62 Pilkington v. Potwin, 163 Iowa 86, 144 N. W. 39; Hughes v. Long, 119 N. C. 52, 25 S. E. 743; Bien- court V. Parker, 27 Tex. 558. B3 Third Nat. Bank of Chatta- nooga V. Smith (Tenn.), 47 S. W. 1102; Von Dom v. Mengedoht, 41 Neb. 525, 59 N. W. 800. B4An alien who is duly commis- sioned as a notary and qualifies by giving bond as the law requires, has color of title to the office, and though he does not possess the qualification of citizenship as re- quired by statute, he is a de facto officer and his acts as such officer are valid. Wilson v. Kimmel, 109 Mo. 260, 19 S. W. 24. 65 Pilkington v. Potwin, 163 Iowa 86, 144 N. W. 39; Hamilton V. Pitcher, 53 Mo. 334. 66 Buckley v. Seymour, 30 La. Ann. 1341, where a deputy notary took his oath before his principal instead of a justice of the peace, and where it was contended that he had not taken his proper oath. 57 Notary duly appointed but who failed to file bond in the man- ner prescribed by law, ia officer de facto. Keeney v. Leas, 14 Iowa 464. § 18] THE OFFICE AND ITS REQUIREMENTS. 11 the expiration of their term,^* or who accept incompatible offices, or are disqualified to act because of interest.^' As far as the public and third parties are concerned, there is no distinction between the acts of de facto and de jure ofi&cers. The only difference between the two is that the former may be ousted by direct legal proceedings in the nature of quo war- ranto, and the latter cannot be so ousted.^" The acts of a de facto notary are not subject to attack at the instance of third parties.*^ If an officer is in his place by appointment or elec- tion, and proceeds in the regular discharge of his duties, though he has not in all respects, in qualifying, complied with the stat- utes, his acts are entitled to credit. The statutes do not de- clare that the acts of the notary who fails to comply with their provisions shall be null and void, but they provide for a pen- alty.«2 § 17. Jmisdiction; Place of Performing Duties. — Notaries are usually appointed to act within a certain county,^' or with- in certain territorial limits designated in their commission,** and in such cases they have no authority to act elsewhere. In many states, however, they are authorized by statute to act in other counties, anywhere in the state.*^ The state is the limit of their jurisdiction. A notary appointed in one state has no power or authority by virtue of his commission to perform his duties or acts in another state.®® § 18. Delegation of Duties ; Deputies and Clerks. — As a gen- 68 Sandlin v. Dowdell, 143 Ala. & Co. v. GetcheU, 13 Cal. App. 458, 518, 39 So. 279, 5 Ann. Cas. 459; 110 Pae. 331; T. W. Barhydt & Co. Smith V. Meador, 74 Ga. 416, 58 v. G. N. Alexander & Co., 59 Mo. Am. Eep. 438; Penn & Watson v. App. 188; Allgood v. State, 87 Ga. McGhee, 6 Ga. App. 631, 65 S. E. 668, 13 S. E. 569. 686. 64 Com. V. Schwieters, 29 Ky. L. B9 Sharp v. State, 54 Ind. App. Rep. 417, 93 S. W. 592. 182, 99 N. E. 1072; Titus v. John- eSGuertin v. Mombleau, 144 HI. son, 50 Tex. 224. 32, 33 N". E. 49; Lamb v. Lamb, 60 Sandlin v. Dowdell, 143 Ala. 139 Mich. 166, 102 N. W. 645; 518, 39 So. 279, 5 Ann. Cas. 459. Sullivan v. Hall, 86 Mich. 7, 48 N. 61 Wilson V. Kimmel, 109 Mo. W. 646, 13 L. E. A. 556; Neely v. 260, 19 S. W. 24. Morris, Tanner & Co., 2 Head 62Keeney v. Leas, 14 Iowa 464. (Tenn.) 595, 75 Am. Dec. 753. 88 A notary cannot act outside 66 Harris' Lessee v. Burton, 4 of his county. Fairbanks, Morse Har. (Del.) 66. 12 NOTARIES PUBLIC. [§ 19 aral rule, the authority of a notary caiinot be delegated and he cannot appoint a deputy or clerk.*' He must perform the acts required himself, and is even prevented from having a duty intrusted to him performed by another notary.*' In some states, deputies are permitted by statute, however,*^ and a cus- tom may exist whereby the acts of notaries are performed by clerks.'" § 19. Powers and Duties in General. — The powers of a no- tary public, which is a very ancient office, are largely founded on customary law.'^ He is recognized as a necessary official in nearly aU civilized countries. He is recognized by the law merchant, and his official acts are received as evidence, not only in his own but ia all countries. His duties are often of great variety and importance, consisting, for the most part, in protest- ing inland and foreign bills of exchange, promissory notes, au- thenticating their dishonor by the refusal of the drawee to accept or pay them on presentation or when due. Also the authentica- tion of transfers to property, administering the oath as to the correctness of accounts or statements of important documents, which are often necessary for transmission to points where the parties directly in interest are unable to appear in person ; the taking of depositions for actions pending in foreign or dis- tant courts ; the taking of the affidavits of mariners and masters of ships, their protests, etc., requiring care and judgment. In all such cases the notary's certificate or jurat, when accom- panied with his official seal of office and proper certificates of his official character, if the act is to be used beyond his own county or state, is received as prima facie evidence.'^ 67 Ocean Nat. Bank v. Williams, ploy deputies or clerks is a fact to 102 Mass. 141; Cribbs v. Adams, 13 be proved. Cribbs v. Adams, 13 Gray (79 Mass.) 597; Smith v. Gray (79 Mass.) 597. Gibbs, 2 Smedes & M. (Miss.) 479; 71 Wood v. St. Paul City By. Co., Gawtry v. Doane, 51 N. Y. 84. 42 Minn. 411, 44 N. W. 308, 7 L. B. 88 Commercial Bank v. Barksdale, A. 149. 36 Mo. 563. 72 A notary public is. an officer 69 See Buckley v. Seymour, 30 known to the law of nations and La. Ann. 1341. his official acts receive credence, 70 Miltenberger v. Spaulding, 33 not only in his own country, but in Mo. 421; Cribh* v. Adams, 13 Gray all others in which they are used (79 Mass.) 597. The existence of a as instruments of evidence. Kirk- eustom whereby notaries may em- sey v. Bates, 7 Port. (Ala.) 529. § 20] THE OFFICE AND ITS REQUIREMENTS. 13 Usually the statutes determine and state the extent of the powers of notaries, and generally they are empowered to take acknowledgments, administer oaths, take depositions, protest and perform duties with respect to commercial paper, etc.''* If a statute provides what officers may take acknowledgments, and does not include notaries, such an acknowledgment by a notary is of no efEect.'* The statutes should always be con- sulted in determining what powers notaries of a given state possess. In the performance of duties, relating to depositions, acknowledgments and the administering of oaths, notaries fre- quently have the powers of justices of the peace.''^ In some states they are ex officio justices of the peace,''^ and in some states they may imprison witnesses for contempt.'''' In Louisi- ana, the powers and duties of notaries axe very extensive.'" In "West Virginia, notaries are conservators of the peace. The authority of notaries as conservators of the peace, when not otherwise prescribed by statute, is limited to the powers pos- sessed by such conservators at common law. Such duties in- cluded the power to prevent and arrest for breaches of the peace, but not to arraign and try the offender.'" It is no part of the notary's duty to receive money from or for anybody.*" § 20, Importance of OflBce. — From the manner of appoint- ment of notaries, a consideration of their powers and duties, and the fact that their certificates are received as prima facie evidence of their acts, it must be noted that the office is of 73 See post, §§ 37-90. See also, Rep. 408; In re Collins, 235 Fed. in general as to these powers, the 937. various chapters relating to the 79 Howell v. Wysor, 74 W. Va. subject involved. 589, 82 S. E. 503, Ann. Cas. 1916C 74 Partridge v. Mechanics' Nat. 519. Bank of Burlington, 77 N. J. Eq. 80 Heidt v. Minor, 89 Cal. 115, 208 77 Atl. 410. 26 Pae. 627; Detroit Sav. Bank v. 76 In re Opinion of Justices, 73 Ziegler, 49 Mich. 157, 13 N. W. N. H. 621, 62 Atl. 969, 5 L. B. A. 496, 43 Am. Eep. 456; Doran v. (N. S.) 415, 6 Ann. Cas. 283. Butler, 74 Mich. 643 (People v. 76 Douglass V. State, 117 Ala. Butler), 42 N. W. 273; Feller v. 185, 23 So. 142. ' Gates, 40 Ore. 543, 67 Pac. 416, 56 77 See post, ch. IV. L. E. A. 630, 91 Am. St. Eep. 579. 78 See Schmitt v. Drouet, 42 La. See ante, § 5. Notaries as Ann. 1064, 8 So. 396, 21 Am. St. Agents. 14 NOTARIES PUBLIC. [§ 31 great importance. In the performance of many duties, the notary is required to personally know the parties with whom he is dealing. He is frequently required to thoroughly explain the instruments signed in his presence, and to protect not only the interests of such subscribers, and those immediately pres- ent, but also the interests of others who are required^ to review or rely upon his statements. Carelessness or mistakes of a no- tary may cause grave complications, subjecting that officer not only to the disgrace of removal from office, but also to penal- ties, punishment for crime, and civil liability for damages, a matter which involves his bondsmen as well as himself. No- taries should be familiar with the law, if possible, and should have a thorough acquaintance with the instruments that they authenticate, the proper days for execution of the same, so that acts are not performed on legal holidays, and in general with all the requisites of commercial paper, deeds, powers of attorney, depositions, etc.*^ § 21. Disqualification Because of Interest in Transaction, or Relationship to Parties.— It has been held that the probate of a deed of trust before a notary public who is a preferred cred- itor, is invalid, upon the principle of the common law that no one can sit in judgment upon his own cause,*** and as a gen- eral proposition an officer who is a party to an instrument, or interested therein, is disqualified from taking an acknowledg- ment.*' This is a rule of public policy arising because of the 81 "Their responsibility is as 82 Long v. Crews, 113 N. C. 256, high as their trust, and a notary 18 S. E. 499. who officially certifies as true what 83 Southern Iron & Equipment he knows to be false violates his Co. v. Voyles, 138 Ga. 258, 75 S. duty, commits a crime, binds him- E. 248, 41 L. E. A. (N. S.) 375, self and binds his sureties." Ann. Cas. 1913D 369; Bardsley v. Eochereau v. Jones, 29 La. Ann. 82. German- American Bank, 133 Iowa "Notaries are intrusted with 21 ff, 84 N. W. 1041; Horbach v. high and important functions. Tyrrell, 48 Neb. 514, 67 N. "W. 485, Their certificates are made authen- 37 L. E. A. 434; Watts v. Whet- tic evidence of titles by which we stone, 79 S. C. 357, 60 S. B. 703; hold our lands, and by which they W. C. Belcher Land Mortgage Co. pass from one to another, and v. Taylor, — Tex. Civ. App. — which endure from generatiop to 173 S. W. 278; Bowden v. Parrish, generation." State v. Ogdea, 187 86 Va. 67, 9 S. E. 616, 19 Am. St. Mo. App. 39, 172 S. W. 1172. Eep 873. See post, § 31 et seq. § 21] THE OFFICE AND ITS lUiQUIEEMENTS. 15 probative force attached to the notary's certificate.** The question of what interest or relationship will disqualify a no- tary from acting in a transaction is, however, a rather difS- cult one, depending upon the facts of each case.*^ Usually agents or attorneys are not disqualified unless financially in- terested in the transaction involved,*^ although attorneys who are notaries are frequently disqualified from taking the oaths of their clients.*' Stockholders who are beneficially interested have been held disqualified from acting as notaries,** although, other decisions hold that they are qualified.*® Officers of a cor- poration who are beneficially interested, but who are not stock- holders, are not disqualified.®" In some states, the statutes pro- hibit a stockholder, director, cashier or other officer of a bank from also exercising the office of notary,®^ and in other states, 84 Southern Iron & Equipment Go. V. Voylea, 138 Ga. 258, 75 S. E. 248, 41 L. R. A. (N. S.) 375, Ann. Gas. 1913D 369. SSHorbach v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 37 L. E. A. 434. 86 Vizard v. Eobinson, 181 Ala. 349, 61 So. 959; Nichols v. How- son, 94 Ark. 241, 126 S. "W. 830; Smith V. Ayden Lumber Go., 144 N. G. 47, 56 S. E. 555. 87 See post, § 99. 88jVLaddox v. Wood, 151 Ala. 157, 43 So. 968; Hayes v. Southern Home Building & Loan Ass'n, 124 Ala. 663, 26 So. 527, 82 Am. St. Eep. 216; Patton v. Bank of La- fayette, 124 Ga. 965, 53 S. E. 664, 5 L. B. A. (N. S.) 592, 4 Ann. Gas. 639; Betts-Evans Trading Go. v. Bass, 2 Ga. App. 718, 59 S. B. 8; Smith V. Clark, 100 Iowa 605, 69 N. W. 1011. See Moreland's As- signee V. Gitizens' Sav. Bank, 97 Ky. 211, 30 S. W. 637. 89 Davis V. Hale, 114 Ark. 426, 170 S. W. 99, Ann. Gas. 1916D 701; First Nat. Bank of Eiverside v. Merrill, 167 Gal. 392, 139 Pao. 1066; Eead v. Toledo Loan Co., 68 Ohio St. 280, 67 N. E. 729, 62 L. R. A. 790, 96 Am. St. Eep. 663; Kee v. Ewing, 17 Okla. 410, 87 Pae. 297; Keene Guaranty Sav. Bank v. Law- rence, 32 Wash. 572, 73 Pac. 680. 90 Bank of Woodland v. Obei- haus, 125 Cal. 320, 57 Pac. 1070; Plofida Sav. Bank & Eeal Estate Exchange v. Rivers, 36 Fla. 575, 18 So. 850. See Horbach v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 37 L. E. A. 434, where it did not appear that the notary was a stockholder, though he was the secretary and treasurer of the corporation inter- ested, and where the notary was held competent to act. A local agent of a mortgagee is not disqualified when not shown to be a stockholder, or beneficially interested. Girard Trust Co. v. Null, 90 Neb. 713, 134 N. W. 272. 91 Spegal v. Krag-Eeynolds Co., 21 Ind. App. 205, 51 N. E. 959; First Nat. Bank v. Butler, 41 Ohio St. 519, 52 Am. Rep. 94. See Com. V. Pyle, 18 Pa. St. 519. See post, §§ 51, 75. 16 NOTARIES PUBLIC. [§ 21 such acknowledgments have been rendered valid by statute.^* Still other decisions hold the act of an interested official as no- tary voidable, and it wiU be set aside on proof of fraud, op- pression or undue advantage.®' The general rule deducible is that a notary vrho is directly interested ia the subject-matter involved should not act as notary .9* A partner cannot take the oath of his copartner, in a matter in which the firm is interested.*^ But, a notary pub- lic having acted as agent in obtaining a loan on property for a party is not disqualified from taking the party's acknowledg- ment to the mortgage on the property.®^ A notary having acted as sUch for claimant violates no law by acting subse- quently in the same matter as the claimant's attorney.®'' In one ease where a homestead was sold and oral directions given that the consideration received should be paid to creditors, and the acknowledgment of the deed required was taken by a no- tary who was also a creditor, but who was not instrumental in causing the sale, or the giving of the oral directions, the notary was held not disqualified, although he received part of the money as a creditor.'* Ordinarily, relationship of the notary to the party involved does not prevent him from acting. Thus a notary has been held not disqualified from administering an oath to his father,®' and the fact that a notary was the brother-in-law of a mort- gagee has been held not to disqualify him from taking an acknowledgment to the mortgage.^ In Vermont, an officer is 92 Maxwell v. I/ineoln, etc., Build- 96 Smalley v. Bodinus, 120 Mich, ing & Loan Ass'n, 216 111. 85, 74 303^ 79 n. W. 567, 77 Am. St. Bep. N. E. 804; Ogden Building & Loan 602. Ass'n V. Mensch, 196 HI. 554, 63 96Penn v. Garvin, 56 Ark. 511, N. B. 1049, 89 Am. St. Rep. 330; 20 S. W. 410. Sawyer v. Cox, 63 111. 130. 97 Sullivan v. Hall, 86 Mich. 7, 93 Cooper V. Hamilton Perpetual 48 N. W. 646, 13 L. E. A. 556. Building & Loan Ass'n, 97 Tenn. 98 Mudra v. Groeling, 89 Neb. ."385, 37 S. W. 12, 33 L. E. A. 338, 829, 132 N. W. 389. 56 Am. St. Eep. 795. 99 Kirkland v. Ferris, 145 Ga. 93, 94 See Bardsley v. German- Amer- 88 S. E. 680. ican Bank, 113 Iowa 216, 84 N. W. 1 Hinton v. Hall, 166 N. C. 477, 1041. 82 S. E. 847. § 33] THE OFFICE AND ITS REQUIREMENTS. 17 not disqualified from acting when he is beyond the fourth de- gree of relationship to the parties." § 22. Record of Acts. — Notaries are usually required to keep a record of their official acts, especially the protesting of com- mercial paper, with service of notice of the same, the names of the parties interested, and a description of the paper pro- tested.' Such records are deposited with certain other officials in case of removal from office. It has been held that a notary's record is a public record,* and entries in such record book are evidence of his acts after death.^ But, if alive, the record is incompetent to prove facts involved. In such case the notary should be called as a witness. He may refer to the record for his own satisfaction in testifying.^ § 23. Certificate. — The acts performed by a notary public are shown by his official certificate or jurat. A certificate has been defined as "a written statement, by a person having an official or public status, concerning some matter within his knowledge or authority." A jurat is that part of an affidavit where the officer certifies that the same was "sworn" before him, and when and where.' Such certificates are competent to establish the facts involved,* if properly executed. Usually the certificate must be properly entitled with the venue of the county where the notary is acting,^ must indicate the official character of the notary,i° and be properly signed by the no- tary.^^ These are general requirements, and the rules respect- ing the validity of certificates and jurats vary somewhat. As usual the statutory requirements must be carefully noted and 2Eeed v. Newcomb, 62 Vt. 75, v. Potter, 131 111. App. 334 (as to 19 Atl. 367; Churchill v. Churchill, protest of bills of exchange); Fei- 12 Vt. 661. genspan v. McDonnell, 201 Mass. 8 See §§ 37-90, post. 341, 87 N. B. 624. 4 Phillips V. Poindexter, 18 Ala. See § 28, post, as to effect of 579; Bryden v. Taylor, 2 Har. J. certificate. (Md.) 396, 3 Am. Dec. 554. 9 Beeves & Co. v. Columbia Sav. SNicholls V. Webb, 8 Wheat. Bank, 166 Iowa 411, 147 N. W. 879; (U. S.) 326, 5 L. Ed. 628. Eobinson v. Cooper, 62 N. Y. Misc. 6 People's Bank & Trust Co. v. 517, 115 N. T. Supp. 599. Allen, — N. J. L. — , 110 Atl. 704. " Worley v. Adams, 111 Va. 796, 7 Cyc. Law Diet. 69 S. E. 929. 8 Sublette Exch. Bank v. Fitz- " See S 24, post, gerald, 168 111. App. 240; Vaughan 2 18 NOTARIES PUBLIC. [§34 adhered to.^' The certificate must usually be made when the acts referred to are performed. A notary taking an acknowl- edgment cannot attach his certificate after the lapse of several days, unless he recalls the parties, and again goes through the acknowledgment ceremony.^' A certificate not required by law carries no presumption as to authorization or authenticity.^* § 24. Signature; Noting Expiration of Commission; Desig- nation of Official Character. — The notary's name must be sub- scribed to his official certificate, such as a certificate of ac- knowledgment,^^ or jurat,^® and should be written in a clear and legible manner. In at least one state, a statute has been enacted requiring, in addition, that the name of the notary be printed, stamped or typewritten, so that there may be no question as to such signature.^' No penalty is attached for the failure to include such printed signature, but the purpose of the statute is obvious. In this connection the name of the notary is required to appear on his official seal in some states. Under some statutes, the notary public is required to file his autograph signature with some named official at the time of filing his bond and oath. An omission in this respect has been held to be a mere irregularity not invalidating an acknowledg- ment.^* Following the name, the statutes frequently require a nota- tion of the date when the notary's commission expires. Such a statutory provision has been held directory rather than man- datory, so that the omission did not invalidate the certificate.^' But these are holdings in line with those of the courts which presume the acts of public officials to be correctly performed, la See post, §§ 37-90. App. 554, 86 N. E. 344. 18 Alford V. Doe ex dem. First 17 See post, § 60. Nat. Bank of Gadsden, 156 Ala. 18 In re Townsend, 195 N. Y. 214, 438, 47 So. 230, 22 L. E. A. (N. S.) 88 N. E. 41, 22 L. E. A. (N. S.) 216. 194, 16 Ann. Gas. 921. l4Myerowieh v. Emigrant Indus- 19 Harbour-Pitt Shoe Co. v. Dix- trial Sav. Bank, 170 N. Y. Supp. on, 22 Ky. L. Eep. 1169, 60 S. W. 38. 186; Brown Mfg. Co. v. Gilpin, 120 16 Clark V. Wilson, 127 HI. 449, Mo. App. 130, 96 S. W. 669; Sheri- 19 N. B. 860, 11 Am. St. E^p. 143. dan County v. McKinney, 79 Neb. 16 Deputy V. Dollarhide, 42 lud. 223, 115 N. W. 548. § 35] THE OFFICE AND ITS REQUIREMENTS. 19 and which will not penalize third persons for the mistakes of officers. In some states, the omission of the date of expiration of the commission may result in the imposition of a penalty, or removal from office. The notary's certificate must also designate his official char- acter. The characters "N. P." have been held to clearly indi- cate the office of notary public,^" especially where the notary's official seal was attached.^^ Also, the words "Notary Public" have been held to indicate the office sufficiently when the body of the acknowledgment certificate also contained the usual statement that the parties appeared "before me, J E , notary public in and for said county. "^^ § 25. Official Seal. — A seal is a plate or disc of met.il, usually of circular form, having some device engraved upon it, with which an impression may be made on wax or other substance, on paper or parchment, for the purpose of authentication. Of this description are the seals of a government, the seals of courts, of public notaries and other public officers.*^ Notaries' seals are usually of a certain size, circular in form, having en- graved thereon in the outer circle the name of the notary, his county and state, and in the inner circle the words, "Notary Public." In some states the state coat of arms is also re- quired. Some statutes contain specific directions as to notaries' seals, and in some states there are no directions, the matter being left to custom.^* The statutes of Nebraska do not require the initials or name of the notary to be engraved on his seal.*^ Notaries are always required to provide their own official seal,''^ with which they authenticate their official acts.^' The ZOEowley v. Berrian, 12 HI. 198; 26 Smith v. Meador, 74 Ga. 416, Worley v. Adams, 111 Va. 796, 69 58 Am. Eep. 438; Dyer v. nint, 21 S. E. 929. HI. 80, 74 Am. Dec. 73; Stout v. 21 William v. Lobban, 206 Mo. Slattery, 13 111. 162; Bowley v. 399, 104 S. "W. 58. Berrian, 12 111. 198; Hinckley v. 82 Duckworth v. Watsonville O'Farrel, 4 Blackf. (Ind.) 185; Water & Light Co., 150 Cal. 520, Tunis v. Withrow, 10 Iowa 305, 77 89 Pac. 338. Am. Dec. 117; Welton v. Atkinson, 23 Connolly v. Goodwin, 5 Cal. 55 Neb. 674, 76 N. W. 473, 70 Am. 220; Hinckley v. O'Farrel, 4 St. Eep. 416; Beardsley v. Knight, Blackf. (Ind.) 185. 4 Vt. 471. 24 See §§ 37-90, post. 87 Town of Knox v. Golding, 46 2B Weeping Water v. Beed, 21 Ind. App. 634, 91 N. E. 857, 92 N. Neb. 261, 31 N. W. 797. E. 986. 20 NOTARIES PUBLIC. [§ 26 seal operates to render the certificate evidence of the acts re- cited, in a foreign country,** and indicates the notary's official character, 29 providing he states in his certificate that he has authority to act.'" An official seal imparts verity and is uni- versally recognized as evidence of authenticity when accom- panied by the notary's statement in his certificate that he has authority.81 The impression of the seal on the paper in such, manner as to be identified is sufficient.'* The United States statutes pro- vide that' it shall be lawful to affix the proper seal by making an impression therewith directly on the paper to which such seal is necessary, which shall be as valid as if made on wax or other adhesive substance." The use of another notary's similar seal instead of the no- tary's own does not invalidate the instrument acknowledged, but is a breach of duty.'* On removal from office, the notary's seal must usually be deposited with some officer as designated by statute.'^ § 26. Necessity of SeaJ. — At the common law, a notary pub- lic was simply a commercial officer, and his official acts were known only by his official seal,'® and throughout the United States, as a general rule, the official acts of a notary must be authenticated by his seal as well as his signature." A certifi- cate which lacks such authentication is without force and ef- 28 London & River Plate Bank S4 Muncie Nat. Bank v. Brown, V. Carr, 54 N. Y. Mise. 94, 105 N. 112 Ind. 474, 14 N. E. 358. T. Supp. 679. 35 See §§ 37-90, post. 29Hertig v. People, 159 111. 240, SSDawsey v. Kerven, 203 Ala. 42 N. E. 879, 50 Am. St. Rep. 162; 446, 83 So. 338, 7 A. L. R. 1658. Krase v. Wilson, 79 Bl. 233; Chini- 37 Clark v. WUsou, 127 111. 449, quy V. Catholie Bishop of Chicago, 19 N. E. 860, 11 Am. St. Rep. 143; 41 ni. 148; Moore v. Titman, 33 Booth v. Cook, 20 111. 129; Miller ni. 358; Gaynor v. Hibernian Sav. v. State, 122 Ind. 355, 24 N. E. Bank, 68 IE. App. 485; Waivelle's 156; Stephens v. Williams, 46 Iowa Abstracts (2nd Ed.), p. 207. 540; Gage v. Dubuque & P. R. Co., 30 Smith V. Lyons, 80 111. 600; 11 Iowa 310, 77 Am. Dee. 145; Tu- Wellington v. Wellington, 137 HI. nis v. Withrow, 10 Iowa 305, 77 App. 394. Am. Dee. 117; Gharst v. St. Louis 31 Moore v. Titman, 33 HI. 358. Transit Co., 115 Mo. App. 403, 91 38 Pierce v. Indseth, 106 U. S. S. W. 453; Wei ton v. Atkinson, 55 546, 27 L. Ed. 254, 1 Sup. Ct. 418. Neb. 674, 76 N. W. 473, 70 Am. 88 tr. S. Rev. St. 1878, § 6. St. Rep. 416. § 26] THE OFFICE AND ITS REQUIREMENTS. 21 feet.'* The notary must authenticate with his official seal, and not with a scrawl." There are exceptions to the general rule, and the seal has been held unnecessary except in cases required by statute or the common law,*" and in some cases the seal is unnecessary by express statutory provision. It may also be necessary for the notary to state that he has authority to act, to verify the seal.*i In some states, and under some statutes, the seal is not neces- sary to authenticate a certificate of acknowledgment,** but under the rules of other cases, the seal is required, especially where the acknowledgment is to be used in another county.** A notary's certificate of acknowledgment has been held incom- plete without it.** Under some statutes, notaries are not required to authenti- cate jurats to be used within their county, with their official seals,*' and in a number of cases affidavits have been held suffi- cient though there was no seal,*^ as where the official character of the notary otherwise appeared.*' Usually, however, the 38 Welton V. Atkinson, 55 Neb. 674, 76 N. "W. 473, 70 Am. St. Bep. 416. Prodf of the official character of a notary public using a notarial seal is not required. Harding v. Curtis, 45 111. 252; Stephens v. Wil- liams, 46 Iowa 540. 39 Moore v. Titman, 33 HI. 358; Booth V. Cook, 20 111. 129; Dumont V. McCracken, 6 Blackf. (Ind.) 355; Hinckley v. O'Farrel, 4 Blackf. (Ind.) 185; Eindskoff, Bro. & Co. V. Malone, 9 Iowa 540, 74 Am. Dec. 367. 40Sohaefer v. Kienzel, 123 111. 430, 15 N. E. 164; Mineral Point E. Co. V. Keep, 22 111. 9, 74 Am. Dee. 124. 41 Smith V. Lyons, 80 HI. 600. 42 Dawsey v. Kirven, 203 Ala. 446, 83 So. 338, 7 A. L. E. 1658. 43 Eowley v. Berrian, 12 111. 198. 44 Eowley v. Berrian, 12 111. 198; Mason v. Brock, 12 HI. 273, 52 Am. Dec. 490; Thompson v. Scheid, 39 Minn. 102, 38 N. W. 801, 12 Am. St. Eep. 619. 45 Thielmann v. Burg, 73 111. 293; Dyer v. Flint, 21 111. 80, 74 Am. Dec. 73; Stout v. Slattery, 12 HI. 162; Eowley v. Berrian, 12 HI. 198; People V. Schleig, 185 111. App. 480. In attachment eases the affi- davit may be made before any officer authorized by the laws of this state to administer oaths. If in the county, seal is not required, but is if outside the county or state. Eowley v. Berrian, 12 111. 198. 46 Clement v. BuUens, 159 Mass. 193, 34 N. E. 173; Earle v. Na- tional Metallurgic Co., 77 N. J. Eq. 17, 76 Atl. 555. 47 Earle v. National Metallurgic Co., 77 N. J. Eq. 17, 76 Atl. 555. 22 NOTARIES PUBLIC. [§ 37 statutes require the official seal to be affixed, and an- affidavit is not properly verified otherwise.** The omission of the seal when a deposition is taken has been held not fatal to the validity of the act, but in the case in- volved a statute existed whereby the deposition was effectual without a seal.*^ Some states require the seal to be attached to certificates of protest,^" while in others it is not required, the certificate being sufficient evidence of the fact.^^ The general rule is that the seal is necessary, and, in the absence of such seal, extraneous evidence of the officer's authority to protest must be given.^^ § 27. Additional Authentication ; Proof of Official Character. — Usually, the certificate of a foreign notary must be authenti- cated by some other official, showing his appointment and au- thority to act,^^ although it has been held that proof of the official character of a notary public using a notarial seal is not required.^* Statutes have been enacted in many states govern- ing this matter. Thus, some states require the notaries of other states and countries to have their official character certified to by the clerk of the county court under the court seal or by the secretary of the state under the great seal of the state. The seal authenticates the notary's signature. The clerk of the county court may certify to his appointment but not to his sig- nature.^^ The necessity of additional authentication or proof of a notary's authority may be said to exist principally when the power involved, and which is exercised, did not exist at the common law, where such power has been conferred by stat- 48 Town of Knox v. Golding, 46 v. Carr, 54 N. T. Mise. 94, 105 N. Ind. App. 634, 91 N. B. 857, 92 N. Y. Supp. 679. E. 986; Hill v. Alliance Bldg. Co., 83 Hill Cauteh Co. v. Independent 6 S. D. 160, 60 N. W. 752, 55 Am. Steel Co. of America, 74 W. Va. St. Eep. 819. 353, 82 S. E. 223; Bohn v. Zeigler, 49 Carpenter v. Gibson, 82 Vt. 44 W. Va. 402, 29 S. E. 983. 336, 73 Atl. 1030. See also Bohn 54 Harding v. Curtis, 45 111. 252; V. Zeigler, 44 W. Va. 402, 29 S. B. Singletary v. Watson, 136 Ga. 241, 983. 71 S. B. 162. eoKirksey v. Bates, 7 Port. BB Stephens v. Williams, 46 Iowa (Ala.) 529. 540; Browne v. Philadelphia Bank, Bl Bank of Kentucky v. Pursley, 6 Serg. & B. (Pa.) 484, 9 Am. Deo. 3 T. B. Mon. (Ky.) 238. 463. 52 London Sc Biver Plate Bank § 28] THE OFFICE AND ITS EEQUIEEMENT3. 33 ute. Accordingly, proof of authority to act is required when an oath is administered, this being a power which did not exist at the common law.^^ But where a statute provides that a re- cital of the official character of the officer shall be sufficient proof that he is a notary, such recital is not necessary to the validity of the affidavit. The statute merely refers to a method of proof .^^ § 28. Effect of Notary's Certificate; Impeachment of Certifi- cate. — Generally, a notarial certificate of protest is competent evidence without further proof,^^ and, in many states, statutory provisions expressly declare the certificates of notaries to be prima facie evidence of their acts.^® By the universal consent of nations, credence is given to the attestation of a notary.^" "Their acts duly authenticated are valid everywhere and prove themselves by the comity of na- tions."" Although a written instrument may be impeached for fraud or misrepresentation, even though it is acknowledged,^* clear, convincing and satisfactory proof of the falsity or fraud is re- quired,^^ and some cases also require proof of collusion of the grantees with the notary.®* Usually, a notary cannot be offered in evidence to impeach his own certificate of acknowledgment,®^ 66 People V. Nelson, 150 111. App. f ects the people generally, and does 595; Holbrook v. Libby, 113 Me. not concern alone a particular dis- 389, 94 Atl. 482, L. E. A. 1916A trict or private individuals. This 1167; Leavitt v. WUliams, 150 N. is shown from the antiquity of the T. Supp. 667. office, nature of their duties, and See post, § 93. the fact that their acts have al- 67 Dilts V. Board of Excise ways been respected by the custom Com'rs of Jersey City, 80 N. J. L. of merchants and the courts of all 475, 79 AtL 315. countries. Keeney v. Leas, 14 68 Johnson v. Brown, 154 Mass. Iowa 464. 105 27 N. E. 994. 62 Mahan v. Schroeder, 142 HI. 69 Trevor v. Colgate, 181 111. 129, App. 538; Tannenbaum v. Schaffer, 54 N. E. 909. 132 N. Y. Supp. 180. See §§ 37-90, post. 68 Sheridan County v. McKinney, 60 Kirksey v. Bates, 7 Port. 79 Neb. 223, 115 N. "W. 548. (Ala.) 529; Spegail v. Perkins, 2 64Evart v. Dalrymple (Tex. Civ. Boot (Conn.) 274. App.), 131 S. W. 223. 61 Sonfield v. Thompson, 42 Ark. 66 Shapleigh v. Hull, 21 Colo. 419, 46 48 Am. Kep. 49. 41 Pac. 1108; Nicholson v. Snyder, As a public officer his office af- 97 Md. 415, 55 Atl. 484. 24 NOTARIES PUBLIC. [§ 29 although some cases hold him to be a mere ministerial officer, so that his evidence may impeach his certificate.®^ The notary is not an agent so as to be disqualified from being a witness, when one of the parties is deceased, as where a statute excludes the testimony of agents of deceased persons,®' and communica- tions made to a notary when an acknowledgment is taken can- not be held privileged.®® Privileged communications are those communications which are excluded in the trial of cases be- cause of public policy, such as statements made by a client to his attorney. A certificate may be proved false by other evi- dence,®^ but the unsupported testimony of a party to a deed that he did not execute it cannot prevail over the official certifi- cate of the officer taking the acknowledgment.™ In Louisiana a notary's statement that a wiU was written by him, as dictated by the testator, in the presence and hearing of the witnesses, whose names are mentioned, and then read by him to the testator in the presence and hearing of said wit- nesses, at one and the same time, without interruption or turn- ing aside, meets all the code requirements.'^ § 29. Presumptions as to Acts of Notaries. — Like other pub- lic officers, there is a presumption in favor of the validity of acts of notaries, and usually such acts can only be impeached for fraud. Every act is prima facie accepted as true, and is, as a result, of the most solemn character. The errors or mis- takes of notaries will not be visited upon the parties who act before him. Thus, if a notary certifies to the protest of nego- tiable paper for nonpayment, every intendment is presumed in favor of the fair performance of his duty by the notary.'* If a certificate is made by a foreign notary who appears to be a woman, the court will assume that she was rightfully appointed, and that she acted rightfully, unless the contrary is made to 66 Effenberger v. Durant, 57 Okla. 69 Nicholson v. Snyder, 97 Md. 445, 156 Pac. 212. See also Craig 415, 55 Atl. 484. V. Shallcross, 10 Serg. & E. (Pa.) 70 Kerr v. Eussell, 69 HI. 666, 18 377. Am. Rep. 634. 67 Borehers v. Barckers, 158 Mb. 71 Monroe v. Liebman, 47 La. App. 267, 138 S. W. 555. Ann. 155, 16 So. 734. 68 People V. Driggs, 14 Cal. App. 72 Kupf erberg v. Horowitz, 52 507, 112 Pac. 577. N. T. Mise. 488, 102 N. Y. Supp. 502. § 33] THE OFFICE AND ITS EEQUIHEMENTS. 35 appear.'^ An officer taking a deposition is presumed entitled to the character that he assumes, and is presumed to act with authority.'* Notaries are presumed to act within their juris- diction,'^ and where the records of a deed fail to show a nota- tion of the affixing of the seal to a document, such seal will be presumed attached to the original instrument.'® § 30. Judicial Notice. — Judicial notice is the cognizance taken by a court of matters of fact, without the production of evidence thereof. The matters of fact of which judicial notice will be taken are, in general, those of general notoriety, imme- morial usage, or uniform national occurrence." Courts take judicial notice of the officers of their county, and proof of the official character of these officers is not required.'^ Notaries being officers recognized by the commercial law of the world, the courts will take judicial notice of their seals," of their appointment and continuance in office, and to inform itself will refer to the official records of such faets.^" § 31. Liabilities. I 32. — In General. — "A notary, when he assumes the duties of his office, is required to know the law in relation to his busi- 73 Nicholson v. Eureka Lumber 79 Pardee v. Schanzlin, 3 Oal. Co., 160 N. C. 33, 75 S. B. 730, Ann. App. 597, 86 Pac. 812; Hertig v. Gas. 1914C 202. People, 159 111. 240, 42 N. E. 879, 74 Carpenter v. Gibson, 82 Vt. 50 Am. St. Eep. 162; McDonald v. 336, 73 Atl. 1030. People, 123 HI. App. 346; Stoddard 75 Westover v. Bridgford, 25 Cal. v. Sloan, 65 Iowa 680, 22 N. W. App. 548, 144 Pac. 313; Barber v. 924; State v. Zehuder, 182 Mo. App. De Ford,' 169 Iowa 692, 150 N. W. 161, 168 S. W. 661; Brown Mfg. Co. 86; Hansford v. Snyder, 63 W. Va. v; Gilpin, 120 Mo. App. 130, 96 S. 198, 59 S. B. 975; Eeynolds v. Mor- W. 669; T. "W. Barhydt & Co. v. G. ton, 22 Wyo. 174, 136 Pac. 795. N. Alexander & Co., 59 Mo. App. 78Eule V. Eichards, — Tex. Civ. 188; Butts v. Purdy, 63 Ore. 150, App. — , 149 S. W. 1073. 125 Pac. 313, 127 Pac. 25; Wiley 77'cyc. Law Diet. V. Carson, 15 S. D. 298, 89 N. W. 78 Hertig v. People, 159 111. 237, 475; Sloane v. Anderson, 57 Wis. 42 N. E. 879, 50 Am. St. Eep. 162; 123, 13 N. W. 684, 15 N. W. 21; Schaefer v. Kienzel, 123 HI. 430, Pierce v. Indseth, 106 U. S. 546, 15 N. B. 164; Thielmann v. Burg, 27 L. Ed. 254, 1 Sup. Ct. 418. 73 HI. 293; Graham v. Anderson, 80 Butts v. Purdy, 63 Ore. 150, 42 111. 514, 92 Am. Dec. 89; Dyer 125 Pac. 313, 127 Pac. 25. See also V. Blint, 21 HI. 80, 74 Am. De(t City of Birmingham v. Edwards, 73- Irving v. Brownell, 11 HI. 402. 201 Ala. 251, 77 So. 841. 36 NOTAEIES PUBLIC. [§ 32 ness."** This does not mean that he is a lawyer, and he is not presumed to be a lawyer. If, for instance, a notary is ordered to demand and protest a bill on a wrong day, there is no right of action for loss ensuing, as the notary is not expected to re- verse or revise the decisions of his employer.** Similarly if there is a disputed question as to the manner of performance of his duties, which involves the judicial construction of a statute. In such case the notary cannot be held liable for error resulting in loss.'^ And in the case of an instrument drawn by a notary who is not a lawyer, it has been held that "little weight is to be attached to any formal words employed."** But a notary holds himself out to the world as competent to perform the business connected with his office, and to perform his duties with integrity.*^ The performance of such duties involves more than mere honesty; it involves care, diligence, attention and reasonable competency. Great faith and credit is reposed in the certificates of notaries, and a corresponding duty is imposed on them to exercise care and caution, such as a reasonably prudent man, burdened with such responsibility, would exercise.** Most of the cases of improper acts of notaries, or misconduct, involve the administration of oaths, the taking of acknowledgments, or neglect in protesting or performing duties with respect to commercial paper, matters which require sepa- rate treatment in detail.*' The notary's negligence or misconduct is a serious matter subjecting both him and his bondsmen to liability,** and giv- ing cause for removal from office.** In addition, the failure to properly perform his duties may result in a notary not be- ing entitled to his fees,*' or subjecting him to criminal liabil- ity. Also the failure to properly perform his duties may ren- der his acts of no avail. An acknowledgment taken before a notary whose commission has expired has been held insuffi- 81 Neal & Co. v. Taylor, 9 Bush 85 Fogarty v. Pinlay, 10 Cal. 239, (Ky.) 380. 70 Am. Dee. 714. 82 Commercial Bank of Kentucky 86 State v. Webber, 177 Mo. App. V. Varnum, 49 N. Y. 269. 60, 164 S. W. 184. 83 Neal & Co. v. Taylor, 9 Bush 87 See eh. VI, post. (Ky.) 380. 88 See § 33, post. 84Northrup v. Scott, 85 N. Y. 89 See § 14, ante. Mise. 515, 148 N. Y. Supp. 846. 90 See § 36, post. § 33] THE OFFICE AND ITS REQUIREMENTS. 37 eient.^^ So extensive are the results in this respect that it is difficult to name them or to name all of them. Generally the derelictions of duty are mistakes, casual happenings, or mere careless occurrences. But the results are extensive, either re- sulting in penalty to the notary, or serious consequences to those who rely upon his acts. And usually the notary is the one who must suffer. Where a bill of sale by a mortgagor of property was written, witnessed and acknowledged by a no- tary public, who subsequently claimed the property involved under a chattel mortgage, it was held that the notary was estopped from claiming the property under the rule frequently applied by the courts that where one of two innocent persons must suffer by the act of a third, he whose negligence caused the loss must be the sufferer.'* The case properly does not detail a liability, but illustrates the penalties of improper per- formance of duty, or neglect. A judgment against a notary for negligence has been sus- tained as a community judgment. It has been held that a community may engage in the business of notary public, and can obtain authority for one of its members so to act.'* The case is called attention to as further emphasizing the extent of a notary's liability. In states where the community property system obtains, the combined earnings of husband and wife may be subjected to execution, because of a chance dereliction of duty. In fact, in the case referred to, the notary attempted to show that he was ordinarily careful and prudent, but by the application of well-known rules of evidence, this proof was rejected by the court. The specific act of negligence relied upon was established. Notaries have been held to be public officers within the mean- ing of a constitutional provision forbidding them from accept- ing free passes, free transportation, franking privileges, etc., from any person or corporation, or from making use of the same while holding office.** 91 Lambert v. Murray, 52 Colo. 84 People v. Wadhams, 176 N. T. 156, 120 Pac. 415. 9, 68 N. E. 65, 18 Chicago Law 92StoSel3 V. Brown, 37 N. D. Jour. 600; People v. Eathbone, 145 272 163 N. W. 834. N. Y. 434, 40 N. E. 395, 28 L. E. 93Kangley v. Eogers, 85 Wash. A. 384. 250, 147 Pac. 898. ?8 NOTAEIES PUBLIC. [§ 33 § 33. — Liabilities on Official Bonds. — Bonds of notaries pub- lic may be in favor of some public official, such as the governor, but such official is only nominally a party to the bond, the real beneficiaries or obligees being the persons who suffer loss from the official misdoiags of the notary .^^ Usually any party in- jured by official misconduct or neglect has a right of action by reason thereof.*^ An assignee of a mortgage may recover dam- ages when the mortgage contains a false certificate of acknowl- edgment.^'' Notaries and their bondsmen may be liable for the failure of a notary to perform a duty incumbent on him, or required by law,^^ for negligence in the performance of the notary's duty,®® for the failure to give notice of dishonor of protested commercial paper,^ for negligence in giving an insuffi- cient notice of protest,^ for the making of a false certificate of acknowledgment,' and the failure of a notary to state in a certificate of acknowledgment that the party Was known, or identified by witnesses, as required by statute, has been char- 96 Globe Indemnity Co. v. O 'Con- nor, 147 La. 195, 84 So. 585. 96 State V. American Surety Co. of New York, 203 Mo. App. 71, 217 S. W. 317. 97 Wilson V. Gribben, 152 Iowa 379, 132 N. W. 849. 98 Schmitt v. Drouet,.42 La. Ann. 1064, 8 So. 396, 21 Am. St. Bep. 408. 99 Stork V. American Surety Co., 109 La. 713, 33 So. 742. 1 Tevis V. Bandall, 6 Cal. 632, 65 Am. Dec. 547; Neal & Co. v. Tay- lor, 9 Bush (Ky.) 380; WUIiams v. Parks, 63 Neb. 747, 89 N. W. 395, 56 L. E. A. 759; Wheeler v. State, 9 Heisk. (Tenn.) 393. 2 Bowling V. Arthur, 34 Miss. 41. 3Heidt V. Minor, 113 Cal. 385, 45 Pac. 700; Kleinpeter v. Castro, 11 Cal. App. 83, 103 Pac. 1090; Doran v. Butler, 74 Mich. 643, (People V. Butler), 42 N. W. 273; State V. Plass, 58 Mo. App. 148; Lesser v. Wunder, 9 Wkly. Dig. (N. Y.) 56. Most of the states positively for- bid ihe attestation or acknowledg- ment of an instrument by the offi- cer unless he positively knows, or has satisfactory evidence on the oath or affirmation of credible wit- nesses, that the person making the acknowledgment is the individual described in and who executed the instrument. A disregard of these requirements renders the officer or his sureties liable for any result- ing loss or damage, unless the los- ing party is the proximate cause. Joost V. Craig, 131 Cal. 504, 63 Pac. 840, 82 Am. St. Eep. 374; Hatton V. Holmes, 97 Cal. 208, 31 Pac. 1131; Overacre v. Blake, 82 Cal. 77, 22 Pac. 979; Oakland Bank of Savings v. Murfey, 68 Cal. 455, 9 Pac. 843; Bank^ of California v. Western U. Tel. Co., 52 Cal. 280; Taylor v. Western Pac. E. Co., 45 Cal. 323. § 33J THE OFFICE AND ITS REQUIKEMENTS. 29 acterized as "gross negligence."* This matter of misconduct and negligence in the taking of acknowledgments is so exten- sive as to require special treatment in detail, and is only re- ferred to at this time as an instance of when bondsmen may be liable.^ The bond of a notary is purely one of indemnity, and in case of recovery, the amount is limited to the actual loss sus- tained from the act of the notary.^ A notary's bond,, furnished in compliance with a special law requiring it, is a legal bond, which the law forms part of. It is a contract to be strictly construed, the object being to make certain the faithful per- formance and discharge of all the duties of the office, and in case of his failure to do so, or any loss sustained, the sureties to be held liable. The bond is so conditioned for the protec- tion of all persons employing him professionally. Before he and his sureties can be held, it is necessary to determine whether the act done or not done, committed or omitted, was or was not authorized by law and whether injury has been sus- tained. The liability of the sureties is only on his failure to discharge the duties of his office well and faithfully.'' The dam- ages recoverable are such as naturally and proximately result from the breach of duty.^ Where a notary procured money from a purchaser of property by representing that his client needed it, and promised delivery of a deed the following day, and then misappropriated the money, the fact that the notary had prepared a forged deed did not render the bondsmen liable. The forged deed and the false acknowledgment appended 4Fogarty v. Finlay, 10 Cal. 239, 42 La. Ann. 1064, 8 So. 396, 21 70 Am. Dec. 714; Peterson v. Ma- Am. St. Rep. 408; Monrose v. Bro- hon, 27 N. D. 92, 145 N. W. 596. card, 20 La. Ann. 78; Lescouzeve See also Jooat v. Craig, 131 Cal. 504, v. Ducatel, 18 La. Ann. 470. 63 Pac. 840, 82 Am. St. Eep. 374; 8 State v. Packard, 199 Mo. App. State V. Kyland, 163 Mo. 280, 63 53, 201 S. W. 953; State Nat. Bank S. W. 819. V. Mee, 39 Okla. 775, 136 Pac. 758. 5 See ch. HI, post. Under Eev. Code, § 326, sureties 6 State V. American Surety Co. are liable for injury -which results of New York, 203 Mo. App. 71, proximately from the official mis- 217 S. W. 317; State v. Packard, conduct or neglect of a notary. 199 Mo. App. 53, 201 S. W. 953. Ellis v. Hale, — Mont. — , 194 Pac. 7Weintz v. Kramer, 44 La. Ann. 155. 35, 10 So. 416; Schmitt v. Drouet, 30 NOTARIES PUBLIC. [§ 34 thereto were not the proximate cause of the loss.' No dam- ages can be recovered from a notary or his bondsmen for offi- cial misconduct or neglect when no damage has been sus- tained." § 34. — Penal Liabilities. — Statutory provisions exist in a large number of states imposing penalties for various viola- tions of duty by notaries. As instances are the making of false certificates of acknowledgment, acting without being qualified, acting after their term of office has expired, withhold- ing records, charging excessive fees, failing to add the date of expiration of their commissions, and in general for neglect, misconduct, malfeasance or misfeasance.^^ In addition, nota- ries may be involved in more serious offenses, such as forgery and other crimes. And it may be noted that the offense of appending false certificates to affidavits, which resulted in the conviction of one notary, was also held an offense involving moral turpitude, for which the same notary might be disbarred as an attorney at law.^^ In a criminal prosecution for wilfully certifying falsely that a mortgage was duly acknowledged, the state has been held required to prove not only the falsity of the acknowledgment, but that the officer knew that the certifi- cate was false. Such knowledge was provable by evidence of similar acts.^' § 35. Taxation of Notaries. — In some states an annual li- cense fee is exacted from notaries.^* but usually they are not subject to taxation. Authority to tax "trades, occupations and professions" has been held not to authorize a tax on notaries public.^* § 36. Compensation and Pees of Notaries. — Notaries are en- titled to the fees fixed by statute in every case, and should not hesitate to ask for the same. Similar services performed by other officers always result in the imposition of a reasonable 9 People V. Nederlander, 177 103 Pac. 805. Mieli. 434, 143 N. W. 753, Ann. 13 People v. Marrin, 205 N. T. Cas. 1915C 1026. 275, 98 N. E. 474, 43 L. B. A. (N. 10 McAllister v. Clement, 75 Gal. S.) 754. 182, 16 Pac. 775. 14 See §§ 37-90, post. 11 See §1 37-90, post. See also 16 Cooley on Taxation, supported § 24, ante. by City of New Orleans v. Bien- 12 In re Hopkins, 54 Wash. 569, venu, 23 La. Ann. 710. § 36] THE OFFICE AND ITS REQUIEEMENTS. 31 amount, which is expected to be paid; and a notary who hesi- tates to charge lowers the dignity of his office. Elsewhere in this work, the importance of the notary's duties, and the neces- sity of care in the performance of his acts, has been referred to in detail, and as a result such care and prudence should be rewarded with the proper statutory fees. But, on the other hand, notaries should never be so anxious for their fees as to overlook this care and prudence, or to ignore the law. Negli- gence may result in expensive damage suits, or extensive lia- bilities. The small fee received may cost thousands of dol- lars, if negligence is involved, or misconduct. "Wliere the statutes expressly require a notary to keep an official register of his acts, a notary who fails to perform such duty cannot recover compensation for his acts.^^ Usually cities have no authority to employ notaries, although their services may be convenient to the transaction of certain business,^' and city officials cannot recover extra compensa- tion from the city for notarial services performed for other parties.^® Similarly, persons holding subordinate positions in city departments, for which they receive a stipulated salary, cannot recover compensation from the city for notarial services rendered as an incident of their duties, it being understood that such services were to be rendered as part of the clerical duties.^® But if the services are not part of the regular duties, and are extra, and there is no waiver of the right to collect, such officials may recover for their work, rendered for the benefit of the city.^" If a clerk performs duties as a notary, even though it is during his working hours, he is entitled to the statutory fees. The city is not entitled to such compensation, and an ordinance enacted by a city requiring the fees to be paid into the city treasury has been held void and in conflict with a statute fixing the fees of notaries.®^ Notaries are frequently employed in banks, and in one case 16 Black V. City of Pittsburgh, Supp. 176; Benjamin v. City of 266 Pa. 97, 109 Atl. 616. New York, 77 N. Y. App. Div. 62, 17 Black V. City of Pittsburgh, 78 N. Y. Supp. 1067. 266 Pa. 97, 109 Atl. 616. 20 Morgan v. City of New York, 18 Sheahan v. City of Chicago, 190 N. Y. 237, 82 N. B. 1089. 127 m. App. 626. ^^ Wood v. City of Kansas City, 19 McCabe v. City of New York, 162 Mo. 303, 62 S. W. 433. 77 N. Y. App. Div. 637, 79 N. Y. 32 NOTAKIES PUBLIC. [§ 36 where such employment existed, the notary agreed to accept in full payment for his services, one-half of the legal fees charge- able therefor. Subsequently, the notary sued for the fees re- tained by the bank, and it was held by the court that the contract entered into was contrary to public policy and void and that the notary was intended to act independently of any influence of the bank' or agent placing paper in his hands for official action.22 ^j^ almost identical case arose in another state, where the notary had agreed as part of his, contract of employment that protest fees should be retained by the bank, but, in this latter case, the notary had accepted a salary for five years without claiming his fees, and had repeatedly signed a pay roU whereby he released all claims. The court held that , he had assigned his fees and could not recover. The contention was also made that the assignment was contrary to public policy, but the court held that, if this was so, the parties were in pari delicto, that is, that they were equally in fault, and, as a consequence, the employee could not recover.^^ The first case states the general rule, which is that the fees belong to the notary, and that agreements to assign them in this manner are void. The amount of a notary's fees is fixed by statute in prac- tically all states, being a specified sum for each act.^* When ' a statute exists fixing the fees of notaries, the charge of a round sum for taking an inventory in a succession is illegaL^"* Also when the statutes governing the taking of depositions provide that the notary may write out the testimony, employ a stenog- rapher, or permit his employer to hire a stenographer, the no- tary may charge the full statutory rates for transcribing and taking in either of the first two cases, but in the third case he can only charge his fee for the certificate and the administra- tion of the oath.^® 22 Ohio Nat. Bank of "WasMiig- 24 See §§ 37-90, post. ton V. Hopkins, 8 App. Cas. (D. C.) See Laelede Land & Improve- 146, supported by Palmer v. ment Co. v. Morten, 183 Mo. App. Vaughan, 3 Swanst. 173; Parsons 637, 167 S. W. 658, construing stat- V. Thompson, 1 H. Bl. 322; Meguire utes and holding the fee for a cer- V. Corwine, 101 IT. S. 108, 25 L. ed. tificate, attested by seal, to be 50c. 899. 25 Succession of Morgan, 124 La. 23 Mussing V. Corn Exchange 755, 50 So. 703. Nat. Bank of Chicago, 173 111. App. 26 Coleman v. Northern Pac. R. 53. Co., 41 Mont. 123, 108 Pac. 582. § 38] THE OFFICE AND ITS KEQUIBEMENTS. 33 8TATUT0BT EEQUIBEMENTS. §87. Alabama— ELIGIBILITY— citizenship. WOMEN— are eligible, APPOINTMENT— by the governor. COMMISSION— fee— none seems to b« required. BOND — $1,000, with sureties approved by the county probate judge. Bond to be filed and recorded vrith such judge. OATH — to be taken. TEEM — ^four years. SEAL of office to be procured, with name of notary, office, state and county of appointment. POWERS AND DTTTIES — to administer oaths, take affidavits, acknowledgments, or proofs, of instruments, demand acceptance of payment and protest commercial paper, and give notice of protest. Notaries ex offldo justices of the peace, appointed in election districts of counties, and wards of cities, have powers of justice of the peace in addition to those of notaries. May issue attachments. EECOED OE EEGISTEE — to be kept of all official acts, and certificates given of same when required and paid for. On removal from office, all records and papers to be deposited with county probate judge within thirty days thereafter under penalty. Dock- ets and flJes of notary ex officio justice to be delivered to successor in office. EEMOVAL — ^by death, expiration or otherwise. Eemoval from county vacates office. LIABILITIES AND PENALTIES— imposed as herein stated with respect to register, and also where notary ex officio justice fails to keep record of criminal cases, or report same to grand jury, or fails to report and pay over fines collected. CEETIFICATE — under notary's hand and seal is evidence of facts stated. JUSTICES — act when there are no notaries but they must so state. FEE BILL — acknowledgments, 50c; presentation for acceptance or payment, 50c; protesting, $1.00; notice of protest, each, 50c; other protests, $2.00; oaths, 50c; copies from register, per 100 words, 20c; certificate and seal, 25c; other certificates, 50c. §38. Alaska— ELIGIBILITY— resident of the district. APPOINT- MENT— by the governor for the district. COMMISSION— fee— $10. TEEM — four years. COMMISSIONEES — appointed by the court to act as notaries, and record kept of all acts. BOND — $1,000. Approved by clerk of his district court. Same with oath and signature to be filed with the secretary of his district. OATH — to be taken. DUTIES — to demand acceptance and payment of foreign, domestic and inland bills of exchange, or promissory notes, protest same for nonacceptance or nonpayment, to exercise the other duties of such office accorded by the commercial laws of nations, etc. To take acknowledgment or proofs of deeds and other instruments in writing, attach his certificate to same. Take depositions, affidavits, administer oaths and affirmations, make and certify copies of records of his office. LIABILITIES — notary and sur- eties liable to parties injured for all damages sustained, for official mis- conduct or neglect. SEAL — to provide and keep an official seal with the words engraved thereon, "Notary Public," and his name and name of district for which he is appointed. EECOED — to be kept of all his acts. EEMOVAL — ^by death or expiration of office, all his records to be filed 3 34 NOTAKIES PUBLIC. [§ 39 with the clerk of the district court. Failure to do so subjects him to damages to party injured. §39. Arizona— ELIGrBIUTY— resident of the county. WOMEN— over twenty-one years of age are eligible. APPOINTMENT — by the governor. COMMISSION — will issue from the secretary of state to the district court clerk, who will notify the applicant. Fee, $2.50. TEEM— four years. BOND — $1,000, with sureties approved by the chairman of the board of supervisors. File with county recorder. OATH — to be taken before an officer authorized to administer oaths within twenty days after appointment, same to be recorded with district clerk. DUTIES — to take acknowledgments or proofs of instruments in writing, affidavits, deposi- tions, oaths and affirmations, demand acceptances or payment, protest commercial paper. SEAL — to be procured containing "Notary Public," his name and county. Authenticate all acts with same. State expiration of office. Acts received as evidence throughout the state. EECOED — ^to be kept of all official acts, of parties, date and character of instrument acknowledged or proved, date of acknowledgment, and description of property affected, if any. Certified copies of record to be given when requested. Protest and certificate prima facie evidence of facts therein. REMOVAL — by death or otherwise, deposit all records and papers with county recorder within three months, under penalty of from $50 to $500. Destruction or defacing records subjects to heavy fine. JUEISDICTION — in the county of appointment. Oaths and affidavits required to be taken in other states, may be taken before any judge or commissioner of a court of record, master in chancery or notary public authorized, under their official seals. FEES — protesting a bill or note for nonacceptance or nonpayment, registering and seal, $2.00; each notice of protest, 50c; protest in other cases for each 100 words, 20c; certificate and seal to such protest, 75c; taking acknowledgments, etc., 75c; taking acknowledg- ments of married women, 75c; administering oath or affirmation, 75c; certificates under seal not provided for, 75c; copies of records, certificate and seal, less than 200 words, 75c; if more than 200 words, per additional 100, 20c; all other notarial acts, 50c; deposition of witness per 100 words, 20c; swearing witness to deposition and other business therewith, 75c; acknowledgment to bill of sale of horses, mules, asses, or neat cattle, with certificate and seal, 25c. §40. Arkansas — ELIGIBILITY — citizen of the county for which ap- pointed. WOMEN- are eligible. APPOINTMENT — by the governor. TEEM— four years. COMMISSION— fee— $5.00. BOND— $1,000, with securities approved by clerk of circuit court. OATH — required. POW- EES AND DUTIES — to take acknowledgments or proofs of written in- struments, depositions, in and out of the state, affidavits, administer oaths and affirmations, make declarations and protests. Powers are co- extensive with state for purpose of swearing witnesses, taking affidavits and depositions and acknowledgments. SEAL — he must provide a seal of his office, to represent by its impression the emblems and devices presented by the great seal of state, surrounded by the words "Notary § 41] THE OFFICE AND ITS REQUIREMENTS. 35 Public, County of , Ark." All official acts to be authenticated therewith. Must state when his commission expires, on all acknowledg- ments or jurats. Penalty for omission is $5.00. EECOED — shall keep a record of all his ofl&cial acts in a book for that purpose and give a certi- fied copy of any record to any person applying therefor on payment of the fee. EEMOVAL — all papers and records to be deli,vered to the county clerk. Acts received as evidence of the facts stated. FEES — ^for noting for protest, 50c; entering protest, 75e; registering protest, 40e; notice to indorsers, etc., each, 50c; taking acknowledgment, 50c; each marine protest, $2.00; protest to secure insurance, $2.00; copy of record and papers in his office, each 100 words, 5c; each deposition, $2.00; mileage to and from place to officer's office, per mile, 5c; all fees not to exceed for the day, $5.00; if more than one day, for each day, $2.00; for issuing subposna, 50e; for issuing order of arrest, 50c. §41. Califomlar— ELIGIBILITY— must be a citizen of the United States and of this state, twenty-one years of age, resident of county for six months. WOMEN — ^having these qualifications can be appointed. APPOINTMENT — by the governor. Number of appointments limited. COMMISSION — fee — to state secretary, $5.00. OATH — to be taken. TERM — ^four years. BOND — $5,000, to be approved by the judge of the county superior court. Bond and oath to be filed with county clerk in twenty days, duplicates with clerk's certificate of these facts to be sent to the secretary of state in thirty days by the notary. SEAL — tp pro- vide and keep an official seal, having engraved thereon the arms of the state, the words "Notary Public," and the county for which commis- sioned. All acts to be authenticated therewith. DUTIES — to take ac- knowledgment or proofs of instruments in writing in his county.. To take depositions, affidavits, administer oaths and affirmations incident to the office or to be used before any court, judge, officer, or board in this state. When requested, to demand acceptance and payment of bills of ex- change, or promissory notes, to protest same for nonacceptanee or non- payment, to exercise such other powers and duties as by the law of nations and commercial usages, or by the laws of any other state, govern- ment, or country, may be performed by notaries. Protest of notary under hand and seal is prima facie evidence of facts contained therein. CEIM- INAXi LIABILITT — every public officer authorized by law to give any certificate or other writing, who makes and delivers such certificate or writing containing statements known to be false, is guilty of a misde- meanor. EBMOVAL — by death, resignation or disqualification, all rec- ords must be delivered to the county clerk within thirty days. EECOED — all their official acts, parties, to date, and character of every instru- ment acknowledged or proved by them. To give certified copies of same when so requested and upon receipt of their fees. LIABILITIES — notary and his sureties liable for his misconduct or neglect to all parties injured, for damages. FEES — protest, $2.00; notice of, $1.00; recording same, $1.00; drawing affidavit, deposition or other paper not herein mentioned, each folio, 30c; taking acknowledgments, etc., for the first two signatures, $1.00 each; additional signatures, 50c each; administer- 36 NOTARIES PUBLIC. [§ 42 ing oath or affirmation, 50c; every certificate, including ■writing and seal, $1.00. §42. Colorado — ELIGIBILITY — citizenship. WOMEN— not eligible. APPOINTMENT— by governor. Co'mmISSION— to be recorded with the county clerk before entering upon the duties of the office. Eecorder or clerk and recorder of any county is authorized to issue certificates as to date, expiration of commission and qualifications of notary. TEEM — four years. BOND — $1,000, same to be approved by the county clerk. OATH — to be taken before entering upon the duties of the office. Bond, and oath indorsed thereon, to be recorded with the county register of deeds. POWERS AND OFFICIAL DUTIES— take proofs of acknowl- edgment of all instruments of writing relating to conunerce and naviga- tion, acknowledge deeds and powers of attorney, administer oaths, make declarations, protests, and all acts usually performed by notaries in other states and territories. Act only in the county of appointment. SEAL — to provide an official seal, consisting of an impression on paper or wax, setting forth the notary's name and residence. He shall designate in writing the date of expiration of his commission. AU official acts to be attested therewith. EBCOED — ^must keep record of all his official acts, and, when required, give certified copies of same upon receiving his usual fee. EEMOVAL — within thirty days all papers and records to be deposited with county register of deeds. LIABILITIES — ^bond may be sued on by any person injured on account of unfaithful perform- ance of notary's duties, but suit must be instituted within three years after accrual of cause of action. Failure to keep record is unlawful act and person aggrieved thereby may recover damages in nature of penalty on bond, not less than $100 for each offense, notary forfeits commission and in addition is liable on bond for damages sustained. Notaries are also subject to national guard service and are not exempt as certain other officers. FEES — noting for protest, 50c; protesting and record, 75c; notices, each, 50c; certificate and seal, each, 50c; acknowledgments, one, 50e; additional, each, 25c; depositions, per 100 words, 15c; swear- ing, seal and certificate, 25c; other fees same as justices. § 43. Connecticut — ELIGIBILITY — citizenship. WOMEN — are eli- gible. APPLICATION — must be in handwriting of applicant, except those of attorneys or commissioner of superior court. APPOINTMENT — by governor. COMMISSION — fee — $5.00 payable to executive secre- tary. TEEM — five years from February 1st of year commission issues. BOND — not required. OATH — to be filed with county superior court clerk, together with commission. Clerk may certify to authority and official acts of notary. Oath and commission of notaries in New Haven county to be recorded at Waterbuiy. In New London county, record is made by clerk of court of common pleas. SEAL — not required. EEO- OED — not required. EEMOVAL — ^by the governor. Secretary to give notice of revocation of commission within five days to clerk of superior court. JTJEISDICTION— any place in the state. INABILITIES — no statutory liabUities. FEES OF NOTARIES— marine protest, $2.00; en- § 45] THE OITICE AND ITS EEQUIEEMENTS. 37 tering protest of bill or note, or noting without protest, administering an oath, taking acknowledgment under seal, 50o; noting a bill or note for protest, recording protest, each notice to indorsers, etc., 25e; travel, per mile, lOe; oath to a pensioner, 25e; fee of witness, per day, 50c; fee of witness for travel, per mile, lOo; depositions, in state, each, $3.00; depositions, out of state, each, $5.00; acknowledgments, 35c; affidavits, 10c; oaths, out of court, 10c; subpoena, 25c. § 44. Delaware — EMGIBUilTY — citizenship. Collector of state rev- enue to be appointed notary for his business. Financial institutions to have notaries for their business and to execute their papers. Justice of the peace to be appointed. Number of additional notaries in various counties limited. APPOINTMENT— by the governor. COMMISSION — ^f ee — $10, payable to secretary of state. TEEM— two years, except jus- tice of the peace, or collector of state revenue. OATH — prescribed by state constitution, to faithfully discharge duties of office, duly signed and certified, to be filed with county recorder. DUTIES AND POWEES — to acknowledge deeds or other instruments, administer oaths, etc., to take private examination of married women parties to a deed. May give certificate of descent of Nantieoke Indians. SEAL — to have a seal engraved with name of notary, title, date of appointment, term of office and anything else desired. EBMOVAL — officer failing to provide re- quired seal may be removed by governor for neglect. LIABILITIES — ^f or unfaithfulness in duties. FEES — protest of note, etc., 80e; notice of pro- test, 20c; exemplification, 25c; protest of foreign bill, $1.00; notice, 37c; exemplification, 75c; registering bill of exchange, etc., where no probate fee, 20c; registering common sea protest, 75c; registering foreign sea protest, $1.00; registering protest for detaining vessel, $4.00; exemplifi- cation of three last protests, $1.00; registering obligation, letter of attor- ney, bill of sale, or other writing, $1.00; acknowledgment of letter of attorney or other instrument, $1.00; acknowledgment of deed, 50c; taking and certifying affidavit, 25c; administering and certifying oath, 50e; taking deposition, court to allow a reasonable fee; drawing affidavit or deposition, 2e a line; other certificates, 35c. § 45. District of Columbia — ELIGIBILITY — resident of the district. APPOINTMENT — by the president. TEEM— five years. BOND — for $2,000, with security approved by the supreme court or a justice thereof. OATH — to be taken. He shall deposit an impression of his seal and signature with the clerk of the supreme court of the district. DUTIES — ^to take depositions, acknowledgments, affidavits and oaths, etc., to demand acceptance and payment of bills of exchange, etc., and to pro- test the same. They may perform such other acts for use and effect beyond the jurisdiction of the district according to the law of any state, territory or foreign government. SEAL — to provide a notarial seal, with which he shall authenticate his official acts. EECOED — to keep a fair record of all his official acts, and, when required, to give a certified copy of any record in his office to any person upon payment of the fees therefor. BEMOVAL — at discretion, by death, resignation or removal 38 NOTAKIES PUBLIC. [§ 46 from office, all records and official papers to be deposited with the clerk of the supreme court of the district. LIABILITY — any notary taking a higher fee than allowed shall be fined $100 and be removed from office by the supreme court of the district. The original protest of a notary public, under his hand and official seal, of any bill of exchange or promissory note for nonacceptance or nonpayment, stating the pre- sentment, service of notice, mode of notice, reputed residence of the party, and the nearest postoffice, same shall be prima facie evidence of facts stated. The certificate of a notary public, under his hand and seal of office, drawn from his record, stating the protest and the facts therein recorded, shall be evidence of the facts. Seal and official documents are exempt from execution. NOTARY'S FEES — certificate and seal, 50c; taking depositions, per 100 words, 10c; administering an oath, 15c; taking acknowledgments with certificate, 50c; protesting and recording, $1.75; each notice of protest, 10c; each demand for acceptance er psr- ment, if accepted or paid, $1.00; to be paid by the party accepting or paying the same; each noting of protest, $1.00. §46. Florida^ELIGIBILITY— citizen of the United States. WO- MEN — over twenty-one are eligible. APPOINTMENT — ^by the governor. TEEM — ^four years. BOND — for $500, filed like bonds of county officers. OATH— for faithful performance of duties. DUTIES — to take oaths, acknowledgments, protests, and solemnize marriages. State expiration of commisison on all documents. SEAL — to procure an official seal for authenticating his acts. EECORD — to be kept of official acts. Need not report fees collected. LIABILITY — for unfaithfulness. Penalty for acting after commission expires. PEES — for protesting bills, notes, etc., $2.00; noting marine protest, etc., $2.00; administering oath, 10c; attend- ance at a demand, tender or deposit and noting, $1.00; each order for survey, 50c; copying papers necessary, per 100 words, 20c; additional 100 words or fraction, 10c. § 47. Georgia— ELIGIBILITY — citizen of the United States, twenty- one years old, or an attorney, and of good moral character. APPOINT- MENT — by the judges of the superior courts, in vacation or in term time. TERM — four years, revocable at any time by the judges. COM- MISSION — the clerk issues it and keeps a register of their names. FEE— for same, $2.00 in full. BOND— none required. OATH — to be taken before the clerk of the superior court, before entering upon their duties, which shall be entered on the minutes of the court, as follows: "I, do solemnly awear (or affirm), that I will well and truly perform the duties of a notary public for the County of , to the best of my ability; and I further swear, or affirm, that I am not the holder of any public money belonging to the state, and unaccounted for. So help me God." DUTIES AND POWERS— to take acknowledgments relating to commerce and navigation, and to witness such deeds and papers as they are permitted by law. To demand acceptance and payment of com- mercial paper, or paper entitled to days of grace, to note and protest the same. To certify all official acts when required. To administer § 48] THE OFFICE AND ITS REQUIREMENTS. 39 oaths which are not required by law to be administered by a particular ofS.cer. To exercise all other powers inouiabent upon them by commer- cial usage or the laws of this state. They cannot issue attachments or garnishments, or subscribe affidavits or approve bonds for the same. JUEISDICTION — the county of their residence and appointment. SEAXi — to be provided for authenticating his official acts, having the impres- sion of his name officially, the name of the state and county of his ap- pointment. No seal is required to his attestation of deeds. EECOED — to be kept of his official acts signed by him with dates. EEMOVAIi — from county vacates office. LIABILITIES — for excess of charges. FEES — Protesting and notice not to exceed $1.50; administering an oath, 30e; attendance on any person to make proof as a notary and certifying same, $1.00; every other certificate, 50e. The cost of register- ing is a charge and must be charged in the costs at the same time and paid by the party for whose benefit the noting and protesting was done. COMMEECIAL NOTABIES PUBLIC FOE STATE AT LAEGE— ELIGIBILITY— citizenship. WOMEN— are eligible. APPOINTMENT— by the state librarian. TEEM — four years, revocable at any time by librarian. COMMISSION — the librarian issues it and keeps a record. COMMISSION— fee— $2.00. BOND— none required. OATH— to be taken. Form like that of county notaries. DUTIES AND POWEES— the same as county notaries. JUEISDICTION — have power to act in any county. LIABILITIES — same as county notaries. OFFICIAL SIG- NATUEES — must indicate that they are notaries for state at large. FEES— same as county notaries. NOTAEIES FOE MILITAEY DIS- TEICTS— APPOINTMENT— by judges of the superior court in their respective circuits at the term of court next preceding the vacancy or at some succeeding term after such vacancy has occurred. Eecommenda- tion of to be by the grand juries of each county. COMMISSIONED — by the governor. TEEM — four years. They are ex officio justices of the peace. Eemovable on conviction of malpractice in office. ACTS— bills of exchange, drafts and promissory notes, required by the laws of this state, may be proved by the certificate of such notary under his hand and seal; certificate must be filed in court at first term and remain until trial. JUEISDICTION — extends over their districts, and of other districts in certain cases. They may sue or be sued before the other in the district; may preside in any district of their county when the other is disqualified. OATH — before entering on their office, to be taken and subscribed before the ordinary of the county, viz.: "I do swear that I will administer justice without respect to persons, and do equal rights to the poor and to the rich, and that I will faithfully discharge all the duties incumbent on me as a justice of the peace for the County of , agreeably to the constitution and laws of this State, and accord- ing to the best of my ability and understanding. So help me God." §48. Hawaiian Islands— ELIGIBILITY— citizenship. APPOINT- MENT — by the attorney general. TEEM — until removal. OATH — to be subscribed to and filed in department of attorney general. SEAL — to be procured, having engraved on it the name of the notary, and the 40 NOTARIES PTIBIilO. [§ 49 words, ' ' Notary Public, " " Territory of Hawaii. ' ' ANNUAL LICENSE FEE— $10.00 for Honolulu and $5^00 for other judicial circuits. DUTIES AND LIABILITIES — when requested, notary must enter on record all losses or damages sustained or apprehended by sea or land, all averages, such other matters as by mercantile usage appertain to his ofSce, and cause protest of same. All facts, extracts from documents, shall be signed and sworn to by persons appearing for protest. He shall note, extend and record same, grant copies under his signature. Present for payment, etc., and protest, and give notice, of negotiable paper, and other duties usual by usage of merchants; same to be legal evidence. Also has power to administer oaths, take depositions and acknowledg- ments. Must inspect and note erasures or changes before taking acknowl- edgment, under penalty. False or misleading statements in certificate subject to penalty as well as liability for eivU damages. False certifi- cate of acknowledgment, guilty of forgery. EECOED — to be kept of all official acts. EEMOVAL — by resignation, death or otherwise, records to be deposited with clerk of nearest court of record. Neglect to do so subjects to penalty. PEES— -noting protest, $2.00, each; notice of, $2.00; noting any other protest, $3.00; each notice of, $3.00; depositions, $2.00; oath and certificate, 25o. § 49. Idaho — ELIGIBILITT— qualifications of an elector. APPOINT- MENT— by the governor. COMMISSION— fee— $10.00. TEBM— four years. BOI^D — with two or more sureties for $1,000, approved by the county probate judge. Bonds of surety companies authorized to do busi- ness in state need not be approved. OATH — to be taken. Bond and oath of office with signature and impression of his official seal to be filed with the secretary of state. Certificate of the filing under the seal of the secretary of state must be filed with the clerk of the county district court. DUTIES — to demand acceptance and payment of bills of exchange, or promissory notes; to protest same for nonacceptance or nonpayment, and such acts as the law of nations and commercial usages require; to take acknowledgments, depositions, administer oaths and affirmations. PEOTEST — under his hand and seal, stating presentment and nonacceptance or nonpayment thereof, the service of notice specify- ing the mode, place of residence of the party and the postoffice nearest to, is prima facie evidence of the facts. SEAL — to provide and keep an official seal having on it "Notary Public" his name and "State of Idaho." All official acts to be authenticated with same. EECOED — of his official acts to be kept by him, and to give certified copies of when requested and paid for. EEMOVAL — by death, resignation or removal from the county, or disqualification, his records and papers must, within thirty days, be delivered to the county recorder, who must deliver them to the notary's successor. A notary having the records and papers of his predecessor may grant certificates or give certified copies with same effect as his predecessor. LIABILITY — for official misconduct or neglect the notary and his sureties are liable to the parties injured for all dam- ages. FEES — protesting, $3.00; serving notice of protest, $1.00; record- ing protest, 50c; drawing papers not here provided for, per folio, 30c; § 50] THE OFFICE AND ITS REQUIREMENTS. 41 taking an acknowledgment, 50c; administering oath, 25c; certificate un- der Bsal, 50c. §50. Illinois — ELIGIBILITY — twenty-one years of age; a citizen of the United States, and a resident of Illinois for one year. WOMEN — are eligible. APPOINTMENT— by the governor, with the advice and consent of the senate. As many as he deems necessary in each county. A petition, signed by fifty legal voters of the city, town, village or pre- cinct where the applicant resides shall be sent with the application. COMMISSION — fee — ^payable to the secretary of state when the appli- cation is made, $2.00. TEEM — four years, unless sooner removed by the governor. BOND — payable to the people of the state of Illinois, for $1,000, with sureties approved by the governor, conditioned for the faithful discharge of the duties of the office. OATH — to be taken and subscribed to. Oath and bond to be deposited with the secretary of state. On receipt of commission, same must be recorded in the office of the county clerk, for which a fee of 25c shall be paid. SEAL — an offi- cial seal shall be procured, with engraved words descriptive of the office, the name of the place or county where resident. With this he shall authenticate his official acts. All the above is required before acting. DUTIES AND POWERS — to protest negotiable instruments for non- acceptance or nonpayment, although protest is not required except in the case of foreign bills of exchange. Notice of dishonor to be given in accordance with the Uniform Negotiable Instruments Law, art. VII, sees. 89-118, post ch. V. JOBISDICTION— can execute the duties of his office throughout the state, while he remains in the same county. EECOED — to be kept of all protests and notices of same with descrip- tion of instrument and amount. EEMOYAL — by expiration of office or death, all his official records shall be deposited with his county clerk. If reappointed to office he shall retain same throughout the term of re- appointment. CERTLPICATE OF MAGISTEACY— can be procured from the clerk of the county where entry was made under the clerk's hand and official seal, or can be procured from the secretary of state, under the great seal of the state. Fee, 25c. AU notarial acts of notaries in this state authenticated by seal prior to the passage of the present law are held good and valid. Act of May 1, 1873 (J. & A. IF 7844). All certificates of notaries in this state, prior to the present law, failing to show the name of city, town or county for which the notary was commissioned, if shown from the certificate to have been performed in this state, are validated. (Laws 1869, J. & A. 1[ 7851.) LIABILITY— for neglect. Where the law imposes an obligation and confers the power to enforce it, it implies a liability for neglect of the obligation. Gillett V. Ellis, 11 111. 579. FEES — for taking acknowledgment of a deed, mort- gage, power of attorney, or other writing, with certificate under seal, 25c; for noting a bond or promissory note, or bill of exchange for pro- test, 25c; for protesting bond or bill of exchange, 75c; for noting pro- test 25c; for noting marine protest and furnishing one copy thereof, $1.00; for extending marine protest and furnishing one copy thereof, $4,00; each additional copy furnished, $1.00; for giving notice to drawees 43 NOTAEIES PUBLIC. [§ 51 and indorsers, each, 25c; for any other certificate under seal, 25c; for administering oath to an affiant, 25c; for taking depositions, for each 100 words, in counties of first and second classes, 15e; in counties of the third class, 10c. §51. Indiana — ELIGIBILITY— certificates of good moral character and qualifications from the judges of the circuit courts of the county of the applicant. WOMEN — are eligible. Prosecuting attorney and mem- ber of legislature may perform duties of notaries. APPOINTMENT— by the governor. COMMISSION— fee — $1.00. For recording bond, 25c, to secretary of state and clerk of circuit court. TEEM — four years. "Wilfully acting after expiration subject to a fine from $25 to $500. BOND — to be filed with the clerk of the county circuit court; approval by him for $1,000. OATH — ^to be taken before entering upon their du- ties. POWERS — to do all acts authorized, by the common law and the custom of merchants; to take and certify acknowledgments, affidavits, depositions; administer oaths. JUEISDICTION — ^throughout the state but not compulsory beyond his resident county. SEAL — to procure a seal indicating his official character, with such other devices as he may choose. All acts not attested by such seal to be void. But one protest on bank notes. All the bank notes held or owned by any individual or his law- ful attorney on any one day and presented at any bank for protest, shall be, by the notary public, carefully counted, sealed up in a package, and forwarded to the office of the auditor of state, and shall be entitled to but a single protest. PENALTIES — imposed for office holder acting as a notary, falsely attaching affidavit or acknowledgment, failure to explain instrument, acting after term expires, exacting fees for more than a single protest of bank notes, and for failure to state date of expiration of commission in certificate, etc. EECOED — of official acts may be kept. A notary's certificate, attested with his official seal, is presumptive evidence of the facts stated. Applicable to all notaries in the United States. WHO CANNOT ACT AS A NOTAET— an officer in any corporation, association or bank in the business of such concerns cannot act as a notary; nor a person holding- a lucrative office there. An acceptance of such vacates his office as notary. Jurat must give expiration of his office under a penalty of $25. PEES — certificate and seal, 50c; taking deposition, for 100 words, 10c; administering an oath, 10c; each protest, 50c; each notice of protest, 25c; record of same if kept, 50c; copying protest, for 100 words, 10c; acknowledgments and seal, 25c; certifying to certificate of parent or guardian, lOe. §52. lowa^-ELIGIBIMTY— citizenship. APPOINTMENT— by gov- ernor. COMMISSION — fee — $5.00. If satisfactory the commission will issue from the secretary of state, who will advise the clerk of the dis- trict court of the county. He will file same for record. Eevocation occurring, the governor will advise the party and the clerk of the district court. TEEM — three years from July 4. Governor will notify of expira- tion on or before May 1 of year of expiration. BOND — for $500, ap- proved by the clerk of the county district court, shall with signature and § 53] THE OFFICE AND ITS REQUIREMENTS. 4o impression of official seal attached be filed with the governor. OATH— to be taken. POWERS and duties of the office are such as pertain by the custom law of merchants. May take acknowledgments in counties adjoining that of their residence in which a certified copy of their certi- ficate of appointment may be on file with the clerk of the district court. SEAL — to procure a seal having the. words "Notarial Seal," "Iowa," and the notary's name at length and at least initials of Christian name. EECORD — of all notices sent and to whom sent is required. REMOVAL — from office or the county, the records of the office are to be deposited with the clerk of the county district court within three months under penalty and liability to party injured thereby, clerk to keep same and give attested copies of when required. LIABILITY — acting after re- moval or expiration of office, or signing documents when the parties have not appeared before him, shall be fined not less than $50 and re- moved from office. EEES — protesting, 75c; registering protest, 50c; being present and noting a demand, tender or deposit, 50c; administer- ing an oath, 5c; certifying to same under seal, 25c; certificate under seal, 25c; other services same as justices of the peace; drawing and cer- tifying an affidavit, 25c; affixing seal, 35c; manuscript of papers under his control, for 100 words, lOe; taking deposition, for 100 words, lOo. §53. Kansas— ELIGIBILITY— citizenship. WOMIEN— not eligible. APPOINTMENT — by governor. The commission, bond, oath of office, signature and impression of his seal to be recorded with the clerk of the county district court and a fee paid of one dollar. After record the papers to be sent to the secretary of state with a fee of $1.00 for filing the same. TERM — ^four years. BOND — to be given with one or more sureties approved by the county district court clerk for $1,000. OATH — to be taken. DUTIES AND POWERS— to take acknowledgments, ad- minister oaths, demand acceptance or payment of bills of exchange and promissory notes, protest same when required, and to exercise such other powers and duties as required by the law of nations and commercial usage. No notary shall take acknowledgment or administer oath when acting himself in behalf of a corporation. JURISDICTION — county of appointment. Notary residing in town or city located in two or more counties is authorized to act in either county on filing bond and oath in each county. SEAL — to be procured containing notary's name and place of residence. All official acts to be authenticated with it. SIGNA- TURE — notary shall add to signature date of expiration of commission. Neglet^; of same is misdemeanor punishable by fine of $100. FALSji! ACKNOWLEDGMENT — ^penalty for making false certificate is fine not to exceed value of property conveyed or affected. RECORD — to be kept of official acts, certified copies to be given when required, and customary fee paid. Protests for banks shall be kept in a book provided by the bank for that purpose, the same to be delivered to the bank when re- moved from office. REMOVAL — from office by resignation, disqualifica- tion, death or otherwise, all official records and papers to be placed on file with the clerk of the county district court within thirty days. Limitation of suit against a notary or his sureties is three years after 44 NOTAEIES PUBLIC. [§ 54 the action accrues. FEES — protest and recording, 25c; notice of, 10c; certificate and seal, 25e; other services, the game fees allowed district court clerk; pension cases, no fee over 15c. §54. Kentucky— ELIGIBILITY— must be twenty-one years of age, resident of county, person of good moral character and capable of dis- charging his duties, which facts must be indorsed by approvers of ap- plication. WOMEN — ^may be appointed. APPLICATION— in writing, must be approved by circuit judge, circuit clerk, county judge, county clerk, magistrate, or members of general assembly of county of residence of applicant. Such officers are prohibited from charging any fee for their approval. APPOINTMENT — the governor, with consent of the senate to issue commission. COMMISSION— fee— $2.00. TERM— four years. BOND — ^with good sureties to be filed in his county court for faithfulness. OATH — to be taken in his county court before acting, to honestly and diligently discharge the duties of his station. DUTIES AND POWERS — take acknowledgments, oaths, protest commercial paper. NOTICE OP DISHONOR — after protesting, notice of dishonor to be sent to all parties thereto; to fix their liability when their residences are unknown to him, he shall send the notices to the holders. Names of the parties to whom notice was sent shall be stated in the protest, also the time and manner of. JURISDICTION — ^named in the commis- sion. SEAL — to be procured to authenticate acts. RECORD — of pro- tests to be recorded in an indexed book, copies of which, certified by the notary under his official seal, shall be prima facie evidence in all courts of this commonwealth. REMOVAL — by expiration, death, or otherwise, all records of office to be filed with the clerk of the county court. The clerk's certified copies from such records shall be evidence in all the courts of the state. Date of expiration of commission to be stated on all his certifications. His signature and official seal is sufficient authen- tication when placed on all instruments required. Vacancies filled by the governor during the senate's recess, the appointment to expire at the end of the next session of the senate. Protests in other states properly certified shall be received as evidence in this State. LIABILITY' — a false statement in protest of notices being sent shall be deemed false swearing, for which he shall be confined in the penitentiary not less than one nor more than five years. Failure to record protests, subject to forfeiture of fee and a fine of $5.00 recoverable before any justice of the peace. NOTARIAL FEES — every attesting, protesting, or tak- ing, acknowledging, and certifying, under seal, 50c; recording same, 75o; notice of protest, each, 25c; administering oath with certificate, 20c. § 55. Iiouisiana — ^ELIGIBILITY — a male citizen, twenty-one years of age, resident of the parish five years, to pass examination before the judge of the supreme, district or parish court. In New Orleans, two years' residence, of good moral character and competent. APPOINT- MENT — ^by the governor v;ith consent of senate. N. O. parish, not over 185 can be appointed. TERM — ^five years, or as often as bonds are re- newed. BOND — $5,000 for Orleans parish, $1,000 for other parishes, with § 56] THE OFFICE AND ITS REQUIREMENTS. 45 approved Becurity, executed before any district court clerk, same with certificate to be filed with auditor of public accounts. Renewable every five years. In New Orleans, $10,000, with one or more good solvent securities appointed by judge of New Orleans civil district court. OATH — DUTIES — to make inventories, appraisements, partitions, receive wills, protests, matrimonial contracts, conveyances, contracts and instruments ■in writing; to hold meetings of creditors and families, take acknowledg- ments, affix seals upon deceased persons' effects, and raise same; to ad- minister oaths. JUEISDICTION — their resident parish. SEAL — to pro- cure seal. RECORD — required for protests parties, etc., with facts. Also all deeds to be recorded with register for New Orleans within 48 hours after passage. Acts to be performed in their office unless party pre- vented. NAMES — Christian name of married or widowed woman to be given, adding that she is the wife or widow of . Christian name and not initials always to be given by notary under penalty of $100. Regis- tration refused if otherwise. Married women over twenty-one years can, with husband's consent, renounce their dotal, paraphernalia and other rights in favor of third parties. Sale of property acts cannot pass until all taxes are paid. Penalty for violating is $50 to $200. Movable property acts to be recorded with parish recorder; also marriage con- tracts and aU acts passed within fifteen days. In New Orleans the office to be kept in a brick building, covered with tile, slate or terrace, under penalty. UABILITY — to suspension and damages for malfeasance, fail-, UTS to record acts. Absence granted by governor. Custodian of notarial records for parish of New Orleans to charge same fees as notaries for copies. FEES — original writing, per 100 words, 20c; writing by others and passed by notary, 25c; recording same, per 100 words, 10c; certifi- cate and seal, every time, 25e; copies of documents, per 100 words, 10c; proving acts under private signature, 25c; proving same, per 100 words, lOo; certificate to mortgage and seal, $1.00; and for per 100 words after first 100, 20c; canceling mortgages and seal, $1.00; seal on effects of deceased persons, $2.00; swearing appraisers, each, 25e; recording acts of other notaries, per 100 words, 10c; inventories out of office, per hour, 50c (not over 12 hours to be charged); process, verbal, of inventory, per 100 words, 25e; and recording certificate and seal, 25c; inventories in the office, per 100 words, 20c; partitions, per 100 words, and recording, 20c. Receipted fee bill to be given each person when paid. §56. Maine— ELIGIBILITY— a citizen. APPOINTMENT— by the governor with consent of the council. COMMISSION — ^fee — $5.00, to be paid before acting. TEEM — seven years. BOND — to be given. OATH —of office to be taken and subscribed to. DUTIES AND POWERS— When requested he shall record all losses or damages sustained or appre- hended on sea or land, and all averages, and such other matters pertain- ing to his office; grant warrants of survey on vessels; all facts, extracts from documents and circumstances so noted, signed and sworn to by the parties protesting; he shall note, extend and record the protests made, grant authenticated copies thereof under his signature and official seal when requested and paid for; present any negotiable paper for acceptance 46 NOTABIES PUBLIC. U ^7' or payment to partj liable; notify parties thereto; record and certify contracts; take depositions the same as a justice of the peace and quorum; take acknowledgments; administer oaths; certify country prod- ucts, and do all acts authorized by law and the usages of merchants. Notary who is member of a corporation may act, but act is unlawful when notary is party to instrument. SEAL — shall keep a seal having engraved thereon his name, "Notary Public," "Maine," the state coat of arms, or other device, as he chooses. EECOED — to record same in a book for that purpose. Acts under his seal and signature shall be received as evidence in all courts. EEMOVALi — by resignation or other- wise, or by death, his records shall, within three months, be deposited with the clerk of the county judicial courts. Neglect forfeits from $50 to $500. LIABILITY — a wilful destruction, defacing or concealment of records forfeits not less than $200 nor more than $1,000, and liability for damages to party injured. The penalties provided for one-half ac- crues to the state, balance to the prosecutor. The secretary of state shall, on the first day of June and December, forward to the clerks of the state courts, registers of probate courts, judges of municipal and police courts, clerks of the United States courts, and United States pen- sion agents in the state, a list of all notaries in the state. FEE — for protesting, notifying parties and recording, $1.50; oaths, affidavits, depo- sitions, 20c; writing depositions, per page, 12e; acknowledgments, 20c. § 57. Maxylamd — ELIGIBILITY — good character, integrity and abil- ities, citizens of the United States, resident of this state two years, to be resident in such place designated in the commission. WOMEN — are eligible. APPOINTMENT — ^by the governor, with consent of the senate; two to a county. Special laws apply as -to number for Baltimore City. COMMISSION — fee — $5.00 to state treasurer and 50o is payable to the clerk issuing the commission. BOND — ^with security for $6,000 to be given, subject to the approval of the governor, if the appointment is for Baltimore City, and $2,000 if for any county in the state. Neglect to give bond within thirty days forfeits the appointment. OATH — to be taken and subscribed to before the clerk of the superior or circuit court. DUTIES — to administer oaths, take acknowledgments, make protests, certified under his seal of sffioe. Any special acts required to be per- formed in another county. SEAL — of office to be procured by the notary for attesting his official acts, having engraved upon it such device as he may desire and the name, surname and office of the notary and his resi- dence. JURISDICTION— in other cities and counties as well. EECOED — of all official acts to be kept and certified copies given when required and payment made for. EBMOVAL — ^by death or otherwise aH official records to be deposited with the county court clerk within sixty days. If in Baltimore, in the office of the superior court clerk. One-half pro- test fees to be paid the state treasurer in the first week of January, April, July and October, under forfeiture of $50 in each case, providing fees exceed $350 per annum, and in Baltimore $500. The statement of protest fees to be given upon oath. No protest to be signed or issued unless stamped by the comptroller, under penalty of $500 for each offense. § 59] THE orriCE and its requirements. 47 to be recovered by indictment, one-half for the state, balance for ths informer. No protests to be rejected as evidence if otherwise admissible. LIABILITY — ^for misfeasance or unfaithfulness in office. N0TAEIB8 PUBLIC TEES — protesting, $2.00; drawing proceedings exceeding two sides, 50c; do., per side, 2Sc; registering or copying proceedings, for every* side, 10c; presenting for acceptance, if accepted and not protested, $1.00; noting for nonacceptance, if not protested, $1.00; noting a marine pro- test, $1.00; afiixing seal, 50e; every search where no copy is made, 25c; administering an oath or taking an acknowledgment, 12%c; traveling more than 3 miles, per mile, 20e; each notice mailed or delivered, 5c; presenting and collecting note or bill, $1.00; other acts in proportion. § 58. Massachusetts— ELIGIBILITT— citizenship. APPOINTMENT— by the governor, with consent of the council. COMMISSION— fee — $5.00. TEEM — seven years, unless removed. BOND — none required. OATH — ^must take. DUTIES — can administer oaths, take affidavits of banks, protest commercial paper, and give notice of, take acknowledg- ments, acknowledgments of limited partnerships; depositions and oaths. Railroad and street railway police may take oath before. Notice to owners of insecure buildings, who live out of the commonwealth, may be served by a notary public, under his official seal. Notaries can be ap- pointed registrar of voters, state ballot commissioner and license com- missioners. Jurisdiction in all counties of the state. SEAL — official seal required. EECOED — to be kept of official acts. EEMOVAL — by gov- ernor with consent of council. LIABILITY — knowingly destroying, de- facing or concealing records or official papers subjects to a penalty not excefeding $1,000 and liability for damages. Forgery of certificate or record, a crime. Acting after expiration of office is punished by fine of $100 to $500. Must be satisfied as to the identity of party making oath to nomination papers under penalty of $10 to $50 for each offense. FEES — protesting, $500 or more, $1.00; protesting, less than $500, 50e; recording same, 50e; noting, 75c; notice, each, 25c; provided a $500 or more does not cost over, $2.00; provided less than $500 does not cost over $1.50; the noting, recording and notice not to cost over $1.25. § 59. Michigan — ELIGIBILITY — twenty-one years of age, resident of the county and a citizen of the state. WOMEN — are eligible. AP- POINTMENT — ^by the governor. COMMISSION — on a written applica- tion, stating age, , and the indorsement of a member of the legislature, or of the circuit or probate judge of the county, district or circuit where applicant resides, same to be presented to the governor with a fee of $1.00 inclosed. TEEM — four years. OATH — to be taken before the county clerk and with him filed within ninety days after receiving no- tice of appointment. On the last day of December, March, June and September the clerk transmits to the state treasurer and secretary of state a written list of all persons and their addresses to whom he has delivered commissions during the quarter; also the date of the filing of their oath and bond. For which applicant pays 50c. County clerk, if appointed, files his oath with the county probate judge. BOND — $1,000, 48 NOTARIES PUBLIC. [§60 approved by ths county clerk. DUTIES AND P0WEE8 — to take a»- knowledgments of deeds, oaths, affidavits, demand acceptance of billB of exchange, promisBory notes, protest same for nonpayment or nonaceept- ance, and such other duties required by the law of nations and commer- cial usage, other states, government, or country. Cannot act if individ- ually a party to instrument. Eesidence must be in the county for which appointed, but they can act throughout the state. Always state expira- tion of commission. SEAIi — to provide a seal to authenticate his acts. REMOVAL — ^when occurring, all official records and papers shall be de- posited with the county clerk within three months under a penalty of $50 or $200. EECOEDS OP THE OKFICE— to be kept on file by the county clerk. If previously destroyed or concealed, the party so doing shall forfeit and pay damages to the party injured not exceeding $500. Attorneys in a case cannot administer oaths when notaries. Acts re- ceived as presumptive evidence when under his hand and official seal. FEES — administering oath for pension, etc., to soldiers or sailors, 15c; no fee for administering oath of office to legislators, military or town- ship officers; protest, when necessary by law, 50c; protest, otherwise, 25c; notice of protest, each, 25e; affidavit, per folio, 20c; copy, per folio, 6c; drawing affidavit or other papers not mentioned, per folio, 20e; copying the same, per folio, 6c; taking acknowledgments, etc., 25e for one, lOe for additional. § 60. Minnesota — EIxIGIBIIjITY — citizen of the state, twenty-one years of age, resident of county. APPOINTMENT — by governor with consent of senate. COMMISSION — fee — $3.00. Eecord of commission to be made with the clerk of the county district court on payment of $1.00. TEEM — seven years. BOND — $2,000, with sureties approved by the governor filed with secretary of state. OATH — required for faithfulness, etc., which, with the bond, to be filed with the secretary of state. POWEES — jurisdiction throughout the state while resident of the county for which appcinted. To administer oaths, take depositions, certify acknowledgments, receive, make out and record notarial protests, to compel attendance of witnesses in taking depositions. Officers or stockholders of corporations may act when notaries. SBAi — must pro- vide with same design on as the state seal, together with the words "Notary Public," and name of the county where resident. EECOED- — to be kept of protests and notices. EEMOVAL — the seal and register to be deposited with the clerk of the county district court. LIABILITY — for acting after expiration of office or for appending signature when parties have not appeared before him, guilty of misdemeanor. Por over- charging or misfeasance in office subject to removal. PEES — witnesses, per day, $1.00; witnesses, travel, per mile, 6c; commission for taking deposition, per folio, 15c; protest, when necessary by law, $1.00; protest, otherwise, 25c; notice of protest, each, 25c; drawing affidavit, per folio, 20c; copying affidavit, per folio, 6c; administering oath, 25c; taking acknowledgments, 25c; taking deposition, per folio, 15c; recording instru- ment, per folio, 10c. SIGNATUEE — must print, typewrite or stamp his name after his signature and indorse date of expiration of commission. § 62] THE OFFICE AND ITS REQUIKEMENTS. 49 § 61. Mississippi— ELIGIBIIITT— citizen. APPOINTMENT— by the governor. COMMISSION— fee— $5.00. TEEM— four years. BOND— for $2,000, with sureties approved and conditioned by the board of super- visors and county chancery clerk. OATH — to be taken. Oath and bond to be filed with the clerk of the county chancery court. DUTIES — to administer oaths incident to his office, receive proofs or acknowledg- ments, make declarations, and other matters commercial usage requires, all under official seal. SEAL — to be provided, having on the name of the city or town, with that of the state, his name on the margin, and "Notary Public" across the center. All his officials acts to be attested with same. EECOED — ^he shall keep a register of all his official acts and give certified copies of same when requested and paid for. EB- MOVAL — by any cause, all official papers and records to be deposited with the county circuit court clerk within thirty days. The clerk may maintain action for them. Ex offlolo notaries, justices, of the peace, clerks of the circuit and chancery courts, by virtue of their office, can discharge all the duties of notaries and attest their acts by the common seal of office with the same effect. The board of county supervisors to provide a notarial seal with the inscription, "Notary Public of the County of , ' ' around the margin and the image of an eagle in the center, which seal shall be kept in the office of the clerk of the circuit court for the use of ex officio notaries public. LIABILITY — unfaith- fulness in office. FEES — Protesting, $1.00; registering same, 50c; attest- ing letters of attorney, 50e; affidavit to an account, 50c; oaths, 50c; notarial procuration and seal, $1.00; certifying sales at auction, 50c; taking proof of debts, 50c; copy of record and affidavit, $1.00; insurance protest, $1.00; acknowledgment, 35c. § 62. Missouri — ELIGIBILITY — age twenty-one years, a citizen of the United States and of this state. "WOMEN— are eligible. APPOINT- MENT— by the governor. COMMISSION— fee— $5.00. TEEM— four years. BOND — with two securities for $2,000. In counties of more than 100,000, $5,000, approved by the clerk of the county court (in St. Louis, by the clerk of the circuit court). Bond and oath shall be filed and recorded with the county clerk; in St. Louis, with the circuit clerk. The bond after recording shall be filed with the secretary of state. No suit shall be instituted against any notary or his sureties more than three yeArs after action accrued. New bond required on verified state- ment of citizen that bond is insufficient. OATH — to be taken and in- dorsed on the commission. DUTIES — may administer oaths and affirma- tions, take acknowledgments, affidavits, depositions, make declarations and protests, under official seal. Have the power and perform the duties of register of boatman. SEAL — shall provide a notarial seal having on their name, "Notary Public," county or city where resident, and the name of the state. Shall designate in writing, in certificates signed by them, the date of expiration of their commission; shall not change their seal. Shall authenticate all their official acts therewith. EECOED — shall keep a record of their official acts, except those connected with judicial pro- ceedings. LIABILITY — upon the application of any clerk of a circuit 4 50 NOTARIES PUBLIC. » [§ 63 or criminal court of this state the secretary of state shall send to the clerk the original bond of any notary when required as evidence in a suit at law or for any indictment, the clerk to safely keep and return same when suit is determined. FEES — noting for protest, 15c; noting without protest, 35e; entering protest, 35c; registering protest, 35e; notice to each indorser, 15o; travel, per mile, 8c; taking acknowledg- ments, etc., 50c; marine or fire insurance protest, $5.00; drawing contract of a boatman, 75c; certificate attested by seal, 50o; entering of a boat- man not acting according to contract, 15o; sealing same, 10c; copies of records, etc., per 100 words, 15c; other fees the same as justices of the peace. § 63. Montana — EUGIBILITy — a citizen of the United States and the state for at least onte year preceding appointment, and must continue to reside in state. APPOINTMENT — by the governor. May be removed on ten days' notice. COMMISSION— fee — $5.00. Eile with county clerk, fee, 50c; each certificate, $1.00 to secretary of state; to clerk, 50e. TEEM — three years. BOND — $1,000, approved by secretary of state. Samei, with oath and signature to be filed with secretary of state. Fee, $2.00. OATH— to be taken. DUTIES — demand acceptance, pay- ment of or protest of conuuercial papers; take acknowledgments, depo- sitions, affidavits; administer oaths, etc.; give certified copies of records in his office when required and paid for. May act for corporation unless individually party to instrument. Jurisdiction throughout state. SEAL — to provide a seal, having engraved on "Notarial Seal," state, his surname and at least initials of Christian name. All his official acts to be authenticated with same. On certificate following words "notary public for State of Montana," must appear, residence and date of ex- piration of commission. Always sign name and office. EECOED — to be kept of official acts. EEMOVAL — from office, official documents, etc., to be deposited with the county clerk. Liable for neglect to do so. Clerk to furnish certified copies when required and paid for. LIABIL- ITIES — with bondsmen, for misconduct and neglect. Attempts at fraud or deception, penalty one to fourteen years. FEES — protesting, $1.00; notice of protest, $1.00; recording every protest, $1.00; maximum fee, $2.50 for protest; affidavit, deposition, per folio, 20c; acknowledgments, $1.00; additional signature, 50c; oaths, 25c; certifying affidavit with oath, 50c. §64. Nebraska^ELIGIBILITT— resident of county. WOMEN— are eligible. APPOINTMENT — by the governor upon petition of twenty- five legal voters of the county. COMMISSION — shall be forwarded to the county clerk, who shall within five days notify the person appointed of its receipt, the person shall within thirty days execute a bond, deliver it to the clerk, qualify, and receive his commission. Fee to secretary, $1.00; to clerk, $2.00; both payable to the county clerk. TEEM — six years, unless sooner removed. BOND — to be given for $2,000, with two county resident sureties, or one surety if an incorporated surety com- pany authorized by the state to transact such business. Sureties shall § 65] THE OFFICE AND ITS REQUIREMENTS. 51 make oath on the bond that they aio resident freeholders of the county and are worth at least $2,000 over all indebtedness and liabilities, and Bubscxibed to before a person authorized to take oaths, who shall attach his certificate. dATH — to be indorsed on the bond, subscribed and cer- tified before an authorized officer. The county clerk shall file the bond, record the commission, bond, justification of the sureties and oath and send the secretary of state notice. DUTIES — within his county, to ad- minister oaths, take depositions, issue summons and punish for refusal to testify, acknowledgments, demand acceptance, payment, or protest and give notice of, and duties customary. His acts and record, certified and sealed over his signature, shall be presumptive evidence in all courts of this state. May procure supplementary commission to act throughout state on filing bond of $6,000. Filing of copy of bond and certificate prerequisite to acting in another county. SEAL — shall provide a seal having engraved on "Notarial Seal," name of the county, "Nebraska," and, if desired, his name, and the date of expiration of his commission. All his official acts shall be authenticated therewith, including signature, also the date of expiration of office. EECOED — of all his protests, and notices of, shall be kept with copy of instrument, except those recorded elsewhere by law. REMOVAL — by any cause, or removal from the coun- ty, or death, within thirty days he shall enter in his official record a. certificate, over his hand and seal, that su& record is his official record to the time of expiration of office. Deposit it with the county clerk. Failure to comply subjects to a forfeit and penalty of $200. LIABILITY — for any neglect or misconduct in office on official bond. Eemovable by governor, on hearing, for malfeasance. FEES — protest, $1.00; record- ing same, 50e; notice of protest, each, 25c; administering oath, 5c; taking affidavit, 25c; taking depositfon, each 100 words, 10c, and no more; certificate and seal, 25c; taking acknowledgments, 50c. §66. Nevada— ELIGIBILITY— a qualified elector. "WOMEN— over twenty-one years of age, who have resided in the state one year and in the county or district six months preceding appointment, are eligible. APPOINTMENT — by the governor. COMMISSION- fee-^$10, to secre- tary of state. TEEM — ^four years, unless removed. BOND — for $2,000, sureties approved by county district judge. OATH — to be taken and . indorsed on commission. Bond and oath to be recorded with county clerk. DUTIES — ^to demand acceptance and payment or protest com- mercial papers, take acknowledgments on the instrument or attached, depositions, affidavits; administer oaths, proofs, etc. May act for bank if not individually party to instrument. JUEISDICTION — the state. SEAL — to provide a seal having engraved on his name, county, initials of the state and words "Notary Public." All official acts to be authen- ticated with same. EECOED — ^to be kept of all acts with names of parties, etc. This and seal are exempt from execution. EEMOVAL — by any cause, records to be delivered to the county recorder within sixty days or to his successor on the termination of his office. LIABILITY — for neglect or misconduct, with damages and a fine not exceeding $2,000, with removal. Certified copies of his records, under his hand and seal, 52 NOTARIES PUBLIC. [§ 66 are prima facie eridenee in courts of the state. FEES' — drawing and copying protest, $2.00; serving notice of protest, $1.00; drawing aflBdavit, deposition or other pap«r not provided for, per folio, 30c; taking ac- knowledgment with seal and certificate, for first signature, $1.00; addi- tional signatures, each, 50c; administering oath or afSrmation, 25c; each certificate including writing and seal, 50e. \ § 66. New Hampshire— ELIGIBILITY— qualified to vote. WOMEN— are eligible. APPOINTMOENT — by governor, with advice of the council. COMMISSION— fee— $1.00. TEEM— five years. BOND— none required. OATH— to be taken. DUTIES AND POWERS— protest bills, notes, etc. Same certified under his hand and official seal shall be evidence of the facts stated. In addition, he shall have the same powers as justices of the peace as to depositions, acknowledgments and oaths. EEMOVAL — by any cause, within six months, all records, etc., must be deposited with the secretary of state. Deposit to be made by representative in cases of death, insanity, etc. Certified copies given when required and paid for. LIABILITY — ^refusal or neglect to deliver records on demand, or knowingly destroying or concealing same subjects to a fine not exceeding $1,000, one half for the prosecutor, the other half for the county; also liable for damages for injuries resulting to any person. For overcharging, a fine of $50 each time. FEES — ^protesting under seal, 50c; certificate under seal, 25c; waiting on person for payment or witnessing and certi- fying under seal, 50c; every notice of nonpayment, 25c; taking deposi- tions, per page, 17c; swearing witness and caption of deposition, 34c. §67. New Jersey— ELIGIBILITY — citizenship. WOMEN— may act. APPOINTMENT- by the governor. COMMISSION— fee— $10.00, to be sent with the application and returned if appointment not made. TERM — five years. Removable at pleasure of governor. BOND — none re- quired. OATH — to be taken and subscribed to before the county clerk for faithfulness in office. Fee for same, 50c. POWERS— to protest bills and notes. SEAL — to be procured to authenticate official acts; not re- quired to oaths. RECORDS — to record all bills of exchange or promis- sory notes, protested by them, the time, place, when, where, upon whom demand was made, with a copy of the notice of nonpayment, how served, time, when, if sent, manner, to whom, address, time of mailing and where, name to be signed. REMOVAL — ^by any cause, record to be deposited with the county clerk. Certified copies to be made under their hand and seal when required and paid for. Records of notaries of other states, duly proven copies, shall be received as evidence in any court of this state, notice having been previously given the adverse party. LIA- BILITIES — for excessive fees and unfaithfulness in office. FEES pro- testing foreign bills, $1.75; protesting notes and inland bills, each, $100.00, $1.50; less than $100.00, $1.30; forfeit for each overcharge, $25, with cost for collection; administering each oath, 25c; examination of wit- nesses, 30o per folio; copy of testimony, 10c per folio; certifying exhibit shown to witness, 15c; taking proof of deed, $1.00; acknowledgment, $1.00; affidavit, 25c; acknowledgment of warrant to satisfy judgment § 69] THE OFFICE AND ITS HEQUIEEMENTS. 53 $1.00; ackno-wl«dgm»at of foreign deed, $1.00. CBETrFICATES OJP AUTHORITY— iB»u6d by eounty clerk for filing with other county clerks. Fee for issuance, 50c; fee for filing same, $1.00. County clerks to issue certificates showing authority of notary, etc., fee, 25ci § 68. New Mexico — ELIGIBILITY — ^resident of state one year, twenty- one years of age, of good moral character. WOMEN — are eligible. AP- POINTMENT — by the governor. Military posts in the territory may also have a resident notary, appointed by the governor, who shall be invested with same powers. COMMISSION — $2.50 to secretary of state, $1.00 to county clerk for recording. TEEM — four years. BOND — to be given to the territory for $500, with two securities, conditioned for faithful performance of his duties. OATH — to be taken and indorsed on his commission before entering upon his duties. Bond, commission and oath to be recorded with his county clerk. To be sued upon by any injured party. DUTIES AND POWERS— to administer oaths, afarmations, re- ceive proofs or acknowledgments, make declarations and protests, certify same under their hand and official seal. May be appointed as referees in matters involving dependent or neglected children. SEAL — to be pro- cured containing his name, title and county. All acts to be authenticated therewith. RECORD — to be kept of all official acts, and certified copies furnished when required and paid for. Penalty imposed for noncom- pliance. REMOVAL — by any cause, all official papers, etc., to b© de- posited with the county clerk within thirty days, who will deliver same to the successor. The certificate of a notary, under his official seal, shall be prima facie evidence of the facts. LIABILITY — any notary public wilfully issuing a false certificate shall be punished by a fine of not less than $20 nor more than $500, and liable to the party injured. Pen- alty imposed for acting when disqualified. Removed for noncompliance with statute, or malfeasance. FEE — protest and certificate, $2.00; notice of, each, 25c; certificate under seal, 25c; oaths, 5c; acknowledgments, 25c. For depositions, noting meetings, $1.00; noting adjournments, $1.00; swearing witnesses, 25c; certifying and transmitting record, $1.50; tran- scribing, 15c per folio; additional copies, 5c; per folio; mileage, 10c per mile. § 69. New York — ELIGIBILITY— citizen, to reside in county where appointed. WOMEN— are eligible. APPOINTMENT— by the governor, by and with the consent of the senate; one can be appointed for each bank applying. He can appoint for vacancies during recess of the sen- ate. COMMISSION — fee — in New York county, Kings county, or Bronx county, $10.00. In any city having a federal or state enumeration of more than fifty thousand and less than six hundred thousand, $5.00. It elsewhere, $2.50. Neither the clerk of the city and county of New York nor of the county of Kings shall file a eertificfite of appointment, other than New York or Kings, until $7.50 is received. COMMISSIONS — may be signed by the governor's private secretary. REMOVAL — may be made by the governor, the notary to be given a copy of the charges filed against him and allowed hearing. County clerk will notify of ap- 54 NOTARIES PUBLIC. [§ 70 pointment, upon receipt by him of commission, by inclosing notice in an envelope having the clerk's address printed thereon. Failure to file oath of office and pay fee within fifteen days after notice, or within fifteen d^ys after term of commencement, vacates the office. TERM — two years from March 30. POWEES AND DUTIES— anywhere in the state to demand acceptance and payment, or protest bills and notes, to exercise such powers and duties as the law of nations and commercial usage allow. In the county of his appointment, and elsewhere, to ad- minister oaths, affirmations, take affidavits, acknowledgments, proofs of deeds, etc., certify same. Seal not necessary nor certificate of ■ county clerk for admitting same as evidence. Any notary appointed for any county of the state, upon filing in the clerk's office of any county his autograph signature and a certificate of the clerk of the county, in and for which he is appointed, setting forth the fact of his appointment and qualification as such notary public, may exercise all the functions of his office in the county in which such autograph signature and certificates are filed. Fee for same, $1.00. The county clerk where so filed shall, when requested, subjoin to any certificate of acknowledgment, signed by such notary, a certificate under his hand and seal stating the facts of filing, that he is acquainted with the handwriting and believes the signa- ture genuine. Such instrument shall then be entitled to be read in evi- dence or to be recorded. Protest may be made by a notary public, or by any respectable resident of the place where the bill is dishonored, in the presence of two or more credible witnesses; must be made on the day of its dishonor. When a bill has been noted the protest may be subse- quently extended as of the date of the noting. Notary interested in bank or other corporation may act except when individually a party to instrument. SEAL — to procure an official seal for authenticating his official acts. Oaths need not be sealed, nor other acts. EECOBD — to be kept of official acts. REMOVAL/ — on expiration of office, all records to be delivered to their successors. LIABILITY — for misconduct to extent of damages sustained; for accepting a railroad pass. Person acting as notary without appointment or who practices fraud or deceit is guilty of misdemeanor. FEES — ^notice for nonpayment or assessment of tax on mortgages, 75c; protesting, 75c; notice of protest, 10c; not exceeding five, acknowledgments, 25e; each additional, 12c; oaths, 12c. A fee for an affidavit as to child 's age under the employment act is illegal. MAE- EIAGE OP FEMALE NOTARY — ^female notary securing reappointment under married name may act by signing maiden name in notarial capac- ity and adding married name in parentheses. § 70. North Caroliiiar— ELIGIBILITY— citizen. "WOMEN— are not eli- gible. APPOINTMENT- by the governor. COMMISSION— fee— $3.00. Certificate of commission to be filed with the clerk of the court, who shall note the qualifications of the notary. Clerks of the superior courts may act as notaries in their several counties by virtue of their office, and may certify their notarial acts under the seals of their court. TEEM — two years. BOND — none required. OATH — ^to take oath of office be- fore the clerk of their county superior court. DUTIES AND POWEES § 73] THE OFTICE AND ITS KEQUIEBMiaTTS. 55 — to take and certify acknowledgment and proofs, depositions, administer oaths, take affidavits, and take the privy examination of femmes covert, verify pleadings in or out of the state. Must state date of expiration of commission after signature. JURISDICTION — throughout the state. SEAL — required. Acts to be attested. EECOED — ^not required. LIA- BILITIES — for misfeasance in office. FEES — certificate and seal, 50c; protesting, 50c; each notice, 10c; acknowledgment of chattel mortgage, 25c; seal and certificate, 10c; other services, 20e for every 90 words. §71. North Dakotar-ELIGIBILITY— citizen of the state, of either sex, of electoral qualifications. APPOINTMENT — ^by the governor. COMMISSION — ^fee — $5.00. Commission to be displayed in conspicuous place in notary's office and to be recorded with the county district court clerk, together with signature and impression of official seal; fee, 50c. On removal from the county to another county, same method to be pur- sued. TERM — six years. REMOVAL — by any cause, records and papers to be deposited with the clerk of the county district court within three months after vacancy of office, under penalty of $50 to $500, and liabil- ity to party injured. BOND — for $500, with sureties approved by the district or county court clerk. OATH — ^to be subscribed to. DUTY — to protest bills and notes, etc., and give notice to its maker and indoraers, administer oaths, issue subpoenas, take depositions, and such duties re- quired by law. Service of notice personally or by mail. Oath, bond and impression of seal to be filed with the secretary of state. Notary taking acknowledgment shall indorse date of expiration of commission following signature. Commission to be conspicuously posted, also fee bill under penalty. JUEISDICTION — throughout the state. SEAL — notary, to procure an official seal. RECORD — to be kept of all protest notices, time, manner of service, names of all parties, description and amount. LIABILITY — acting when disqualified, or for appending official signature to any document when the parties thereto have not appeared before him, is a misdemeanor and on conviction is punishable by a fine of $100 for each ofEense and removal from office. FEES — protest notice and postage, 25e; protest, $1.50; recording same, 50c; taking affidavit and seal, 25c; administering oath, 10c; taking deposition, per 10 words, l%c; certifi- cate and seal, 25c; acknowledgment, 25c; witness fees, per day, $1.00; mileage, per mile one way, lOo. § 72. Ohio — ELIGIBILITY — a citizen of this state, twenty-one years of age or over, residing in the county for which appointed, must produce a certificate from a judge of a common pleas, court of appeals or supreme court, that he is of good moral character, a citizen of the county, pos- sessed of sufficient qualifications and ability to discharge the duties of the office; the judge must have personal knowledge of the fact, other- wise the applicant must pass an examination under such rules as the judge may prescribe. No banker, broker, cashier, director, teller, or clerk of any bank, banker, broker, or other person holding any official position to any bank, banker or broker, shall be competent to act as notary in any matter to which said bank, banker or broker is in any 56 KOTAEIES PUBLIC. [§ 73 way interested. APPOINTMENT— by the governor. COMMISSION— fee — $1.00. Commisgion, with oath of office indorsed thereon, to be filed for record with the clerk of the county court of common pleas, and indorsement made on the margin of the record and on the back of the commission the time of its receipt, also a proper index to be made of it. A certified copy of same, under the seal of the court, to be given upon application. Fee for recording and indexing, iOc. TEEM — three years, cmless commission is revoked. BOND — to be given to the state for $1,500, with sureties approved by the governor, filed with secretary of state and copy to be filed with the clerk of the common pjeas court. OATH — to be taken and subscribed on the commission. POWEES — within their county to administer oaths, take depositions, acknowledgments, make and record protests. Has powers of justice of the peace in taking depo- sitions, to compel attendance of witnesses. If he resides in a city or town situateS^in more than one county he can protest and record within the limits of such city or town. Protests under the laws of this or any other state accompanying a bill or note protested by such notary shall be held and received as prima facie evidence of the facts. It may be contradicted by other evidence. SEAL — to be provided by the notary before acting. It shall be not less than l\i inches in diameter and sur- rounded by the words "Notarial Seal, County, Ohio." (Insert name of county.) EEGISTEE — to be provided by the notary, in which every certificate of protest and note shall be recorded. REMOVAL — seal and register are exempt from execution, and upon the death, expira- tion of office without reappointment, or removal from office, the register shall be deposited in the office of the county recorder. LIABIIflTY — acts done after expiration of term are valid. Knowingly performed, shall forfeit any sum not exceeding $500, recoverable in the name of the state. Such an act renders the notary ineligible to reappointment. Ex- cess of legal charges, or unfaithfulness or dishonesty in office, on com- plaint filed and substantiated in the county common pleas court, sub- jects the notary to removal from office by the court and the fact re- ported to the governor, and renders the party thereafter ineligible to office. Certifying affidavit without adniinistering oath is misdemeanor, subjecting to fine and removal from office. FEES — protesting, demand, notices, on each bill or note, $1.00, and expenses for going beyond the limits of the city or town; recording same, per 100 words, 10c; taking acknowledgments, 40 c; taking affidavits, 40c; taking oaths, 40c; taking depositions, per 100 words, 10c; issuing subpoena, 25c; pension oaths, lOo; certifying claim against an estate, 25c. §73. Oklahoma — ELIGIBILITT — citizenship. "WOMEN^are eligible. APPOINTMENT— by governor. COMMISSION— fee— $1.00 to secretary, $1.00 to county clerk. TEEM — ^four years. BOND — $1,000, with one or more sureties approved by the county clerk. OATH — to be taken. Com- mission, oath, bond, impression of seal and signature to be filed with the county clerk and secretary of state. DUTIES — take acknowledgments, administer oaths, demand acceptance or payment, and protest commer- cial paper, and such acts as commercial usage requires. SEAL — to pro- § 75] THE OFFICE AND ITS REQUIEEMENTS. 57 vide such, containing his name and residence, and authenticate acts with, adding date of expiration of office. EEGISTEE — to be kept of his official acts, and certified copies given when required and paid for. Special record to be kept of protests for banks and delivered to them on re- moval from office. EEMOVAL— by any cause, all official books and papers to be deposited with county clerk. LIABILITY — for failure tc add date of expiration of commission, fine not exceeding $50. Limita- tion of action, three years after cause accrues. FEES — protest and record of, 50c; each notice of, 10c; certificate and seal, 25e; acknowledg- ments, 25c; affidavits, 25c; other fees same as clerk of the district court. No fee allowed for administering any oath or giving certificate to a discharged soldier or seaman, or widow, orphan or legal representative thereof, for pension, bounty or back pay, nor for any voucher required for periodical dues. Penalty for violating, $10 to $25. I 74. Oregon — ELIGIBILITY — citizenship, twenty-one years of age. APPOINTMENT — by the governor. COMMISSION — ^fee— $5.00 to secre- tary of state, and $1.00 to county clerk for recording. TEEM — four years, unless sooner removed. BOND — to be given for $500 with surety. OATH — to be taken before acting. DUTIES — ^to protest commercial pa- per and give notice of same to parties in interest immediately. Service to be personal, provided they reside within two miles of the notary, otherwise service by mail. To take acknowledgments and administer oaths. Full faith given to their acts. JUEISDICTION— throughout the state. SIGNATUEE — to be followed by date of expiration of commis- sion, under penalty of cancellation of commission. SEAL — to be pro- vided and an impression of it with oath and bond to be deposited with the secretary of state. EECOED — to be kept of all notices, manner and time of service, names of parties, description and amount of the instru- ment, same to be competent evidence in all courts of this state. EE- MOVAL — by death, etc., the records shall be deposited with the county clerk within ninety days, who shall keep same and give certified copies when required. LIABILITY — a forfeit of from $50 to $500 for failure, or for wilful destruction, defacing or concealing of records, and dam- ages to party injured. FEES — protesting, $1:00; attesting instrument and seal, $1.00; noting, $1.00; registering protest, $1.00; affidavit and seal, $1.00; acknowledgment, $1.00; proofs, per folio, 25c; depositions, per folio, 25c; oaths, administering, 25c. § 75. Pennsylvania — ELIGIBILITY — of good character, integrity and ability. To reside where designated one year. Eesident of the state two years. A stockholder, director or clerk in a bank or banking insti- tution, or in its employ, are eligible not to act for company interested. Besidence may be in a different part of the county, or adjoining county, provided an office is kept where the commission names. WOMEN — twenty-one years of age and citizens of the state can act. If one marries while in office, must return governor her commission with married name before performing any notarial act; he will return a new commission without fee. A new bond with security required. APPOINTMENT — by 58 NOTABIES POBLIO. [§ 75 the governor. COMMISSION— fee— $25.00 and tax of $10.00. Treas- urer's receipt to be shown before appointment, except when reappointed after recess of senate. If disqualification forbids, a commission money paid will be refunded on a certificate of the facts, indorsed by the governor. TEEM — four years. If appointed during recess of senate, the conunission expires at the end of the next session of the senate, unless confirmed by the senate, which entitles to a commission for four years from confirmation. BOND — in a sum not exceeding six hundred pounds and two sureties to be given, approved by the governor, sa,me to be recorded in ofice for recording of deeds within the county. Sub- ject to be sued on by parties injured. OATH — or affirmation — to be taken and subscribed to for the faithful performance of all duties and the state constitution before acting. POWERS — to administer oaths incident to their office, to take acknowledgments or proofs of instru- ments in writing, to make declarations, to protest, to take depositions and affidavits. ACTS — performed outside of the county are valid. Ex- piration of office to be stated on every certificate and act. SEAL — to be provided with arms of commonwealth, name, surname and office of notary and place of residence. EEGISTEE— to be kept of all their official acts and certified copies given when required and fee paid. EE- MOVAL — for any cause, must, within thirty days, deposit register and official papers with the county recorder, who shall give certified copies of same when required and paid for. Same, certified under his official seal, shall be evidence in all eases when required. LIABILITY — failure or neglect to so deposit subjects to forfeiture and payment of $100, and the further sum of $100 for each ten days negligent thereafter, recoverable for the use of the party suing, and shall be liable in damages to persons injured. The recorder may bring action for the register and papers. Their official acts, protests and attestations, certified according to law under their hands and seals of office, may be received in evidence, pro- vided other parties may contradict same by other evidence. TAX — in making up the state tax they shall deduct from the amount due the state the true, legitimate expenses of their offices. In Philadelphia they shall pay annually five per cent of their gross receipts in lieu of other taxes. Eeturns made under oath annually on or before the 31st day of De- cember. A refusal or neglect of thirty days forfeits their commission. The acts of foreign notaries, in accordance with the laws of their coun- try, shall be prima facie evidence of the matters set forth. The consul or vice-consul of the United States at or near the notary's residence shall certify (under) his seal that such notary is a proper officer and acts are in accordance with the laws of the country. FEES — certifi- cates of copy ready made, 50c; comparing same, per 100 words, 7c; certificates of sales at auction, 50c; taking proof of debts to be sent abroad, proof and acknowledgment of letters of attorney for receiving and transferring public securities, 50c; protesting, 75c; registering, etc., 50e; affidavit, 50e; attesting letter of attorney, 50c; registering foreign sea protest, $1.00; registering copy of each protest, 12%c; registering foreign bill protested and certificate, 50c; registering protest of a bill § 77] THE OFFICE AND ITS EEQUIREMENTS. 59 of exchange or promissory note for nonacceptance or nonpayment, 25c; entering or noting sea protest to be deducted from the legal charge for the protest if extended, $1.00; noting a bill of exchange, note or thing properly protestable, 37%c; drawing and taking proof of the acknowledg- ment of a bill of sale, bottomry, mortgage, or hypothecation of a vessel or charter party, $1.00; certifying power of attorney, 25c; drawing and certifying affidavit, $1.00; oath or affirmation, 12%c; notarial procura- tion under seal, 75c; letter of attorney, for transferring stock, etc., and certifying same, 50c; drawing and taking acknowledgment or proof of substitution to a letter of attorney, $1.00; being present at demand, tender or deposit, and noting same, 50c. In Allegheny county — making demand for payment, 50c; protesting same, 50c; registering protest, 50c; each notice, exceeding two, 10c; oaths or affirmations, writing. and cer- tifying, $1.00; probate to bill or account and certifying, 50e; acknowledg- ments, 25c; each additional name, 25c; depositions, first page, folio cap, $1.00; depositions, each additional page, folio cap, 75c; marine protests, with affidavits, certificates, seal, etc., $10.00. In Philadelphia — fees in- creased 50 per cent except as to acknowledgments. § 76. PhiUpplne Islands — APPOINTMENT — by courts of first instance and in Manila, by judges of supreme court. Clerks of courts of first instance to be notaries by virtue of office. TEEM — two years from Janu- ary 1st of year of appointment. OATH — to be taken before judge or justice of the peace and recorded with commission in office of clerk of court. CBETIPIGATE OP APPOINTMENT— to be forwarded to secre- tary of governor general. JUEISDICTTON — in province, or city of Mani- la, but not elsewhere. SEAL — to be used to affix to papers signed. Metal, having name of province, words "Philippine Islands," name of notary on margin and words "Notary Public" across center. Date of expiration of commission to be affixed to all acknowledgments. POW- EES — to administer oaths, take affidavits, depositions, acknowledgments, or proof of all writings relating to commerce and navigation and other writings commonly proved before notaries. EECOED — to be kept and certified copies given when requested. Eecord of all protests in detail required. I/IABILITIBS — affixing seal after expiration of commission is misdemeanor, subject to fine of 1,000 pesos or imprisonment not ex- ceeding one year, or both. Failure to certify certificates of registration, or that parties are exempt from tax, subjects to penalty of 100 pesos, and notary's commission may be revoked. FEES — protesting, 1 peso 50 centavos; registering, 50 centavos; attesting letters of attorney and seal, 50 centavos; affidavits, 50 centavos; oaths and affirmations, 40 centavos; proof of debts to be sent abroad, 50 centavos; writing affidavit and deposition, 10 centavos each 100 words; certified copy of record and affidavit of its contents, 1 peso; acknowledgments, 50 centavos. § 77. Porto EIco — ELIGIBILITY — lawyers presenting certificates of good moral character, a citizen of Porto Eieo or the United States, of legal age — male. Justice of the peace may act. APPOINTMENT — by supreme court on examination. Eegulations published. FEE — $5.00, 60 NOTARIES PUBLIC. [§ '''8 $1.00 to secretary. BOND— for good character. SEAL — DUTIES — send protocol each month to clerk of supreme court. Documents requiring tax must show treasurer's receipt before making certificates to them. EECORD — to be kept, and open for inspection. EEMOVAL — to send books and papers to clerk of supreme court. LIABILITIES — ^for not sanding protocol each month to clerk of supreme court, $300. Suspended from office on second occurrence. JURISDICTION — no limitation. Docu- ments may be written in English when notary and parties know that language; may be typewritten. § 78. Ehode Island— ELIGIBILITY— a citizen. APPOINTMENT— by the governor. COMMISSION — within thirty days after its date, party shall deliver to the secretary of state a certificate that he has been duly engaged thereon, signed by the persons for whom such engagement shall have been taken. Failure to do so forfeits the appointment. Fee for same, $2.00. TEEM — one year to 1st of July of year after appointed. After expiration of office, if not reappointed, he may continue to act thirty days after the 1st day of July in each year. BOND — none seems required. OATH — to be taken for faithful performance of duties. DU- TIES — protest bills and notes, take acknowledgments and depositions, administer oaths, and matters within their office. Issue sobposnas. No protest shall be made by any notary who is the president, cashier, di- rector, clerk or agent of any bank or institution for savings, wherein such note, draft or check has been placed for collection or discount. SEAL — official seal required to authenticate acts. RECORD — ^to be kept of important acts. REMOVAL — by governor after notice and opportu- nity for defense. Records of official acts to be delivered to successor. LIABILITIES — for failure to deliver records to successor and for un- faithfulness in performance of duties. Penalty for unlawfully certifying to acknowledgment when not qualified. FEES — depositions, per hour employed, 40c; per page of 200 words, 30c; per mile's travel to place of caption, 10c; acknowledgments, 50c; for engaging every officer, 25c; recording and certifying, per page of 100 words, 15c; searching record, by the hour, 40c; noting a marine protest, $1.00; drawing, recording and extending same, $1.50; affidavits, 25c; noting a bill, etc., 25c; each no- tice, 25c; travel, more than one mile, 10c; protest if amount is $500 or more, $1.00; if less, 50c; record, 50c; noting nonacceptance of bill, order or draft, etc., 75c; each notice, 25c; whole cost of protest, including notices shall not exceed $2.00; and whole cost of noting not to exceed $1.25. §79. South Carolina — BLIGIBILITT — citizen. Must be indorsed by legislative delegation of county. APPOINTMENT — by the governor. COMMISSION — fee — $2.00. Commission to be exhibited to clerk of court within 15 days after appointment, and notary enrolled. TERM — during the governor's pleasure. BOND — required with approved sureties. OATH — of office and the oath regarding duelling to be taken, and certi- fied copies to be filed with the secretary of state. POWERS AND DU- TIES — to administer oaths, take depositions and acknowledgments, affi- § 81] THE OFFICE AND ITS REQUIREMENTS. 61 davits, protests and renunciation of dower. JUEISDICTION — through- out the state. No jurisdiction in criminal cases. SEAIi — of ofSce to be provided, same to be affixed to his acts of publication and protestations. Its absence shall not invalidate his acts, provided his official title be affixed. Use of by notaries in other states required. RECORD — to be kept of important acts. LIABILITIES — on bond for unfaithfulness. FEES — taking depositions and swearing witnesses, per copy sheet, 25c; protesting, 50c and postage; duplicate of deposition, protest and certifi- cate, per 100 words, 10c; for attendance on person for proving a thing and certifying, 50c; notarial certificate and seal, 50e; oath or affidavit, 25c; renunciation of dower, $1.00. § 80i South Dakotar— ELIGIBILITY — citizen resident in state. WO- MEN — citizens twenty-one year of age are eligible to the office. AP- POINTMENT— by the governor. COMMISSION— fee— $2.50. Same to be conspicuously posted in his office. Notice of expiration will be sent thirty days previously by the secretary. TERM — four years. BOND — ■ $500, approved by circuit court clerk and filed with secretary of state. OATH — to be taken and filed with circuit court clerk. DUTIES — ad- minister oaths and affirmations in their county, protest commercial pa- pers and serve notice, personally or by mail; take depositions; issue subpoenas. May act for corporation though interested but act is unlaw- ful if notary is individually a party to instrument. JUEISDICTION — throughout the state. SEAL — to be procured, an impression to be filed with secretary of state. Pee for each, 25c. RECORD — to be kept of protests and notices with names of parties. REMOVAL — all records to be filed with the circuit court clerk within three months. LIABILITIES — neglect to file records on removal or expiration of office, or destroying same subjects to fine of ffom $50 to $500 and damages sustained by party. Acting after removal, etc., $100 each offense. PEES — protests, $1.50; notices, 25c each, and postage; recording, 50c; oath or affirmation, each, 10c;. depositions, each 10 words, l%c; certificate and seal, 25c; acknowledgments, 25c; affidavit and seal, 25c. § 81. Tennessee — ELIGIBILITY — citizenship, twenty-one years of age. WOMEN — twenty-one years of age, and in counties of certain popula- tion, eighteen years of age, are eligible. APPOINTED — by the justices of the county court. COMMISSION — issued by the governor. PEE — $3.00. TERM — four years. BOND — to be given with good sureties for $5,000. OATH — to be taken and subscribed to before the county court clerk or his deputy in his county. DUTIES — to take and certify deposi- tions in their county, to administer oaths, take affidavits, protest bills and notes and notify the proper parties. OFFICE — to be kept in the town of the county in which he was appointed. The county court may require a notary to keep his office where any bank may be located in the county out of the county town, or where convenient to the people. SEAL — of office to be provided by him, and surretdered to the county court when removed by any cause. His acts to be under his official seal, received as evidence. RECORDS — to be kept of protests and noticei of. 63 NOTAEIKS PUBLIC. [§ 82 EEMOVAli — or expiration of office — all records to be delivered to suc- cessor. LIABILITIES — ^for not delivering books to successor, for failure to surrender seal on expiration of office, and neglect of duty. Fraudu- lent certificate of probate or acknowledgment is a felony. Notaries of other states may take depositions in their state for use in this state, must certify and show date of commencement and expiration of their commission. FEES — ^for recording in his record book, $1.00; protesting, $1.50; taking acknowledgments, 50c; each deposition, $1.00; for other services same fees as allowed other officers. §82. Texas— ELIGIBILITY— citizenship. APPOINTMENT— by the governor, with senate 's consent. COMMISSION — secretary of state sends it to the county court clerk, party to appear and qualify within ten days and pay $1.00 fee. Excusable for absence or sickness. Date of notice to be indorsed on it and notification sent the secretary by the clerk. TEEM — two years from June 1st after legislative session. BONI* — $1,000, with sureties approved by county court clerk. OATH — to be taken and subscribed to and indorsed on back of bond. All recorded by clerk. DUTIES — take acknowledgments, certify same under his hand and official seal> administer oaths, make declarations, protests, take depo- sitions, etc., incident to the office. SEAL — to be provided, having in the center a star of five points and ' ' Notary Public, County of , Texas, ' ' around the margin (filling in his county in the blank space). All offi- cial acts to be authenticated therewith. No other seal to be used by him. EECORDS — of aU his official acts to be kept. Subject to inspec- tion and for certified copies. EBMOVAL — by death, etc., all records and seal to be delivered to county clerk, under penalty not less than $100. Can sell his seal. Eemoval from county vacates office. May be removed for wilful neglect or malfeasance. LIABILITIES — false certifi- cate of acknowledgment or false declaration of protest is crime subject to imprisonment from two to five years. Failure to keep record of ac- knowledgments subject to fine of $100 to $500. Liable for negligence and misfeasance. COUNTY CLEEK — ^may certify to his official acts. Secretary of state to furnish county clerk's lists of notaries. FEES — protesting, registering and seal, $2.50; each notice, 50c; other protests, per 100 words, 20c; certificate and seal to such, 50c; acknowledgments, 50c; acknowledgments of married women, $1.00; oath, 25c; certificate under seal, 50c; copies of records, if less than 200 words, 50c; if more, 15c for each 100 words; other acts, 50c;. depositions, per 100 words, 15c; swearing witnesses to depositions, seal, certificate, etc., 50o. § 83. TItali — ELIGIBILITY — citizenship over twenty-one years of age and resident of state. APPOINTMENT— by the governor. COMMIS- SION — fee — $5.00. To be recorded with the secretary of state. No suit shall be instituted on bond three years after the cause of action ac- crues. TERM — four years. OATH — to be taken before acting and filed with secretary of state. BOND — for $500, with sureties approved by the secretary of state. POWEES AND DUTIES— in their county, to •idminister oaths, take acknowledgments, affidavits and depositions, make § 85] THE OFFICE AND ITS EEQDIEEMENTS. 63 declarations and protests, and other acts usually done by notaries in other states and territories. Date of expiration of their commission to be affixed to all acknowledgments. Protests, when made, written notice to be given the maker and indorsers or security of the instrument as soon as practicable. Service to be personal when the person resides in the same town or city with the notary, otherwise by mail or other safe conveyance. SBAIi — to contain the name of his county, state, his surname with at least the initials of his Christian name, and the words "Notary Public," or "Notarial Seal." All his official acts to be at- tested with it. EECOED — to be kept of official acts, including notices, time, manner of service, names of all parties to whom directed, descrip- tion and amount of instrument protested. Records shall be competent evidence for legal proof. Certified copies to be given when required and the fee is paid. LIABILITY — affixing their official seal, wilfully, after expiration of their commission is a misdemeanor. FEES — protest- ing, $1.00; notices, drawing and serving, each, 35e; recording protests, 50e; affidavit or deposition, for first folio, 50c; subsequent folio, 15c; taking acknowledgments, for first signature, 50c; each additional signa- ture, 25c; administering oath or affirmation, 25e; every certificate in- cluding writing and seal, 50c. § 84. Vermont— ELIGIBILITY — citizenship. WOMEN — twenty-one years of age are eligible. APPOINTMENT — by the judges of the county court for their county. COMMISSION — fee — not required. TEEM — during the term of the judge and for ten days thereafter. BOND — not required. Record to be made with the county clerk of his oath of office, and certificate of his appointment. Clerk shall forward a certifi- cate of same, with term of office, to the secretary of state immediately. OATH — to be taken. DUTIES AND POWEES — protest and give notice of commercial papers, administer oaths, take acknowledgments, issue subpoenas and attachments for witnesses, take depositions. JUEISDIC- TION — throughout the state. SEAL — of office to be provided by him, and affixed to all his official acts. Seal need not be affixed to acknowledg- ments or oaths. EECOED — ^protests and notices. LIABILITIES — ^for neglect, and collecting illegal fees. EX OFFICIO NOTAEIES— county and town clerks, by virtue of their office, are notaries public. !FEES — protests and notices, $1.00; certificates under seal, each, 25c. § 85. Viiginia^-ELIGIBILITy— MEN AND WOMEN— eighteen years of age are eUgible. APPOINTMENT— by the governor. COMMISSION — ^fee — ^for appointment, $3.00. TEEM — four years. BOND — to be given in the county court of or corporation for which appointed, within four months from date of commission, under a penalty not less than $500, the clerk to immediately forward a copy to the secretary of state, same to be approved by the court or officer taking it. OATH — to be taken. DUTIES — conservator of the peace, administer oaths, protest commercial paper, give notice of, take acknowledgments, oaths and affidavits. When seal is annexed to any pension claim or for military service, either state or national, or when annexed to an affidavit or deposition no tax on seal 64 NOTARIES PUBLIC. [§ 86 charged. No deed or contract to be admitted to record (except for a church or school) or no will admitted to probate, and no grant of ad- ministration until tax is paid to the clerk. JUEISDICTION — may be appointed for two or more counties. SEAL — procure a seal tp authen- ticate his acts. EECOED — to be kept of his official acts. EEMOVAL — from the county or corporation, unless into a county also appointed for, shall be construed as a vacation of office. County clerk or of corpora- tion shall at once inform the governor of vacancies or deaths. LIA- BHilTT — ^for acting before giving bond and taking oath, removable by governor for misconduct, incapacity or neglect. FEES — protest, record of, notice to one person besides the maker or acceptor, $1.00; each addi- tional notice, 10c; acknowledgments, 50c; oath, 25o; certifying affidavits or depositions of witnesses, when done in one hour, 75c; each additional hour, 75- -aie-- ■••^ — if ■+- •••aa— --s*- ■■«:» troRrn Range..... ...County -t- -H ■4- •a*- •3fe- -1^- ■•■jja- ■Jj4f -t- sovrff •■9fi 4- -«»• Li, a»- § 202. Inception of Title; Patents. — In the United States, the word "patent" when used in connection with real prop- erty, means the title deed by which a government, either state or federal, conveys its lands. It is the highest evidence of 116 NOTABIES PUBLIC. [§ 303 deriTative title known to the law, and passes full legal title to the land.*' §203. Deeds. § 204. —Definition; Construction. — The term "deed" is very comprehensive in its signification, and denotes not only all classes of instruments for the conveyance of land, but any instrument in writing under seal, whether relating to land or any other matter. In its popular acceptation, however, it is confined to conveyances of lands, or estates or interests therein, and is still further restricted in its meaning to abso- lute sales, as distinguished from mortgages, indicatiug con- ditional sales, though the latter are as essentially deeds as the former.*^ A deed will be construed according to the apparent intent where the language is defective, and, if necessary, the clauses may be rejected or transposed so as to give it its apparent construction.^" Instruments in writing should be so construed as to render them valid and effectual rather than void. Where one part of the description is false and impossible, but, by rejecting that a perfect description remains, the false and impossible should be rejected.^^ § 205. —Kinds of Deeds. — Quitclaim is a release deed re- linquishing all claims to the property for a consideration. It may be for one dollar, love and affection, so long as there is a consideration. Tax deed is the instrument by which the offi- cers of the law transfer the title of the rightful owner, for nonpayment of taxes, to a purchaser at the tax sale. Trust deed is a form of mortgage much used in many states. A deed is made in trust with a power of sale in favor of the mortgagee, with provisions for attorneys' fees m case of foreclosure. 48Warvelle on Abstracts (4th velle's Vendors 353, citing Cum- Ed.), §§ 148, 149. berland Building & Loan Ass'n v. 49'W'arvelle on Abstracts (4th Aramingo M. E. Church, 13 Phila. Ed.), § 38. (Pa.) 171; Staton v. Mullis, 92 N. eOBarkhausen v. Chicago, M. & C. 623. St. P. R. Co., 142 Wis. 292, 124 81 Anderson v. Baughman, 7 N. W. 649, 125 N. W. 680; War- Mich. 69, 74 Am. Dee. 699. § 308] CONTEYANCKS AND AOKNOWIEDGMENTS. H'? § 206. — Form of Deed; Formal Parts. — No particular form is necessary, so long as the intent of the parties is clearly set forth and can be readily ascertained in the deed. Uncertain language vitiates it. The tendency is to very short forms. When made by an attorney, they should be in the name of the principal. The attorney must be appointed by letter of attorney. If by a corporation, it must be executed in the cor- poration's name by ofi&cers authorized, and under the corpora- tion seal.^* The formal parts are: (1) The premises: Setting forth parties' names, the reasons for the contract, the consideration, with a description of the land. (2) The habendum: To have, showing what estate passes. (3) The tenendum: To hold, formerly the tenure, now of little meaning. (4) The red- dendum: The reservation. (5) The conditions. (6) The warranty: Covenant damages. (7) The covenants: The agreement to do or not to do something, either expressed or implied. (8) The conclusion: The execution and date. § 207. — Eeq.msites of Deeds. — The requisites of a deed are that there be sufficient parties, that it be in writing or print- ing, on paper or parchment; that there be a consideration; that sufficient words be used; that it be read when required; that it be signed and sealed; that it be witnessed; that it be delivered, acknowledged and recorded.^* § 208. — Parties. — Parties to a deed are : The grantor, who makes the deed; the grantee, to whom it is made. Care should be had as to the names and surnames of the parties. A deed must be to some certain person or corporation.^* All persons having complete ownership, of sound mind, of full age, not in duress, unless otherwise disqualified by law, can acquire SZBouvier's Inst. sec. 2010; 68Bouvier's Inst. see. 2099. PlummeT v. Eussell, 2 Bibb (Ky.) 64 Jackson ex dem. Cooper t. 174; Elwell v. Shaw, 16 Mass. 42, Cory, 8 Johns. (N. T.) 388. 8 Am. Dec. 126; Hatch's Lessee V. Barr, 1 Ohio 390. 118 NOTARIES PUBLIC. [§ 309 or alien title to land. In some states aliens are forbidden to hold by statute. § 209. — ^Descriptions of Realty; Boundaries. — ^After the parties to a conveyance, the description of the thing or subject- matter conveyed is the great essential. Such description must, either in terms or by reference to other designation, describe the subject-matter intended to be conveyed sufficiently to identify the same with reasonable certainty. ^^ Land is usually described according to the government survey,** or is platted, but may be otherwise described if the identity of the prop- erty intended to be conveyed is established. Frequently reference is made to certain boundaries or monuments. Boundaries are the lines between estates. They may be nat- ural or artificial, such as monuments or stones, trees, streams or certain objects. The line usually extends to the center of streams and to the center of a street in cities or roads in the country; to the shore of rivers or low tide water of the ocean.*'' .While the courts are usually liberal in construing deeds to carry out the intention of the parties, it must be remembered that nothing passes by a deed except what is described in it, and parol evidence is not admissible to make the deed operate upon land not embraced in the descriptive words.** § 210. — Consideration. — ^A consideration is of little conse- quence as between the parties, one dollar is accounted suffi- cient; but when creditors are affected it becomes necessary to inquire iato it. It may be founded on a good or valuable consideration. § 211. — ^Delivery; Escrow Agreements. — The delivery of a deed is when its effect takes place and not from its date. A B6Warvelle on Abstracts (4th Manigan, 75 Iowa 365, 39 N. W. Ed.), §i 183, 184. 645. BBAnte, § 201. B8Warvelle on Abstracts (4th 67 Cyc. Law. Diet.; Walrod v. Ed.), § 186, § 214] COKVETANCES AND ACKNOWLEDGMENTS. 119 date is not necessary.^^ A deed may be delivered condition- ally to a third person, either to be delivered to the grantee without condition when the rights of the grantee to the deed immediately attach, or it may be delivered as an escrow. An escrow is a conditional delivery of a deed to a stranger until certain conditions shall be performed, to be then deliv- ered to the grantee, the conditions to be distinctly stated at the time of delivery.*" § 212. — Covenants for Title. — Covenants for title usually are : That the vendor is lawfully seized (or in possession) of the land ; that he has the power to convey it ; that he promises peaceful possession to the purchaser, his heirs and assigns; that it is free from all incumbrances; and for further assur- ance.^^ Covenants running with the land are to be governed and controlled by the laws of the state where the land is situated.®^ § 213. — ^Witnesses; Seal. — Witnesses were not required at common law. They are required now only in certain states of this country. An unacknowledged deed requires witnesses, but seldom does an acknowledged deed. They are necessary to prove the issue, or genuineness. When the statutes require two witnesses to a deed, one only wiU iavalidate the deed.*' Sealing is very ancient. At common law it was required. In many states of this country it has been abolished. A scroll is all that is now required, except for corporations, which are required to have their name engraved on a metal disc so as to leave an impression on the document. § 214. Erasures and Errors. — ^Deeds must be fully complete before delivery. Alterations made afterwards will either avoid 69Bouvier'B Inst. sec. 2022; 60 Cyc. Law Diet.; Clark v. Gif- McConnell v. Brown, Litt. Sel. ford, 10 Wend. (N. T.) 310. Cas. (Ky.) 459; Hood v. Brown, 61 "Warvelle on Abstracts (4th 2 Ohio 268; Fairbanks v. Met- Ed.), § 191. calf 8 Mass. 230; Eobinson v. 62Dalton v. Taliaferro, 101 111. Wheeler 25 N. Y. 252; Harrington App. 592, citing 4 Kent's Comrn. V. Gage, 6 Vt. 532; Harvey v. 472. Alexander, 1 Band. (Va.) 219, 10 63 Thompson v. Morgan, 6 Minn. Am. Dec. 519. 292 (Gil. 199) ; Parret v. Shubhut, 5 Minn. 323 (Gil. 358). 120 NOTARIES PUBLIC. [§ 215 or make them of no effect.®* All alterations, erasures or in- terlineations in deeds should be avoided, as they tend to question the instrument. § 215. Validity of Deeds; Effect of Duress, Fraud or Un- due Influence and Intoxication. — ^As a contract implies a vol- untary assent, any influence, force, fraud or cause whatso- ever, preventing the freedom of the consent, makes the contract voidable, and any cause preventing reality of con- sent makes the act void.®^ The distinction is illustrated in cases of fraud. Where one party misleads another as to the very nature of the act, no contract can result. But if a state- ment is made which is false, which is known to be false by the party making it, as to a material fact, intended to induce the contract and which the other party relies upon, the con- tract is rendered voidable, at the instance of the party de- frauded. The validity of deeds is often attacked because of fraud, and frequently in such cases undue influence is also involved. Such undue influence consists in an abuse of in- flluence or power which one person by reason of a flduciary relationship, or of the sickness, infirmity or necessitous distress of the other, has over that other, thereby inducing him to enter into a contract he would not have freely made.®® In the case of undue influence over the maker of a deed, equity will set it aside.®'' Intoxication may also avoid a deed.®® Duress of a person is that condition of his mind caused by wrongful conduct of another, rendering him incompetent to contract by the exercise of his own free will.®® A deed made under duress of imprisonment or fear from threats of personal violence is voidable but not void.'® § 216. Recording of Deeds.— Recording of deeds, mort- gages, liens, judgments, wills and other instruments pertain- 64 Wallace v. Harmstad, 15 Pa. 68 Johnson v. Phifer, 6 Neb. 401. SI. 462, 53 Am. Dec. 603. 69 Batavian Bank v. North, 114 6B Bays' Commercial Law, vol. 1, Wis. 637, 90 N. W. 1016; Galusha p. 79. V. Sherman, 105 Wis. 263, 81 N. 66 Bays' Commercial Law, vol. 1, W. 495, 47 L. E. A. 417. p. 87. TOSandford v. McLean, 3 Paige 67 Howe V. Howe, 99 Mass. 88. (N. T.) 117, 23 Am. Deo. 773. § 218] CONTBTAN-CES AND ACKNOWLEDGMENTS. 131 ing to real estate, is necessary in order to give notice to the public regarding the title of the property. Deeds and mort- gages may be valid as between the parties and those having notice, but aja innocent purchaser might be defrauded.''^ The recording acts usually provide that conveyances not recorded shall be void as against subsequent purchasers in good faith and for a valuable consideration, of the same land, or any portion thereof, whose deed of conveyance shall be first duly recorded; and further, that every instrument recorded in the manner prescribed by statute shall, from the time of filing same for record, impart notice to all persons of the contents thereof.''2 § 217. Essentials to Recording; Proof of Deeds. — ^All deeds must either be acknowledged or proved before they can be placed on record as evidence of the conveyance. A deed is proved when witnesses testify to its genuineness. This they do either by having seen the grantor sign it or declare that he signed it. The statutes usually contain provisions govern- ing this matter. Usually, proof of the execution may be made by one of the subscribing witnesses.''^" A witness is one who gives oral testimony in a judicial proceeding. A witness who signs an instrument to denote that the same was executed in his presence is called a "subscribing" or "attesting" witness.'^^b The competency of the witness is presumed.'* § 218. Registration of Titles. — The Torrens system of reg- istration of titles is a system whereby titles to real estate are registered as being in a certain person at the date of reg- istration, and a certificate of title is issued by the state de- claring title in such person.'* 71 A deed is valid as between Ed.), § 65. See post, § 272 et seq. parties to it without being ac- 72a O 'Sullivan v. Overton, 56 bnowledged or recorded. Semple Conn. 102, 14 Atl. 300; Gelott v. v. Miles, 2 Scam. (HI.) 315. Goodspeed, 8 Cush. (Mass.) 412; Knowledge of the existence of Melcher v. Flanders, 40 N. H. 139. an unrecorded deed may be a suflS- See also post, § 272 et seq. cient ground for the imputation of 72b Cyc. Law Diet, constructive fraud to a subsequent 73 Job v. Tebbetts, 4 Gilm. (111.) purchaser. Schroeder v. Tomlinson, 143. 70 Conn. 348, 39 Atl. 484. 74 Bays' Commercial Law, vol. 9, 72 Warvelle on Abstracts (4th p. 187. Torrens law is a system 122 SrOTAEIES PtJBLIC. [§ 219 § 219. Agent's Contracts Concerning Realty; Powers of Attorney. — Contracts coneerning real estate are frequently executed througli the intervention of real estate agents or brokers, who bring the buyers and sellers together, or make contracts for them. Such agents have no authority to con- tract, except as the authority is specially conferred, and they should be careful not to exceed their authority.''^ By the statute of frauds as enacted in some states, an agency to contract for the sale of real estate is not enforceable, unless in writing.'® Authority to execute an instrument under seal must also be under seal. And when an appointment is for- mally drawn up, under seal, it is said to be a power of at- torney.'" Agent's contracts are frequently not signed by the agent, who procures the signature of his principal, or, if signed, provision is made for the signature of the principal also. When a deed is given the broker's name may not ap- pear. But in the case of powers of attorney, the instrument is executed in the name of the principal by the attorney in faet.'s § 220. Conveyances of Partners. — Conveyances of partner- ships should be executed by each and all of the partners in the same manner as deeds by tenants in common, and it seems that a deed executed by one partner only in the name of the firm will convey only* the undivided portion of the estate used in Australia, Germany, the attorney in fact of the person France, England and several other granting it. Cyc. Law Diet, countries. It is claimed to be a TSBays* Commercial Law vol. 4 simpler method of transferring p. 88. See also Warvelle on Ab- lands. It has been adopted to stracts (4th Ed.), §§ 262 263. some extent in Illinois, Ohio, Deeds when made by an attorney Massachusetts, Minnesota, Oregon, should be in the name of the prin- California, Colorado, Washington cipal. The attorney must be ap- the Philippine Islands and Hawaii. pointed by letter of attorney. If 76 Bays' Commercial Law, vol. 4, by a corporation, it must be exe- p. 87. euted in the corporation 's name by 76 Bays ' Commercial Law, voL 4, officers authorized, and under the p. 30. corporation seal. Bouvier's Inst. 77 Bays ' Commercial Law, vol. 4, sec. 2010; Plummer v. Eussell 2 p. 31. Bibb (Ky.) 174; Elwell v. Shaw,' 16 A power of attorney is an instru- Mass. 42, 8 Am. Dec. 126- Hatch's ment authorizing a person to act as Lessee v. Barr, 1 Ohio 390. § 322] OONTETANOES AND ACKNOWLEDGMENTS. 133 owned by such partner, or rather only a contingent right to such part after the debts are paid.™ § 221. Contracts and Convejrances Between Husband and Wife; "Coverture" and "Feme Sole." — Coverture is the state of a married woman, and a feme sole is an unmarried woman. By the modem statute's, the incapacity of married women to contract, as it existed at the common law, has been almost entirely removed.*" The rule applies to conveyances, and conveyances by husband to wife without the intervention of a trustee or third person are upheld in courts of equity, when suitable and meritorious, and not in fraud of creditors. In states where the legal identity of husband and wife is no longer recognized, such conveyances are good at law. "Where the ancient doctrine obtains, a deed from husband to wife, without the intervention of a trustee, is void at law.*^ § 222. Conveyances by Married Women. — With reference to conveyances by married women, recent statutory enact- ments in many states tend to remove entirely all restraiuts from the free acquisition and alienation of property by mar- ried women. Because of the common-law rule, special stat- utory authority is necessary, however, to validate such con- veyances. Such statutes being in derogation of the common law, are strictly construed, and a rigid and literal compliance with the statute is essential to vest title in the grantee. The emancipation of married women in this respect has been gradual, and at first the execution of deeds was attended by many formalities, particularly as to acknowledgment and authentication. Such formalities are in the main unessential now, but in many jurisdictions, joinder of the husband is necessary.*^ When homesteads are conveyed, joinder of hus- band and wife is usually necessary." 79Warvelle on Abstracts (4th v. Bowman, 6 Wall. (II. S.) 316, Ed.), § 249. 18 li. Ed. 736. One partner has no right to bind 80 Bays' Commereial Law, vol..!, his copartners by deed. If exe- p. 69. ented in the presence of his copart- 81 Warvelle on Abstracts (4th ners, it is deemed an execution by Ed.), § 242. them. Haynes, Hutt & Co. v. 82 Warvelle on Abstracts (4th Seachrest, 13 Iowa 455; Brooks v. Ed.), § 243. Sullivan, 32 Wis. 444; Thompson 88 Knox v. Brady, 74 HI. 476. 134. NOTARIES PUBLIC. [§ 223 § 223. Mortgages. — ^A mortgage is a conveyance by deed of lands by a debtor (called a mortgagor) to his creditor (called a mortgagee) as a pledge and security for the pay- ment of the money borrowed, or the performance of a cov- enant, with a proviso that the conveyance be void on the payment of the money and interest on a certain day, or the performance of the covenant by which the conveyance of the land becomes absolute at law; yet the mortgagor has an equity of redemption in a reasonable time and to call for a reconveyance. A note or bond usually is given with the mort- gage as evidence of the debt.*^ The mortgage is in the form of a conditional conveyance of the fee. Mortgages as trust deeds are aften used. They are made to a third party, as trustee, with power to sell, allowing attorney's fees and costs, and in many states are considered better than the usual form of mortgage. One who transfers without recourse a promis- sory note, together with a mortgage given to secure it, thereby warrants the validity of the security.** To create a lien on a homestead estate of mortgagor the certificate of acknowledgment must show that the estate was waived and relinquished.*® § 224. Satisfaction of Mortgages. — When the debt due under a mortgage is paid, the mortgage is discharged. Such pay- ment must be in full, and entitles the mortgagor to a satisfac- tion. This is an instrument which is recorded with the register of recorder, showing payment. In some states, sat- isfaction may be shown by an entry on the margin of the record, thereby operating as public notice. The performance of the conditions of the mortgage by payment before maturity leaves the mortgagee with no estate in or title to the premises. It leaves the mortgagor in his former estate.*'' § 225. Mortgage Foreclosure; Redemption. — Where a mort- To convey a homestead right, the Inst. sec. 884; Hall v. Byrne, 2 IlL deed and acknowledgment must 142; Keith v. Burrows, 1 C. P. contain a clause waiving the rights Div. 731. of homestead. Ogden Building & 85 Waller v. Staples, 107 Iowa Loan Ass'n v. Mensch, 196 111. 554, 7.?8, 77 N. W. 570. S3 N. E. 1049, 89 Am. St. Eep. 330. 86 Id. 84 Bays' Commercial Law, vol. 9, 87Plye v. Berry, 181 Mass. 442, p. 114; Cyc. Law Diet.; Bouvier's 63 N. E. 1071. § 227] CONVETAN'OES AND ACKNOWLEDGMENTS. 125 gagor fails to pay the debt when it is due, and the mortgagee finds that he must pursue some remedy to obtain satisfaction, the usual remedy is that of making use of his security and is done by means of foreclosure. Under the modern practice, such foreclosure is either by judicial proceeding to sell the property and pay the debt out of the proceeds, or to sell at a nonjudicial sale under a power of sale in the mortgage.^* In the case of foreclosure, the mortgagor has the right of re- deeming his property from the sale for a certain period of time by paying the debt with a rate of interest provided by law, and in certain cases a penalty. This is a right given by statute.^^ The legal title of a mortgagor remains in him until the execution of a deed, although he fails to redeem. A pur- chaser at a foreclosure sale who fails to take out a deed with- in the time allowed by statute has no rights which equity can protect, although they may have had continuous posses- sion since before the entry of the foreclosure decree.®" The purchaser at a master's sale acquires no title, but merely the right to receive the redemption money, or a master's deed in case the property is not redeemed.®^ A life tenant of a por- tion of a mortgaged estate can redeem his or her portion by paying their proportionate amount of the mortgage with pro- portionate interest, if agreeable to the mortgagee.®^ § 226. Judicial Sales. — Judicial sales are made, under au- thority of the court, by its officer, sheriff or marshal. The officer conveys all the rights of the defendant in the prop- erty sold. The sale carries no warranty, and must be con- firmed by the court. Actions for recovery may be instituted within a period of time, or the court, for just reasons, may set the sale aside. At judicial or shesriffs' sales parties buy merely the interest or judgment, not a title. § 227. Action for Recovery. — Action for recovery is a com- as Bays' Commercial Law, vol. 9, 90 Bradley v. Lighteap, 202 HI. p. 123. 154, 67 N. E. 45. 89 Bays' Commercial Law, vol. 9, 91 Strauss v. Tuekhom, 200 HL p_ 126. 75, 65 N. B. 683. Period of redemption, see post, 98 Kerse v. Miller, 169 Mass. 44, § 272 et seq., Statutory Kequire- 47 N. E. 504. ments. 126 NOTABIES PUBLIC. [§ 228 mon-law right recognized by every state in the Union (Lou- isiana excepted), allowing a limited time for the restoration of a former right.** § 228. Judgments and Writs of Execution. — Judgment is the conclusion that naturally and regularly follows from the premises of law and fact, and depends not, therefore, on the arbitrary caprice . of the judges, but on the settled and in- variable principles of justice.^ A judgment in the legal ac- ceptation is the determination of some judicial tribunal cre- ated by law for the administration of public justice, according to law, and is in strictness the determination of the law.®* Judgments are the final decisions of the courts of law award- ing the amount to be paid by the debtor. They are a lien upon the properties of the debtor until they are fully satisfied, or execution is issued. They sometimes are continued for a period of years. They are entered in a book of records and should be the last thing examiaed in a search for title.®* As- signment of judgment transfers only an equitable title.®'' An execution is the writ of the court putting into eifect the judgment. Proceedings for taking land upon execution are stricti juris, and no title passes unless the statute is ex- actly pursued.®* § 229. IJens. § 230. — In General. — ^A lien is a hold or claim which one person has upon the property of another as a security for some debt or charge.®® Taxes, dower, curtesy, leases, mechanics' liens, mortgages and judgments are all liens on real estate, A lien is not a property in the thing itself, nor does it con- stitute a mere right of action for the thing. It more properly constitutes a charge upon the thing. It is an equitable right creditors have upon the property of the debtor. A creditor at large cannot enforce the liability without a preliminary judgment and execution,^ 98 Cye. Law Diet. 108, 63 N. B. 655, 89 Am. St. Eep. 84 In re Sedgeley Ave., 88 Pa. 250. 509. 98Schroeder v. Tomlinson, 70 9B Blood V. Bates, 31 Vt. 147. Conn. 348, 39 Atl. 484. 96 Evans v. Adams, 3 Green (N. 99 Cyc. Law Diet. J.) 383. lOeean Nat. Bank y. Olcott, 97 Schmidt v. Shaver, 196 lU. 46 N. Y. 12. § 235] CONVEYANCES AND ACKNOWLEDGMENTS. 127 § 231. — ^Mechanics' Liens. — Mechanics' liens are statutory liens permitted in every state of the Union for the recovery of money due for labor performed, or material furnished on land, mines, vessels or buildings by contractors or material- men and laborers for the owner or tenant of the property. When the work is finished and the payment, or any part of it, is refused, the claim must be filed within a statutory period with an officer of the law, usually the county clerk. A stated time is allowed for the payment, when suit can be instituted. After judgment it remains a lien until satisfied unless barred by statutory limitations. It may attach to an equitable in- terest in real property, and when foreclosed the decree is a lien thereon.* § 232. Taxes and Tax Sales. — A tax is the contribution im- posed by the government for the service of the state.' Tax sales are sales of the property of the owner for nonpayment of taxes due the state. Taxes are allowed to run for a certain period, then the property becomes forfeited for nonpayment and is sold at auction to the highest bidder. After a given period, if still unpaid, or redeemed, a tax deed is issued to the purchaser, which bars the owner's recovery. § 233. Lis Pendens. — Lis pendens means literally a pending suit, and is the control which a court has, during the pendency of an action, over the property involved. One who purchases property pending an action takes title subject to the event of the action.* § 234. Caveat Emptor. — Caveat emptor is a maxim em- ployed in the law to signify that a purchaser, whether of realty or personalty, is not only bound to discover obvious defects for himself, but is confined to the warranties which he has required, and cannot, in the absence of fraud, rely on the statements of the seller.* It means let the buyer beware, and applies particularly to judicial sales. § 235. Waiver. — Waiver is the voluntary surrender and relinquishment of a right.^ 2 Sheppard v. Messenger, 107 4 Cyc. Law Diet. Iowa 717, 77 N. W. 515. »Cyc. Law Diet. 8 Cye. Law Diet. 8 Cyc. Law Diet. 138 NOTAEXES PUBLIC. [§ 236 § 236. Releases and Assignments.— A release is the giving up or abandoning of a clfeim or right to the person against whom the claim exists, or the right is to be exercised or en- ■ forced. With respect to conveyances, in the United States, releases to real estate are executed by quitclaim deeds. An assignment is commonly used to indicate any transfer or mat- ing over to another of the whole of any property, real or per- sonal, in possession or action, or of any estate or interest therein.'' § 237. Leases. — ^A lease is a contract by which a person owning or controlling lands or tenements permits another to occupy the same for a period less than that to which the right of the lessor extends. The person permitting the occupation is called the "lessor," and the person contracting for pos- session is called the "lessee."' It is a contract for the posses- sion and profits of lands and tenements, on the one side, and a recompense of rent, or other income, on the other; it is a conveyance for life, or years, or at will, in consideration of a return of rent or other recompense. The person letting the land is called the landlord, and the party to whom the lease is made, the tenant.® If made for a term of years, it should be placed on record. Facts sufficient to put a purchaser upon inquiry are not sufficient to affect him with actual notice of an unrecorded instrument. The purchaser of property leased for a term of five or seven years, where the lease is not on record, are not sufficient to charge him with notice of a lease.^" § 238. Wills. § 239. — In General. — ^A will is the legal declaration of a man's intentions of what he wills to be performed after his death. A holographic will is one written entirely by the testa- tor, generally called "olographic." An olographic will is de- rived from the civil law. It must be entirely written, dated and signed by the testator himself. No witnesses are necessary and it may be made anywhere. It is quite common in Lou- isiana and Spanish-American countries. A nuncupative will is an oral declaration by the testator, made before competent 7 Cyc. Law Diet. Harsen, 7 Cow. (N. Y.) 323. 8 Cyc. Law Diet. 10 Toupin v. Peabody, 162 Mass. 9 Jackson ex dem. Webber v. 473, 39 N. E. 280. § 242] CONTETANOES AND ACKNOWLEDGMENTS. 129 witnesses, declaring his wishes regarding the disposal of his property.^^ Legatees are the persons mentioned in the will to whom bequests or devises are given. § 240. — Codicils. — A codicil is a clause added to the will after its execution, the purpose of which usually is to alter, enlarge or restrain the provisions of the will, or to explain, eonfirm and republish it.^" § 241. — Persons Who Can Devise; What Ifflay Be Devised. — Ordinarily, any person of sound mind, of full legal age, capable of executing a valid contract can execute a will, and any lands, tenements and hereditaments, and personal estate owned by the testator, may be bequeathed or devised. § 242. — Execution of Wills; Form. — A will does not have lo be in any special form, but is usually drawn in a certain or- derly way. There is an introduction, stating that the testator does make, publish and declare the writing to be his last will, thereby revoking all previous wills, a direction to the executor to pay the funeral expenses and debts, an enumeration of the devises and bequests, a residuary clause providing for the disposal of the estate not specifically disposed of, a clause ap- pointing an executor, and a conclusion stating that the tes- tator afHxes his name as of a certain date.^* The instrument is signed by the testator, or by some one in his presence and by his express direction, and is attested and subscribed to by credible witnesses, in the presence of the testator and each other, as required by the various statutory provisions. Such requirements must be complied with.^* A witness should not 11 Cye. Law Diet. Scott v. Hawk, 107 Iowa 723, 77 12 Lamb v. Lamb, 11 Pick. N. W. 467, 70 Am. St. Rep. 228. (Mass.) 371. In the absence of any evidence IS Bays' Commercial Law, vol. 9, of fraud, compulsion, or other im- p. 166 et seq. proper conduct, a will may be 14Mendell v. Dunbar, 169 Mass. signed by witnesses some distance 74 47 N. E. 402, 61 Am. St. Eep. away from the testator but within 277. his sight. Soundness of mind is Compliance with the statute is all presumed unless .sufficient evidence that is required. The testator may is established to prove otherwise, sign by a mark if he cannot write In re Tobin, 196 lU. 484, 63 N. B. his name. It is not necessary that 1021. subscribing witnesses sign for him. 130 NOTARIES PUBLIC. [§ 243 be a devisee or legatee. Beneficiaries and trustees under a will are prohibited from testifying in its favor as against the heirs at law who are contesting it.^^ A will cannot be cor- rected or reformed by a court of chancery. They have no power. The intention, which is to be sought for in the con- struction of a will, is not that which is expressed in the mind of the testator, but that which is expressed by the language of the will.16 § 243. — Executors and Administrators; Probate of Wills. — An executor or executrix is appointed by the testator in his will to manage the estate. An administrator or administratrix is appointed by the court to manage the estate. Probate of a will is the proof made before a court or an officer appointed by law that the instrument offered is the last will and testa- ment of the testator ; upon sufficient proof, and security given, the officer issues letters testamentary. § 244. Acknowledgments. § 245. — Definition. — ^An acknowledgment is the act of one who has executed a deed, by going before some competent authorized officer or court, and declaring it to be his or her act or deed. The acknowledgment is certified by the officer or court, and the term is sometimes used to designate the cer- tificate.^'' It consists in an admission of the grantor that the deed is his own, and was given freely and for the purposes set forth in the deed.^^ § 246. — Certificate of Acknowledgment. — ^A certificate of acknowledgment is the officer 's statement on a document which a party acknowledges. The officer states that on a certain day named the grantor, who was personally known, or proved to him by the testimony of a witness (giving name) to be the person described in and who executed the deed, personally appeared before him and acknowledged the instrument to be his free act and deed. He signs his name and affixes his 15 In re Tobin, 196 ni. 484, 63 man v. Wettig, 39 HI. 416; Har- N. E. 1021. rington v. Fish, 10 Mich. 415. 16 Engelthaler v. Engelthaler, 18 The grantor must say and the 196 111. 230, 63 N. E. 669. certificate must show that he exe- IT Cyc. Law Diet.; Bays' Com- euted the deed. Short v. Conlee mercial Law, vol. 9, p. 147; Bow- 28 111. 219. § 347] CONVKYANCES AND ACKNOWLEDGMENTS. 131 official seal by impressing it upon the instrument. The deed is then entitled to record. No officer shall take the acknowl- edgment of the execution of a deed unless he shall know, or have satisfactory evidence, that the person making the ac- knowledgment is the individual named in and who executed the conveyance. He is required to put his certificate upon the deed to that effect.^' § 247. — Necessity and Purpose. — ^A deed may be effective between the parties without acknowledgment provided it was really delivered, but acknowledgment is always desirable and is necessary for certain purposes. In the first place, if a deed is properly acknowledged, a trumped up charge of fraud on the part of the grantor is difficult to sustain. Secondly, ac- knowledgment is necessary in most states, in order that the deed may be recorded and be effectual against third parties. Thirdly, dower and homestead rights cannot be waived in a deed unless it is acknowledged, and, in the fourth place, a deed which is properly acknowledged is said to prove itself, which means that it can go in as evidence without proof of its execution which would otherwise be necessary. 20 Deeds that have been acknowledged are seldom required to have witnesses, but deeds not so acknowledged and certified to are required to have witnesses in order to prove their authenticity or execution.*^ Acknowledgment of sheriff's deed is essential to its validity for land sold by him under an execution. The property is conveyed against the will of the judgment debtor, the convey- ance is not his act, but the act of law; and the law, when ac- 19 Fryer v. Eockef eller, 63 N. T. As between the grantor and 268. grantee a deed neither aoknowl- 20 Bays' Commercial La-w, vol. 9, edged nor recorded will pass the p_ 147. title. Galligher v. Connell, 46 Neb. A deed may be valid and, bind- 372, 64 N. W. 965; 35 Neb. 517, ing on the parties who execute it, 5? N. W. 383; Harrison v. Mc- without any acknowledgment. The Whirter, 12 Neb. 155, 10 N. W. purpose of the certificate is to 545. prove the execution, otherwise 21 Seaver v. Spink, 65 111. 441 ; other proof may be resorted to to Short v. Conlee, 28 111. 219; Har- rnake it binding on the parties. rington v. Fish, 10 Mich. 415. Eobinson v. Eobinson, 116 111. 250, See post, § 272 et seq., Statutory 5 N. E. 118. Eequirements. 133 NOTARIES PUBLIC. [§ 248 knowledgment is requisite, must be strictly complied with."^ § 248. —Nature of Taking of Acknowledgment; Care Re- quired of Officers; Negligence. — While some courts have held the taking of an acknowledgment to be a judicial act,^^ the general opinion seems to be that such act is ministerial, rather than judicial.^* The distinction is important in a legal sense as involving liability in case of negligence, because if an ac- knowledgment is considered as a judicial conclusion, no lia- bility is incurred in ease of unintended falsity.^* As a general rule, in taking and certifying acknowledg- ments, a notary must exercise reasonable care, such as a rea- sonably prudent and competent man would exercise in the performance of such duty.*^ At the common law, a notary was bound to certify to acknowledgments with integrity be- cause, by accepting the ofSce, he contracted with every one who employed him to perform his duty with integrity, dili- 22Warvelle on Abstracts (4th Ed.), § 275. 28 "An officer who takes an ac- knowledgment (of the execution of a deed) acts in a judicial charac- ter in determining whether the person representing himself to be, or represented by some one else to be, the grantor named in the conveyance, actually is the gran- tor. He determines further whether the person thus adjudged to be the grantor does actually and truly acknowledge before him that he executed the instrument. ' ' Wasson v. Connor, 54 Miss. 352. "It is well settled that the cer- tificate * * * of the acknowl- edgment of a deed or mortgage is a judicial act." Com. v. Haines, 97 Pa. St. 228, 39 Am. Eep. 805. 24 Barnard v. Schuler, 100 Minn. 289, 110 N. "W. 966; State Nat. Bank v. Mee, 39 Okla. 775, 136 Pac. 758; Ehlers v. United States Fidelity & Guaranty Co., 87 Wash. 662, 152 Pac. 518. See In re Huron, 58 Kan. 152, 48 Pac. 574, 36 L. E. A. 822, 62 Am. St. Eep. 614; Opinion of Justices, 150 Mass. 586, 23 N. E. 850, 6 L. E. A. 842. 25 Where a notary is considered an executive or ministerial officer, such officers are liable for wilful or negligent misconduct, but where the identity of a stranger may be proved to a notary by witnesses, as is permissible under the statutes of some states, the notary's certificate concerning the identity of the maker of an instrument is a ju- dicial conclusion, similar to a judg- ment, and no liability is incurred in case of unintended falsity. See Bellport V. Harkins, 104 Kan. 543, 180 Pac. 220. • 26 State V. Webber, 177 Mo. App. 60, 164 S. W. 184; Ehlers v. United States Fidelity & Guaranty Co., 87 Wash. 662, 152 Pac. 518. See also Bellport v. Harkins, 104 Kan. 543, 180 Pac. 220; Baune v. Sol- heim, 129 Minn. 221, 152 N. W. 267. § 348] OONVETAJSrCES AND ACKNOWLEDGMENTS. 133 gence and skill.^'' This duty to certify acknowledgments with integrity exists under statutes authorizing notaries to take acknowledgments.*' It arises also from the nature of the act, as it is obvious that the act of taking an acknowledgment is a matter of grave importance. Upon the fidelity with which this duty is discharged depends the title to real estate and the prevention of litigation. Q-reat faith and credit is re- posed in the certificates of notaries, and a corresponding duty is imposed on them to exercise care and caution in the per- formance of their duties.*^ The notary is not a guarantor of the absolute correctness of the certificate of acknowledgment, however, nor does he undertake to certify that the person acknowledging the in- strument owns or has any interest in the lands described; but he does undertake to certify that the person personally ap- pearing before him is known to him to be the person described in and who executed the instrument.'" In rejecting the rule making the notary a guarantor of the truth of his certificate, the Supreme Court of one state said: "A notary public or other officer in taking an acknowledgment may be deceived, no matter how careful he may be in investigating the identity of a party who represents himself to be the person described in and who executed the instrument; and to hold such an of- ficer absolutely liable in case it should afterwards appear that he was mistaken and his certificate was in fact untrue is too rigid a rule to be practical or just."'^ Under other decisions the question as to whether a notary and his bondsmen are liable when an acknowledgment proves to be false has been held to depend upon whether the notary followed the statute, which prescribes what must be done. This really amounts to holding the notary as an insurer or guarantor as to the 27 state V. Ogden, 187 Mo. App. duty of a notary is not only to cer- 39, 172 S. W. 1172. tify to acknowledgments, but to do 28 Where notaries are authorized so with integrity. State v. Ogden, by statute to take aeknowledg- 187 Mo. App. 89, 172 S. W. 1172. ments, etc., and to certify under 29 State v. Webber, 177 Mo. App. their official seals "concerning all 60, 164 S. W. 184. matters by them done by virtue of 80 Barnard v. Schuler, 100 Minn, their offices," and are required to 289, 110 N. W. 966. give bond which "may be sued on 81 Barnard v. Schuler, 100 Minn, by any person injured," the official 289, 110 N. W. 966. 134 NOTAEIES PUBLIC. [§ 249 truth of the certificate of identity of the person named in the acknowledgment, and that he was the person who ap- peared before him to acknowledge it.'" It will be noted from the foregoing that while there is con- siderable conflict as to the extent of a notary's liability, such officers are held to a high degree of care in taking and cer- tifying acknowledgments. It may be added that there is also considerable conflict in determining whether reasonable care has been exercised by notaries, when their acts become in- volved in litigation. The subject is so important as to re- quire extended treatment in detail. § 249. — ^Essentials of Acknowledgments. — Two essentials of acknowledgments which are matters of substance and can- not be dispensed with are the matter of acknowledgment itself, and the identity of the party or parties making the acknowl- edgment. Defects in either of these matters will render the certificate void.®' Careful performance of the notary's duties require certificates which are free from defects. While the two matters stated are the most important, other defects are sometimes considered fatal, and the certificate should fully comply with the statute in all details. § 250. — Necessity of Knowledge of Identity of Grantor or Person Appeajing; Introductions. — Eeasonable care in the per- formance of a notary's duties involves certainty of the iden- tity of the person or persons making an acknowledgment. Such personal knowledge is one of the essentials of an ac- knowledgment.'* A notary may only certify to the identity of a person with whom he is acquainted, and that acquaint- ance must be of sufficient duration and extent of familiarity that the notary has reasonable grounds upon which to base the recital in his certificate touching the identity of the person who appeared before him and acknowledged the execution of the instrument.'* If the notary does not personally know the SZBrittain v. Monsur, — Tex. Hartshorn v. Dawson, 79 111. 108; Civ. App. — , 195 8. W. 911. State v. Eyland, 163 Mo. 280, 63 33Warvelle on Abstracts (4th S. W. 819; Smith v. Garden, 28 Ed.), § 210. "Wis. 685. S4Joost V. Craig, 131 Cal. 504, SBBellport v. Harkins, 104 Kan. 63 Pao. 840, 82 Am. St. Eep. 374; 543, 180 Pae. 220. Hajden v. Westcott, 11 Conn. 129; While a notary public is not a 350] CONVEYAlsrCES AND ACKNOWLEDGMENTS. 135 party appearing before him, he should proceed with caution, and either decline to certify to the acknowledgment or in- vestigate the question of the identity of the party with care and prudence as the gravity of the case demands, and only certify to his identity upon being clearly satisfied of the fact as a result of such investigation.'^ If a notary certifies to an acknowledgment without personal knowledge and investiga- tion, he is guilty of negligence,*'' and he and his sureties are guarantor or insurer of the iden- tity of the person whose notarial acknowledgment he administers and certifies, he is bound, as all executive and ministerial officers are generally bound, to exercise reasonable diligence in the dis- charge of Ms official duties. Be- fore certifying that a certain named person came before him and executed and acknowledged the execution of a deed, he must at least be reasonably sure of the identity of such person. Bellport V. Harkins, 104 Kau. 543, 180 Pac. 220. An officer taking acknowledg- ment must be satisfied of the iden- tity of person who executed the instrument. In re H — C — , Jr., 81 N. J. Eq. 8, 85 Atl. 336. 36 Barnard v. Sohuler, 100 Minn. 289, 110 N. W. 966; State v. "Web- ber, 177 Mo. App. 60, 164 S. W. 184; State v. Meyer, 2 Mo. App. 413. "A notary is not justified in taking an acknowledgment and making a notarial certificate for a stranger who coraes into his office and says: 'My name is John Smith. I want to acknowledge a deed and have you make your notarial certificate to it.' Such official conduct on the part of the notary would be grossly negligent, and he would undoubtedly be liable in damages to any person who suf- fered loss through reliance on the purported facts negligently and falsely recited in such notarial cer- tificate. " Dawson, J., in Bellport V. Harkins, 104 Kan. 543, 180 Pae. 220. "When a man appears before an officer, introduces himself, pro- duces an instrument which he says he desires to execute, if then the officer takes and certifies an ac- knowledgment, certifies that he is satisfied that a perfect stranger is the identical grantor named in the instrument, he solemnly certi- fies to an untruth, and should be deprived of his office, or otherwise appropriately punished." In re H — C — , Jr., 81 N. J. Eq. 8, 85 Atl. 336. 37 Barnard v. Schuler, 100 Minn. 289, 110 N. W. 966; State Nat. Bank v. Mee, 39 Okla. 775, 136 Pac. 758. Where a person impersonated an owner of land, and requested the acknowledgment of a deed pre- pared by an attorney, and the no- tary by mistake certified the in- strument, thinking that he was acquainted with the man, the act - was characterized as "gross neg- ligence." Peterson v. Mahon, 27 N. D. 92, 145 N. W. 596. See Baune v. Solheim, 129 Minn. 221, 152 N. W. 267 (where a woman 136 KOTAEIES PUBLIC. [§ 350 liable for all damages proximately resulting therefrom." In such cases, where there is a specific act of negligence, it is immaterial and of no importance that the notary was ordi- narily careful.28 A notary who takes an acknowledgment to a deed executed in blank by an impostor will not be permitted to escape liability because the name of the grantee was omitted.*" A notary public is also guilty of negligence if he certifies that he knows a person who is merely introduced to him, and there is no further proof or inquiry as to his identity," or, at least, such conduct raises a question of fact as to whether the notary was reasonably careful.** In a case where a notary was induced to take the acknowledgment of a man unknown to him, being induced to do so by the fact that he was in- troduced to the man by a member of a commission firm of pre- vious good standing, which commission firm was the paye^ of a chattel mortgage and note, it could not be contended sub- sequently that' there was no negligence on the part of the notary. When the notary certified that such person, naming him, was the person who acknowledged the execution of the instrument involved, he had to personally know at his peril that the person introduced was the person named.** imperaonated a grantor's wife, and 13 Ann. Cas. 716; Ehlers v. United the verdict acquitted the notary States Fidelity & Guaranty Co., 87 of negligence). Wash. 662, 152 Pao. 518. 88 Barnard v. Schuler, 100 Minn. 43 State v. Farmer (Mo. App.), 289, 110 N. W. 966. 201 S. W. 955. 89 Kangley v. Eogers, 85 Wash. Where a live stock commission 250, 147 Pae. 898. firm sold a note secured by a chat- 40 BellpoTt V. Harkins, 104 Kan. tel mortgage, purporting to be exe- 543, 180 Pac. 220. cuted by another, and it later ap- 41 State Nat. Bank v. Mee, 39 peared that such other person did Okla. 775, 136 Pac. 758. See also not exist, and that the cattle se- Joost V. Craig, 131 Cal. 504, 63 cured by the mortgage did not ex- Pac. 840, 82 Am. St. Eep. 374. ist, and it appeared that the no- 4.2 Where an acknowledgment is tary was negligent in that she did taken upon a mere introduction not know the man who acknowl- without further proof, and dam- edged the instrument, and ac- ages result, the question whether cepted an introduction of a mem- the notary exercised reasonable ber of the commission Arm to such care and diligence is for the jury. man, the act of the notary was Com. V. .Johnson, 123 Ky. 437, 96 not the proximate cause of the S. W. 801, 124 Am. St. Eep. 368, loss, and the notary and bonds- § 251] CONVEYANCES AND ACKNOWLEDGMENTS. 137 § 251. — False Certificates. — The making of a false certifi- cate of acknowledgment is a breach of the notary's bond, sub- jecting him and his sureties to liability, in case of injury.** It may also result in criminal proceedings,*^ the imposition of penalties, or removal of the ofScer.*^ The officer has no right to certify anything that he does not know,*'' and a person has the right to rely upon a notary's certificate as true, and that men were liable only for nominal damages. State v. Packard, 199 Mo. App. 53, 201 S. W. 953; State V. Farmer (Mo. App.), 201 S. W. 955. But see State v. Eyland, 163 Mo. 280, 63 S. W. 819; State v. Grundon, 90 Mo. App. 266; State V. Balmer, 77 Mo. App. 463; State V. Meyer, 2 Mo. App. 413, where the property was in fact owned by the person who the notary negli- gently and untruly certified had acknowledged the instrument, and where the notary's act proxi- mately caused the loss, so that he and his sureties were liable. Where a notary was induced to take the acknowledgment of a man unknown to him, but intro- duced by a commission merchant, who was the payee of a note and a chattel mortgage, which the no- tary acknowledged, the notary and his bondsmen could not subse- quently contend that the payee named was estopped from claiming damages because of the false cer- tificate, and that such estoppel ex- tended to others to whom the mortgage and note were indorsed, as the note was a negotiable in- strument, and the notary's certifi- cate was not to the payees of the mortgage alone, but to all the world who might choose to take the papers in the course of busi- ness. State V. Fanner (Mo. App.), 201 S. W. 955. 44Kleinpeter v. Castro, 11 Cal. App. 83, 103 Pac. 1090; Wilson v. Gribben, 152 Iowa 379, 132 N. W. 849; State v. Ogden, 187 Mo. App. 39, 172 S. W. 1172; State v. Web- ber, 177 Mo. App. 60, 164 S. W. 184. A notary and his sureties are liable for the making of a false certificate whether such certificate is valid or invalid if made in ap- parent conformity to legally con- stituted authority but in excess or perversion thereof, and an injury - results therefrom, because in such case the act is done by color of the office. State v. Ogden, 187 Mo. App. 39, 172 S. W. 1172. Where a notary forged a deed of trust and note, and fraudulently certified to a false acknowledg- ment, and a person in reliance thereon parted with his money, after seeing that the deed of trust was acknowledged, the fraudulent certificate was the proximate cause of the loss, even though the certifi- cate was only one of the causes which induced the person to loan money, and the notary and his sureties were liable. State v. Og- den, 187 Mo. App. 39, 172 S. W. 1172. 45 See People v. Marrin, 205 N. Y. 275, 98 N. E. 474, 43 L. B. A. (N. S.) 754. 46 See ante, §§ 31-34. 47 Fisher v. Meister, 24 Mich. 447. 138 NOTAEIES PUBLIC. [§ 252 the persons therein mentioned appeared before the notary and acknowledged the instrument. There is no obligation to go out and verify the statements of the notary, and there can be no contributory negligence in relying on such state- ment.** § 252. — Necessity of Personal Appearance of Person Ac- knowledging. — Notaries public, in the performance of their duties, and particularly in the taking of acknowledgments, continually meet persons, who do not understand the signifi- cance and importance of the taking of acknowledgments, and the performance of similar duties. Thus notaries are fre- quently invited to fill in acknowledgments, or to certify to facts, and even take affidavits, without the appearance of the subscriber before them. Frequently such invitations are, from business men who regard the formalities of the law as a species of "red tape" and who, because of being busy men, do not want to take the time to fully comply with the law. But the conscientious, wise notary will steadfastly adhere to the strict performance of his duties, and will not succumb to the tempta- tions offered in this respect. It will be apparent after thought, that if notaries are careless of the person appearing before them, the door is open to innumerable frauds, and the notary may be subjected to serious damage suits, if not penal- ties, as well as to the disgrace of having his commission re- voked. In the majority of the states, the certificate of acknowledgment states that the subscriber "personally ap- peared" before the notary and acknowledged the instrument. By calling attention to these words, the notary can usually satisfy his client that the law demands such appearance, and avoid argument. Certifying to a person being present, when he or she is ab- sent, is negligence, rendering the notary liable on his bond as for a false certificate.*® Such conduct is also to be con- 48 state V. Ogden, 187 Mo. App. Certifying when the party ha» 39, 172 S. W. 1172. not appeared before him or when 49 State V. Hallen (Mo. App.), he has not read the instrument ia 196 S. W. 1067; State v. Hallen, a miafeasance and renders him 165 Mo. App. 422, 146 S. W. 1171; liable. People ex rel. Curtiss v. Kangley v. Eogers, 85 Wash. 250, Colby, 39 Mich. 456. 147 Pac. 898. § 854] ^ CONTEYANOES AND ACKNOWLEDGMENTS. 139 demned and treated as serious professional misconduct."" § 253. — Taking Acknowledgments by Telephone. — In con- nection with the necessity of appearance of a subscriber be- fore the notary are the cases where the notary is invited to take the acknowledgment of persons over the telephone. And it may be stated in general that most of such cases are where the acknowledgment to be taken is that of a married woman. In this connection the authorities differ as to the validity of such an acknowledgment. By applying the principal that an acknowledgment is conclusive as to the facts therein stated, except in cases of fraud, mistake or duress, such an ac- knowledgment has been held valid. ^^ But in some states the privy examination of a married woman is required to ren- der the deed valid, when she joins with her husband. Such examination must be private and apart from the husband, and a personal interview with the married woman is neces- sary, so that the officer can determine if the deed is freely and voluntarily acknowledged. Such a privy examination conducted over the telephone has been held a mere empty form, and of no effect.^® § 254. — Acknowledgments of Married Women; Private Examination. — The formalities attending the acknowledgment of anarried women's conveyances now differ in no material respect from other deeds, though formerly they involved no little circumlocution and ceremony. It was, and in some states is yet, customary to make a personal examination of the wife, apart from her husband, in which the contents and nature of the instrument must be made known to her, and upon such examination she is required to make a "free and voluntary" acknowledgment without "fear or compulsion" and to further state that she does not wish to retract; that she resigns her dower, waives her homestead rights, etc. Where such is the law, the courts have usually exacted a strict and literal compliance with the statutory provisions, 50 In re ISTapolis, 169 N. T. App. B2 Wester v. Hurt, 123 Tenn. 508, Dlv. 469, 155 N. T. Supp. 416. 130 S. W. 842, 30 L. B. A. (N. S.) 51 Banning v. Banning, 80 Cal. 358, Ann. Cas. 1912 C 329. 271, 22 Pae. 210, 13 Am. St. Rep. 156. 140 NOTARIES PDBLIO. [§ 355 and material departures or omissions have been held to vitiate the conveyance.^' § 255. —Necessity of Conformity with Statutory Provisions. — Since the office of an acknowledgment is to authenticate the deed, it must conform to, or substantially follow, the direc- tions of the statute, in order to be effective. Such conformity extends to the certifying officer and the form and substance of the certificate. The certificate is not a part of the deed, however, and should be reasonably construed. Accordingly, minor defects may be disregarded and substantial compliance with the statute is all that is required.^* § 256. — Place for Certificate of Acknowledgment on In- strument. — ^Printed forms of instruments are frequently used, the entire contract or deed being on one sheet, and a place for acknowledgment being provided. In other cases, the certifi- cate of acknowledgment should follow the ending and signa- tures affixed to the main instrument. It has been held that the acknowledgment must be on the same sheet as the deed, unless the second sheet contains the testatum clause.** § 257. —What Officers May Take Acknowledgments. — The statutes usually enumerate what officers may take acknowledg- ments, and such directions are final. If a special class of 53 Warvelle on Abstracts (4th rights of the wife, on the one hand, Bd.), § 245. might be guarded, and a sure, un- In Illinois, formerly it was es- questionable transfer of her right sential that in a deed conveying secured on the other. Kerr v. Eus- the wife's estate the certificate of sell, 69 111. 666, 18 Am. Eep. 634. acknowledgment should state that In Tennessee, a wife may con- she was examined separate and vey her separate estate without apart from her husband and that the husband joining, but the privy the contents of the deed were made examination is necessary in either known and explained to her. Fail- case. See post, § 272 et seg., Stat- ing to so state made the deed as to utory Eequirements. Eobinson v. her and her heirs void. Mettler v. Queen, 87 Tenn. 445, 11 S. W. 38, Miller, 129 111. 630, 22 N. E. 529. 3 Ii. E. A. 214, 10 Am. St. Eep. The provision of the law author- 690. izing certain officers to take the B4 Warvelle on Abstracts (4th private examination of the wife Ed.), § 209. was designed as a substitute for BB Winkler v. Higgins, 9 Ohio the proceeding at common law by St. 599. fine and recovery, whereby the § 258] CONVETAKCES AND ACKNOWLEDGMENTS. 141 officers selected by the Legislature are intrusted with this duty, and such class does not include notaries, the taking of an acknowledgment by a notary is of no effect. And if the certificate recites the act by the notary, it is immaterial that such notary was also a commissioner of deeds, and as such authorized by statute to act.^® Notaries who hold themselves out to take acknowledgments must be properly qualified and commissioned, although the acts of de facto notaries are usual- ly upheld.*' An acknowledgment taken by a notary whose commission has expired has been held insufSeient.^' § 258. — Place of Acknowledgment ; Jurisdiction of Officer. — A certificate of acknowledgment should show the place of acknowledgment, by reciting the state and eountj''.^* Omissions in this respect are usually not treated as matters of substance, and are not held fatal, or the omission of the county in the venue may be cured by the certificate of conformity, or by the seal. In Iowa, however, such an omission has been held fatal, and the seal could not cure the defect.®'' Some states permit a notary to take acknowledgments to deeds anywhere within the state.®^ A deed executed out of the state is properly 56 Partridge v. Mechanics' Nat. lumbia Sav. Bank, 166 Iowa 411, Bank of Burlington, 77 N. J. Eq. 147 N. "W. 879. 208, 77 Atl. 410. Deed must be ac- A certificate must contain some knowledged before officers named. assignable locality, -whieh the court Charleroi Timber & Canal Coal Co. can judicially notice in order to V. lacking Coal & Lumber Co. render the deed admissible as (Ky.), 116 S. W. 682. evidence without proof of its exe- What officers may take acknowl- cution; and a notarial seal will edgments, see post, § 272 et seq., not cure the defect. Vance v. Statutory E^quirements. Schuyler, 1 Gilm. (111.) 160. A clerk of the United States 61 Guertin v. Mombleau, 144 111. courts may take acknowledgments 32, 33 N. E. 49; Oppenheimer v. in Illinois. Woodruff v. McHarry, Giershofer, 54 111. App. 39. 56 HI. 218. While it is proper for the no- BTAnte, § 16. tary to sign himself a notary pub- B8 Lambert v. Murray, 52 Colo. lie in and for the county for 156, 120 Pac. 415. which he is appointed, his certifl- Disqualification of notaries to cate of acknowledgment is not take acknowledgments, see post, fatally defective if his county is I 267. , omitted. Sullivan v. Hall, 86 69 See ante, § 17. Mich. 7, 48 N. W. 646, 13 L. R. A. eoWarvelle on Abstracts (4th 556. Ed.), § 210; Beeves & Co. v. Co- 142 NOTARIES PUBLIC. [§ 359 acknowledged if executed according to the laws of the state where the execution takes place.^^ It must appear that the oiScer making the certificate is an officer of the state within which the acknowledgment is made, and that he is acting under and by authority of its laws.®' § 259. —Clerical Errors in Statement of Fact of Acknowl- edgfment. — Clerical errors in certificates of acknowledgment are unfortunately most common. Printed forms of the certificate are used frequently and the notary accidentally or carelessly fills out the blanks improperly or neglects to fill them out. Later serious questions arise. If the instrument is recorded, the defects are discovered when the abstract of title is ex- amined, and additional expense and trouble are required to correct the matter. Sometimes the question is involved in litigation. As a general rule the courts are inclined to con- strue this class of errors most liberally, but there is danger that an apparently small defect may be a matter of substance. As an illustration, in most printed forms the recital of ac- knowledgment reads "and acknowledged that — ^he — signed, executed," etc., the purpose of the labor saving device being to aUow the blanks before and after the word "he" to be filled by letters that shall make the words "she" or "they" as the case may require. Carelessness or ignorance frequently causes the instrument to go forth with the blank space not properly filled out, and with an ambiguous recital of one of the essential facts of acknowledgment. In the case of a joint acknowledgment by a husband and wife, the certificate will state that the parties appeared before the officer and acknowl- edged that "he" the husband executed the instrument. May not such an error be a matter of substance? In another cer- tificate, the recital stated that the husband and wife, "who — personally known to me," appeared, etc., omitting the word "are," and the court held that the word "who" might be disregarded as surplusage. The general rule seems to be that the courts will disregard obvious mistakes and read into the 62 Keller v. Moore, 51 Ala. 340; Post v. First Nat. Bank of Spring- Summer V. Mitchell, 29 Fla. 179, field, 138 HI. 559, 28 N. E. 978; 10 So. 562, 14 L. E. A. 815, 30 Slaughter v. Bernards, 88 Wis. Ill, Am. St. Eep. 106; Bsker v. Hef- 59 N. W. 576. fernan, 159 HI. 38, 41 N. E. 1113; 68 Final v. Backus, 18 Mich. 218. § 260] CONVEYANCES AND ACKNOWLEDGMENTS. 143 certificate the proper word if it can be easily ascertained,®* biit the liberality of the courts in this respect should not ex- cuse the notary. Holding himself out to the world as com- petent to perform his duties, the notary should be most care- ful, in preparing and certifying acknowledgments. A defect of frequent occurrence Avill be found in disparity of dates, as where the date of a deed is subsequent to the date of acknowledgment. Errors in this respect are usually considered clerical mistakes, and while they should be noted in the examination of abstracts, are usually considered of minor importance.®* § 260. — Signature of Officers ; Designation of Official Char- acter. — The notary's signature should be properly written and affixed.®® A notary's seal attached to the acknowledgment of a deed without the notary's signature cannot be received as evidence of the execution of the deed.®' The failure to file the notary's autograph signature in the office of a register of a county, as required by statute, has been held an irreg- ularity, not invalidating an acknowledgment.®* Officers certifying must give their official title, or the certifi- cate is fatally defective.®^ If the title is given in full in the body of the certificate, its omission from the signature is im- material,'" and the omission of the official character in the eiWarvelle on Abstracts (4th 860, 11 Am. St. Eep. 143; Foster v. Ed.), § 209. Latham, 21 HI. App. 165. The policy of the law is to up- 68 In re Townsend, 195 N. T. hold all certificates of acknowledg- 214, 88 N. E. 41, 22 L. E. A. (N. ment; where substance is found, S.) 194, 16 Ann. Cas. 921. mere clerical errors and technical 69 "Warvelle 's Abstracts (4th omissions are disregarded. Sum- Ed.), sec. 210; Clark v. "Wilson, 27 mer v. Mitchell, 29 Fla. 179, 10 111. App. 610, afC'd 127 Dl. 449, 19 So. 562, 14 L. E. A. 815, 30 Am. N. E. 860, 11 Am. St. Eep. 143; St. Eep. 106; Douglass v. Bishop, Hout v. Hout, 20 Ohio St. 119; 45 Kan. 200, 25 Pac. 628, 10 L. E. Cassell v. Cooke, 8 Serg. & E. (Pa.) A. 857. 268. 65 Warvelle on Abstracts (4th 70 Summer v. Mitchell, 29 Ela. Ed.), § 209. 179, 10 So. 562, 14 L. E. A. 815, 30 66 Ante, § 24. See Lake v. Am. St. Eep. 106. See Duckworth TCarncst 53 Tex. Civ. App. 555, v. Watsonville Water & Light Co., 116 S. W. 865. 150 Oal. 520, 89 Pac. 338. 67 Clark v. Wilson, 27 111. App. A certificate of acknowledgment 610 aff'd 127 111. 449, 19 N. E. of a deed or certificate of a notary. 144 NOTAKIES PUBLIC. [§ 261 body of the instrument will not invalidate the certificate, when the instrument is signed by the officer with the initials "N. P." following,'^ or with the proper designation of the official. In some states, the name of the county is an essential part of the title of the notary, and must be stated.''^ As a general rule, whenever a certifying officer is required to have a seal, he must authenticate his certificate under his official seal," and the notary's seal should be attached to all acknowledg- ments taken by them.''* The official seal attached to an ac- knowledgment imparts verity and that the act is official and not individual.'^ No seal is necessary to certificates of ac- knowledgment unless the statutes expressly require it,''^ and in some states the seal is unnecessary.''' No objection having been made, when the deed was put in evidence, that the of- ficial seal of the notary did not appear on the certificate of acknowledgment, the objection will be regarded as having been waived.''* § 261. — Amendment or Correction of Certificate. — An offi- cer having taken an acknowledgment of a deed, and made a certificate thereof, cannot as a general rule afterwards amend or change his certificate for the purpose of correcting a mistake. This can only be done by the parties reacknowledging the or other officer. Stating in its body ven, 203 Ala. 446, 83 So. 338, 7 the officer's official character, it is A. L. E. 1658. useless and unnecessary to again 75 Moore v. Titman, 33 111. 358. certify it by full designation f ol- 76 Thompson v. Morgan, 6 Minn. lowing the signature. Heffernan 292 (Gil. 199) ; Baze v. Arper, 6 V. Harvey, 41 W. Va. 766, 24 S. E. Minn. 220 (Gil. 142). 592. It is within the legislative pow- 71 Worley v. Adams, 111 Va. 796, er to enact, as to future contracts, 69 S. E. 929. that the same shall not be binding 72 Beeves & Co. v. Columbia Sav. or effective in any way without a Bank, 166 Iowa 411, 147 N. W. seal or without an aeknowledg- 879. ment of a specific kind or without 78 Warvelle on Abstracts (4th being recorded. Statutes simply Ed.), § 210. prescribe what shall be essential to 74 Dyer v. Flint, 21 111. 80, 74 constitute a valid contract. Par- Am; Dec. 73. rott v. Kumpf, 102 HI. 423. At common law, notary was sim- 77 Dawaey v. Kirven, 203 Ala. ply a commercial officer and his 446, 83 So. 338, 7 A. L. E. 1658. official acts were known only by 78 Baker v. Baker, 159 HI. 394, his official seal. Dawsey v. Kir- 42 N. E. 867. § 266] CONYEYANCES AND ACKNOWLEDGMENTS. 145 deed.™ The same is true if the deed had been delivered.*" § 262. — Acknowledgments as Evidence. — The certificate of acknowledgment of a notary or consul is prima facie evi- dence of their official character.'^ In taking acknowledgments, an officer acts under the sanction of his official oath, and his certificate, required by law to be made, should be regarded as high a grade of evidence as if given under oath.*^ § 263. — Probate of Deed. — In Tennessee a deed cannot be probated before a notary public by subscribing witnesses;' his duty is to take acknowledgments and the proof by wit- nesses must be made before the clerk of the county court." § 264. Acknowledgments of Particular Instruments. § 265. — Chattel Mortgages. — Acknowledgment of chattel mortgages by a notary of another state is conferred by the force and vigor of the Illinois statutes when the mortgagor resides in such state, as well as in cases of real estate con- veyances. ** The omission to state the county in an acknowl- edgment to a chattel mortgage taken before a justice of the peace is immaterial when it is perfectly certaia that the ac- knowledgment was taken by a justice of the peace in and for a town of which the court has judicial knowledge to be in the proper county.*^ § 266. — Town Plats, — "While a town plat, imperfectly ac- knowledged, fails to convey the fee, it is evidence tending to 79Merritt v. Tates, 71 HI. 636, Ala. 438, 47 So. 230, 22 L. E. A. 23 Am. Eep. 128. (N. S.) 216. 80 Griffith V. Yentress, 91 Ala. 81 Mott v. Smith, 16 Cal. 534. A 366 8 So. 312, 11 L. R. A. 193, 24 notary's certificate is evidence of Am. St. Rep. 918. the facts therein stated. State v. Where no certificate of acknowl- Ogden, 187 Mo. App. 39, 172 S. W. edgment was made by a mortgagor 1172. or his wife, and the mortgage was 82 Warrick v. Hull, 102 HI. 280. delivered, and seven days later a 83 McGuire v. Gallagher, 95 certificate was attached, in due Tenn. 349, 32 S. W. 209. form the certificate was unauthor- 84 Hewitt v. Watertown Steam ized as the notary could not make Engine Co., 65 111. App. 153. such certificate without recalling 86 Gilbert v. National Cash Reg- the parties. Alford v. Doe ex dem. ister Co., 67 HI. App. 606. First Nat. Bank of Gadsden, 156 10 146 NOTAEIES PUBLIC. [§ 26T prove a common-law dedication, which vests an easement m the streets and alleys in the municipality.*® § 267. Impeachment of Certificates of Acknowledgment.— Certificates of acknowledgment may usually be impeached only for fraud, conspiracy, collusion or imposition ,8' and clear, convincing and satisfactory proof is required.** Some courts require proof that the grantee had knowledge of the fraud, and that there was collusion with the notary.*' In the ab- sence of fraud or collusion, the certificate of the officer taking the acknowledgment is essential to full credit.'" The evidence of the officer who takes an acknowledgment of a chattel mortgage is competent for the purpose of impeach- ing his official certificate.®^ § 268. Disqualification of Notaries to Take Acknowledg- ments. § 269, — In General. — The relationship or interest which will disqualify a notary from taking an acknowledgment must be determined from the facts of each case,'® and usually mere relationship without anything else is not a disqualification.'^ If the notary is a party or financially interested in the con- veyance, he is disqualified from acting,'* and conversely, if the 86 Gould V. Howe, 131 111. 490, 91 McCurley v. Pitner, 65 lU. 23 N. E. 602. App. 17. 87 Warrick v. HiQl, 102 111. 280; See ante, § 26. Fitzgerald v. Fitzgerald, 100 HI. 82 gee ante, § 21. 385; Mahan v. Schroeder, 142 111. 93 Hinton v. Hall, 166 N. C. 477, App. 538; O'Donnell v. Kelliher, 82 8. E. 847 (brother-in-law of 62 111. App. 641. mortgagee not disqualified). The acknowledgment of a deed 94 Herbach v. Tyrrell, 48 Neb. cannot be impeached for anything 514, 67 N. W. 485, 489, 37 L. E. A. but fraud. Ogden Building & Loan 434; Watts v. Whetstone, 79 S. C. Ass'n V. Mensch, 196 111. 554, 63 357, 60 S. E. 703; W. C. Belcher N. E. 1049, 89 Am. St. Eep. 380. Land Mortg. Co. v. Taylor, — Tex. See ante, § 28. Civ. App. — , 173 S. W. 278; Roane 88 Sheridan County v. McKin- v. Murphy, — Tex. Civ. App. — , ney, 79 Neb. 223, 115 N. W. 548. 96 S. W. 782. See Kothe v. Krag- 89 Evart v. Dalrymple, — Tex. Reynolds Co., 20 Ind. App. 293, 50 Civ. App. — , 131 S. W. 223. N. E. 594, citing Green v. Abra- 90 Calumet & 0. Canal & Dock ham, 43 Ark. 420; Hogana v. Car- Co. V. Russell, 68 HI. 426; lack- ruth, 18 Fla. 587; Hammers v. m on V. Harding, 65 111. 505. Dole, 61 lU. 307. 370] CONTETANOES AND ACKNOWLEDGMENTS. 147 notary is not financially interested, he is not disqualified from acting, even though he is an employee of a party,^^ an agent or attorney.®® § 270. — Stockholders. — It is generally held that the inter- est of a stockholder in a corporation disqualifies him from taking an acknowledgment where the corporation is a party to the instrument.^'' In some jurisdictions the contrary rule pre- vails, the act being held ministerial instead of judicial.'* In Arkansas it is held that an acknowledgment taken by a stock- A trustee named in a deed of trust is incompetent to take the acknowledgment of the grantor. Kothe V. Krag-Beynolds Co., 20 Ind. App. 293, 50 N. E. 594, cit- ing Stevens v. Hampton, 46 Mo. 404; Tavenner v. Barrett, 21 W. Va. 656. 96 Notary who is employee of grantee but who has no interest in property, is not disqualified to take acknowledgment. Smith v. Ayden Lumber Co., 144 N. C. 47, 56 S. E. 555. 96 Vizard v. Robinson, 181 Ala. 349, 61 So. 959; Nichols v. How- son, 94 Ark. 241, 126 S. W. 830; contra, Forest Oil Co. v. Wilson, — Tex. Civ. App. — , 178 S. W. 626. Agent and attorney of vendee employed to purchase timber is not disquaJified as notary to take gran- tor 's acknowledgment of deed. Vizard v. Robinson, 181 Ala. 349, 61 So. 959. A notary who is an attorney is not disqualified from taking an acknowledgment of a mortgage made to his client merely because he holds for collection the claim secured by such mortgage, it not appearing that he has any bene- ficial interest in the mortgage, nor that the amount of his compensa- tion in any manner depended upon such mortgage. Havemeyer v. Dahn, 48 Neb. 536, 67 N. W. 489, 33 L. R. A. 332, 58 Am. St. Rep. 706. 97 Hayes v. Southern Home Building & Loan Ass'n, 124 Ala. 663, 26 So. 527, 82 Am. St. Rep. 216; Southern Iron & Equipment Co. V. Voyles, 138 Ga. 258, 75 S. E. 248, 41 L. B. A. (N. S.) 375, Ann. Cas. 1913 D 369; Ogden Build- ing & Loan Ass'n v. Mensch, 196 111. 554, 63 N. E. 1049, 89 Am. St. Eep. 330; Kothe v. Krag-Reynolds Co., 20 Ind. App. 293, 50 N. B. 594; Smith V. Clark, 100 Iowa 605, 69 N. W. 1011; Girard Trust Co. v. Null, 90 Neb. 713, 134 N. W. 272; Boswell v. First Nat. Bank of Lara- mie, 16 Wyo. 161, 92 Pac. 624, 93 Pac. 661; Fletcher's Cyc. Corp., § 1489; 1 Devlin, Real Estate (3rd Ed.), § 477b et seq. 98 First Nat. Bank of Riverside V. Merrill, 167 Cal. 392, 139 Pac. 1066; Babbitt v. Bent County Bank, 50 Colo. 258, 108 Pac. 1003; Read v. Toledo Loan Co., 68 Ohio St. 280, 67 N. E. 729, 62 L. B. A. 790, 96 Am. St. Eep. 663; Kee v. Swing, 17 Okla. 410, 87 Pac. 297; Keene Guaranty Sav. Bank v. Law- rence, 32 Wash. 572, 73 Pac. 680. 148 KOTAEIES PUBlilO. [§ 2n holder is not void where there is no fraud, coercion or undue advantage taken of the other parties executing /the instru- ment,'* and this is also the rule in Tennessee.^ In a number of states, statutes have been enacted governing the matter.^ § 271. — Officers of Corporations. — The reason that an offi- cer who is also a stockholder of a corporation is disqualified from taking an acknowledgment of a conveyance to such cor- poration is based upon the principle that he has a pecuniary in- terest in the conveyance. If he has no such pecuniary interest, the principle, naturally, does not apply.' Hence, unless it is otherwise provided by statute,* an officer or agent of a cor- poration, at least if he is not a stockholder, may take the acknowledgment of an instrument to which the corporation is a party,^ and there is no presvunption that an officer of a corporation is a stockholder.^ An acknowledgment is void when taken by an officer who is disqualified to act, or who is a party in interest.' 89 Davis V. HaJe, 114 Ark. 426, 170 S. W. 99, Ann. Caa. 1916 D, 701. 1 Cooper V. Hamilton Perpetual Building & Loan Ass'n-, 97 Tenn. 285, 37 S. W. 12, 33 L. E. A. 338, 56 Am. St. 795. 8 Post, § 272 et seg., Statutory Eequirements. 8 See 1 Devlin, Eeal Estate (3rd Ed.), § 47711. 4Kothe V. Krag-Eeynolds Co., 20 Ind. App. 293, 50 N. B. 594 (where statute forbids), citing Florida Sav. Bank & Eeal Estate Exoh. v. Eivers, 36 Ma. 575, 18 So. 850; Smith V. Clark, 100 Iowa 605, 69 N. W. 1011. BBank of Woodland v. Oberhaus, 125 Cal. 320, 57 Pae. 1070; Florida Sav. Bank & Eeal Estate Exchange v. Eivers, 36 Fla. 575, 18 So. 850; Ogden Building & Loan Ass'n v. Mensch, 196 HI. 554, 63 N. E. 1049, 89 Am. St. Eep. 330; Sawyer v. Cox, 63 111. 130; Bardsley v. Ger- man- America^ Bank, 113 Iowa 216, 84 N. "W. 1041; Horbaeh v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 489, 37 li. E. A. 434; Keene Guaranty Sav. Bank v. Lawrence, 32 Wash. 572, 73 Pac. 680; Fletcher's Cyc, Corp., § 1490. 6 Florida Sav. Bank & Eeal Es- tate Exchange v. Eivers, 36 Fla. 575, 18 So. 850; Horbaeh v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 489, 37 L. E, A. 434. 7 Kothe V. Krag-Eeynolds Co., 20 Ind. App. 293, 50 N. E. 594, citing Hubble V. Wright, 23 Ind. 323; Bowden v. Parish, 86 Va. 67, 9 8. E. 616, 19 Am. St. Eep. 873, and others; Farmers' & Merchants' Bank v. Stockdale, 121 Iowa 748, 96 N. W. 732. (Oct. 8, 1903), 18 Chicago Law Jour. 611. § 373] CONVEYANCES AND ACKNOWLEDGMENTS. 149 STATUTORY EEQUIEEMENTS. § 272. Alabama^ACKNOWiiEDGMENTS— IN THE STATE— taken before judges of the supreme and circuit courts, clerks of such courts, chancellors, registers in chancery, probate judges, justices of the peace, notaries. OUTSIDE THE STATE — taken before federal judges, and clerks, judges of courts of record, notaries and commissioners. OUTSIDE THE UNITED STATES^-taken before judges of courts of record, mayors, chief magistrates of any city, town, borough, or county, notaries, any diplomatic, consular or commercial agent of the United States. PER- SONALLY KNOWN — must be personally known or proved to officer. Conveyances may be made by any person of legal capacity over twenty- one years of age. Trust estates permitted when legal title rests in trus- tee. Record of deeds required. WOMEN — wife cannot alienate or mortgage without husband joining. Separate examination of wife re- quired when acknowledging conveyance of homestead. Dower released by joining with husband, or by power of attorney. Homestead may be waived by separate instrument, witnessed or acknowledged. WIT- NESSES — one witness required to conveyance; two ■ if grantor cannot write. Acknowledgment dispenses with necessity of witnesses, but con- veyance must be proved and acknowledged to be recorded. POWER OF ATTORNEY — acknowledged same as deeds. LIMITATION OF AC- TIONS — to recover land, ten years; redemption of mortgage, two years; tax sale redemption, two years; judgment liens, two years. Continuance of judgment lien limited to ten years. § 273. Alaska^ACKNOWLEDGMENTS— IN THE TERRITORY— before any judge, clerk of the district court, notary, or commissioner, within the district. Officer must indorse his certificate and date thereon. OUTSIDE THE TERRITORY— IN THE UNITED STATES— taken be- fore a judge of a court of record, justice of the peace, notary, or other officer authorized by the state or territory to take acknowledgments, or before a commissioner appointed for such purpose. Unless taken before a commissioner appointed for such purpose or before a notary, cer- tified under his notarial seal, or before a clerk of a court of record, certi- fied under the court's seal, such deed must have attached the certificate of the clerk or proper officer of court of record of the district or county, with seal of office stating that the officer taking was so authorized and that he believes the signature of such person genuine and that the deed is executed according to the laws of such state or territory. IN FOR- EIGN COUNTRIES — taken according to the laws of the country before a notary, minister plenipotentiary, minister extraordinary, minister resi- dent, charge d'affaires, commissioner or consul of the United States ap- pointed to reside there, the officer's certificate to be thereon, and, if a notary, his certificate and seal. MAERIBD WOMEN — in the district must join with her husband in a conveyance and acknowledge that she executes it freely and voluntarily. If she resides outside the district, her acknowledgment may be the same as if she were sole. Husband and wife 150 NOTARIES PUBLIC. ' [§ 374 by joint deed may convey real estate of wife. PERSONALLY KNOWN — parties acknowledging must be personally known to the ofBcer. WIT- NESSES — two to deeds and wills required. Proof of the execution of any conveyance may be made before any officer authorized to take acknowledgments of deeds, by a subscribing witness who knew the par- ties. Witness must sign name and residence and be personally known or identified to the oflScer taking. OUBTEST AND DOWEE — one-third for life. AGE TO CONVEY— majority, or when married. PRIVATE SEALS— abolished. LIMITATION OF ACTION— to recover land, ten years; redemption of judgment debtor, or mortgagor, any time before sale or twelve months thereafter. MECHANIC'S LIEN— foreclosed within six months. § 274. Arizona — ACKNOWLEDGMENTS — IN THE STATE— by elerk of court having a seal, notary, county recorder, justice of the peace. OUT OF THE STATE — by clerk of a court of record having a seal, commissioner of deeds appointed by the governor of this state, or a notary public. OUT OF THE UNITED STATES — ^by a minister, com- missioner, or charge d'affaires of the United States resident and accred- ited where the acknowledgment is made. A consul general, consul, vice- consul, commercial agent, vice-commercial agent, deputy consul, or con- sular agent of the United States resident in the country, where the ac- knowledgment is made, or notary public. PERSONALLY KNOWN — must appear before and be known to the notary or his identity sufficiently substantiated by credible witnesses. WITNESSES — no witnesses are re- quired to a deed; two to wills. DOWER AND CURTESY — do not exist. Community property. PRIVATE SEALS — are abolished except those of corporations. AGE TO CONVEY — -married women eighteen years of age; married men twenty-one years of age. MARRIED WOMEN — may convey separate property as if unmarried, and acknowledge conveyance in same manner as if she were a feme sole. Must join husband and ac- knowledge conveyance of homestead or community property. POWER OP ATTORNEY — husband and wife may give power of attorney to each other to convey property or any interest therein. LIMITATIONS — ac- tion to recover land when right exists, ten years; under color of title, three years; when cultivated and having deed, five years. MORTGAGE — redemption limited to six months. Redemption of real estate sold under execution or tax sale, six months. JUDGMENT LIENS — limited to five years. HOMESTEAD — exemption, $4,000. TRUST DEEDS — permitted as mortgages. Deeds must be recorded to have effect as against subsequent purchasers for valuable consideration without notice. MECHANIC'S LIENS — of original contractor to be filed within ninety days, other persons within sixty days ; to be foreclosed within six months. § 275. Arkansas— ACKNOWLEDGMENTS— IN THE STATE— taken by the supreme, circuit court, any of the judges of the same, clerk of any court of record, justice of the peace, or notary. Must be under officer's seal. WITHOUT THE STATE— by any United States court, any court of any state, territory, colony, possession or dependency, hav- § 376] CONVEYANCES AND ACKNOWLEDGMENTS. 151 ing a seal, the clerk of any of such courts, notary, mayor of any city or town, or the chief town officer having a seal of office, or a commis- sioner appointed by the governor of this state. Officer's seal must be attached if he has one, otherwise his official signature attached. WITH- OUT THE UNITED STATES— before a United States consul, or any court of any state, kingdoih or empire having a seal, mayor or chief officer of any town or city having an official seal, any officer authorized by such country to take probate of the conveyance of real estate of his country, if he has an official seal. Officer 's seal must be attached. PEE- SONALLY KNOWN — or proof . of identity required. Identity may be proved by witnesses known to court or officer, or affidavit of grantor or witness if such court or officer be satisfied therewith, which proof or affidavit shall be indorsed on deed or instrument. WITNESSES — ^two to a wiU; two to a deed. PRIVATE SEALS— are abolished. MARRIED WOMEN — may convey her real estate by deed executed as if she were feme sole. DOWER — one-third relinquished by joining husband. Con- veyance must be by wife's free will and in absence of husband she must acknowledge that she executed deed "without compulsion of undue in- fluence of her husband," which must be shown in certificate. CURTESY — attaches on death of wife if she has made no disposal of her separate property. HOMESTEAD — exemption, $2,500. Wife to join husband in conveyance. POWER OF ATTORNEY — to transfer must be acknowl- edged and recorded. LIMITATIONS — action to recover land, seven years, or three years after arriving at legal age, discoverture, or coming of sound mind. MORTGAGE — redemption limited to one year from sale. TAX SALE — redemption limited to two years. Judgment under execution, redemption limited to twelve months. MECHANIC'S LIENS — ^to be filed in ninety days, enforced within fifteen months. JUDG- MENT LIENS — are limite,d to three years. DEEDS — take effect from time of filing as to subsequent purchasers for value without notice. TRUST DEEDS— used. § 276. Califomia^ACKNOWL'EDGMENTS— IN THE STATE— by a justice or clerk of the supreme court, or judge of the superior court any- where in the state; within the city, county or district for which the officer was elected or appointed by; a clerk of a court of record; a county recorder, court commissioner; a notary public; a justice of the peace. WITHOUT THE STATE, but within the United States — it may be taken by a justice, judge or clerk of any court of record of the United States; a justice, judge or clerk of any court of record of any state; a commis- sioner appointed by the governor of this state for that purpose; a notary public or any officer authorized by the state where the acknowledgment is taken. Each are confined to their jurisdiction. OUTSIDE OF THE UNITED STATES — can be taken by a minister, commissioner, or charge d'affaires of the United States, resident and accredited in the country where the acknowledgment is taken; by a consul, vice consul or consular agent, judge of court of record, residents of the country where taken, or commissioners appointed by the governor of the state, or a notary public or their deputy if so authorized. PERSONALLY KNOWN— or 152 NOTARIES PUBLIC. [§ 277 identified to officer on the oath or affirmation of a credible witness is required. Officers taking must affix their signatures, name of their office and their seals of office if their state or country authorize them to have a seal. WITNESSES — not required to a deed; two to a will. Proof of execution of instrument not acknowledged may be made by party exe- cuting, by subscribing witness, or by proof of handwriting of either in certain cases. PEITATE SEALS— are abolished. MAEEIED WOMEN — conveyance has same effect as if wife were unmarried, but has no validity until acknowledged. Married women may execute or re- voke powers of attorney for sale or incumbrance of real or personal estate, as if unmarried. DOWEE AND CUETBST— do not exist. HOME- STEAD — exemption, $5,000 to head of family. Wife and husband join in conveying. POWEE OF ATTOENEY — to convey property must be acknowledged and signed same as a deed. ACTION — to recover land limited to five years. COMMUNITY INTEEEST— in property exists. MOETGAGE — redemption limited to twelve months. TAX SALE — ^re- demption limited to twelve months. MECHANIC'S LIENS— to be filed in ninety days. Suit to begin in ninety days after; limit of claim, two years. JUDGMENT — redemption, twelve months; limit of lien, five years. TEUST DEEDS — used as mortgages. Deeds must be recorded to be valid as against subsequent purchasers for value. § 277. Colorado— ACKNOWLEDGMENTS— WHO MAY TAKE-IN THE STATE — county judges in their county, clerks of United States circuit and district courts, or their deputy, under the seal of the court; any judge of any court of record; any clerk of such court, or the deputy of the clerk, judge or deputy clerli, county clerk, county recorder, or their deputy, under seal of the county; justice of the peace, provided, if the property lies out of his jurisdiction he shall have attached the cer- tificate of the county clerk and county recorder of the proper county as to his official capacity and authenticating his signature; any notary public under his official seal. OUTSIDE THE STATE — before secretary of any state or territory under state seal; clerk of any court of record or of the United States, therein, under court seal; notary public under his official seal, commissioner of deeds appointed under the laws of this state, under his hand and official seal; any officer of that state so au- thorized to act, with the certificate of the clerk of some court of record of his county, city or district, that he has such authority. WITHOUT THE STATE— WITHIN COLONY OF THE UNITED STATES— before any judge, or clerk, or deputy of any court of record, under court seal; before chief magistrate or chief executive officer under official seal; before mayor or chief executive officer of any town, city or municipal corporation, having a seal under such official seal; or before a notary under his seal. WITHOUT THE UNITED STATES— before any judge, clerk, or deputy clerk of any court of record, under seal of court; before chief magistrate or other chief executive officer, or mayor; ambassador, minister, consul, vice consul, consular agent, vice consular agent, charge d'affaires, commercial agent, vice commercial agent, or any diplomatic. § 279] CONVEYANOES AND ACKNOWLEDGMENTS. 153 consular or commercial agent or representative, or duly constituted dep- uty thereof. May be in the language of the country and translated by one learned in the language attached to the instrument, sworn and sub- Boribad to by the translator before a proper officer as a true translation. PEESONALIiY KNOWN — to the officer, or their identity proved by at least one credible witness known to the officer. Not necessary to state such fact in the certificate, except conveyance or mortgage of home- .stead. WITNESSES — ^not required to deeds when acknowledged; two to a will. PBIVATE SEALS— are abolished. WOMAN— age to convey, eighteen. Separate examination not required. DOWEE AND CUBTESY — abolished. HOMESTEAD — exemption, $2,000. Wife must join and be examined separate and apart, and state that she freely and volun- tarily acts in signing and acknowledging. Officer to fully apprise her of her rights and the effect of signing. POWER OF ATTORNEY — con- veyances can be made when executed same as by deed. ACTION — to recover land limited to twenty years. JUDGMENT LIENS — limited to six years. Execution limited to twenty years. MECHANIC'S LIENS — for day labor must be filed within one month, subcontractors and ma- terialmen with two months; principal contractor within three months; limited to six months. MORTGAGE — redemption, six months. Creditors ' redemption, nine months. TAX — ^redemption, three years. Insane and minors, one year after removal of disability. § 278. Connecticut— ACKNOWLEDGED— IN THE STATE— before a judge of a court of record of this state or of the United States; a clerk of the superior court, court of common pleas, or district court, justice of the peace, commissioner of the school fund, commissioner of the superior court, notary public, either with or without, his official seal, town clerk or his assistant. OUTSIDE THE STATE— before a com- missioner appointed by the governor of this state, residing there, or any officer authorized by that state to act. IN A FOREIGN COUNTRY — before any ambassador, minister, charge d'affaires, consul, vice consul, deputy consul, consul general, vice consul general, deputy consul general, consular agent; vice consular agent, commercial agent, or vice commercial agent, or before any notary or justice of the peace. WITNESSES — two required to deeds; three to wills. PRIVATE SEALS — L. S. or scroll required. WOMAN — can convey as if unmarried. Separate examination not required. DOWER — one-third for life. POWER OP ATTORNEY — husband and wife can convey by, without joinder. DEEDS — take effect when recorded. Corporation deeds require two witnesses; witnesses may be interested. MORTGAGE — redemption awarded by court. MECHANIC'S LIEN— filed within 60 days; suit limited to two years' time. TAX — redemption limited to one year. JUDGMENT — redemption, when due, runs four months. LEASES — for more than one year must be written^ executed, attested, acknowledged and recorded. Statutes of uses remain. § 279. Delaware— ACKNOWLEDGMENTS— IN THE STATE— before the superior court, chancellor or any judge or notary public; before 154 NOTARIES PtJBLlC. [§ 3S0 two justices of the peace for the same county; before the judge of the municipal court or mayor of Wilmington, or before the clerk of the U. 8. district court. OUT OF THE STATE — may be made before any consul general, consul, vice consul, consular agent or commercial agent of the United States duly appointed in any foreign country; before any judge of any district or circuit court of the United States, or the chan- cellor or judge of a court of record of any state, territory or country, or the mayor or chief ofiicer of any city or borough, certified to under their hand and official seal, or certified to by any such court or clerk thereof under the seal of the court; any commissioner of deeds appointed by the governor of this state under his hand and official seal; any notary public. PEESONALLY KNOWN— or identification of acknowledging party required. WITNESSES — one to a deed; two or more to wills. PRIVATE SEALS — scroll will answer. WOMEN — twenty-one years can convey by joining husband. Separate examination of, is required. DOWER AND GUETEST— one-half for life if no children; one-third if there are children. POWEE OF ATTOENET— to convey to be ac- knowledged or proved and recorded same as a deed. Married women may so convey. ACTION — for recovery of lands limited to twenty years, or ten years after the removal of a disability. DEEDS — to be recorded in three months. JUDGMENT LIENS — limited to ten years. ME- CHANIC'S LIENS — to be filed in ninety days. TAX— redemption lim- ited to two years. § 280. District of Columbiar-ACKNOWLEDGMENTS— IN THE DISTRICT — may be made before any judge of the district. United States supreme court, clerk of the district, recorder of deeds, justice of the peace, notary public. OUTSIDE THE DISTEICT — within the United States, before a judge of a court of record and of law, state chancellor, judge of supreme, circuit, U. S. territorial court, justice of the peace, notary public. The certificate of any officer not having a seal must be accompanied by a certificate of the register, clerk, or other public officer having cognizance of the fact, under his official seal, that, at the date of the acknowledgment the officer taking the same was in fact the officer he purported to be. IN A FOEEIGN COUNTRY— before any judge, notary public, secretary of legation or consular officer of the United States. If made before any officer other than a secretary of legation or consular officer, the official character of the person taking must be certified to as above. PEESONALLY KNOWN— or identified to the officer, is required. WITNESSES— two to wills. PEIVATE SEALS— conveyance to be sealed. WOMEN — married, over the age of twenty-one years, may convey their separate property as if feme sole. Separate examination of, before signing, is required. DOWEE — right exists and conveyed by joining husband. May release it by separate deed. CUR- TESY— exists. POWER OF ATTORNEY— to convey not allowed. ACTIONS — for recovery of land limited to fifteen years. MECHANIC 'S LIEN — ^limited to one year after notice, suit to be filed six months after work done. JUDGMENT LIEN — limited to twelve years. § 283] OONVBTANCES AND ACKNOWLEDGMENTS. 155 § 281. Florida^ACKNOWLEDGMENTS— IN THE STATE— before any judge, clerk or deputy clerk of any court of record, United States commissioner, notary public or justice of the peace of this state, under their court or ofidcial seal. IN ANOTHER STATE— before a commis- sioner of deeds for this state, a judge or clerk of any United States or state court having a seal, or before a notary or justice of the peace of such state, master in chancery, register or recorder of deeds, having a seal. IN FOEEIGN COUNTEIES— before any commissioner of deeds appointed by the governor of this state resident there, before any notary having a seal, ambassador, envoy extraordinary, minister plenipotentiary, any minister, commissioner charge d'affaires, consul general, consul, vice consul, consular agent or any other consular or diplomatic agent of the United States appointed to reside there, or other military or naval officer authorized to perform duties of a notary. Such proofs to be under the official seal of the officer. PEESONALLY KNOWN— or satisfactorily identified to officer, is required. WITNESSES — two required to deed; two to wills. PEIVATE SEALS— scroll is required. WOMEN — married women may sell and convey as if unmarried; husband must join; married woman minor can convey; her separate examination required, and that she ex^uted it freely and voluntarily and without compulsion, con- straint, apprehension or fear of or from her husband. This is required in the officer's certificate. DOWEE — may be released by joining hus- band in the conveyance. CUETEST — none. Spanish law preserved. HOMESTEAD^ — one hundred and sixty acres of land or one-half of one acre in an incorporated city or town and $1,000 personalty. Husband and wife to join in conveyance. POWBE OP ATTORNEY — to convey to be acknowledged, signed and recorded. Husband must join wife in it. ACTIONS to recover land limited to seven years. TAX — redemp- tion, two years. MECHANIC'S LIEN — ^limitation, one year. § 282. Georgia— ACKNOWLEDGMENTS— IN THE STATE— to au- thenticate the record of a deed, it must be attested by a judge of a court of record of the state, or a justice of the peace, or a notary public, or clerk of the superior court, in the county where the last three hold their appointments, or if subsequent to its execution the deed is acknowledged in the presence of either of the named officers, that fact, certified on the deed by such officer, shall entitle it to record. EXECUTED OUTSIDE THE STATE — it must be attested by or acknowledged before a com- missioner of deeds for this state, a consul or vice consul of the United States, their certificate under their seal being sufficient evidence of the fact; or by a judge of a court of record in the state where executed, with a certificate of the clerk under the court's seal of the genuineness of the judge's signature; or by a clerk of a court of record under the seal of the court; or by a notary public of the state and county where exe- cuted with his seal or with a certificate from the clerk of the county, [country] under which the notary holds his appointment. PEESON- ALLY KNOWN — to officer, must be, or identified to. DEEDS— must be in writing. WITNESSES — two required to deeds and three to wills. 156 NOTARIES PUBLIC. [§ 383 PRIVATE SEALS— scroll required. MARRIED WOMAN— must join husband in conveying her interest. Separate examination required stat- ing that she joins with husband of her own free will and consent, with- out any compulsion or force used by him to oblige her to do so. Such statute applies only to sales by husband where wife has interest because of marriage. All property of wife, real or personal, remains her separate property on marriage. Husband may deed directly to wife without intervention of trustee. Wife may mortgage her separate estate. DOWER — one-third for life. Transferred by joining husband in the deed. CURTESY — none. HOMESTEAD — application to sell for reinvestment must be made to the judge of the county superior court. POWER OF ATTORNEY — wife may convey by. ACTION — for recovery of land limited to twenty years. DEEDS — first on record take effect. ESTATES TAIL — ^limited to lives in being. MORTGAGE — redemption limited to ten years after recognition of right. MECHAJS'IC 'S LIEN — notice must be recorded in three months; enforced in twelve months. TAX — redemp- tion limited to one year. JUDGMENTS — dormant after seven years, may be revived by scire facias or suit within three years after becoming dormant. § 283. anam— ACKNOWLEDGMENTS— taken before a notary pub- lic or judge appointed therein by proper authority, or by officer who has ex offlcio powers of notary, accompanied by certificate of governor or acting governor to effect that notary was in fact ofSeer he purported to be. § 284. Hawaiian Islands— ACKNOWLEDGMENTS— IN THE TER- RITORY — taken by register of conveyances or his agent, judge of a court of record, or a notary of the territory. Notary or other officer must inspect and note erasures or changes before taking acknowledgment, un- der penalty. Penalty also imposed for false certificate of acknowledg- ment, or misleading statement in certificate, as well as civil liability for damages. False certificate is forgery. OUT OF THE TERRITORY— taken before a notary or judge of a court of record. PROOF OF EXE- CUTION OF DEED — may be made by subscribing witness before judge of court of record of territory should anything occur to prevent acknowl- edgment. PERSONALLY KNOWN— to the officer taking is required of every grantor or proof of their identity by a credible witness. Offi- cer's certificate must so state. DOWER — one-third fee simple exists, is released by jointure or by separate deed. CURTESY — none. MARRIED WOMAN — to be examined apart from husband that she signed without compulsion, fear or restraint of husband. May convey property as if sole, but written consent of husband required to sale or mortgage of real estate. Unmarried women may convey at age of eighteen. WIT- NESSES — none required to deed when acknowledged; two required to wills. LIMITATIONS — action for recovery of land limited to ten years, or five years after removal of disability. DEEDS — not recorded, void as to subsequent purchasers for value without notice. MORTGAGE — redemption within one year. MECHANIC'S LIEN — notice to be filed § 386] CONVEYANCES AND ACKNOWLEDGMENTS. 157 with circuit court clerk in three months. JUDGMENTS — presumed paid and satisfied after twenty years. TAX — redemption limited to one year. § 285. Idaho— ACKNOWliEDGMENTS— IN THE STATE— may be made before a justice or clerk of the supreme court. Within the city, county or district, before a judge or clerk of a court of record, a county recorder, notary or justice of the peace. WITHOUT THE STATE — but in the United States and within the jurisdiction of — a justice, judge or clerk of a court of record of the United States, a justice, judge or clerk of any state court of record; a commissioner, appointed by the gov- ernor of this state; a notary or any officer authorized by his state laws. OUTSLDE THE UNITED STATES — before a minister, commissioner or charge d'affaires, a consul, vice consul of the United States, resident and accredited, a judge of a court of record; commissioners appointed by this state governor; a notary, or by deputies of the ofScers mentioned, except notaries, all residents of the country. PERSONALLY KNOWN — -to the officer is required, or positive identification. WITNESSES — one witness to a deed if not acknowledged; two to wills. PRIVATE SEALS— not required. WOMEN — age to convey, eighteen. Married women may convey their separate property without joinder of husband. Husband cannot sell or incumber community property unless wife joins. Acknowledgment of married woman taken and certified in same man- ner and form as single person. DOWER AND CURTESY — none. Com- munity of interest. Conveyance jointly. POWER OF ATTORNEY— subscribed in name of principal. ACTION — to recover land limited to five years. DEEDS — take effect when recorded and are constructive notice to subsequent purchasers and mortgagees. ESTATES — ^limited to persons in being. HOMESTEAD — exemption, $5,000 to head of family; $1,000 to others; conveyed jointly. MORTGAGE — redemption within one year from sale. MECHANIC'S LIENS — contractor files in ninety days; others in sixty days; holds six months after. TAX — redemption, three years. JUDGMENT LIEN — expires in five years. § 286. lUinois— ACKNOWLEDGMENTS— IN THE STATE— may be taken before a master in chancery, notary. United States commissioner, county clerk, justice of the peace, or any court of record having a seal, or any judge, justice or clerk of such court. A notary or United States commissioner must attest with their official seal. A justice of the peace residing out of the county of the land must have attached to the instru- ment the certificate of the clerk of his county court, under his seal of office, that he is a justice of the peace at the time. FRAUDULENT AC- KNOWLEDGMENT — any officer falsely certifying with intent to de- fraud or injure or enable any other person to so act shall be imprisoned in the penitentiary not less than one nor more than five years, or con- fined in the county jail not exceeding one year and fined not exceeding $1,000. IN OTHER STATES— taken before a justice of the peace, notary public, master in chancery, United States commissioner, commis- sioner of deeds, mayor, county clerk, judge, justice, clerk or deputy clerk, of the United States supreme, circuit or district courts, same of 168 NOTARIES PUBLIC. [§ 386 any state, supreme, circuit, superior, district, county or common pleas, probate, orphan or surrogate court, or prothonotary or register. In a de- pendency of the United States before a commissioned ofScer in United States military service. Each need their own or court official seal. Jus- tices of the peace and masters in chancery shall have added the certifi- cate of the proper clerk under his official seal, stating they are author- ized to take and are in office. May be made in conformity to the laws of the state wher^ made, if so certified to, by the county court clerk. WITHOUT THE UNITED STATES— may be taken before any court having a seal, before any judge, justice or clerk thereof, any mayor or chief officer of a city or town having a seal, a notary public, commis- sioner of deeds, or any ambassador, minister, secretary of legation or consul, vice consul, deputy consul, commercial agent or consular agent of the United States attested by their official seal, or before any officer au- thorized by the laws of the place where such acknowledgment or proof is made to perform such acts. Must be attested by official seal. If they have no seal, a certificate must be added by some ambassador, minister, secretary of legation, vice consul, deputy consul, commercial agent of the United States, resident there, under his official seal showing that such officer or court is acting at the time. Proper proof being shown, the form of the country shall be prima facie evidence and shall be valid in law. Fraudulent acknowledgments punishable by fine and imprisonment from one to five years and $1,000. Being a stockholder or officer of a corporation does not prohibit the officer from taking. RECORD OF DEEDS— mortgages, etc., required; notice is from time of filing. Unac- knowledged deeds may be recorded but not admitted as evidence unless proved. PERSONAliLY KNOWN— or positively identified to officer is required. WITNESSES— none to a deed; two to a wUl. PRIVATE SEALS — scroll required. WOMEN — age to convey, eighteen. Separate examination not required. DOWER — one-third interest for life, to hus- band and wife, latter 's interest, conveyed by joining husband. CURTE- ST — abolished. HOMESTEAD — exemption, $1,000. Conveyed by jointure clause must be inserted in the deed, "including the release and waiver of the right of homestead. ' ' POWER OF ATTORNEY— married woman can convey her estate as if single. ACTION — to recover, land limited to twenty years. ESTATE — fee simple conveyed, estate tail abolished. MORTGAGE — redemption limited to one year. ME- CHANIC'S LIEN — contractor's claim to be filed in four months after work if additional work, then four months thereafter. Suit shall be brought to enforce lien, or a verified claim for lien shaU be filed with the clerk of the circuit court within two years after completion of the work. TAX — redemption limited to two years. JUDGMENT — redemp- tion limited to twelve months. JUDGMENT LIEN — ^limited to seven years. TRUST DEEDS— used as mortgages. CHATTEL MORTGAGES — no mortgage, trust deed or other conveyance of personal property having the efEect of a mortgage or lien upon such property, shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or § 288] CONVEYANCES AND ACKNOWLEDGMENTS. 159 the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafer directed; and every such instrume'nt shall, for the purposes of this act, be deemed a chattel mortgage. — J. & A. Anno. St. H 7576. Such instrument shall be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides, or if there be no acting justice of the peace in the town or precinct where the mortgagor resides, then such instrument may be acknowledged before the county judge of the county in which the mortgagor resides; or, if the mort- gagor is not a resident of this State at the time of making the acknowl- edgment, then before any officer authorized by law to take acknowledg- ment of deeds. The certificate of acknowledgment may be in the fol- lowing form: This (name of instrument) was acknowledged before me by (name of grantor) (when the acknowledgment is made by a resi- dent, insert the words "and entered by me"), this day of -, 18 — . (Name of officer.) Witness my hand and seal — (J. & A. St. f 7577). § 287. Indlana^AOKNOWLEDGMENTS— IN THIS STATE— by a judge, clerk of a court of record, judge of superior court, justice of the peace, notary, mayor, auditor, recorder, member of the legislature or prosecuting attorney. IN OTHER STATES — the same, also commis- sioner of deeds, for this state, so appointed. IN FOEEIGN LANDS — United States ministers, consul, charge d'affaires, any officer so author- ized by his country. Officer having no seal must have certificate attached of his circuit court clerk, and must state that the officer was at the time lawfully acting and that his signature is genuine. PEESONALLY KNOWN — to officer, not required. WITNESSES — none required to deeds; two or more to wills. PEIVATE SEALS— not required. WOMEN — age to convey, eighteen. Conveys by joining husband in the deed. May dispose of own property without concurrence of husband. Separate examination not required. If married to an alien, does not bar her rights to hold or convey. Infant wife over eighteen may convey right to lands of husband, if father, or mother (in case there is no father), or judge of circuit court (in case there are no parents) declares con- veyance to be for benefit of married woman. POWEE OF ATTORNEY — married woman can join her husband in conveyance by power of at- torney acknowledged. ACTION — for recovery of land fraudulently conveyed or sold by executor or guardian, limited to five years. If sold by execution creditor, to ten years. DEEDS — to be recorded, take prior- ity from recording. DOWER AND CURTESY— abolished; one-third real estate descends to widow in fee simple; if over $10,000, one-fourth; over $20,000, one-fifth. ESTATE TAIL— limited to life in being. HOME- STEAD — exemption, $600. MORTGAGE — redemption limited to one year. MECHANIC'S LIENS — to be filed with county recorder in sixty days, may be enforced within one year. TAX — redemption limited to two years. JUDGMENT LIEN— for ten years. § 288. Iowa.— ACKNOWLEDGMENTS— IN THIS STATE— before a 160 NOTAHIES PUBLIC. [§ 289 court having a seal, the court, judge or clerk, justice of the peace or notary public, in his county or adjoining county, where certificate filed, the county auditor or his deputy. OUT OF THIS STATE— before a court of record or the ofScer holding its seal, commissioner appointed by the governor of this state, a notary; justice of the peace, the latter must have a certificate showing his authority by the proper authority. OUTSIDE UNITED STATES— any ambassador, minister, secretary of legation, consul, vice consul, charge d'affaires, consular agent, or any other ofS-cer of the United States in a foreign country authorized to issue certificates under the seal of the United States. Any officer of a foreign country authorized by its laws, but his certificate must be authenticated by one of the above Ujiited States officers' certificate of acknowledgment. PERSONAWLiT KNOWN — or positively identified by at least one credible witness, naming him, is required. WITNESSES — none required by statute to deeds; two to wills. PRIVATE SEALS — abolished. WOMEN — age to convey, when married; or majority age of eighteen. May incumber or convey own real property. Separate exam- ination not required. DOWEH — either husband or wife can elect to take dower or homestead, one-third to each in fee simple. CUETESY — abol- ished. HOMESTEAD — both join in conveyance, survivor continues in possession. POWER OF ATTORNEY — married woman can convey by power of attorney. The certificate of a county court clerk is not re- quired to accompany the certificate of acknowledgment of a notary public of other states. ACTION — to recover land, ten years; for tax, five years; sold by administrator on mortgage, five years. DEED — ^re- cording is notice. MORTGAGE — ^redemption, one year. MECHANIC'S LIEN — contractors file with district court clerk in ninety days, others in thirty days; right of action limited to two years. TAX — redemption limited to two years nine months; notice by purchaser that time ex- pires in ninety days required. EXECUTION — sale redemption limited to one year. JUDGMENT — recovery in courts of record, twenty years; in courts not of record, ten years. § 289. Kansas— ACKNOWLEDGMENTS— WITHIN THIS STATE— before some court having a seal, a judge, justice or clerk thereof, or any justice of the peace, notary public, county clerk or register of deeds, a mayor or clerk of an incorporated city. OUT OP THE STATE — be- fore a court of record, or clerk or officer holding the seal thereof, before a commissioner appointed by the Governor of this state, a notary, jus- tice of the peace, any United States consul resident in any foreign country. If taken before a justice of the peace, the certificate of a elerk of a court of record under his hand and court seal must be at- tached showing the official character of the justice. PROOF OF EXE- CUTION BEFORE ACKNOWLEDGING— if the grantor by death, in- ability or refusal to attend and acknowledge, proof of execution may be made by competent testimony, before any court or officer authorized to take acknowledgments. The certificate upon the deed must state the title of the officer, the death, inability or refusal of the grantor, the § 291] OONVBYANCES AND ACKNOWLEDGMENTS. 161 names of the witnesses by whom proof was made. The witnesses cau be subpoenaed by the officer if in the county, by attachment, if neces- sary. An untruthful certificate subjects the officer to indictment and fine according to damage or value of the property. PEBSONALLY KNOWN — must be shown in the certificate. WITNESSES — not re- quired except to prove a deed; two to wills. PRIVATE SEALS — abol- ished. WOMEN — age to convey, eighteen; may convey own property to same extent as married men. Separate examination; DOWER AND CURTESY — abolished. Husband and wife share equally; conveyance to husband and wife creates estate by entirety. HOMESTEAD — hus- band and wife each entitled to; must join in conveying; exemption, 160 acres; in city, one acre improved. POWER OF ATTORNEY — convey- ance by, must be acknowledged, signed and recorded same as a deed. ACTION — for recovery of land, on execution, limited to five years; after sale, on administrator's sale, in five years; after forcible entry, in two years; after legal disability, in two years; other conditions, fifteen years. DEED — recording is notice. MORTGAGE — redemption, fifteen to eighteen months. MECHANIC'S MEN — claim to be filed in four months; enforced one year from filing; redemption, fifteen to eighteen months by creditor or owner. TAX — redemption in three years. JUDGMENT — redemption in fifteen to eighteen months. § 290. Kentucky— ACKNOWLEDGMENTS— IN THE STATE— be- fore county court clerk or notary public. OUTSIDE THE STATE — be- fore court clerk, his deputy, a notary, mayor, secretary of state, commissioner of deeds for this state, or a judge, all under official seal. FOREIGN — before a minister, consul or secretary of legation of the United States, the secretary of foreign affairs, judge of a superior court, under seal. PERSONALLY KNOWN — to officer, statutes do not require. WITNESSES — two to a deed not acknowledged; two to wills. PRI- VATE SEALS — not necessary. WOMEN — age to convey, twenty-one; may convey by joining with husband. Separate examination and con- tents explained. She must freely and willingly acknowledge. If in the state, officer need only state that it was acknowledged before him. DOWER AND CURTESY— each one-third for life. HOMESTEAD— conveyed by jointure of husband and wife. Exemption, $1,000. POWER OF ATTORNEY — married women may so convey; must be acknowl- edged and signed same as a deed. ACTION — to recover land limited to fifteen years; may be extended to thirty years. Married woman or her heirs, in three to ten years. DEEDS — when recorded are notice. ES- TATES TAIL — abolished. MORTGAGE — redemption limited to one year. MECHANIC'S LIEN — statement to be filed in six months with county clerk; action to be brought in one year from filing. TAX — re- demption limited to two years. JUDGMENT LIEN— limited to fifteen years. TRUST DEEDS — used as mortgages. § 291. Louisiana— ACKNOWLEDGMENTS— taken before clerks of the supreme court and their deputies, notaries public. OUT OF THE UNITED STATES — before ambassadors, ministers, charge d'affaires, 11 162 NOTAPJES PUBLIC. [§ 292 secretaries of legation, consul generals, consuls, vice consuls, commercial agents, all under their official seals. PEBSONALLY KNOWN— by the officer taking is required. WITNESSES — two required to deeds. Wit- nesses to a will olographic, none; public — nuncupative, three, residents; five, if nonresidents; private — nuncupative, open, five if residents; seven if nonresidents; mystic— sealed, three. PRIVATE SEALS — abolished. WOMEN — age to convey, twenty-one; husband's consent required. Separate examination. DOWEE AND CTJETESY — survivor has usufruct during life; community system exists. HOMESTEAD — allowed so long as occupied; vacating loses it. Exemption — 160 acres, $2,000. POWER OF ATTORNEY — may be granted with husband's consent. MORT- GAGE — and other liens redeemed in ten years if agreed to. § 292. Maine— ACKNOWLEDGMENTS— IN THE ST4-TE— before a justice of the peace, or notary public, or women otherwise eligible under the constitution and appointed for the purpose by the governor with the consent of council. OUT OP THE STATE — before any clerk of a court of record having a seal, notary public, justice of the peace, or commissioner. IN ANY FOREIGN COUNTRY — before a minister or consul of the United States, or notary public. Seal of court or notary to be affixed, and if outside of state, certificate of secretary of state or clerk of court is necessary. PERSONALLY KNOWN— or iden- tified to officer, should be, statute is silent. WITNESSES — not required to deeds if acknowledged, one witness necessary otherwise; three to wills. PRIVATE SEALS — scroll required. WOMEN — age to convey, married woman of any age may convey her own separate property without joint- ure of husband, but joinder or assent is necessary to bar husband's in- terest. Separate examination not required. DOWER AND CURTESY — abolished; each inherit one-half if there are no children; one-third if there are children. POWER OF ATTORNEY— to convey, to be signed, sealed, acknowledged and recorded same as a deed. A deed conveying lands in more than one county lost before recording, or recorded in the wrong county or district and lost, a certified copy from the registry where recorded, may be recorded in any other county or district. A person holding an unrecorded deed or other evidence of title may be given personal written notice to record it, by any one having an interest in it; a failure to comply within thirty days permits compulsion by com- plaint to a justice of the supreme court. No conveyance of an estate for more than seven years is effectual against others unless recorded. There can be no estate in lands other than tenancy at will unless in writing. When a grantor refuses to acknowledge his deed, the grantee may leave a copy of it with the register and for forty days it is a record. A notary public or justice of the peace, where grantor or land is, may summon the grantor at a time and place stated, to hear testimony, date of deed, names of parties and witnesses to be mentioned in summons. If the officer is satisfied that the deed was executed he shall so certify in the deed. It may then be recorded. A lost or destroyed deed may be replaced by copy left with the register for ninety days; he may prove § 294] CONVEYANCES AND ACKNOWLEDGMENTS. 163 it by depositions in perpetuam if parties in interest reside outside the state. A justice of the supreme court may order notice by publication. ACTION — for the recovery of lands limited to twenty years. ESTATE TAHi— limited to two lives in being. HOMESTEAD — exemption, $500. Conveyed by jointure. JUDGMENT LIEN — limited to twenty years. MECHANIC'S MENS— to be filed in ninety days. MOETGAGE UEN — -limited to twenty years. Mortgage redemption limited to one year. TAX — ^redemption, two years. § 293. Maryland — CONVEYANCE — no estate of inheritance or free- hold, or any declaration or limitation of use, or any estate above seven years, shall pass or take effect unless the deed conveying the same shall be executed, acknowledged and recorded. No words of inheritance nec- essary to create estate in fee simple in a deed. Deeds to be recorded in six months. Deeds to be valid must be acknowledged and recorded. ACKNOWLiEDGMENTS— IN THE STATE— within the county or city of the lands, may be taken before a justice of the peace, a judge of the orphans, circuit, Baltimore supreme court, or notary. Within the state, before any justice of the peace, his official character being certified to by the clerk of the circuit or superior court, under seal, any judge of circuit, orphans, Baltimore City or circuit, court, where the grantor may reside. Supreme, orphans' courts or notary, each under their official seals. IN OTHEE STATES— before a notary public, a judge of any United States court, a judge of any state or territorial court having a seal, a commissioner of this state to take acknowledgments. OUTSIDE THE UNITED STATES— before any minister, consul general, consul, deputy consul, vice consul, consular agent, or consular officer of the United States. A notary public, a commissioner of this state to take acknowledgments. Party to state that he acknowledged the deed to be his act. Officer's name, title and date to be contained in the ac- knowledgment. PERSONALLY KNOWN — or identified to the officer, should be. WITNESSES— one to deed; two to a will. PEiVaTE SEALS — scroll required. WOMEN — age to convey, eighteen; married women can convey separate property. Separate examination of wife not required. Married woman may make deed of trust of her separate property without husband joining if approved by court of equity. DOWER AND CURTESY- one-third to each for life; conveyed by jointure in deed. HOMESTEAD— none exists. POWER OF ATTOR- NEY — conveyance thus made by acknowledging, signing and recording, same as a deed. ACTION — ^for land limited to twenty years. ME- CHANIC'S LIEN — to be filed in six months; claim holds for five years after filing. TAX — redemption limited to twelve mouths. JUDGMENT LIEN — limited to twelve years. § 294. Massachusetts— ACKNOWLEDGMENTS— IN THIS STATE— to be made before a justice of the peace, special commissioner, or notary public. IN ANOTHER STATE — before a justice of the peace, notary public, magistrate or commissioner appointed by the governor for that purpose. IN A FOREIGN COUNTRY- before such justice, notary. 164 NOTARIES PUBLIC. [§ 295 magistrate, or commissioner or a minister or consul or consuiar officer of the United States. Taken in other states for record or to be used in evidence in this state, may be taken before any officer of that state authorized by its laws and certified to by the secretary of state under the state seal, or by the clerk of a court of record of the county, stating that the officer was authorized at the time of taking to take, that he is acquainted with his handwriting and believes the signature genuine. The acknowledgment of one grantor is sufficient Eefusal of grantor to acknowledge, court proceedings may be had and instrument proved by subscribing witnesses. PEESONALLY KNOWN — to officer required. WITNESSES — none to a deed; proof requires one at least; a will, three. PEIVATE SEALS — not required. WOMEN — married women can con- vey as if single even though minors. Separate examination of not required. DOWEE AND CUETESY— one-third to each for life, are conveyed by jointure. HOMESTEAD — conveyed by jointure; exemption, $800. POWEE OP ATTOENEY — married women may so convey realty when acknowledged, signed and sealed, same as a deed. A deed executed and delivered by the person, or by his attorney, shall be sufficient to convey real estate. Conveyance of an estate in fee simple, fee tail, or for life, or a lease for more than seven years from the making, shal3 not be valid as against any person other than the grantor or lessor and his heirs and devisees and persons having actual notice of it, unless recorded in the county registry. Deeds shall not be recorded unless the certificate of acknowledgment is indorsed on or attached. Deeds and other instruments recorded in one county where the land lies may be recorded in other counties where it is also situated, from any office copy. ACTION — to recover land limited to twenty years. ESTATE TAIL — -abolished. MOETGAGE — redemption limited to three years. MECHANIC'S LIEN— claim to be filed in thirty days; ninety days af- ter must be enforced; redeemed in one year. TAX- — redemption limited to two years. JUDGMENT — redemption limited to one year from sale. § 295. Michigan — Eefusal of grantor to acknowledge deed can be evidenced by summoning him before a justice of the peace in the pres- ence of the subscribing witnesses. If the witnesses are dead the deed may be proved by the grantor's or witnesses' handwriting before a court of record in this state. In the meantime the deed may be filed for record with the county register of deeds, where the lands are, which shall for the space of thirty days thereafter, in case of proceedings before a justice and in ease of proceedings before a court of record, for the space of ten days after the first day of the next term of such court, have the same effect as the recording of the deed, if such deed shall within that time be duly proved and recorded. CONTEACTS — for the sale of lands may be acknowledged the same as deeds. Written instru- ments, excepting bills of exchange, promissory notes and wills, may be proved or acknowledged the same as deeds. Officer taking, to sign his name and title of his office. ACKNOWLEDGMENTS— IN THIS STATE — ^before any judge, clerk or commissioner of a court of record, § 296] CONTETANCES AND ACKNOWLEDGMENTS. 16* notary public, justice of the peace or a master in chancery; the officer to certify the same under his hand with the date. IN ANOTHEB STATE — before any officer authorized by that state, to be signed by the officer and certificate attached by his state secretary or clerk of county court under their seals, stating that such officer at the time of taking was duly authorized to take and that they are well acquainted with his handwriting and verily believe the signature affiled to be genuine. This is not necessary if the officer is a notary and certifies under his official seal. WITHOUT THE UNITED STATES— by any officer authorized to act, or before any minister, commissioner, consul, charge d'affaires or consular agent of the United States resident, certified under their seal of office. PEESONALLY KNOWN— or identified to officer is required. WITNESSES— two to deeds; two to wills. PRIVATE SEALS— scroll required. WOMEN — age to convey, eighteen. Can convey same as if single; separate examination not required; may convey as if unmarried. DOWBE AND CUETESY — one-third for life; conveyance made by jointure in the deed. HOMESTEAD — exemption, $1,500; conveyed by wife joining in the deed. POWEE OF ATTOENEY — property may be conveyed by, when acknowledged and signed jointly and recorded same as a deed. ACTION — to recover land limited to twenty years. DEEDS —bear notice when recorded. ESTATES TAIL— abolished. MOET- GAGE — redemption limited to six months from sale; action for recovery limited to fifteen years. MECHANIC'S LIEN— must file claim in sixty days. TAX — ^redemption in six months. JUDGMENT LIEN— limited to ten years. TEUST DEEDS — used for mortgage. § 296. MlnneBOta— ACKNOWLEDGMENTS— WHO MAY TAKE— IN THE STATE — legislators, judges of all courts of record, including fed- eral courts, clerks and deputies of same, United States commissioners, notaries, justices of the peace, registers of deeds, court commissioners, and county auditors, their deputies, county commissioners, town and city clerks, village recorders, within their jurisdiction and with their official seals, commissioned officers for American soldiers or sailors. IN OTHEE STATES — judges of the supreme, circuit or district courts of the United States, judges of any court of record of any of the states, clerks and deputies of same, notaries, justices of the peace, commis- sioners appointed by the governor of this state, all within their jurisdiction. Unless party certifying has an official seal, the certifi- cate must be attached to that of the clerk of the county court, showing authority to certify. FOEEIGN — may be acknowledged before any notary public, United States minister, charge d'affaires, commissioner consul, or commercial agent, or other consular or diplomatic officer or their deputies, or other representatives. The same to be certified thereon by the officer taking, under his hand, and if taken before a notary public under his seal of office. PEESONALLY KNOWN — or identified to officer is required. WITNESSES — two re- quired to a deed; two to a will. PEIVATE SEALS — abolished. WOMEN — age to convey, eighteen; married woman can convey with husband though minor. Separate examination of wife not required. 166 NOTARIES PUBLIC. [§ 29'? DOWER AJSTD CURTESY— abolished. Surviving spouse entitled to homestead and undivided one-third of realty. HOMESTEAD — exemp- tion, 80 acres and dwelling; one-third acre in city over 5,000; one-half acre in a town; can be conveyed by joint deed of husband and wife. POWER OF ATTORNEY — can so convey by jointure, if acknowledged, signed and recorded as by deed. ACTION — for the recovery of land limited to fifteen years. ESTATE TAIL — ^limited to lives in being. DEED — record is notice. MORTGAGE — redemption limited to twelve months; foreclosure limited to fifteen years. MECHANIC'S LIEN— claim to be filed within ninety days; foreclosed within one year from time material furnished. TAX — redemption, three years; action to re- cover limited to six years. JUDGMENT LIEN — limited to ten years. § 297. Mississippi— ACKNOWLEDGMENTS — every conveyance of property must be acknowledged or proved by an authorized ofiScer to en- title it to record. IN THIS STATE — ^may be taken by any judge of a United States court, any judge of the supreme or circuit court, or any chancellor, or any clerk of a court of record, a notary public under his official seal, any justice of the peace, police justice, mayor of any city, town, or village, or member of the board of supervisors, whether the property be in his county or not. IN ANOTHER STATE— before the chief justice of the United States or an associate justice, any United States circuit or district judge or any United States judge, any supreme or superior court judge of the state, any justice of the peace of such state or territory whose official character shall be certified under the seal of some court of record in his county, or any commissioner in such state appointed by the governor of this state to take acknowledgments, any notary or clerk of a court of record having a seal of office. Same shall be as good and effectual as if the certificate of acknowledgment or proof had been made by a competent officer in this state. IN A FOR- EIGN COUNTRY — before any court of record, the mayor or chief magistrate of any city, borough, or corporation where the party resides or may be, or any commissioner residing in such country appointed by the governor, any ambassador, foreign minister, secretary of legation or consul of the United States. The officer's certificate to state that the party, or the party and witnesses were identified before him, that they acknowledged the execution, or that it was proved by the witnesses, same to be as effectual as if done in this state. PERSONALLY KNOWN — or identified to officer required; also personal appearance necessary. WITNESSES — one to a deed; two to a will. PRIVATE SEALS — are abolished. WOMEN — ^married, can convey property; un- married, twenty-one years of age, can convey; wife to be described as such. Separate examination not required; conveyed as if she were sole. DOWER AND CURTESY— abolished. HOMESTEAD— exemption, $2,000; conveyed by jointure of husband and wife. POWER OF AT- TORNEY— conveyances may be made by, when signed, acknowledged and recorded same as deeds. PROOF — if the grantor and witness be dead or absent, preventing personal attendance, the instrument may be § 399] COKVETANCES AND ACKNOWLEDGMENTS. 167 proved by the oath of anyone, who on examination before the compe- tent ofScer can prove the handwriting of the witness; when such cannot be had, the handwriting of the grantor may be proved, the oiEcer certi- fying accordingly. ACTION — for recovery of land limited to ten years. DEED— recorded is notice. ESTATE TAIL— limited to lives in being. MORTGAGE— redemption limited to six months. MECHANIC'S LIEN — suit to begin in six months after due. TAX — redemption limited to two years. JUDGMENT LIEN — ^limited to seven years; can redeem in two years. § 298. Missouri— ACKNOWLEDGMENTS—IN THIS STATE— be- fore any court having a seal, a judge or clerk thereof, notary public, justice of the peace of the county where the laud is. IN ANY OTHEK STATE — ^before any notary public, any United States or state court, having a seal, or the clerk of such courts or any commissioner ap- pointed by the governor of this state. OUTSIDE THE UNITED STATES — ^before any court of the country having a seal, mayor or chief officer of any town or city having a seal, any minister or con- sular officer of the United States or any' notary having a seal. Falsely certifying, or aiding in a false acknowledgment, by an officer, shall be deemed forgery in the second degree. PERSONALLY KNOWN, to the officer, required or proved by two credible witnesses, who must sign with address. WITNESSES — two to a will; deeds may be proved by testimony of subscribing witness. PRIVATE SEALS — not required. WOMEN — age to convey, eighteen; can convey their realty by joinder with husband. Wife of alien may convey. Separate examination not required. DOWEE — may convey by joining the husband. CURTESY — one-third for life. HOMESTEAD — exemption, $1,500; in large cities, $3,000; conveyed by jointure of husband and wife. POWER OF AT- TORNEY — married woman may convey by power of attorney, by ex- ecuting and acknowledging jointly with her husband. ACTION — for recovery of land limited to ten years. MORTGAGE — redemption limited to one year. MECHANIC'S LIENS — claim to be filed in six months; laborer's in sixty days; action in ninety days. TAX — redemption lim- ited to two years; suit against purchaser within three years. JUDG- MENT UEN — three years; action barred in ten years. § 299. Montana^ACKNOWLEDGMENTS— IN THE STATE— may be made anywhere in the state before a justife or clerk of the supreme court, or a judge of the district court, may be made within the officer 's place of appointment or election before a clerk of a court of record, a county clerk, a notary public, a justice of the peace. IN ANY OTHER STATE — and within the jurisdiction of the officer — before a justice. judge or clerk of any United States court of record, a justice, judge or clerk of any state court of record, a commissioner appointed by the governor of this state, a notary public, any other officer authorized by the laws of that state. OUTSIDE THE UNITED STATES— may be made without the United States before a minister, commissioner, or charge d'affaires of the United States resident or accredited to that 168 NOTARIES PUBLIC. [§ 300 eountry; before a United States consul, vice consul, or consular ag»nt rgsident in that country, a judge of a court of record, a coiumissioner appointed by the governor, a notary public, any deputy allowed these officers by law. Officers must authenticate by affixing their signatures and name of office and their official seals, if they have a seal, otherwise they must show by what authority they are acting. Justices of the peace, when certificate is used in another county, must have their certifi- cate accompanied by a certificate under the hand and seal of the clerk of their county showing that he was authorized to take and that the clerk is acquainted with his handwriting and believes the signature gen- uine. PERSONALLY KNOWN — or identified to the officer is required. WITNESSES— none to a deed; one to a proof; two to wills. PBITATE SEALS — abolished. MARRIED WOMEN— can convey same as if single. Separate examination not required. Acknowledgment same as that of other persons. DOWER— widow entitled to. CURTESY — not allowed. HOMESTEAD — exemption, $2,500; conveyed by jointure of husband and wife. POWER OF ATTORNEY— signed and acknowledged, same as a deed. Married women may so convey. Proof of the execution of an instrument not acknowledged may be made by the party executing it or by a subscribing witness or by other witnesses. The subscribing wit- ness must be personally known or identified on oath to the officer. The execution may be established by proof of the handwriting of the party and of the witness when the parties and witnesses are dead or out of the state or their residence is unknown, when the witness conceals him- self or cannot be found or the refusal of the witness to testify one hour after his appearance. ACTION — to recover land limited to ten years. ESTATE TAIL— abolished; limited to life in being. JUDGMENT LIEN— limited to six years. MECHANIC'S LIEN — claims to be filed in ninety days; actions to be commenced within twelve months from filing of lien. MORTGAGE — redemption limited to ten years. TAX — redemption, three years. § 300. Nebraskar-ACKNOWLBDGMENTS— grantor must state it to be "his voluntary act and deed." IN THIS STATE--taken before a judge or clerk of any court, a justice of the peace, or a notary public, within their jurisdiction. IN ANOTHER STATE — in accordance with laws of such state, before court or clerk thereof or officer holding seal, commissioner, notary or justice. The officer certifying must use his official seal, otherwise the' certificate of a clerk of a court of record, under its seal, or other proper officer, must be attached to the instru- ment showing that the officer taking was at the date such officer, that he is well acquainted with his handwriting, that he believes the signa- ture is genuine, that the instrument is executed and acknowledged ac- cording to the laws of the state. IN A FOREIGN COUNTBY — it may be executed according to the laws of the country and acknowledged before a notary public, or a United States minister plenipotentiary, minister extraordinary, minister resident, charge d'affaires, commis- sioner, commercial agent, or consul appointed to reside there. The ac- § 301] CONVEYANCES AND ACKNOWLEDGMENTS. 169 knowledgment shall be certified thereon by the officer, and if a notar7 public, his seal shall be affixed to such certificate. PEESONALLY KNOWN— or identified to the officer. WITNESSES— one to a deed; two or more to a will. PRIVATE SEALS— abolished. WOMEN— age to convey, sixteen, if married. Married women convey as if single. Separate examination not required. DOWER AND CURTESY— one- third to each for life; conveyed by jointure. HOMESTEAD — exemp- tion, $2,000; conveyed by jointure of husband and wife. POWER OF ATTORNEY — to convey lands must be proved and acknowledged, signed and recorded same as a deed. ACTION — to recover land limited to teu years. DEED — when recorded is notice. MORTGAGE — decree is a final judgment. MECHANIC'S LIEN — claim to be filed in four months; holds two years. TAX — redemption, two years. JUDGMENT LIENS — Umited to five years. I 301. Nevada — ACKNOWLEDGMENTS — ^must be certified on in- strument and under officer's hand and official seal. Who can take — ^IN THE STATE — county recorders, a judge or clerk of a court having a seal, a notary public or justice of the peace, provided, if in another county, the latter shall have attached to his certificate the certificate of the clerk of the district court of his county showing his official character. IN OTHER STATES — by a judge or clerk of any United States court, or of any state or territorial court having a seal, by any commissioner appointed by the governor of this state for that purpose,' by a justice of the peace, if accompanied by a certificate of a clerk of his county court of record having a seal showing the justice's official character and authenticating his signature. WITHOUT THE UNITED STATES — by a judge or clerk of a court having a seal, by a notary or any United States minister, consul or commissioner resident. Each offi- cer authorized to take acknowledgments shall keep a record of same in a book for that purpose, entering the date taken, the date of the instru- ment, its name and character, names of parties thereto, to be open for inspection. A failure to comply subjects officer to a penalty of from $50 to $500 and liable on his bond for damages sustained. PERSON- ALLY KNOWN — to officer or proved by witness. WITNESSES — none required to a deed; may be proved by testimony of subscribing witness; two to a will. PRIVATE SEALS— abolished. WOMEN— age to convey, marriage permits conveyance at any age. Wife must join husband in conveyance of her separate estate. Separate examination of a married woman is not required. Acknowledgment in same manner as if un- married. DOWER AND CURTESY — abolished. Community system ex- ists; husband controls community property. HOMESTEAD — $5,000. Conveyed by jointure. POWER OP ATTORNEY— conveyed same as by deed, signed and acknowledged separately. ACTION — to recover land limited to ten years; to five years after seizin. DEED — when re- corded is notice. MORTGAGE — redemption, six months. MECHANIC 'S LIENS — contractor to file claim in sixty days; all others in thirty days. TAX — redemption in six months. JUDGMENT — ^redemption in six months; limitation of lien, six years. I'J'O NOTARIES PUBLIC. [§ 302 I 302. New Hampshire— ACKNOWLEDGMENTS— IN A FOEEIGN COUNTET — taken before a justice, notary, commissioner, a minister or consul of the United States. PEBSONALaiiY KNOWN— to officer not required. WITNESSES — two or more to a deed; three or more to a will. PEIVATE SEALS— scroll required. WOMEN-^age to co.nvey, twenty-one. If not of age, conveyance is only by jointure. Separate examinations not required. DOWEE AND CUETESY — one-third for life. Conveyance by jointure. HOMESTEAD — exemption, $500. Convey- ance by jointure. POWEE OP ATTOENEY — can so convey same as by deed. No deed of bargain and sale, mortgage, nor^ conveyance of real property, nor any lease for more than seven years shall be valid against any person but the grantor and his heirs unless attested, acknowledged and recorded. Same with power of attorney for conveyance of real estate. Person interested may have his deed or lease recorded in more than the one original county. Proof of execution of deed may be made by one or more of the subscribing witnesses before any court of record in the state. If not accessible, proof may be made on oath of two wit- nesses acquainted with the grantor's handwriting. If the grantor or lessor is a resident of this state, notice of the time and place of proving the same, signed by a justice, shall be delivered to him or at his abode fourteen days prior to the time of proving. A justice may, upon com- plaint of an interested party, issue a warrant to compel party having an unrecorded deed to place same on record or commit him to jail until the request is complied with. ACTION — to recover land limited to twenty years. DEED — when recorded is notice. If not acknowledged may be recorded sixty days. MOETGAGE- — redemption barred by entry under process and possession for one year, or by peaceable entry, possession for one year and publication of notice. MECHANIC'S LIENS — continue for ninety days; secured by attachment. TAX — redemption, one year; highway tax, two years. JUDGMENT — redemption in thirty days. I 303. New Jersey— ACKNOWLEDGMENTS— officer must make known the contents of the instrument to the party acknowledging and they must certify it as their voluntary act and deed. IN THIS STATE — before the state chancellor, commissioner of deeds, justices of the su- preme court, a master in chancery, a judge of a court of common pleas, clerk of such court, deputy county clerk, surrogate, deputy surrogate, attorney at law, notary public, or register of deeds; the certificate shall be written upon or under the instrument. Same shall be received in evidence in any court of the state. Any common pleas judge may take an acknowledgment for land in any county in the state, county clerks, register of -deeds. IN ANOTHEE STATE— before the chief justice or justices of the United States supreme court, a master in chancery for this state or any attorney of this state, any United States circuit or district judge, any judge or justice of the supreme or superior courts of any state or their chancellors, a commissioner of deeds for this state under his seal of office, any mayor or chief magistrate of any city borough or corporation under their seal, a judge of common pleas, each § 304] CONVEYANCES AND ACKNOWLEDGMENTS. 171 to apply certificate of his office and authorization under hia court or official seal. IN ANY POEEIGN COUNTRY— commissioner of deeds for New Jersey, or master in chancery for this state, any public am- bassador, minister, consul, vice consul, consular agent, charge d'affaires, or other representative of the United States, any court, notary public, any mayor or chief magistrate of any city, duly certified under the city seal, and shall be as efEectual as if made before the chancellor of this state, provided, that when made before a judge, a certificate under the seal of the state, nation or court where made shall be attached stating the officer is such. PERSONALLY KNOWN— or identified by subscribing witnesses to the officer is required. WITNESS— two to deed; two to a will. Testator may acknowledge signature to witnesses. PRIVATE SEAL — scroll required. WOMEN — age to convey, twenty-one years. Separate examination required, and sign, seal and deliver same as her voluntary act and deed freely without fear, contents of instru- ment having been explained. DOWER AND CURTESY— one-third each for life and are conveyed by jointure. HOMESTEAD — exemption, $1,000. Transferred by jointure. POWER OF ATTORNEY— to convey must be by jointure of husband and wife, acknowledged, signed and recorded as by deed. ACTION — to recover land limited to twenty years. MORTGrAGE — redemption limited to sis months. TAX — redemption limited to one year. JUDGMENT LIEN — limited to twenty years. § 304. New Mexico — CONVEYANCE — any person or body politic holding any right or title to real estate in this territory may convey the same, subscribed to by the person transferring or by his legal agent or attorney. ACKNOWLEDGMENTS IN THE STATE— may be made before a clerk of the district court, a judge or clerk of the probate court, under the court seal, a notary public, or a justice of the peace. IN OTHER STATES — before a clerk of a court of record having a seal, a commissioner of deeds appointed under the laws of this state or a notary public. OUTSIDE THE UNITED STATES— before a United States minister, commissioner, charge d'affaires, consul general, consul, vice consul, deputy consul or agent, resident in the country, a notary public, having a seal. PERSONALLY KNOWN — to the officer or proved by two reliable witnesses and so stated. WITNESSES — none to deed; two to a will. PRIVATE SEALS — not required. WOMEN — a married woman uniting with her husband in the execution shall be described as his wife. Her acknowledgments shall be taken and certified as if she were sole. Not necessary to join with him. No separate examination is required. A married woman need not personally appear before the officer. She may sign and convey any conveyance through an attorney, who may be authorized in writing by a power of attorney executed and acknowledged by herself and husband as authorized by law. DOWER AND CURTESY — abolished. Community property system pre- vails. HOMESTEAD — exemption, $1,000. Conveyed by jointure of hus- band and wife. POWER OF ATTORNEY — shall be certified and regis- tered, and revoked only in writing and by record. ABSTRACTS — 173 NOTARIES PUBHO. [§ 305 ttneler the »eal of any title abstract company incorporated and doing l»uainM8 in this state shall be received in all courts of this state in •vidence. A false certificate by an ofiioer of such company or any person shall, upon conviction, subject to a fine of not more than $500 or imprisonment in the penitentiary not to exceed three years, or both. Foreigners shall have full power to acquire and hold real estate by deed, will or inheritance, when acquired in good faith same as a citizen of the United States; also to aliens to seU, assign and transfer same. ACTION — to recover land limited to ten years. MORTGAGE — ^redemp- tion limited to one year. MECHANIC'S LIEN — filed by contractors within ninety days; other persons, sixty days; continues in force two years. TAX — ^redemption, three years. JUDGMENT LIEN — exists five years. i 305. New Tork— ACKNOWLEDGMENTS— IN THE STATE— of deeds may be made before a justice of the supreme court anywhere in the state, before a judge, elerk, deputy clerk, special deputy clerk of a court, a, notary, mayor, or recorder of a city, a justice of the peace, in his county, surrogate, special surrogate, special county judge or commis- sioner of deeds, within the district of their appointment. IN OTHEE STATES — before a judge of the supreme court, of the circuit court of appeals, or of the district court of the United States, a judge of the supreme, superior or circuit court of a state, a mayor of a city, a commissioner appointed for that purpose by the governor of the state, any officer authorized by the laws thereof to take acknowledgments, each acting within their jurisdiction or court. When taken by a com- missioner appointed by the governor for a city or county within the United States, and without this state, the certificate must also state the day on which and the town and county or the city in which it was taken. IN FOREIGN COUNTRIES— before a United States ambassa- dor, minister plenipotentiary, minister extraordinary, minister resident, or charge d 'affaires, residing and accredited within the country, a consul general, vice consul general, deputy consul general, vice consul or deputy consul, a consular or vice consular agent, or a consul or commercial or vice commercial agent of the United States residing in the country, a commissioner appointed by the governor and acting within his juris- diction, a person specially authorized for that purpose by a commission under the seal of the supreme court issued to a reputable person residing in or going to the country, under seal. In Porto Rico, Philippine Islands, Cuba, or places where United States exercises sovereignty, before judge or clerk of court of record, mayor or chief officer of city, commissioner appointed by governor of this state, officer of United States army of rank of captain or higher, officer of United States navy of rank of lieutenant or higher. Certificate of officers, except last two to have seal attached or statement that officer has no seal. Certificate, of army and navy officers to be authenticated by secretary of war, or navy, as case may be. If within states comprising Empire of Germany or Kingdom of Italy, also before judge of court of record under court seal, or notary § 305] COITVEYANCES AND ACKNOWLEDGMENTS. 173 under his seal and seal of city or town of residence. If withim tke Kingdom of Norway, Sweden or Denmark, or any dependencies, before a judge or clerk of a court of record under seal of court, before mayor or chief magistrate of city or town under city seal, before notary under his seal and seal of city or town where he resides, before sheriff under his hand, and seal of city or town where he resides, before consul gen- eral, vice consul general, deputy consul general, consul, vice consul, deputy consul, consular agent, vice consular agent, commercial agent or vice commercial agent. If within the Dominion of Canada, it may also be made before any judge of a court of record, or before any officer of such dominion authorized by the laws thereof. If within the United Kingdom of Great Britain and Ireland or the dominion there- unto belonging, it may also be made before the mayor, provost or other chief magistrate of a city or town therein, or a notary. The certificate must be under the hand and seal of the officer taking, or the seal of the office to which he is attached. A clerk's certificate authenticating a certificate of acknowledgment taken before a judge or court of record in Canada must specify that there is such a court, that the judge before whom the acknowledgment was taken was, when it was taken, a judge thereof, that such court has a seal, that the officer authenticating is clerk thereof, that he is well acquainted with his handwriting and be- lieves his signature is genuine. An officer authenticating a certificate of acknowledgment or proof must subjoin or attach to the original certificate under his hand, and if he has, pursuant to law, an official seal, under such seal. Except when the original certificate is made by a judge of a court of record in Canada, such certificate of authentica- tion must specify 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 de- posited in his office, and that he believes it genuine. If the original certificate is required to be under seal he must also verify that. A certificate of, made within the state, by a commissioner of deeds, justice of the peace, or, except as otherwise provided by law, by a notary public, does not entitle the conveyance to be read in evidence or re- corded, except within the county in which the officer resides at the time of making such certificate, unless authenticated by a certificate of the clerk of the same county. This does not apply to a conveyance ex- ecuted by an agent for the Holland Land Company or of the Pultney estate, lawfully authorized to convey real property. In the following eases a certificate of acknowledgment or proof is not entitled to be read in evidence or recorded unless authenticated by the following officers, respectively: Where the original certificate is made by a commissioner appointed by the governor, by the secretary of state; where made by a judge of a court of record in Canada, by the clerk of the court; where made by the officer of a state of the United States or of the Dominion of Canada authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein, by the secretary of state of I'^i NOTARIES PUBLIC. [§ 306 the state, or the clerk, register, recorder or prothonotary of the county in which the officer making the original certificate resided, when cer- tificate was made, or by the clerk of any court of that county having by law a seal. The officer within state can compel the subscribing wit- ness to attend and testify before him concerning the execution of the conveyance. Refusal to testify forfeits to the person injured $100 and commitment to prison by the officer, there to remain without bail and without liberties of the jail until he answers under oath. The officer must indorse upon or attach to the instrument a certificate, signed by himself, stating all matters required to be done, known or proved, to- gether with the name and substance of the testimony of each witness examined, and if a subscribing witness, his place of residence. MAE- RIED WOMEN — may acknowledge the same as if unmarried. Age, twenty-one. PEESONALLT KNOWN — officer must know the party ac- knowledging or have satisfactory evidence that the party making it is the one who executed the instrument. When proof is made by a sub- scribing witness, he must state his residence, that he knows the party. Officer must know the witness to be the subscribing witness. WIT- NESSES— none if acknowledged; two to will. PRIVATE SEAL— scroll required. DOWER — one-third for life for widow; conveyed by jointure. HOMESTEAD— exemption, $1,000. POWER OF ATTORNEY— to con- vey by married woman does not require husband's concurrence, but she must acknowledge and sign same in a private examination. ACTION — to recover land limited to twenty years. ESTATES TAIL — limited to lives of two in being. Husband and wife can convey to each other. JUDGMENT LIENS— limited to twenty years. MECHANIC 'S- LIENS — action expires in one year; redeemed before action. MORTGAGE LIEN — ^limited to twenty years. TAX — redemption, one year. RE- CORDING — is notice; deeds void unless recorded. § 306. North Carolina— IN THE STATE — execution of deeds, con- tracts, mortgages, powers of attorney, leases for more than three years, releases or instruments required to be registered, may be proved or ac- knowledged before several justices of supreme court, judges of superior court, commissioner of deeds, clerks of supreme court, clerks of superior court, deputy clerks of superior courts, several clerks of criminal courts, notaries public and justices of the peace. OUTSIDE OF STATE — ^be- fore judge or clerk of court of record, notary public, commissioner of deeds, mayor or chief magistrate of city or town, ambassador, minister, consul, vice consul, consul general, vice consul general or commercial agent ' of the United States, or justice of the peace. Latter must be certified by clerk of court of record of county where justice resides. PERSONALLY KNOWN — ^personal appearance necessary. Personal knowledge of is not required. WITNESSES — one or more to a deed; two to a will. PRIVATE SEAL — scroll required. WOMEN— age to convey, twenty-one years. Married women can convey their separate property. Separate examination of married woman is necessary; also necessary to a chattel mortgage. Real property conveyed with writ- § 308] CONVEYANCES AND ACKNOWLEDGMENTS. 175 ten assent of husband. DOWER AND CUETESY— one-tliird life. Conveyances made by jointure of husband and wife. HOMESTEAD — exemption, $1,000. Conveyed by jointure. POWEK OF AT- TORNEY — can so convey. Must be jointly by husband and -wife. ACTION — to recover land limited to twenty years. ESTATE TAIL— rbolished. JUDGMENT, MECHANIC'S LIEN, MORTGAGE UEN— limited to ten years. TAX — ^redemption, one year. § 307. North Dakota— ACKNOWLEDGMENTS— IN THE STATE— before a justice or clerk of the supreme court or notary public. Within their jurisdiction before a judge or clerk of a court of record, mayor of a city, register of deeds, justice of the peace, county auditor, or a United States circuit or district court commissioner. WITHOUT THIS STATE — but within the United States and within the officer's jurisdic- tion — before a justice, judge or clerk of any court of record, a notary or any officer so authorized by the laws of his state, a commissioner of deeds appointed by the governor of this state. WITHOUT THE UNIT- ED STATES — before a minister, commissioner or charge d'affaires of the United States resident and accredited in the country, a secretary of legation, a consul, vice consul, or consular agent resident in the country, a, judge, clerk, register or commissioner of a court of record, a notary public, any officer so authorized by the laws of the country, or deputies of the officers mentioned. Officers must authenticate, by using their seal of office if they have one, their signature and title. An acknowledg- ment before a justice of the peace to be used outside his county must be accompanied with the certificate of a clerk of a county court or any other court of record under his hand and seal of office, stating that such justice at the taking was authorized to be the same and that the clerk is acquainted with his handwriting and believes the signature genuine. Cannot be taken by a party in interest. PERSONALLY KNOWN — to the officer or proved by witnesses is required. WIT- NESSES — two to will; none to a deed; execution of deed may be proved by subscribing witness. PRIVATE SEALS — abolished. WOMEN— age to convey, eighteen. Convey same as if single, Separate examination not required. DOWER AND CURTESY— abolished. Estate descends in equal shares to surviving spouse and child, or issue of such child if on!}- one child. If more than one child, one-third to surviving spouse and re- mainder to children. HOMESTEAD— exemption, $5,000. Conveyed by jointure of husband and wife. POWER OF ATTORNEY— conveyance so made as by deed. ACTION — to recover land limited to twenty years. MORTGAGE — redemption limited to one year. MECHANIC'S LIEN — claim to be filed in ninety days; suit to begin in thirty days after if de- manded. Must be enforced within six years. TAX — redemption limited to three years. JUDGMENT LIEN — redemption in one year; lien lim- ited to ten years. § 308. Ohio— ACKNOWLEDGMENTS— IN THE STATE— before a judge of a court of record or its clerk, county auditor, surveyor or lotary, mayor or justice of the peace, certified and signed on document, 176 NOTARIES PUBLIC. [§ 309 a •ommissioner »f deeds for Ohio or TTnited States consul. WITHOUT THE STATE — before a commissioner, consul general, vice consul gen- eral, deputy consul general, consul, vice consul, deputy consul, commer- cial agent and consular agent, resident in foreign country. PBESON- ALLY KNOWN — or proved to the officer and personal appearance neces- sary. WITNESSES— two required to deeds; two to a will. PRIVATE SEALS — aboUshed, except corporations. WOMEN — age to convey, sixteen; may convey as if unmarried. Separate examination not re- quired. DOWEK — exists as to widow and widower, one-third the estate for life. CrrETESY— abolished. POWEE OP ATTORNEY— acknowl- edged same as deed, etc. ACTION — to recover land limited to twenty- one years; if a disability, ten years after the removal. ESTATE TAIL —limited to life in being. HOMESTEAD— exemption, $1,000. DEED— is notice when recorded. MORTGAGE — redemption limited to thirty days. TAX — redemption limited to two years. JUDGMENT — redemp- tion before thirty days; lien limited to five years. § 309. Oklahoma^ACKNOWLEDGMENTS IN THE STATE— may be taken before a notary public, county clerk, or clerk of the district or county court, county judge. OUTSIDE THE STATE— by any notary public, clerk of a court of record, commissioner of deeds ap- pointed by the governor. IN A FOREIGN COUNTRY— by any court of record or its clerk, or any United States consul or county must be taken under the officer's seal. PERSONALLY KNOWN— or proved to officer is required. WITNESSES — none required to deeds; two to a will. PRIVATE SEALS — dispensed with. Conveyances or instruments affecting title to real estate must be in English language. WOMEN — age to convey, eighteen years. Wife may convey separate property as if unmarried. Separate examination not required. DOWER AND CURTESY — abolished. HOMESTEAD— exemption, 160 acres; in city, one acre. Released by wife joining husband in deed. POWER OF AT- TORNEY — to convey real estate must be signed, acknowledged and recorded same as a deed. Release of mortgage may be made on the margin of the record by the holder or his agent or it may be made on a separate instrument signed and acknowledged and recorded. AC- TION— to recover land limited to fifteen years. MECHANIC 'S LIEN— filed within four months; suit brought in one year. TAX — redemption, two years. JUDGMENT LIEN— limited to five years. § 310. Oregon— ACKNOWLEDGMENT— IN THIS STATE— taken by a judge of the supreme court, county judge, justice of the peace or notary in the state, certified and dated under their hand. IN ANY OTHER STATE — according to its laws and acknowledged before any judge of a court of record, justice of the peace, notary public, or other authorized officer by the state's laws, or a commissioner appointed by the governor of this state for the purpose. Unless taken before a com- missioner appointed by the governor of this state for the purpose, or a notary certified under his official seal, or before the clerk of a court of record certified under the seal of the court, it shall have attached a § 311] OONVETANCES AND ACKNOWLEDGMENTS. 177 certificate of the clerk or other proper certifying officer of a court of record of the county or district, under the seal of his office, that the person whose name is subscribed to the certificate was at the date such officer, that he believes the signature genuine, that the deed is executed according to the law of the state. IN A FOREIGN COUNTKY— it may be executed to the law of the country and acknowledged before a notary or a United States minister plenipotentiary or extraordinary, minister resident, charge d'affaires, commissioner, consul, vice consul, or consul general, appointed to reside there and certified under his hand. The notary's seal shall be attached to his acknowledgment. TELB- GKAPHIC COPY — of acknowledgment may be admitted to record. PEESONAUJT KNOWN — or identified to officer by subscribing witness required, and personal appearance. WITNESSES — two to a deed; two or more to a will. PBIVATE SEAL— scroll. WOMEN— age of, eighteen. May convey by joining husband, stating she executes it freely and voluntarily, any time after marriage. Out of the state she can execute same as if single her separate property. Separate examination not re- quired. DOWER AND CURTESY— husband and wife have a one-half life interest in each other's property. Conveyance by jointure. HOME- STEAD — $3,000, as long as occupied. Conveyance jointly. POWER OF ATTORNEY — can so convey same as by deed if unmarried; if married, by jointure. Either can convey their separate property without joint- ure. ACTION — to recover land limited to ten years. MORTGAGE— redemption in one year. MECHANIC'S LIEN — filed by contractor with- in sixty days, by others within thirty days, foreclosure within six months. TAX — ^redemption, three years. JUDGMENT — ^redemption, one year; lien limited to ten years. § 311. Pennsylvania — ACKNOWLEDGMENTS — all deeds to be ac- knowledged or proved. IN THE STATE — before one of the judges of the supreme court or one of the justices of the court of common pleas of the county where the land lies. Acknowledgments for lands in the state made before the president of the court of common pleas for the county of Philadelphia or the president of the court of com- mon pleas in any other county of this state shall be as effectual in law as if made before one of the judges of the supreme court. If before any assistant or associate judge of the courts of common pleas, it shall be equally effectual. The mayor and recorder of the city of Philadelphia (the master of the rolls) and the justices of the peace of the state can take in their county. Aldermen of the city of Philadelphia can take, recorders of deeds in their county or city, under their hand and ofiicial seal. Notaries public, prothonotary of supreme court, county treasurers, county commissioners, representatives, may take. IN OTHER STATES— may be acknowledged before judge of United States supreme or district court, judges of supreme, superior, or courts of common pleas, or any court of record, duly certified, notaries public or commissioners of deeds. Proof of official character of person taking acknowledgment to be under seal. WITHOUT THE 12 178 NOTARIES PUBLIC. [§ 313 UNITED STATES — ^before any coneul, vice consul, ambasaadoT, min- ister plenipotentiary, charge d'affaires, deputy consul, commercial agent, vice and deputy commercial agent, consular agent, military officers of rank of major or higher, or commissioner of deeds. Foreign commissioners in chancery certified under their official seals. Cer- tificates and seals of officers outside of the state are not required to be proved, but accepted as prima facie evidence. The certificate of a justice of the peace or alderman must be verified by the clerk or prothonotary of a court of record, under the court seal. MIUTART — a major, or higher officer, can take acknowledgments in the army. Corporations may employ its attorney to acknowledge its documents. Army and navy and government officers in Porto Eico, Cuba and Philippine Islands can take. PERSONALLY KNOWN— or proved to officer is required. WITNESSES — two required to a deed; two to wills. PEIVATE SEALS— scroll required. WOMEN— married, to convey property with husband joining in the deed. Separate exam- ination of married women not required. DOWEE AND CUETESY— one-third for life if there are children; one-half if there is only one child, or no children. Estate descends in lieu of' dower or curtesy. POWEE OF ATTORNEY — married women can release their own es- tates by power of attorney, without husband joining, when duly acknowledged and recorded. ACTION — for recovery of lands limited to twenty-one years, or ten years after a disability; fifteen years for existing rights; seven years quiet possession; forty years bars the world. HOMESTEAD— exemption, $300. JUDGMENT LIENS— limited to five years. MECHANIC'S LIENS — to be filed in six months; three months in case of tenancies, alterations, etc., foreclosure within two years; limit of lien, five years. MORTGAGE — I'edemption, three months; may be extended one year on filing notice of agreement. TAX — redemption limited to two years. § 312. Philippine Islands— ACKNOWLEDGMENTS— taken by no- taries. HOMESTEAD — exemptions, 150 pesos. JUDGMENT — and ex- ecutions limited to five years. Redemption by debtor within one year. WILLS — any one of sound mind of legal age can make a will. Must be in writing, signed by the testator or by someone in his presence and at his request and direction, attested and subscribed in his presence by three credible witnesses. § 313. Porto Elco — ^Property is divided into movable (personal) and immovable (realty). Ownership is acquired by retention, and trans- mitted by gift, by testate or intestate succession and in consequence of certain contracts by tradition. Things are acquired by retention, which can be appropriated by reason of their nature, viz.: those having no owners, such as animals which are the object of hunting and fishing, hidden treasure, and abandoned property. Succession is the transmission of the rights and obligations of a deceased person to his heirs. May be disposed of by will. All persons over fourteen years may dispose by will if of sound mind. Ordinary wills may be holographic, open or closed. Military and marine wills are special. § 313] CONTETANOES AND ACKNOWLEDGMENTS. 179 ACKNOWLEDGMENTS — notaries and commissioners can take. WIT- NESSES — three to a will. WILL& — notary and witness must know the testator. Persons blind, or unable to read, cannot make a will. Deaf and dumb who can write may execute a closed will. It must be written entirely and signed by the testator, stating place, day and month. The notary certifying same, then delivers it to the testator, retaining a certified copy in his private protocol. If testator leaves his with the notary, latter to give a receipt for same, and make a memorandum. It must be presented in court within ten days of the testator's death. A closed will must have five witnesses, three of whom must be able to sign. The testator must state what it is, who wrote it and what changes and interlineations have been made. State- ment must be made in the presence of the witnesses. All of which the notary must note on the back of the envelope, with a note of the number of seals on outside and that every legal requirement has been complied with, that the testator is known to him, that he is capable of making same. The memorandum shall be read to the testator signed by the testator and the witnesses. Notary must au- thenticate with his name and seal. A holographic will is written by the testator in his own hand and signed by him and dated. The party receiving it must within ten days of the death of the testator present same to the district court; otherwise he is liable. The notary and witnesses must be present when proven in court. An open will is one in which the testator expresses his desire in the presence of the persons who must authenticate it; must be executed by a notary in presence of three witnesses; must be read aloud to the testator; signed by all; one of the witnesses can sign for the testator, the notary stating same; must be read thrice if party is blind. A closed will is one sealed and delivered by the testator, in an envelope, sealed with wax, to the parties whom he wishes to authenticate it, declaring it to be his last will and testament. No one can be a witness to a will who is under the age of fourteen, a nonresident of the place of its execution, blind, deaf or dumb, unfamiliar with the language of the ' testator; criminals or those convicted for forgery, perjury; clerks, amanuenses, servants, relatives within the fourth degree of consanguin- ity or second of affinity of the notary who authenticates the will; neither heirs, legatees named in an open will, nor the relatives of the same within the fourth degree of consanguinity or second of afSnity. The notary and two mtnesses must know the testator or have him identified by two witnesses. They must be sure the testator has legal capacity. The burden of proof falls on them when the will is proved. It must be written in English and Spanish. Wills may be executed without a notary, in the presence of three witnesses over sixteen years of age, but must be reduced to writing by a notary within two months. If the testator die before, application must be made, within three months after, to the proper court to have same reduced to writing. All interlineations in the wills must be fully ex- plained in the document. CONJUGAL PAETNEESHIP— exists by 180 NOTAKIES PUBLIC. [§ 314 rirtu* «f marriage and property acquired belongs to husband and wife share and share alike. Husband is administrator. Cannot sell or bind real estate without consent of wife. Separation of property only by judicial decree. Conveyances by consent of both parties. { 314. Rhode Island— ACKNOWLEDGMENTS— WITHIN THE STATE — to be before any state senator, judge, justice of the peace, mayor, notary public, town clerk, or recorder of deeds. OTHER STATES — before any judge, or justice of a court of record or other court, justice of the peace, mayor or notary of the state, district of Columbia, or territory, in which it is made, or before a commissioner of deeds appointed by the governor of this state, provided, that if proved in the manner prescribed by the laws of the state, etc., where executed, it shall be deemed to be legally executed, and shall have the same effect as if executed as above described. WITHOUT THE UNITED STATES — may be taken before any United States ambassa- dor, minister, charge d'affaires, consul general, vice consul general, consul, vice consul, consular agent, or commercial agent, or before any commissioner appointed by the governor of this state in the country where the acknowledgment is taken, provided that such acknowledg- ment may also be made within or without the limits of this state by any person actually engaged in the military or naval service of the United States, before any colonel, lieutenant colonel, or major in the army, or any officer in the navy not below the grade and rank of lieutenant commander. PERSONALLY KNOWN — and personally to appear (or proved) to officer, is required. WITNESSES — none to deeds; two or more to wills. PRIVATE SEALS — abolished. WOMEN — married, may convey same as if single. No separate examination; to be free act and deed; may convey directly to or receive from her husband. DOWER AND CURTESY— one-third in fee simple, one-half if no issue, and is conveyed by jointure. POWER OF ATTORNEY — may be made by acknowledging and signing same as by deed. MORT- GAGE — redemption, two months as to personalty; real estate within three years after entry. TAX — redemption, one year. MECHANIC'S LIEN — ^limited to six months; notice within 60 days. JUDGMENTS — issue at once. § 315. South Carolina— ACKNOWLEDGMENTS— IN THIS STATE — a deed to be entitled to record must be proved by the affidavit of a subscribing witness before an officer in this state competent to administer an oath, a commissioner appointed by dedimus of the county common pleas court clerk, a commissioner of deeds of this state, clerk of a court of record under his official seal, a notary under his official seal accompanied by the certificate of his official character, by a clerk of a court of record of the county where affidavit is made, or before a minister, ambassador, consul general, consul, vice consul or consular agent of the United States. If the witness be dead or not accessible, the instrument may be proved on the handwriting of the parties. WITNESSES — two required, in the presence of whom the § 316] CONVEYANCES AND AOKNOWLEDQMKNTS. 181 release is to bs made and signed and indorsed bj county auditor; tliree to a will. PEIVATB SEALS — scroll required. WOMEN— any mar- ried woman may convey. CUETEST — abolished. HOMESTEAD — $1,000 allowed; conveyed by jointure. POWER OF ATTORNEY— married women may so convey their separate estates. DOWER — • one-third. Wife may renounce by separate instrument, husband to join in the deed. Separate examination required that she freely and voluntarily without compulsion conveys. ACTION — to recover land limited to ten years. Must have had possession in forty years or an- cestors. ESTATES TAILr— limited to life in being. DEED— to be recorded. JUDGMENT LIEN— limited to twenty years. MORTGAGE — redemption in one year. MECHANIC'S LIEN — ^filed within ninety days, enforced within six months. TAX — ^redemption, six months; quieted in ten years. § 316. South Dakota^ACKNOWLEDGMENTS— IN THE STATE— taken before a justice or clerk of the supreme court or notary any- where, before a judge or clerk of the circuit, municipal or county court, mayor of a city, register of deeds, justice of the peace. United States district court commissioner, county auditor, within their jurisdiction. OUT OF THE STATE — before a justice, judge or clerk of any court of record of the United States, a justice, judge or clerk of any court of record of any state, a notary, or any officer so authorized by the state where the same is being taken, a commissioner of deeds appointed by the governor of this state. WITHOUT THE UNITED STATES— can be taken before an ambassador, minister, commissioner, or charge d'affaires of the United States, resident or accredited to the country where same is taken, a consul, vice consul, consular agent of United States therein resident, a judge, clerk, register or commissioner of a court of record, a notary public, an officer authorized by the laws of the country where acknowledgment is taken, their deputy, if they are authorized to have such. Acknowledgment of party or corporation must be made to the instrument before it can be recorded. PERSON- ALLY KNOWN — to the officer, or identity proved on oath or affirma- tion of a credible witness. Officer must affix his name, office and seal to the instrument. WITNESSES — two to a will; none required to deeds. Execution of instrument may be proved by subscribing wit- ness. PRIVATE SEALS — abolished. WOMEN — married, convey as if single. Age to convey, eighteen. Separate examination not required. DOWER AND CURTESY — abolished. Property descends to surviving spouse and child, or issue of child, in equal shares. If more than one child, one-third to spouse and remainder to children or issue in equal shares. HOMESTEAD — 160 acres, or one acre within town plat is exempt. Conveyance jointly, or by separate instruments, if both hus- band and wife sign. POWER OF ATTORNEY— to convey lands ac- knowledged and recorded, same as by deed, is valid. ACTION — to recover land limited to twenty years. JUDGMENT— -redemption, one year; lien limited to ten years. MECHANIC'S LIEN — redemption. 182 NOTAEIES P0BLIC. [§ 317 one year. MOETGAGE — redemption, one year. TAX— redemption, two years. § 317. Tennessee — ACKNOWLEDGMENTS — WITHIN THE STATE — ^before the county clerk or his legal deputy, or a notary pub- lic. IN ANOTHEE STATE — ^before a commissioner for this state, a notary public, any court of record or clerk of such court. IN A FOR- EIGN COL'NTEY — before a commissioner for this state, a notary public, a United States minister, consul, or ambassador. If made before a notary, commissioner, consul, minister or ambassador he shall certify under his seal of office. If made before a judge, he shall make the certificate and his court clerk shall certify it under his seal of office; if there be no seal, then under his private seal, stating the official character of the judge, or it may be certified by the governor. If made before a court of record, a copy of the entry on the record shall be certified by the clerk under his seal of office; if there be no seal, then under his private seal and the judge, chief justice or pre- siding magistrate shall certify to the character of the clerk. If be- fore a clerk of a court of record of another state, and certified by him under his seal of office, the judge, chief justice or presiding magis- trate of the court shall certify to the official character of the clerk. PEE80NALLY KNOWN— or identified to the officer and personal ap- pearance required. WITNESSES — none, if acknowledged, otherwise, two; two to wiU. PEIVATB SEALS— abolished. WOMEN— age to convey, twenty-one. Can convey her separate estate without hasband's consent. Separate examination required whether conveying jointly with husband or conveying separate estate. Commission for privy ex- amination of wife may issue, if sick, aged or unable to appear. Per- sonal acquaintance with married woman who acknowledges need not be shown in certificate. DOWEE AND CUETESY— one-third for life. HOMESTEAD — exemption, $1,000; conveyed by jointure. POWEE OP ATTOENEY — can convey by same as by deed; privy examination necessary. ACTION — to recover land limited to twenty years. ES- TATES TAIL— abolished to fee simple. JUDGMENT— redemption, two years; lien limited to ten years. MECHANIC'S LIEN — redemp- tion, two years. MOETGAGE — redemption, two years; lien limited to ten years. TAX — redemption, two years; lien limited to six years. TEUST DEEDS— used as mortgages. § 318. Texas— CONVEYANCES— must be in writing, subscribed to and delivered by the party or his authorized agent. ACKNOWLEDG- MENTS—IN THIS STATE- or proofs of instruments in writing, may be taken before a clerk of the district court, a judge or clerk of the county court, a notary public. IN ANY OTHEE STATE — before a clerk of a court of record having a seal, a commissioner appointed by the governor of this state, a notary public. IN FOEEIGN COUN- TEIES — before a minister, commissioner, or charge d'affaires, of the United States resident, a consul general, consul, vice consul, com- mercial agent, vice commercial agent, deputy consul or consular agent of the United States resident, a notary public. Grantor must appear § 319] CONVETANOIS AND ACKNOWLEDGMENTS. 183 in person before the officer and state that he executed the same for the consideration and purposes therein stated. The officer shall make a certificate, sign and seal it with his seal of office. PERSONALLY KNOWN— to the officer, or their identity sufficiently proven on the oath or affirmation of a credible witness, which shall be noted on his certificate. WITNESSES — two required to deeds unless acknowledged before an officer and certified to by him; two to a will; three to nuncu- pative will. PErVATE SEALS — abolished, except of corporations. WOMEN — age to convey, twenty-one, or marriage, husband to join in conveying her separate estate. Married woman shall have the in- strument shown and explained to her by the officer, be examined separate and apart from her husband, and acknowledge the same to be her act and deed, willingly signed, that she does not wish to retract it. BO WEE — none; community system. CUETEST — none; have com- munity system. HOMESTEAD — exemption, 200 acres; or $5,000 in city, town or village, wife to join in its conveyance, signing and ac- knowledging separately. POWEE OF ATTOENEY— to be recorded. A will conveying land in this state, probated according to the laws of any of the United States or territories, a copy thereof and its probate, attested by the clerk of the court where probated, with the seal of the court attached, and a certificate of the judge or magistrate of such court, that the attestation is in due form, may be filed and recorded in the county register of deeds where the real estate is situated, as deeds and conveyances are, without further proof or au- thentication, provided the same may be contested any time within four years, as the original will might be. ACTION — to recover land limited to ten years. JUDGMENT — redemption, one year; lien limited to ten years. MECHANIC'S LIEN — redemption, one year; contractor must file claim in four months, laborers and others in thirty days; sale in twelve months. MOETGAGrE — redemption, thirty days. TAX — redemption, two years. § 319. Utah— CONVEYANCES — are by deed, signed by the grantor, if of age, or his lawful agent. ACKNOWLEDGMENTS— IN THE STATE — must be taken before some judge or clerk of a court having a seal, a notary public, county clerk or county recorder. IN ANY OTHEE STATE — or territory, by a judge or clerk of a court having a seal, or by a notary public or commissioner appointed by the gov- ernor of this state. IN A FOEEIGN COUNTEY— by some judge or clerk of a court of the country having a seal, or any notary. United States ambassador, minister, commissioner or consul resident. The officer's authorized deputy may take. The judge or clerk of court shall attach the court seal. The officer who has a seal of office shall attach his seal. PEESONALLY KNOWN — the certificate to state the fact of acknowledgment, that the person making it was personally known to the officer, or was proved such by oath or affirmation of a credible witness whose name shall be inserted in the certificate. PEIVATE SEALS — are abolished. WITNESSES — none to deeds, al- though deed may be proved by subscribing witness i£ there is one; 184 NOTARIES PUBLIC. [§ 330 two to willg. WOMEN — age to convey, eighteen. Married women may convey their separate property when acknowledged or proved and certified to, without further proof. Separate examination of wife not required. DOWBB AND CUETESY — wife has one-third interest in husband's lands after marriage. HOMESTEAD — exemption, $1,500 to head of family, $500 to wife and $250 each child, and all personal property; conveyed by jointure. POWER OF ATTORNEY — to convey property must be acknowledged or proved, certified and recorded. The revocation must also be recorded. A conveyance legally acknowledged or proved and certified may be read in evidence without further proof. ACTION — to recover lands limited to seven years. Husband and wife can contract with each other as if single. JUDGMENT HEN — limited to eight years. MECHANIC'S LIEN — claim to be filed in sixty days by original contractor, in forty days by others; action within one year. MORTGAGE — redemption, six months. TAX — redemption, four years. § 320. Vermont— ACKNOWLEDGMENTS— IN THE STATE— may be taken before town clerks, justices of the peace, notary public, master in chancery, county clerk, judge or register of probate. The notary's acknowledgment shall be valid without his official seal being affixed to his signature. OUT OF THE STATE— if certified according to the laws of the state, province or kingdom where taken, shall be valid proof of the same, may be taken and acknowledged before a justice, magistrate or notary public within the United States, or in a foreign country, or before a commissioner appointed for that purpose by the governor of this state. IN A FOREIGN COUNTRY— before a minister, charge d'affaires, consul or vice consul of the United States. PERSONALLY KNOWN — or proved to the officer, and personal appearance, required. WITNESSES— three to a will; two to a deed. PRIVATE SEALS— scroll required. WOMEN — age to convey, eighteen. Husband must join in conveying her estate. Separate examination of vrife is not required. DOWER AND CURTESY— estates in lieu of, exist. HOMESTEAD— $500; conveyed by jointure. POWER OF ATTORNEY— can convey by; must be signed, sealed, witnessed, acknowledged, recorded. A grantor or lessor refusing to acknowledge his deed or lease may be cited before a justice of the peace with right of appeal. The deed or lease may be recorded in the meantime and be effectual for sixty days, and if the proceedings for proving are still pending, the record may stand until six days after the termination of the suit. Vendor shall within six months after request record his title, or liable to be cited before a justice and may be committed for refusal and liable in an action at law for damages. Where the grantor or lessor dies or leaves the state without acknowledging his deed, the execution may be proved by the testimony of a subscribing witness before a judge of the supreme, su- perior or county court; and if all the witnesses are dead or out of the state, it may be proved before such courts on the handwriting of the grantor and of a subscribing witness, or adducing other evidence to the satisfaction of the court; such evidence entered on such deed or annexed thereto shall be equivalent to the grantor's or lessor's acknowl- § 322] CONVEYANCES AND ACKNOWLEDGMENTS. 185 •dgment. ACTION — to recover land limited to fifteen years. MECHAIT- IC'S LIEN — continues three months. Notice must be filed and action in- stituted. MOETGAGE — redemption, one year, unless the value of prop- srty is less than incumbrance, then in discretion of court. TAX SALE — redemption, one year. JUDGMENTS — do not create a lien. The lien ii created by the attachment which holds for thirty days after judgment on personal property and five months on real property. § 321. Virginia— ACKNOWLEDGMENTS— may be taken by a clerk of the court, a justice, commissioner in chancery of a court of record, or a notary within the United States, or a commissioner appointed by the governor within the United States, clerk of any court out of this state within the Uhited States, or under official seal; any ambassador, minister plenipotentiary, minister resident, charge d'affaires, consul general, consul, vice consul, or commercial agent appointed by the gov- ernment of the United States to any foreign country, or the proper officer of any court of such officer, the mayor or other chief magistrate of any city, town, or corporation therein. Notary must state when his term expires ("My term expires "). Married woman must plainly indicate name commissioned under. Notaries public or other officers who are stockholders in a corporation can take its acknowledgments, provided they are not otherwise interested. Acknowledgments taken outside the state by a notary must be certified as to his official character by any eourt of record, the mayor, or chief magistrate of any county, city, town or borough, or under the great seal of the state, kingdom, etc., where the notary resides. PERSONALLY KNOWN— or identified to officer, is required. WITNESSES— two to a deed or will. PRIVATE SEAI^ scroll required. WOMEN — can convey separate estate. May unite with husband to dispose of dower. Minor wife may sell by court pro- ceedings. Separate examination of wife not required. DOWER AND CURTESY — one-third life, ?ind are conveyed by jointure. HOME- STEAD — exemption, $2,000; conveyed by jointure. POWER OP AT- TORNEY — may convey by power of attorney, husband to join wife if outside the state, same as by deed, acknowledged, signed in presence of two witnesses, and recorded. ACTION — to recover land limited to fifteen years. ESTATES TAIL— limited to life in being. JUDGMENT LIENS — limited to twenty years. MECHANIC'S LIENS — limitation of suit to enforce, twelve months. TAX — ^redemption and limitation, five years. § 322. Washington— ACKNOWLEDGMENTS— IN THIS STATE— may be taken before a judge of the supreme court, the clerk, deputy clerk, judge of the superior court, clerk or deputy thereof, a justice of the peace, county auditor or deputy, a notary public or United States commissioner. IN ANY OTHER STATE — same form as prescribed in this state, and before anyone there authorized, or any commissioner appointed by the governor of this state for such purpose. Unless it be taken before a commissioner or by the clerk of the court of record or by a notary public or other officer having a seal of office, it shall have attached a certificate of the clerk of the court of record, under 186 KOTAEIES PUBLIC. [§ 333 the seal of said court of said county or district, or a eertifloate of any other proper certifying officer of the county or district that the person was Buch officer, that he is authorized and that he believes the signa- ture genuine. IN FOREIGN COITNTEIES— before any minister pleni- potentiary, secretary of legation, charge d'affaires, consul general, consul, vice consul or commercial agent of the United States, or before the proper officer of any court of the country, or a mayor or chief magis- trate of any city, town or municipal corporation or a notary. The per- son taking shall certify by writing on, or annexing to, the instrument, under his official seal, in substance, that the instrument was ac- knowledged by the persons whose names are signed thereto as grantors before him as such officer with the date of such. Such certificate shall be prima facie evidence of the facts stated. Same shall be admitted to record in this state. Certified copies by the county auditor shall be received in evidence. INDIAN — conveyances shall be by deed, ac- knowledged before a judge of a court of record. The judge shall explain to the grantor the contents and the effect and so certify in the acknowledgment, shall duly examine and approve same before record. PEESONALLY KNOWN— or identified to the officer and per- sonal appearance required. WITNESSES — two required to a deed or wUl. PRIVATE SEALS— abolished. WOMEN— age to convey, eighteen or when married. Can convey their own separate property same as the husband. Separate examination not required. DOWEE AND CUETESY — community system prevails. HOMESTEAD — dwelling house and land on which situated; conveyed by jointure. POWEE OF ATTOENEY— conveyance by, to be acknowledged, signed and recorded, same as a deed. Either husband or wife can so convey their separate property. ACTION — ^to recover land limited to ten years. JUDGMENT — redemp- tion, one year; lien limited to seven years. MECHANIC'S LIEN — fore- closure within eight months. MORTGAGE — redemption, one year; lien seven years. TAX — redemption, three to four years; lien seven years. § 323. West Virglnla^-ACKNOWLEDGMENTS— IN THE STATE- DEEDS, CONTEACTS — powers, of attorney or other writings to be ad- mitted to record, shall be acknowledged by the grantor or proved by two witnesses. IN THE UlSTITBD STATES— instruments recorded upon the certificate of acknowledgment of a justice, notary, recorder, prothonotary or clerk of any court within the United States, or a commissioner ap- pointed by the governor of this state, written or annexed to the same. IN A FOEEIGN COUNTEY— before and under the hand and official seal of any minister plenipotentiary, charge d'affaires, consul general, consul, deputy consul, vice consul, consular agent, vice consular agent, commercial agent or vice commercial agent, appointed by the govern- ment of the United States to such country, or of any proper officer of any court of such country, the mayor, or chief magistrate of any city, town or corporation therein. PERSONALLY KNOWN — the grantor's writing to be acknowledged or proved by two witnesses before a notary; same stated in the certificate of acknowledgment. WIT- NESSES — none to deed if acknowledged, two if not; two to a will. § 324] OONTEYANCES AND ACKNOWLEDGMENTS. 187 PRIVATE SEALS— scroll required. WOMEN— age to convey, twenty- one; married convey as if single. Separate examination not required. DOWEK AND CURTESY— one-third. Conveyance by jointure of hus- band and -wife. HOMESTEAD— exemption, $1,000. POWER OF AT- TORNEY— convey by, same as by deed. ACTION — to recover land limited to ten years. ESTATES TAIIi— limited to life in being. JUDG- MENT— limitation, ten years. MECHANIC'S LIEN— record in sixty days; foreclosure within nine months. TAX — redemption, one year. LIENS — all limited to ten years for closing. I 324. Wisconsin— ACKNOWLEDGMENTS— conveyance of land is by deed, signed, sealed and acknowledged. IN THE STATE — taken before judges of courts of record, clerk of, court commissioner, county clerk, register of deeds, notary, justice of the peace, commissioners of the United States federal and district courts in the state, police justices. OUTSIDE THE STATE— any officer so authorized by the laws of that state. Signed and sealed. Certificate of secretary of state or clerk of the county court of record, under their of&eial seals, to be attached, stating that the officer taking was at the time so authorized. May be executed according to the laws of the state and acknowledged before any judge or clerk of a court of record, notary public, justice of the peace, master in chancery, or other officer so authorized by the state, or before a commissioner appointed by the governor of this state. In a military post, by its commanding officer. Acknowledgments, unless taken by a commissioner, a clerk of a court of record, with its seal attached, a notary with his seal attached, or the commanding officer of a military post, shall have attached the certificate of the clerk, or other proper certifying officer of a court of record of the county or dis- trict, under his seal of office, stating that the person subscribing to the certificate of acknowledgment was such officer at the date thereof, that he believes the signature genuine and acknowledged according to the laws of the state. The commissioner, clerk of court, notary or com- manding officer, shall state if it is executed according to the laws of the state. OUTSIDE THE UNITED STATES— any officer authorized by the laws of this state, any United States ambassador, minister, envoy or charge d'affaires, commissioner of state, notary public, consular officer, agent appointed, under their hand and seal of office. Notaries' certificate to state that it was acknowledged according to the laws of the country. PERSONALLY KNOWN — to and personal appearance be- fore the officer required or proved. WITNESSES — two to a deed or will. PRIVATE SEALS — the word "Seal" or initials "L. S." is sufficient. MARRIED WOMAN — of full age, eighteen, may convey her lands jointly or separately from her husband, same as if she were unmarried. No separate examination necessary. Insane wife's dower released upon petition of husband to the court, within twenty to sixty days. DOWER — one- third for life; conveyed by wife as if unmarried, jointly or separately from husband. CURTESY — one-third for life. HOMESTEAD — exemption, 40 acres, or one-fourth acre in city or vil- lage of value of $5,000. Conveyance, wife must join. POWER OF 188 NOTAEIES PUBLIC. [§ 335 JiTTOElfET — BO conveyed when acknowledged, signed and recorded game as a deed. ACTION — to recover land limited to twenty years. Deeds recorded pass title. ESTATES TAIL— limited to lives in being. JUDGMENT — redemption, one year; lien limited to ten years. ME- CHANIC'S LIEN— filed in thirty or sixty days, or six months, redemp- tion, one year after for suit. MOETGAGE— redemption, one year. TAX — redemption, three years. § 325. Wyoming — Conveyance of land may be by deed signed by the grantor if of age, or by his agent or lawful attorney, acknowledged or proved and recorded. ACKNOWLEDGMENTS— IN THE STATE— be- fore any judge or clerk of a court of record, or a court commissioner appointed under or by authority of the laws of the United States, county clerk, justice of the peace, or notary, the officer shall certify with the date under his hand and seal of office if he have one. OUTSIDE THE STATE — by any officer authorized by the state or country under his official seal, if he have none his certificate must be authenticated by the clerk of a court of record or a county clerk having a, seal, certi- fying that he is authorized to take, that his signature is genuine. Notaries public and justices of the peace and commissioner of deeds for Wyoming shall add the date their commission expires. IN FOR- EIGN COUNTRIES — before a consul general, consul, or vice consul of the United States, same to certify over their hand and official seal. PERSONALLY KNOWN— to officer required. WITNESSES— one to a deed; two to a will. PRIVATE SEALS — abolished, except those of corporations. WOMEN — age to convey, twenty-one years. Can convey separate estate. Acknowledgment same as if sole, to sign and acknowl- edge, freely and voluntarily. She shall be fully apprised of the con- tents and her rights and the effect of her signing when homestead is released. DOWER AND CURTESY — abolished. Descent of property according to statute. HOMESTEAD — exemption, $2,500. Wife to join in releasing it, and apprised of her rights. POWER OE ATTORNEY— can so convey; same manner as by deed. Husband or wife may con- stitute the other his or her attorney in fact. ACTION — to recover land limited to ten years. JUDGMENT — redemption, six months; lien lim- ited to five years. MECHANIC'S LIENS — contractor files in four months, others in ninety days; limit of lien, six months. MORTGAGE — redemption, six months. TAX — redemption, three years. § 326. Canada— ACKNOWLEDGMENTS— IN THE PROVINCE— taken before register or deputy, magistrate, justice of the peace, judge or register of a court having a seal, or notary. OTHER BRITISH PROVINCES — judge of a court, clerk or register having a seal, notary, magistrate having a seal, any person so commissioned by the lieutenant governor. OUTSIDE THE BRITISH DOMINIONS— British ambassa- dor, charge d'affaires, minister, consul, consular agent resident, judge of a court having a seal, a notary, certified as such by a British am- bassador, charge d'affaires, minister, consul or consul agent, or the governor of the state, etc. Describe property clearly. WITNESSES — • one to a deed; two to a will. SEALS — scroll seal to a deed. CHAPTEE IV. DEPOSITIONS. § 327. Definitions. — A deposition is the testimony of a wit- ness reduced to writing, in due form of law, by virtue of a commission or other authority of a competent tribunal, or according to the provisions of some statute law, to be used on the trial of some question of fact in a court of justice. In its generic sense, the term embraces all written evidence veri- fied by oath, and includes affidavits, but in legal language, a distinction is maintained between depositions and affidavits.^ A deposition de bene esse is one taken conditionally; when a witness is sick, unable to attend the trial, or likely to die. In such cases their testimony is taken conditionally, that they wiU attend the trial and give oral testimony if possible.* Deposition dedimus potestatem is a writ issued by a court, judge or justice commissioning private persons to act as judge, examine a witness or such act. It means "we have given power."' Letters rogatory is an instrument sent in the name and by the authority of a judge of a court to another court, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed.* A witness is one who gives oral testimony in a judicial pro- ceeding. If his testimony be given by deposition, he is known as a "deponent"; if by affidavit, as an "affiant."^ A subpoena, in practice, is a process to cause a witness to I 1 Cye. Law Diet. party to sift the conscience of tia 2 Clark V. Dibble, 16 Wend. adversary. Ex parte Brockman, (N. Y.) 603. 233 Mo. 135, 134 S. W. 977. The taking of depositions de 8 2 Bl. Comm. 351. iene esse are in the nature of the * Cyc. Law Diet.; In re Marti- old chancery practice relating to nelli, 219 Mass. 58, 106 N. E. 557. a bill of discovery, entitling the 5 Cyc. Law Diet. 189 ]90 NOTARIES PUBLIC. [§ 328 appear and give testimony, commanding him to lay aside all pretenses and excuses, and appear before a court or magistrate therein named, at a time therein mentioned, to testify for the party named, under a penalty therein mentioned. This is called distinctively a subpoena ad testificandum. A subpoena duces tecum is one whereby the witness is commanded to bring with him books or papers in his possession or under his con- trol, to produce the same in evidence.^ § 328. Nature of Right to Take Depositions; Compliance with Statute. — The common-law courts had no power to issue commissions to take testimony, although such power was in- herent in courts of equity. To remedy this inconvenience stat- utes have been enacted in the varioiis states, authorizing the courts to issue such commissions, and accordingly the power exists iu either courts of law or equity, but as a result the power is statutory in origin.'' Being a statutory privilege, the right to take and use a deposition can be exercised and en- forced only in the manner and to the extent provided by stat- ute.* The right will not be enlarged by implication or construc- tion,® and the statutes authorizing the taking of depositions must be strictly complied with.^° The taking of a depo- sition to perpetuate testimony is not favored and the right to take must clearly exist.^^ 6Cye. Law Diet. The right to take depositions is 7 Hill V. Thomas B. Jeffery Co., in derogation of the common law 292 111. 490, 127 N. E. 124; Bohen and will be strictly construed. V. North American Life Ins. Co., Clark's Adm'r v. Wilmington Sav. — Iowa — , 177 N. W. 706. Bank, 89 Vt. 6, 93 Atl. 265. The mode of trial at common &Ex parte Alexander, 163 Mo. law is by the production of wit- App. 615, 147 S. W. 521. nesses and their oral examination 10 Clegg v. Gulf, 0. & S. F. Ey. in open court, and depositions can Co., 104 Tex. 280, 137 S. W. 109; only be substituted by statutory Clark's Adm'r v. Wilmington Sav. authority. Hutchins v. Hutohins, Bank, 89 Vt. 6, 93 Atl. 265. 41 App. Cas. (D. C.) 367. The statute must be substantial- SLezinsky v. Superior Court, 72 ly complied with. Corgan v. An- Cal. 510, 14 Pac. 104; Burnett v. derson, 30 111. 95. Prince, 272 Mo. 68, 197 S. W. 241; U The preservation of evidence Taylor v. Thomas, 77 N. H. 410, in this mode is not favored, and 92 Atl. 740; State ex rel. Geissler will be permitted only to prevent V. Truax, 96 Wash. 1, 164 Pae. the failure of justice. Taking a 597. deposition merely to ascertain the § 330] DKPOSITIONS. 191 The power to issue a commission rogatory, or letters roga- tory, is inherent in courts to prevent the failure of justice, and is not dependent upon statutory provisions, but exists because of the international good will prevailing in all courts of civilized countries.^* § 329. What Witnesses or Persons May Be l^xamined by Deposition. — Usually, the statutes merely provide for the ex- amination of witnesses by deposition, without specifying fur- ther. It has been held that the word "witness" includes par- ties to the action who are competent and who may be com- pelled to give evidence.^' In some states, female witnesses are not obliged to testify in court as a general rule, and the statutes provide for the taking of their evidence by deposi- tion.** Usually, the witnesses who are examined by deposition are these who are aged, infirm, sick, or who live without the county of the place of frial, or who are about to journey to other states or countries.** § 330. Manner of Taking Depositions. — The party desiring the testimony makes affidavit to the court where the suit is in progress, or is to be tried, stating the cause, the name and residence of the witnesses whose testimony is desired, and the names of the adverse parties, or their attorney, and their place of abode. Also a list of interrogations to be put to the witness. The statement is also made as to why the witness cannot be present at the trial, which is usually age, infirmity, sickness, about leaving the county or state, resident of another county or state, etc. If the court or judge to whom the application is made is satisfied that the deposition is necessary, a commis- sion to take issues under his hand and the seal of the court by the court clerk. Eeasonable notice (usually determined by the court, but sometimes by statute) is given to the adverse evidence in advance of the trial, 746, 105 S. E. 289 (construing and for the purpose of annoying Acts 1898, p. 56, § 1, amending and oppressing the adverse party. Civ. Code 1895, § 5315, Civ. Code is an abuse of judicial authority 1910, § 5910). and process. Guinan v. Eeaddy, 14 Bennett v. Patten, 148 Ga. 66, 79 Okla. Ill, 191 Pac. 602. 95 S. E. 690. 12 In re Martinelli, 219 Mass. 58, 16 See post, § 350 et seq., Statu- 106 N. E. 557. tory Bequirements. ISMoAlpin V. Eyan, 150 Ga. 192 NOTAEIES PUBLIC. [§ 331 party, of th« time and place of the taking, name or namee of the witnesses, or their attorney of record, and their residences if known. A list of interrogations to be put, which list may be added to by the adverse party or his attorney in the nature of cross-interrogatories. On the return of which the court is- sues the commission inclosing same, with full instructions and a list of the interrogatories and cross-interrogatories, if any, sending same to the commissioner, selected either by the par- ties themselves or by the court. At the appointed day, place and hour, the commissioner calls the court to order, swears the witness to tell the truth, the whole truth, and nothing but the truth. The prepared inter- rogatories are then answered by the witness, writing same under each question, in the presence of the commissioner, or by some one appointed by him in his presence. The statute regulates the presence of the parties to the case, either in per- son or by attorney. Usually where the testimony is taken by written interrogatories, the parties or their attorneys are absent. After the deposition is taken it is read to or by the witness, errors corrected, and then signed by him. The com- missioner then adds his certificate, stating in it that the party deposing was duly sworn by him before taking, that the in- terrogatories were answered and subscribed to in his presence, adding who were present, either attorneys or parties in the case. Some states permit it being taken in shorthand and afterwards typewritten. Signed by the commissioner. The deposition and all papers connected with the taking are then inclosed in an envelope, sealed, the title of the case and the commissioner's name indorsed on the back over the seal, di- rected to the court issuing the commission, or if the parties have so agreed, to the party who instituted the taking. Other- wise they are mailed or delivered in person to the clerk of the court, who notes the time of their receipt and party delivering, on the envelope, and places the same on file for use when called for by the court, or the parties. , Being of statutory origin, the requirements as to the man- ner of taking depositions vary in the different states. The more general requisites will, however, be referred to in detail. § 331. Taking Depositions for United States Courts. — Dep- ositions may be taken before a notary public in any civil cause § 333] DEPOSITIONS. 193 pending in a United States, district or circuit court, when tlie witness 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, before the time of trial, or when he is aged and infirm. Any person may be com- pelled to appear and depose in the same manner as witnesses may be compelled to appear and testify in court.^® Every per- son deposing shall be cautioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to vsriting by the magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person, and shall, after it has been reduced to writing, be subscribed by the deponent.^' In addition to the mode of taking the depositions of wit- nesses in causes pending at law or equity in the district and circuit courts of the United States, it shall be lawful to take the depositions or testimony of witnesses in the mode pre- scribed by the laws of the state in which the courts are held.^* Every deposition taken shall be retained by the magistrate taking it until he delivers it with his own hand into the court for which it is taken ; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court.^® § 332. Interrogatories. — Where a deposition is taken in conformity to a statute providing for interrogatories, direct and cross, in writing, the court has no power to permit oral cross-examination.^" In some states, the party may elect to take upon oral interrogatories, and when such election is had, a deposition taken upon written interrogatories may be sup- pressed.*^ 16 U. S. Eev. Stat. 1878, sec. 863. 19 TT. 8. Eev. Stat. 1878, see. 17 Id. sec. 864. 865. 18 Id., supp., vol. 2, p. 4; Ex SOBurnham v. Stoutt, 35 Utah- parte Fisk, 113 U. S. 713, 28 L. 250, 99 Pae. 1070. Pd. 1117, 5 Sup. Ct. 724. 81 Lewis v. Fish, 40 HI. App. 372, 13 194 NOTAEIES PUBLIC. [§ 333 Some statutes authorize the interrogatories to be written or cral or partly written and partly oral, and in such ease it has been held that the duty of determiuing the mode of hearing devolves upon the court.*" The oral method is not favored, however.23 "When both the oral and written interrogatories are provided for, the statutes do not contemplate the issuing of two depositions, one to take testimony upon written and the other upon oral interrogatories."* Under the Florida statutes the interrogations put to the adverse party is, like a bill of discovery in equity, in aid of an action at law, and limited to the support of the case or de- fense of the pafty propounding and cannot extend to the whole case."* § 333. Who Caji Take Depositions; Issuance of Commis- sions. — ^As a primary rule the person taking a deposition must be one authorized by law to act."® The statutes usually state what officers are authorized to take depositions, and also usu- ally provide for the appointment of commissioners to perform such duties."' It has been held that where the statute enumer- ates certain officers, such as notaries, judges, justices of the peace or commissioners, the court is not required to select a 22 State ex rel. Geissler v. & W. By. Co. v. Baddeley, 54 HI. Truax, 96 Wash. 1, 164 Pac. 597. 19, 5 Am. Eep. 71. 28 State ex rel. Geissler v. The Michigan statutes empower Truax, 96 Wash. 1, 164 Pae. 597. any court of record ' to appoint 24 Lewis V. Fish, 40 111. App. special commissioners before whom 372. depositions may be taken. It is 25 Jacksonville, T. & K. W. Ey. questionable whether a common Co. V. Peninsular Land, Transp. order, entered by consent of par- & Mfg. Co., 27 Fla. 1, 157, 9 So. ties and without the knowledge of 661, 17 L. B. A. 33, 65. the court can be regarded as an 26 Eling V. Green, 7 Cal. App. appointment. A notary being an 473, 94 Pac. 777. attorney of the supreme court may 27 See post, § 350 et seq., Statu- perform the duties of circuit court tory Eequirements. commissioner when that ofScer is A county judge or court com- disqualified. Crone v. Angell, 14 missioner may take the deposition Mich. 340. of witnesses residing within his Code Grim. Proc, art. 820, nam- county. Whereatt v. Ellis, 65 Wis. ing officers, does not authorize 639, 27 N. W. 630, 28 N. W. 333. notary pubUc in foreign state to Also a notary public. Toledo, W. take deposition. Porter v. State, 83 Tex. Cr. 240, 190 S. W. 159. § 333] DEPOSITIONS. 195 oommissioner of deeds, but may issue a oommission to any person deemed competent.^* This is the meaning of the word "commissioner." When a commission is issued, the person who is to take the testimony should be named, unless the commission is directed to an officer authorized by statute, by his ofiScial title.^* Some of the cases hold that even where directed to an officer of one of the classes enumerated by statute, the particular one must be selected by the court or officer issuing the commis- sion.*" When the commission is directed to a person named, such person derives his authority from the appointment, and his official capacity is immaterial.'^ In other words, his au- thority is derived from the court where the cause is pending.*^ A general order to take depositions when officially signed by the judge, clothes with authority and is sufficient.^* It is sufficient evidence of the identity of the person named, when after taking and returning the deposition, he certifies that he acted pursuant to the commission.** He is not required to certify anything in respect to his commission. The commis- sion shows an authority to take.** No certificate of his official character is required. Consuls of the United States are not 28 Alcorn v. Gieseke, 158 Cal. of the commissioner. Cole v. Cho- 396, 111 Pae. 98 (construing Code teau, 18 HI. 439. Civ. Proc. § 2024). SODe Eenzes v. His Wife, 115 29 King V. Green, 7 Cal. App. ^a. 675, 39 So. 805, 2 L. R. A. 473 94 Pac. 777. (^- ^O ^^^^' ^ ^^'^- C^s. 898. See ' ... „ , „ +„,,„„ v„ also Argentine Falls Silver Min. Depositions may be taken be- _ °, , ^ .;>•■+ f ^ r, ,=«„ o= Cl°- ^- Molson, 12 Colo. 405, 21 fore any disinterested person as ■■„« t^t ^^ t^ , . : , I, J • Pac- 190; Newton v. Brown, 1 commissioner, who may be desig- ' nated by the name of the office -, -d o ,. • . ^ t, ■, ,. L y. 1. ij „,.,ii „=, >,„ 1,4= *^^- Sohwinger & Co. v. Eed- which he holds as well as by hia lorr -ni f T. T„„i„„ ™an, 187 111. App. 254. proper name. Brown v. Liuehrs, ' ^^ 79 m 575 82 Burnett v. Prince, 272 Mo. . ■ . \ . ^^ ^ , ... 68, 197 S. W. 241. , An objection that a deposition was not directed to a notary by ** Bradford v. Cooper, 1 La. name will be overruled. Welborn ^'^^- 325. V. Fauleoner, 237 Mo. 297, 141 S. 84 Brown v. Luehrs, 79 111. 575. W. 31. 85 Kendall v. Limberg, 69 111. The party suing out the dedimus 355. is not required to give the name 196 NOTARIES PUBLIC. [§ 334 required to be commissioned in order to take depositions.'^ In some states, deputies are authorized to take depositions. Where such a provision existed in one state, and there was a constitutional provision requiring deputies to act in the name of their principal, it was held that a deputy district clerk was not authorized to take a deposition in his own name, and that he could only do so by using the name of the clerk, by himself as deputy." § 334. Authority of Officer to Take Deposition.— An oflGlcer who takes a deposition acts in a judicial capacity,'* and if a person is named in a commission, the appointment carries with it all the powers necessary to execute the commission, includ- ing the power to administer oaths.*® Before the notary or person named can act, the preliminary statutory matters must be complied with, however, such as the provisions concerning affidavits and notice.*" When appointed, the officer has no authority to enter into any inquiry concerning the good faith of the litigants. He cannot propound questions to determine whether the action was brought in good faith before requiring the witnesses to answer.*^ § 335. Taking Depositions Outside of State. — A notary public taking depositions in one state, to be used in a suit pending in another, can in no sense be regarded as an instru- ment or agency of the court wherein such suit is pending. Neither the notary nor any of the parties appearing before him are answerable to the court for anything said or done 36 8emmens v. Walters, 55 "Wis. 38 Burnett v. Prince, 272 Mo. 675, 13 N. W. 889; 2 TJ. 8. Eev. 68, 197 S. "W. 241; Eedmond v. Stat. (2d Ed.) 1750. Herman v. Quincy, O. & K. C. E. Co., 225 Mo. Herman, Fed. Cas. No. 6407, 4 721, 126 8. W. 159. Wash. C. C. 555. 39 B. Sohwinger & Co. v. Eed- A commission issued in the man, 187 111. App. 254. usual form to a consular officer of 40 A notary has no power to is- the United States, and returned sue subpoenas until statute as to in due form, is prima facie ad'- notice is complied with. Burnett missible. In re Derinza, 229 Mass. v. Prince, 272 Mo. 68, 197 S. W. 435, 118 N. E. 942, 16 N. C. C. A. 241. 210. 41 Ex parte Brockman, 233 Mo. STKirby Lumber Co. v. Long, 135, 134 8. W. 977. — Tex. Civ. App. — , 224 S. W. 906. § 336] DEPOSITIONS. 197 while there, the whole matter being outside its jurisdiction. In taking the depositions, the notary performs purely minis- terial functions. He can decide no questions nor determine any matter affecting the rights of the parties to the suit, nor is he connected with any court or other tribunal having the power to do so.** It is not necessary to attach to his certificate any certificate of a clerk or other certifying of&cer as to official character.** If taken in another state on a day recognized as a legal holiday, it is not contrary to statutes.** § 336. Disqualification Preventing Notaries from Acting. — A notary or other officer in taking depositions should be en- tirely disinterested, as he acts in a judicial capacity. The con- scientious and intelligent notary will conduct this duty as fairly and impartially as a judge on the bench, and, if he fails to do so, the deposition may be impeached.*^ The rule that the officer must be impartial exists regardless of statute, and whatever gives to the relation the character of an employment by one party to the action will disqualify the officer.*^ If the relation of attorney and client is established between an officer or those whom he serves and the party in whose be- half the deposition is taken, the officer is disqualified.*'' It has been held, though, that the fact that a commissioner after- wards became a counsel of one of the parties and cross-exam- ined the witness was not ground for exclusion of the deposi- tion.*8 m Greer v. Yotmg, 120 111. 184, represented a witness in a suit 11 N. E. 167. against the same defendant, sub- 43 Sleep V. Heymann, 57 Wis. stantially identical with the one 495, 16 N. W. 17; Hayes v. Frey, involved, held disqualified. Clegg 54 Wis. 503, 11 N. W. 695. v. Gulf, C. & S. F. Ry. Co., 104 44 Green v. Walker, 73 Wis. 548, Tex. 280, 137 S. W. 109. 41 N. W. 534. Where a deposition was taken 46 Redmond v. Quinoy, O. & JE. by a notary who was a business C. E. Co., 225 Mo. 721, 126 8. W. partner of one of the attorneys 159. for the plaintiff, the deposition 46 Clegg V. Gulf, C. & 8. F. Ry. would be suppressed. Redmond v. Co., 104 Tex. 280, 137 8. W. 109. Quincy, 0. & K. C. R. Co., 225 Mo. 47 Huntington Consol. Lime Co. 721, 126 S. W. 159. V. Powhatan Coal Co., 44 Ind. App. 48 Park v. Zellars, 139 Ga. 585, 84, 87 N. E. 1047. 77 S. E. 922. A notary who was counsel and 198 NOTAEIES PUBLIC. [§ 337 § 337. Affidavit to Take Deposition. — ^A statute requiring a satisfactory affidavit to be filed when a witness resides in a different county should be substantially complied with, unless waived.*® An affidavit of the materiality of the testimony is unnecessary where a general order has been granted by the judge, the defendant propounds, cross-interrogatories, and the defendant's generalities are vague.*" § 338. Notice to Take Deposition. — Notice of the time and place of taking of the deposition is usually required by stat- ute, the purpose being to give the adverse party a fair oppor- tunity to cross-examine the witness.*^ The party who gives notice that he will sue out a dedimus to take the testimony upon written interrogatories, after receiving notice that the party to whom the notice was given has elected to take the deposition upon oral interrogatories, should reply with a no- tice of the time and place where the deposition will be taken, as the party desiring the testimony he should give notice of the time and place.** The statutes usually provide what notice is required. Thus some statutes require ten days' notice before suing out a dedimus,** and some statutes provide for notice by publication in certain eases.** Other statutes require a reasonable time to be allowed, and when such is the case, the length of time de- pends upon the circumstances.** Ordinarily, the notice must specify the residence of the witness who is to be interro- 49 Harinan Coal Co. v. Cleve- 64 Under the West Virginia land, C, C. & St. L. E. Co., 172 Code, the publication of notice ex- Ill. App. 298. tends to four consecutive weeks, 60 Bradford v. Cooper, 1 La. and is complete on the fourth is- Ann. 325. sue of the paper containing it; it 61 Anderson v. Snyder, 91 Conn. is sufficient if reasonable time 404, 99 Atl. 1032; Domenehinis elapses between the date of last Adm'r v. Hoosac Tunnel & W. E. publication and the taking. Mil- Co., 90 Vt. 451, 98 Atl. 982. ler v. NefE's Adm'r, 33 W. Va. 197,' Under the Louisiana code, no- 10 S. E. 378, 6 L. E. A. 515. tice of the time and place of tak- 65 A notice served on Monday ing is unnecessary when the de- to take a deposition the following fendant crosses the interroga- Wednesday at 8 a. m. at a place tories. Bradford v. Cooper, 1 La. which, allowing one day for prep- Ann. 325. aration, would require the adverse 62 Lewis V. Fish, 40 111. App. 372. party to start from the place of 63 Corgan v. Anderson, 30 111. 95. service at midnight, and transfer § 339] DEPOSITIONS. 199 gated,^^ although an omission in this regard may not be mate- rial. In general, mere irregularities which are not prejudicial will not invalidate the deposition. Thus an error in stating the notary's address in the notice may be immaterial," and if the deposition shows the testimony taken to be material and necessary, the omission of such fact in the notice will not invalidate the deposition.^* § 339. Compelling Attendance of Witnesses;. Refusal to Testify; Contempt Proceedings.— In a large number of states, notaries authorized to take depositions have authority to com- mit for contempt in case of refusal to answer or to attend,^' and the same power extends to other officers performing such duties.®" The power does not exist in all states, however,®^ to another railroad at night in or- der to be present Wednesday, does not afford a reasonable opportu- nity to attend. Helms v. South- west Missouri E. Co., 96 Kan. 568, 152 Pae. 632. 66Eock Island Plow Co. v. Schoening, 104 Minn. 163, 116 N. W. 356. The residences of the witnesses may be stated in the notice and not in the caption of the interroga- tories. Semmens v. Walters, 55 Wis. 675, 13 N. W. 889. B7Squier v. Mitchell, 32 S. D. 342, 143 N. W. 277 (where a notary's address was given as "12 South Main St." when it should have read "12 North Main St."). 68 Independent Dryer Co. v. Liv- ermore Foundry & Machine Co., 60 ni. App. 390. 59 Alabama. Notary acts as jus- tice of the peace and can imprison for contempt. Coleman v. Eob- erts, 113 Ala. 323, 21 So. 449, 36 L. E. A. 84, 59 Am. St. Eep. 111. Kansas. A notary has no power to commit a witness for contempt for refusal to testify, and a. stat- ute conferring such power is in- valid. In re Huron, 58 Kan. 152, 48 Pac. 574, 36 L. E. A. 822, 62 Am. St. Eep. 614. Missouri. Notary may summon witness and enforce attendance. If he refuses to testify, the notary may imprison for contempt. Ex parte Alexander, 163 Mo. App. 615, 147 S. W. 521. Nebraska. A notary public in the exercise of judicial functions given by law is a court and has power to commit for contempt un- der the constitution. Dogge v. State, 21 Neb. 273, 31 N. W. 929. Ohio. A notary has power to imprison a witness for refusing to answer a question to a deposition. DeCamp v. Archibald, 50 Ohio St. 618, 35 N. E. 1056, 40 Am. St. Eep. 692. 60 Judge of county court taking deposition has power to commit witness for contempt in refusing to answer material question. Waugh V. Dibbens, 61 Okla. 221, 160 Pac. 589. 61 A superior court cannot pun- ish a person for contempt in re- fusing to answer a subpoena issued by a notary public, before whom 300 NOTAEIES PUBLIC. [§ 339 and difficulty arises frequently because of lack of jurisdiction to punish for contempt. If the court has jurisdiction of the witness it has inherent power to punish for contempt,** and while a witness may decline to answer questions because of personal privilege, the witness cannot judge whether such questions are relevant or competent, and cannot refuse to an- swer on such grounds.*' But the court cannot compel a wit- ness to answer who is beyond the state, as it has no jurisdic- tion.** In some states statutes have been enacted permitting a resort to the courts when a resident witness refuses to answer, and authorizing the court to impose a fine or imprisonment for the refusal.*^ Such a statute will be sustained as valid under the principles of comity.** The United States supreme court has decided that one of the functions of a court is to compel a party to perform a duty which the law requires at his hands. The defendant is no more entitled to a jury than is a defendant in a proceeding he was to appear and make depo- sition upon notice. Lezinsky v. Superior Court, 72 Cal. 510, 14 Pac. 104. 62 Hill V. Thomas B. Jeffery Co., 292 HI. 490, 127 N. B. 124; Finn v. Winneshiek Dist. Court, 145 Iowa 157, 123 N. W. 1066. 68 Finn v. Winneshiek Dist. Court, 145 Iowa 157, 123 N. W. 1066; Ex parte Alexander, 163 Mo. App. 615, 147 S. W. 521. 64 Hill' V. Thomas B. Jeffery Co., 292 111. 490, 127 N. E. 124. 65 The statutes of Illinois em- power notaries and other officers authorized to take depositions in any cause pending in courts of law or equity in the state, or by virtue of a commission issued out of any coiirt of record in any other state, territory or country, to sub- poena and compel the attendance of witnesses. On the refusal of witness to comply, the officer shall report in -qfriting the facts to the circuit court of such county, from which attachment shall issue against such witness, returnable forthwith before such court. If it appear to the court the refusal was without excuse, fine and im- prisonment shall be imposed, or fine or imprisonment, as in cases of contempt. J. & A. Ann. Stat. 11 5553. 66 People V. Eushworth, 294 111. 455, 128 N. E. 555. Laws 1871- 1872, p. 413, § 36, as amended by Laws 1919, p. 710, permitting the imposition of a fine for the re- fusal to testify before a, commis- sioner of a foreign court, is not void as depriving a person of due process of law, as the proceeding for the imposition of the fine is original in the circuit court, which has power to enforce its orders. People ex rel. v. Eushworth, 294 111. 455, 128 N. E. 555. § 340] DEPOSITIONS. 201 by mandamiis to compel him, as an officer, to perform a minis- terial duty. In a judicial sense there is no such thing as con- tempt of a subordinate administrative body. No question of contempt can arise until the issue of law is determined ad- versely to the defendant and he refuses to obey the final order of court. In matters of contempt a jury is not required by "due process of law." From the very nature of their insti- tution, and that their lawful judgments may be respected and enforced, courts possess power to punish for contempt. The power is recognized and enforced by statute authorizing them to punish contempts of their authority when manifested by disobedience of their lawful writs, processes, order, rules, de- . erees or commands. A judgment of the court determining the issue will be a legitimate exertion of judicial power extended by the constitution.®'' A person can be regarded as in contempt for failure to obey an order of court only where the failure is intentional.®* He cannot be adjudged in contempt and deprived of his property and imprisoned without notice and without an appearance; there is no jurisdiction, and an order assuming to fine, and for nonpayment imprison, under such circumstances is void.®® The purpose of the law is to secure a fearless and impartial administration of justice and to guard against abuse of legal authority. Inferior courts acting in excess of jurisdiction are liable in damages to the party injured. The act is corum non judice and void; and the attempt to enforce sentence or con- viction is a trespass. It is only when in the proper exercise of judicial functions that the power to sentence for contempt can be exercised.'" § 340. Administration of Oath. — Usually the deposition must show that the vdtness was sworn to tell the truth, or it may be objected to and quashed.''^ If the certificate of an officer, taking depositions in chancery, states that the witnesses 67 Interstate Commerce Commis- 70 Piper v. Pearson, 2 Gray (68 sion V. Brimson, 154 U. S. 447, 38 Mass.) 120, 61 Am. Dee. 438. L. Ed. 1047, 14 Sup. Ct. 1125. 71 Lowrance v. Bichardsou, 23 68 Dines v, People, 39 lU. App. Okla. 343, 100 Pac. 529; Griffin v. 565. Humphrey, — Tex. Civ. App. — . 69 Smith V. Tenney, 62 111. App. 138 S. W. 1111. 571. 303 KOTAKIES PUBLIC. [§ 341 were sworn to testify the truth, the whole truth, and nothing but the truth, and the depositions are signed, it is sufficient, although the certificate does not state when the oath was taken, nor that the depositions were signed by the deponents.™ A deposition sworn to on information and belief may be sus- tained, if the answers are direct and positive.''* But where the statutes require that the officer's certificate shall show "that the witness was first sworn to testify the truth, the whole truth, and nothing but the truth," it is insufficient to state that the witnesses were sworn "to testify the whole truth of their knowledge touching the matter in controversy."'* § 341. Interpreters. — ^In most of the states, if the witness requires it, interpreters may be sworn to translate the lan- guage, and the various questions and answers. § 342. Writing of Depositions; Stenographers; Reading to Witness; Signing by Witness. — In some states the statutes specifically provide that the deposition must be reduced to writing by the officer taking the testimony, by the witness tes- tifying, or by some disinterested person in the presence of the officer, and such fact must be shown in the of&eer's certificate, or the deposition is fatally defective.''* Some statutes ex- pressly sanction the taking of depositions in shorthand,''* and in taking testimony it has been held that typewriting is the same as any other writing,'''' but, in other states, the wse of a stenographer is permitted only by agreement, such agree- ment being stated, and the stenographer being sworn.''* The entire matter is governed by statute. Many statutes expressly require the testimony to be read to the witness and corrected by him. Defects in this regard are not considered substantial 72Ballance v. trnderhin, 4 HI. 76 Code Civ. Proo. § 2006; Al- (3 Seam.) 453. corn v. Gieseke, 158 Cal. 396, 111 73Sent6r v. Teague, — Tex. Pac. 98. Civ. App. — , 164 S. W. 1045. 77 Edgefield Mfg. Co. v. Mary- 74 Western Union TeL Co. v. land Casualty Co., 78 S. 0. 73, 58 CoUins, 45 Kan. 88, 25 Pac. 187, 10 S. E. 969. L. R. A. 515. 78 Laurel Prtg. & Pub. Co. v. 75 Succession of Segura, 134 La. James, 6 Boyce (29 Del.) 185, »7 84, 63 So. 640; American Bonding Atl. 601. Co. V. Pulver, 77 Neb. 211, 109 N. W. 156. § 343] DEPosmoics. 303 by the courts, however, and the failure to certify that the reading took place has been held immaterial.™ Such a statute requiring the witness to correct the testimony has been held not to apply to a deposition taken without the state, also, and where the notary certified that the testimany was read and corrected "by me," the deposition was held valid.^" In some states signing of the deposition by the witness is requisite,^^ and elsewhere such signing, while desirable, has been held not essential, there being no express statutory re- quirement to that effect and the deposition being otherwise regular and satisfactorily identified.*^ An objection to a dep- osition in that the witness did not sign each page of the testi- mony as required by statute has been held not of a character to nullify the deposition.** § 343. Certificate; Caption and Form; Signature of Officer; Seal. — The want of a caption will not invalidate a deposition, if the notice and notary's certificate supplies the information usually contained in the caption.** Frequently no fixed form for the caption and certificate is specified by statute. If taken and certified in substantial conformity with the statutory re- quirements, depositions will not be suppressed for mere techni- cal objections.*^ Where the certificate of official character does not accompany a deposition, it may be produced at the time of hearing and the official character then established.** Where a statute requires depositions to be certified by the officer taking, a sealed but unsigned certificate does not com- ply with the statute.*' But where a certificate shows the ad- 79 Eock Island Plow Co. v. 86 Behrensmeyer v. Kreitz, 135 Schoening, 104 Minn. 163, 116 N. HI. 591, 26 N. E. 704. W. 356. Where the precise form of the 80 In re Colbert's Estate, 51 certificate is not prescribed by Mont. 455, 153 Pao. 1022. statute, substantial compliance 81 Davis V. Otto (Mo. App.), with the statute as to the mode 206 S. W. 409. of taking and certifying must be 82 Boggs V. Cullowhee Min. Co., shown. Short v. Frink, 151 Cal. 162 N. 0. 393, 78 S. E. 274. 83, 90 Pac. 200. 83 Eock Island Plow Co. v. 86 Bishop v. Hilliard, 227 III. Schoening, 104 Minn. 163, 116 N. 382, 81 N. E. 403. W. 356. 87Beckman v. Waters, 161 Cal. SlKrohn, Fechheimer & Co. v. 581, 119 Pao. 922. Sohn, 68 W. Va. 687, 70 S. E. 699. 204 NOTAEIES PUBLIC. [§ 344 ministration of the oath to a witness hy a commissioner ap- pointed by the court, and is signed by such commissioner as such oii&cer and as a notary, the certificate is not objectionable, as the signature as notary may be ignored.** The omission of the seal of the officer to a deposition is not fatal where a stat- ute exists authorizing acts without a seal.'^ § 344. Clerical Errors. — Defects and irregularities in tak- ing and in the examination of witnesses wiU be disregarded if they are merely formal and do not affect the rights of the parties.^" The failure to show an adjournment in the certifi- cate is a mere irregularity,®^ and where a certificate states that the "adverse party was notified and did attend," when the statement should read "did not attend," the fact being otherwise shown, the error wiU be held a mere clerical error not invalidating the deposition.'^ Where a commissioner, in describing the commission, mis- describes the name of the clerk who issued it, it in no way detracts from such authority.'* When the caption of the deposition properly gives the names of the parties a subse- quent error in the name is not a fatal error.'* Care should be exercised by notaries, however, to avoid such errors. § 345. Correction of Errors. — It has been held proper for a referee to return depositions to a notary in another state, so that they might be properly authenticated, there being no motion to suppress before the trial.'^ A deposition may be returned to the commissioner for proper signature.'^ § 346. Return of Depositions; Lost Depositions. — The stat- es Alcorn V. Gieseke, 158 Cal. Twigg & Co., 86 Vt. 229, 84 Atl. 396, 111 Pac. 98. 811. 89 Carpenter v. Gibson, 82 Vt. »8 Kendall v. Limberg, 69 111. 336, 73 Atl. 1030. 355. 90 Hewlett V. Wood, 67 N. Y. 94 Id. 304; Bust v. Bckler, 41 N. Y. 488; 95 Bird v. Tox (Mo. App.), 193 Forrest v. Kissam, 7 Hill (N. Y.) S. W. 941. 463; Semmens v. Walters, 55 Wis. 96 Creamer v. Jackson, 4 Abb. 675, 13 N. W. 889. Pr. (N. Y.) 413; Keeler v. Vander- 91 Hodges Fiber Carpet Co. v. pool, 1 Code Eep. N. S. (N. Y.) HugTO Mfg. Co., 203 111. App. 404. 289; Semmens v. Walters, 55 Wis. eantzimons v. Eichardson, 675, 13 N. W. 889; 2 Wait's Pr. 707, § 346] DEPOSITIONS. 305 utes usually state how the deposition must be inclosed and to whom it must be delivered.^'' Such provisions must be com- plied with. The directing of a deposition to a master commis- sioner, instead of the clerk of court, as required by the stat- ute, has been held to warrant the sustaining of an objection to the deposition.®^ But in another case, where the envelope containing the deposition was properly sealed, the title of the ease indorsed thereon, the postage prepaid, and the envelope was mailed to the magistrate, the statute was held fully com- plied with. The seal of the notary across the flap of the en- velope was not necessary. ®® The word "transmit" in a statute does not mean personal carrying by the officer, nor necessarily sending by mail, but requires the officer to adopt such means as will insure safe transfer of the document without tampering.^ The fact that the deposition is carried by an interested attorney is not ground for suppression where the seal is unbroken and there is no evidence of tampering.* A stipulation for the waiver of signatures of witnesses, and for the taking of testimony by shorthand, to be subsequently transcribed, does not operate as a waiver of anything relating to transmission of the deposition, and will not permit delivery to an attorney instead of the clerk of court.* Depositions de- livered by the commissioner, who took them to the attorneys, and by them kept until trial and presented in court unsealed, cannot be admitted in evidence.* A deposition opened by the clerk of the court, in pursuance of an order of the court, and marked "filed," has no reason to be suppressed.^ Where a deposition is regularly taken and transmitted and filed and is lost, the court may permit the supplying of the contents of 97 Post, § 350 et seq., Statu- ' 2 'Leary v. Schoenf eld, 30 N. tory BequirementB. D. 374, 152 N. W. 679. 98Sealy v. Williston (Ky.), 117 3 Missouri & N. A. E. Co. v. S. W. 959. Johnson, 115 Ark. 448, 171 S. W. 99 Jenkins v. Atlantic Coast 478. Line E. Co., 83 S. C. 473, 65 8. E. 4 Louisville, N. A. & C. Ey. Co. 636. V. L. Heilprin & Co., 95 111. App. 1 O 'Leary v. Schoenf eld, 30 N. 402. D, 374, 152 N. "W. 679. B Sullivan v. Eddy, 164 111. 391, 45 N. E. 837. 306 NOTAKIES PtTBLIO. [§ 347 the lost record, by permitting the reading of the stenog- rapher's notes.* The court in its discretion may allow to be read copies instead of original papers annexed'by the deponent to his deposition.' § 347. Pees of Officers. — ^Usually the fees of notaries taking depositions are fixed by statute, but there is no statute in Illi- nois regulating the fees of commissioners employed to take depositions in suits pending in other states.* The same fees will be allowed state officers taking depositions for federal courts as are allowed United States commissioners and clerks.^ The notary is entitled to such fees as are fixed by statute for the words transcribed, as where he writes the testimony or employs a stenographer, but he cannot charge where his em- ployer hires a stenographer.^** Where in transcribing short- hand notes the notary copies a record or other paper, he is en- titled to the fees fixed by statute, which are the same as those received by circuit clerks. ^^ § 348. Objections to TaMng of Depositions. — Objections to a deposition because of irregularity or want of authority in taking must usually be by motion to suppress the deposition^* before the time of trial.^' Objections to the materiality, com- petency or relevancy of the testimony taken by deposition are usually made at the time of trial.^* Objections to the form, or incompetency of witnesses, must be made before final hear- ing.^'' The evidence of an interesetd witness must be objected to either when the deposition was taken, if the other party 6 Crandall v. Greeves, 181 Mo. 473, 94 Pac. 777; Pearce r. Tharp, App. 235, 168 8. W. 264. 118 Miss. 107, 79 So. 69. 7L'Herbette v. Pittsfield Nat. 13 Scott v. Wilson, — Iowa — , Bank, 162 Mass. 137, 38 N. E. 368, 179 N. W. 941; Allen v. Allen, — 44 Am. St. Eep. 354. Nev. — , 196 Pac. 843. SPairchild v. Michigan Cent. R. 14 Scott v. Wilson, — Iowa — , Co., 8 lU. App. 591. 179 N. W. 941; Allen v. Allen, 9 Jerman v. Stewart, Gwynne & — Nev. — , 196 Pac. 843. Co., 12 Fed. 271. General objections at the trial 10 Ante, § 36, Compensation and are confined to substance. Thomag Fees of Notaries. r. Dunaway, 30 111. 373. 11 Eeuseher v. Attorney General, IB Moshier v. Knox College, 32 30 Ky. L. Eep. 109, 97 S. W. 397. 111. 155. 12 King V. Green, 7 Cal. App. § 349] DEPOSITIONS. 207 was present, or on motion before trial.^^ If no objection is made to the form of a question before the notary taking the deposition, it cannot be excluded at the time of trial because the question was leading-i' Objections to interrogatories should be made before trial.^' A misdescription in an inter- rogatory of a promissory note, as bearing twelve per cent in- terest instead of ten, is not such variance as will exclude the answer.^^ If there is no appearance on the other side and no cross-interrogatories, it is doubtful whether the opposite party can complain that the last general interrogatory was not an- swered. The rule is that it should be answered, as imless it is answered it is impossible to say that the witness has told the whole truth; but where it is apparent that the witness could not testify further except to contradict his answers to the spe- cific interrogatories, the omission is harmless.^" Opponent's deposition cannot be suppressed for want of full answers of witnesses to opponent's questions. The objections should come from the party injured.^^ A defect on the face of the notice should be presented by motion to suppress before the trial.^^ An objection that the name of the witness was not in the notice must be taken before trial.*^ Objection for lack of a stamp must be taken, by a motion to suppress, before trial.''* Slight but misleading in- accuracy in name ascribed to the defendant corporation in the deposition is not grounds for excluding the deposition.^^ § 349. Waiver of Objections. — ^An qbjeetion to the mere form of a question is waived unless made before the notary at ISLookwood V. Mills, 39 111. 602. i9Stowell v. Moore, 89 111. 563. 17"Welborn v. Faulconer, 237 20Semmens v. Walters, 55 Wis. Mo. 297, 141 S. W. 31. 675, 13 N. W. 889. 18 Jacksonville, T. & K. W. E. 81 Cole v. Choteau, 18 HI. 439, Co. V. Peninsular Land, Transp. 22 Voorhees v. Cragun, 61 Ind. & Mfg. Co., 27 Fla. 1, 157, 9 So. App. 690, 112 N. E. 826. 661, 17 L. E. A. 33, 65; Cincinnati, 23 Eockf ord, E. I. & St. Ii. E. I., St. L. & C. By. Co. V. Howard, Co. v. McKinley, 64 111. 338. 124 Ind. 280, 24 N. E. 892, 8 L. E. 21Lockwood v. Mills, 39 HI. 602. A. 593, 19 Am. St. Eep. 96; Mis- 26 Merchants Despatch Trans. souri Pac. E. Co. v. Ivy, 71 Tex. Co. v. Leysor, 89 HI. 43. 409, 9 S. W. 346, 1 L. E. A. 500, 10 Am. St. Rep. 758. 308 NOTARIES PUBLIC. [§ 350 the time the question is propounded.^ The taking part in the taking of a deposition and the cross-examination of a witness is a waiver of irregularities in the taking of the deposition.^'' After a deposition has been read without objection upon one trial it cannot afterwards be objected to on account of any defect existing at the time it was used.*^ 26Eedmond v. Quincy, O. & K. when it was stipulated that the C. B. Co., 225 Mo. 721, 126 S. "W. witnesses should be examined be- 159. fore that officer, all formalities 27 Allison V. Chicago, St. P., M. touching the dedimus are waived. & O. E. Co., 37 S. D. 334, 158 N. Eockford "Wholesale Grocery Co. W, 452, 15 N. C. C. A. 183. v. Stevenson, 65 111. App. 609. Where the party appears before 28 Brackett v. Nikirk, 20 111. the officer taking the depositions App. 525. and cross-examines the witnesses, STATUTORY EEQTJIEEMENTS. § 350. Alabama — DEPOSITIONS — taken by commissioner. Written interrogatories to be filed with the clerk of the court. NOTICE — of ten days to be given adverse party. Commissioner subpoenas witnesses. Penalty for failure to appear, $100. Commissioner to reduce the answers of witness to writing, having sworn him to speak the truth, the whole truth and nothing but the truth. Commissioner's certificate of the manner, place and personal knowledge of the witness's identity, that the witness has no interest in the result, is presumptive evidence of the fact stated by him. The deposition to be sent to the clerk of the court, and may be read in evidence unless previously objected to. The testi- mony of a nonresident witness may be taken conditionally and perpetu- ated, to be received in evidence. § 351. Alaska^-DEPOSITIONS — may be taken of a witness in an action out of the district any time after service of the summons of defendant, and in a special proceeding any time after a question of fact arises; may be taken in the district under the same circumstances when the witness is a party to the action, by the adverse party; when the witness resides more than one hundred miles distant, or is about to go more than that away; when infirm; when the testimony is required upon motion, or where the oral examination is not required; may be taken outside the district upon commission issued from the court or without commission before a commissioner appointed by the governor of the district to take depositions in any state or country. Commissions may issue from a clerk of the court, or by a justice of the peace in a cause in his own court, on the application of either party upon five days' previous notice to the other. Unless parties otherwise agree, commission § 353] DEPOSITIONS. 209 to be issued to a judge, justice of the peace, notary or clerk of a court. Interrogatories may be issued with the commission as parties or court may agree. Oath of witness to be taken and the deposition to be certified to the court in a sealed envelope, directed to the court clerk or justice who issued the commission, delivered by mail or usual con- veyance. In the district the deposition may be taken before the clerk of a court of record or anyone authorized to administer oaths. Three days' notice of time and place to be given adverse party, one day additional for every twenty-five miles, unless the court otherwise de- cides. Either party may attend and examine the witness. Deposition to be written by the officer taking or by the witness, or by a disin- terested person, in the presence and under the direction of the officer. When completed it shall be read to the witness, subscribed to by him, and corrected by him if, necessary — corrections and additional state- ments 'to be part of the deposition. Officer to append his certificate under his official seal, stating hour, place and date of taking; that witness was duly sworn to tell the truth, the whole truth and nothing but the truth; that it was read to witness and by him subscribed to. Same to be directed and delivered as before mentioned. § 352. Arizona — DEPOSITIONS — ^may be taken where the witness is aged, infirm, sick, on official duty, or unable to attend court, residing out of the state or county or fifty miles from trial, has or is about to leave the state or county, or when party desires to perpetuate testimony. Either party may apply for a commission to take by giving five days' notice to opposite party, with interrogations attached to notice, and name of witness with residence and place of taking. WHO CAN TAKE — ^IN THE STATE — the commission is to be addressed to any clerk of the superior court, or notary of the county. WITHOUT THE STATE— in the United States — to any clerk of a court of record having a seal, any notary, or commissioner of deeds for this state. WITHOUT THE UNITED STATES — ^to any notary, minister, commissioner, or charge d'affaires, or any consul general, consul, vice consul, commercial agent, vice commercial agent, deputy consul or consular agent of the United States resident in the country. MANNER OP TAKINGr — either party may attend the examination and interrogate, but cannot in such cases object to questions at the trial unless they did so at the examination, if oral, or unless objections are filed within five days to the written inter- rogatories. The officer taking the deposition shall summon witness, and fine and imprison for failure to appear and testify. The answers to questions shall be written, sworn and subscribed to by witness, certified by the officer, sealed up with other papers. The officer must write his name across the seal, indorse names of parties to the suit and the witnesses, direct same to the clerk of the court or justice where the commission issued or, if no commission, where ease is pending. May be returned by mail or personally. § 353. Arkansas— DEPOSITIONS— IN THE STATE— taken before any judge or clerk of a court of record, justice of the peace, mayor, 14 310 NOTARIES PUBLIC. [§ 354 notary. OUT OF THE STATE — before a commissioner appointed by the governor of this state, judge of court, justice of the peace, mayor, notary, or any person empowered by a commission directed to him by the consent of the parties or by order of court. The clerk of any court of record in the county must certify under his seal that such officer was an acting judge or justice of the peace, duly commissioned at the time. Depositions taken out of the state, sealed and directed as here provided, may be delivered to the party taking the same, his agent or attorney. NOTICE — reasonable notice to be given adverse party. POWEE AND DUTY OF OFFICER — to subpoena the witnesses, may issue warrant of arrest for contempt, if witness fails to appear. Officer to decide all objections to questions, noting such as are in doubt. Power to prevent insulting or too lengthy questions. Statement of witness must be written in the presence of the officer taking it. Certificate of officer to state the time and place of taking; that the witness was sworn before he gave his testimony, that the testimony was written, read to and subscribed by him in the officer's presence. Must state by whom testimony was written, which of the parties, in person or by agent or attorney, was present. When the deposition is completed, it is to be sealed by the officer and directed to the clerk of the court where suit is pending. § 354. Califomlar— WHO MAY TAKE— IN THE STATE— a judge or any officer authorized to administer oaths, upon serving five days' notice, and one day for every twenty-five miles of travel of witness unless shorter time set by judge, when order must be sent, with notice, to the adverse party. OUT' OF THIS STATE — by a commission issued from the court, under court seal. It may be directed to any person agreed upon by the parties, or, if they do not agree, to any judge, justice of the peace or commissioner selected by the court or judge issuing it. If commission is issued by a justice of the peace, it must have attached to it the certificate, under seal, of the superior court stating that the party issuing it is acting as a justice of the peace. Ten days' notice and one day for every 300 miles from court to place of taking. OUTSIDE THE UNITED STATES— a minister, ambassador, consul, vice consul or consular agent of the United States in such country, or any person agreed upon by the parties, can be taken by a commission appointed by the court under its seal. Discretion allowed as to deposition of party testifying. Parties may agree upon the inter- rogatories, and mode of taking. Oath to be administered to witness. Deposition to be certified to the court. It must be inclosed in a sealed envelope, directed to the clerk of the court and forwarded by mail or usual conveyance. The judge authorizing the commission may issue subpoena for other witnesses. Either party may attend examination and put questions, provided each party shall pay cost of his own examination. The officer taking may demand a deposit from each party sufficient to defray the expense of such. If a party refuses to deposit he waives his right to examine. § 356] DEPOSlTIOl^S. 211 f S55. .Colorado — DEPOSITIONS — may be taken -rrhen witness is party or beneficiary, resides out of or i» about to leave county, is infirm or unable to attend trial, or for other cause. WHO MAY TAKE — IN THE STATE — all courts, judges, justice and 'clerk thereof, justices of the peace, notaries, within their district and under their official seals and commissioners. Out of the state, commissioner of deeds, notary, justice of the peace or person agreed on by parties. FOBM — none specially, follow form of the state ordering the dedimus. NOTICE— depends on residence. Upon five days' notice to the adverse party depo- sitions may be taken out of the state by commission issued by the clerk of the court on written interrogatories, same to be attached to the commission issued to a person agreed upon by the parties or by the judge; if they cannot agree, to any judge, justice of the peace, notary or to a commissioner of deeds. The adverse party may file and have attached to the commission cross-interrogatories by giving three days' notice or may apply for oral examination. If either party giving notice fails to attend, the attending party shall be entitled to $5 per day for each day's attendance and to 6e per mile for each mile traveled, same to be taxed by the court where suit is pending, and for which attachment may issue. Adverse party may submit written interroga- tories instead of attending. Complete deposition must be carefully read to witness, subscribed, certified, sealed and directed to clerk of court where action is pending or to person agreed upon. § 356. Connecticut— IN THE STATE — may be taken by a judge or clerk of any court, justice of the peace, notary, commissioner of the superior court. OUT OF THE STATE — by a notary, commissioner ap- pointed by the governor, or any magistrate having power to administer oaths. OUT OF THE UNITED STATES— by any foreign minister, secretary of the legation, consul or vice consul of the United States resident in that country. His official character can be proved by the secretary of the United States. Court may issue commission to any person in the military or naval service of the United States who may administer oaths, etc., to persons in the service. Judges of the superior court, court of common pleas or district court of Waterbury, when not in session, may issue a commission to take depositions of persons out of this state, notice being given to adverse party. Commissioners ap- pointed by the laws of any other state or government to take testimony in this state, may apply to the judge of any court of record, justice of the peace, notary or commissioner of the superior court, for a subpoena or capias to compel the appearance of any witness. Upon the refusal of the witness to comply, the officer issuing may commit them to prison. Subpcenas may be issued by any judge or clerk of any court, justice of the peace, notary or commissioner of the superior court, upon request, for the appearance of any witness before him, to give his deposition in a civil action, when such party is going to sea or out of the state, is sixty years of age or lives more than twenty miles from the place of trial, and may take his deposition on refusal to appear, the magistrats may issue a capias. If the witness refuses to depose, the magistrate may 213 NOTARIES PUBLIC. [§ 357 eommit him to priion until he complies. Eeturned to court unsealed or with seal broken, shall be rejected by the court. If the adverse party appears on notice and the party giving such notice fails to appear at the time and place stated, then costs shall be allowed to the advers« party. The returned deposition remains in the custody of the clerk of the court. Reasonable notice must be given to the adverse party, his agent or attorney, or left at his place of abode. WITNESSES— cautioned to speak the truth, carefully examine, subscribe to their depo- sition, make oath before the authority taking, the authority shall attest the same and certify that the adverse party or his agent was present (if so), or that he was notified, and shaU also certify the reason of taking the deposition, seal it up, direct it to the court where it is to be used, and deliver it, if desired, to the party at whose request it was taken. PERPETUATING TESTIMONY— party desiring it may petition in writing any judge of the superior court, stating reasons, subject-matter, name of witness and persons interested. If no reason for the contrary, the judge shall arrange for such. Persons taking depo- sitions may adjourn from time to time, giving notice to parties present. Depositions so taken must be sealed up and directed to the clerk of the county superior court where some of the petitioners reside; if nonresidents of the state, then where some of the respondents reside, and he shall open and file them. § 357. Delaware — If it appears by aifidavit necessary, the justice may make a rule that the deposition be taken before a commissioner named by him, unless otherwise agreed; the party applying shall file in writing all the questions to be put to the witness, giving at least four days' notice to the adverse party, who may file other questions. The justice shall forward a copy of the rule and questions to the com- missioner. Deposition to be written, signed by the witness, certified to by the commissioner and sealed up and sent to the justice. The wit- ness must first be sworn by the commissioner, to answer the questions truly; neither party shall be present and no questions to be put but those sent by the justice. § 358. District of Columbia— DEPOSITIONS— may be taken when witness lives beyond this district; when witness is going out of the district or United States and will not return in time for trial; when aged or infirm or cannot attend the trial, may be taken before any court of the United States, commissioner or clerk of a court, chancellor, justice, judge of supreme or superior court, mayor or chief magistrate, judge of county court or court of common pleas, notary, justice of the peace within the United States, when not interested in the cause. Reasonable notice of time and place must be given opposite party, with names of witnesses and officer taking. Unlawful to require opposite party to attend more than one place on the same day, officer taking to summon by the marshal any witness. Officer has power to compel attendance. Witness to be first sworn to tell the truth, the whole truth and nothing but the truth. Adverse party has right to cross- § 360] DEPOSITIONS. 213 examine, the questions and answers to be taken down in writing, or typewritten ij desired, read to and signed by witness in the presence of the officer. If refusal is made, officer to so certify, with the reasons. Documents to be sealed up by officer and indorsed with the title of the cause, costs of taking, by whom paid and by him mailed to the court where cause is pending. On motion, court may order a commission to take a deposition outside the district. § 359. Florida — The party desiring the deposition must prepare written interrogatories, deliver a copy to the adverse party or his attorney a reasonable time before applying for a commission, stating reasons for taking, date of application, name of commissioner, and file same with the court. If the adverse party has no attorney and does not reside in the state, notice to be given by advertisement in a news- paper printed in applicant's county once a week for four consecutive weeks. On proof of the advertisement to the clerk or the court a c6m- mission will issue. The adverse party may file cross-interrogatories and name of commissioner, serving a duplicate on the applicant. The applicant can serve notice of redirect interrogatories, with notice of time of application for a commission upon all the interrogatories. At the time mentioned the clerk or court shall issue commission, and names of the comjnissioners selected by each of the parties, attaching the inter- rogatories filed by each and delivering same to the applicant. The commissioner shall make oath before a notary or judicial officer where the testimony is taken, that he is neither kin, attorney nor agent of either party, nor interested in the result; that he will well and faith- fully perform the duties of commissioner. Oath to be in writing, and returned with the commission. The commissioner shall swear each witness before taking the deposition. The parties or their attorneys may be present, and after the interrogatories may propound others germane to the subject, which shall be written down by the commis- sioner and become a part of the deposition. The commissioners shall inclose all the interrogatories, answers and commission, seal and write their names across the seals of the envelope, that the court may recog- nize it as applicable to some particular cause. The usual initials of office and Christian names of the commissioners and others shall be sufficient. It may be returned by mail or person. The person returning it or taking it from the post office, other than the clerk, must make oath that he received it from the commissioner (or the postmaster, etc.) ; that it has been in his possession ever since, and has not been opened or altered. § 360. Georgia — A witness may be examined on interrogatories, by commission, at the instance of either party, in any civil cause pending in this state when the witness resides out of the county; when age, condition of health or business prevents attending at court, or when about to remove from the county or leave home beyond the term of court or where he is the only material witness. Female witnesses are not obliged to attend court. The party desiring it must prepare written 214 NOTARIES ftJBLlO. t§ ^60 interrogatories, with witness' name and residence, and serve a copy, with notice of filing, on the adverse party or his attorney. At the ex- piration of ten days a commission shall issue. If the adverse party is beyond the jurisdiction of the court, or cannot be found, and has no attorney, a ten days' notice at the court house door will suffice. Notice must be served on each adverse party. The commission will issue a blank allowing the party to select his commissioners, but the adverse party shall be allowed to select two. The commissioner shall be dis- interested, having no relationship or interest to the parties. His com- pensation not exceeding $2.00 per day, as cost in the suit. Neither party nor representative to be present. On refusal of witness to appear or answer, an affidavit presented to a judge of the superior court, or the ordinary, shall cause an order to issue to arrest and bring him before such judge or ordinary; after hearing his excuses he shall order the witness lodged in jail until he answers. This provision ex- tends to commissions sent from the courts of other states in the United States. No witness shall be required to go out of the county, nor more than ten miles from his residence; he shall have court wit- ness fees. Witnesses may write their answers in the presence of the commissioners. It shall be certified by the commissioners and returned with the commission. The answers to be made under oath, signed by the witness and attested by the commissioners, and place of execution shown. All papers, etc., to be sealed in an envelope, with the names of the commissioners written across the seal and directed to the officer of the court. It can be sent by mail or express, by the party himself or by some private hand. The postmaster or express company receiving must certify to the fact. The postmaster or ex- press agent delivering must certify to its reception by due course of mail or express, or the party delivering it by hand must make affidavit of the fact and of its freedom from alteration. The postmaster at the office to which it is directed shall immediately upon its receipt indorse upon it the fact of its reception by due course of mail, and at once de- liver it to the clerk or presiding judge or justice. The clerk or judge receiving shall indorse thereon from whom received and the time; it shall be filed away unbroken and may be opened any time by written consent of counsel for both sides. A party failing to return or wil- fully abstracting the commission shall be attached for contempt and otherwise dealt with until same is returned. The adverse party or his attorney may, in writing, waive the commission and the answers of the witness may be taken in virtue of such agreement. The person taking shall administer the usual oath to the witness Tinder the penal- ties of perjury in this state. Exceptions must be in writing and notice given the opposite party before the case is submitted to the jury; pro- vided, the same has been in the clerk's office for twenty-four hours. Depositions read on the first trial shall not be subject to formal excep- tions in subsequent trials. In any court of record, either party may, without an order or commission, take the deposition of a witness, resi- dent of the county or not, on giving adverse party five days' notice of § 361] DEPOSITIONS. 215 tima, place, and names of witnesses. To be taken bafore any com- missioner appointed by the judge of the county superior court. The commissioner to summon witnesses and compel attendance. HIS FEES — to wit: examining each witness, $2.00; eertifying and returning testi- mony for plaintiff or defendant in each case, 50c; issuing subpoena, 25e. PERPETUATION OP TESTIMONY— superior courts may enter- tain, where the facts cannot be made immediately the subject of in- vestigation at law, and the common-law proceedings under the Code as available or as completely available as a proceeding in equity. Fail- ure to appoint a commissioner by the judge of the superior court of any county, or a vacancy occurring in the ofice of commission, the clerk of said court shall act as such commissioner, aU witnesses to bo examined in the county of their residence, and before the commissioner or clerk acting as such. Commissioner has power, notice being given to the opposite party or his attorney, or a subpoena duces tecum being served, five days previous to the hearing, to require any witness or party to produce at the hearing books, writings and other documents in his possession, power, custody or control. A refusal to appear or answer without legal excuse shaU be treated as contempt. Certification of same to the judge of the court where case is pending shall be punishable by the judge as committed before him. § 361. Hawaiian Islands— DEPOSITIONS — any court of record, or its judges, in suits pending before them can order a commission to issue for the examination of witnesses residing in a foreign country or other circuit, upon oath, by interrogatories or otherwise, with full instructions as to taking. When it shall appear to the satisfaction of the court that the witness is beyond the jurisdiction of the court, a resident of another circuit, or unable to be present at the trial. Notice to be given the adverse party, his agent or attorney, allowing twenty- four hours after notice and one day exclusive of Sundays for every twenty-five miles of travel, if he lives more than twenty-five miles from the place of taking the deposition. WHO CAN TAKE — a district magistrate, circuit judge or clerk, notary. ABEOAD — ministers, com- missioners, consuls, vice consuls. The witness to be sworn or affirmed to testify to the truth, the whole truth and nothing but the truth. The examination to be oral or by written interrogatories; same to be written by the officer or someone by him appointed, to be taken in hia presence, to be read by, or to, and signed by the deponent. The officer then to annex his certificate, stating the time, place and manner of the taking, the cause for which it was taken, who were present, whether adverse party attended, stating notice, if any given. The deposition then to be inclosed in an envelope, sealed up, directed to the court or arbitrators before whom the cause is in trial, and delivered; and shall remain sealed until opened by direction of the court, arbi- trators' or referees' objections to be made at the taking and noted on the deposition if upon written interrogatories. Witness may be sum- moned and compelled to attend the examination. 216 NOTARIES PUBLIC. [§ 362 § 362. Idaho— BEPOEE WHOM TAKEN— any judge, justice of the peace, notary, mayor or recorder of a city, clerk of a court of record or commissioner appointed by the court, must be a disinterested party. WITHIN THE UNITED STATES — no commission is necessary. OUT- SIDE THE UNITED STATES— the clerk shall, upon request of the party, issue a commission to the officer or commissioner designated. No order of court or affidavit necessary. If the commission contains the name of the officer, his attestation, officially certifying the same is suffi- cient. If his name is not specified and he has no official seal, then his certificate shall be authenticated by the certificate and official seal of the clerk or prothonotary of any court of record of his county. Notice must be given the adverse party, his agent or attorney, stating the cause, court, time, place, and names of witnesses, allowing one day for each twenty miles party may have to travel, not exceeding thirty days. If the party nor his attorney reside in the state, notice may be filed in the clerk's office and published three weeks successively in the county where suit is pending and a copy mailed to the party or his attorney, allowing ten days. May be taken by either party in vacation or term time, after service of summons, without order of court. The court may fix the time. A witness is not obliged to attend outside his county. Officer can summon and compel attendance by reporting to any probate or district court of the county, and on refusal then to comply the court will deal as for contempt. The deponent shall be sworn by the officer to testify to the truth, the whole truth and nothing but the truth. The party producing him to first examine, then the adverse party, and then the officer or parties afterwards if they see cause. The deposition to be written down by the officer, or the deponent, or some disinterested person, in the presence and under the direction of the officer. After being read to or by the deponent, he shall subscribe to it. The officer shall annex his certificate and state that the deponent was sworn accord- ing to law; by whom the deposition was written; that it was written in the presence and under the direction of the officer; whether the ad- verse party was present; time and place of taking and the hours between. The officer shall sign and attest the certificate, seal with his official seal, if he have one. The officer shall seal it up and direct it to the clerk of the court, indorsing on the envelope the names of the parties and the witnesses deposed. Must be filed in court one day before trial. Objections must be made before trial. It may be used in a second trial or in any other action between the parties for the same cause, if it has remained during the time on file in the court. DEPOSITIONS TAKEN FOE PERPETUATING TESTIMONY— may, at any time, be published by order of the court in the office of the clerk where filed and entered upon record, on the motion of anyone interested, at the cost of the party. § 363. Illinois— WHO MAY TAKE— the testimony of any witness residing or being within the state necessary in any suit in chancery in this state, may be taken before any judge, justice of the peace, clerk of a court, master in chancery or notary public, without a com- § 363] DEPOSITIONS. 21? mission or filing interrogations for such purpose, on giving the adverie party or his attorney ten days* notice of the time and place of taking,, and one day in addition (Sundays inclusive) for every fifty miles' travel from the place of holding the court to where such deposition is to be taken. If the party entitled to notice and his attorney reside in the county where the deposition is to be taken, five days' notice sufliclsat. RESIDENT WITNESS— upon satisfactory affidavit being filed, deposi- tions of witnesses residing in this state, to be read in suits at law, may be taken in like manner and upon like notice; where the witness resides in a different county from that in which the court is held, is about to depart from the state, is in custody on legal process, or is unable to attend such court on account of advanced age, sickness or other bodily infirmity. NONRESIDENT WITNESS— any witness residing within this state more than one hundred miles from the place of holding the court, or not residing in this state, or who is en- gaged in the military or naval service of this state or the United States, and is out of this state, necessary in any civil cause pending in any court of law or equity in this state, ten days' notice to be given the adverse party, or his attorney, together with a copy of the interrogatories to be put to such witness, and to sue out from the proper clerk's office a dedim,us potestatem or commission, under the seal of the court. When the deposition of any witness is desired to be taken and the adverse party is not a resident of the county in which the suit is pending, or is in default, and no attorney has appeared for him in such cause, upon filing an affidavit of such fact and stating the place of residence of such adverse party, if known, or that, upon dili- gent inquiry, his place of residence cannot be ascertained, notice may be given by sending a copy thereof by mail, postage paid, addressed to such party at his place of residence, if known, or, if not known, by posting a copy of such notice at the door of the court house where the suit is pending, or publishing the same in the nearest newspaper, and when interrogatories are required, filing a copy thereof with the clerk of the court ten days before the time of suing out such com- mission. ORAL EXAMINATION — when a party shall desire to take the evidence of a nonresident witness, to be used in any cause pending in this state, the party desiring the same, or where notice shall have been given that a commission to take the testimony of a nonresident witness will be applied for, the opposite party, upon giving the other three days' notice in writing of his election so to do, may have a commission directed to take such evidence, upon interrogatories to be propounded to the witness orally; upon the taking of which, each party may appear before the commission, in person or by attorney, and interrogate the witness. The party desiring such testimony shall give to the other the following notice of the time and place of taking the same, to wit, ten days, and one day in addition thereto (Sundays included) for every one hundred miles' travel from the place of hold- ing the court to the place where such deposition is to be taken. ORAL EXAMINATION, COSTS — when a party to a suit shall give the op- 218 NOTAEIKS PUBLIC. [§ 363 posita party notice to take a deposition upon oral interrogatories, and •hall fail to take the same accordingly, unless such failure be on ac- count of the nonattendance of the witness, not occasioned by the fault of the party giving the notice, or some other unavoidable cause, the party notified, if he shall attend himself or by attorney, agreeably to the notice, shall be entitled to $2.00 per day for each day he may attend under such notice, and to 6c per mile for every mile that he shall necessarily travel in going to and returning from the place desig- nated to take the deposition, to be allowed by the court where the suit is pending, and for which execution may issue. HOW TAKEN AND CEETIFIEI> — ^previous to the examination of any witness he or she shall be sworn (or affirmed) by the person or persons authorized to take the same, to testify the truth in relation to the matter in controversy, so far as he or she may be interrogated; whereupon the officer authoHzed to take depositions shall proceed to examine saeh witness upon all such interrogatories as may be inclosed with or attached to any such com- mission as aforesaid and which are directed to be put to such witness, or where the testimony is taken upon oral interrogatories, upon all such interrogatories as may be directed to be put by either party litigant; and shall cause such interrogatories, together with the answers of the witiiess thereto, to be reduced to writing in the order in which they shall be proposed' and answered, and signed by such witness; after which, it shall be the duty of the person taking the deposition to annex at the foot thereof a certificate, subscribed by himself, stating that it was sworn to and signed by the deponent, the time and place, when and where taken. Every such deposition, taken and subscribed, and all exhibits produced, or which shall be proved or referred to by any witness, together with the commission and interrogatories, if any, shall be inclosed, sealed up, and directed to the clerk of the court in which the action shall be pending, with the names of the parties litigant indorsed thereon; provided, that when any deposition shall be taken as aforesaid, by any judge, master in chancery, notary public, or justice of the peace out of this state, or other officer, such return shall be accompanied by a certificate of his official character, under the great seal of the state, or under the seal of the proper court of record of the county or city wherein such deposition shall be taken. Every deposition that shall be returned to the court unsealed, or the seal of which shall be broken previous to its reception by the clerk to whom it is directed, shall, if objection be made thereto in proper time, be regarded by the court as informal and insufficient. It shall not be lawful for any party litigant or the clerk of the court into which any deposition may be returned, as aforesaid, to break the seal of the same, either in term time or in vacation, unless by written consent of the parties thereto or their attorneys, or by the order of the court, duly entered of record. And if any such person or clerk shall presume to open any such deposi- tion when taken, and returned as aforesaid, without such consent or order of the court, he shall be considered guilty of a contempt of court, and may be punished accordingly; provided, that it shall not be consid- § 363] DKPOSITIONS. 219 •red an offense for the clerk to break open any such deposition, when it is doubtful from the indorsements made thereon whether the same be a deposition or not; but in such case, it shall not be proper for such elerk to permit any person to examine any deposition which may be thus opened by mistake, until the consent of the parties or their attor- neys is first had and obtained therefor, or until the court shall have entered the order therefor. W KITING — the party, his attorney, or any person who shall in any wise be interested in the event of the suit, shall not be permitted to dictate, write or draw up any deposition which may at any time be taken under this act, or be present during the taking of any deposition by written interrogatories; and every deposition so dictated, written or drawn up, or during the taking of which any such party, his attorney, or any person so interested is present when the same is taken upon written interrogatories as aforesaid, shall be re- jected by the court as informal and insufficient. EVIDENCE — every examination and deposition which shall be taken, and returned according to the provisions of this act, may be read as good and competent evidence in the cause in which it shall be taken, as if such witness had been present and examined by parol in open court, on the hearing or trial thereof. FUETHEE EXAMINATION — if it shall appear to the satis- faction of the court that any witness has not given full or proper an- swers to the interrogatories or cross-interrogatories accompanying the commission to take his testimony, or that a further examination ought to be allowed to either party for the ends of justice, may allow another commission to issue to the same or other commissioner, to further ex- amine the witness in such manner and upon such conditions and notice as the court shall direct. ATTENDANCE OP WITNESSES— every ofli- cer required to take depositions in this state, or by virtue of any com- mission issued out of any court of record in any other state, territory or country, shall have power and authority to issue subpoenas, if neces- sary, to compel the attendance of all witnesses, in the same manner as witnesses are subpoenaed in other cases, and any witness neglecting or refusing to obey such subpoena, or refusing to testify, or to subscribe his deposition when correctly taken, the officer issuing such subpoena shall at once report in writing the facts accompanying the same with a copy of the commission or other authority received by him, together with a copy of the subpoena and the return of service thereof, and file the same in the office of the clerk of the circuit court of such county, and thereupon attachment shall issue out of said court against such witness, returnable forthwith, before the circuit court of such county if in term time, or before any judge of said court if in vacation, who shall hear and 'determine the matter in a summary way; and it ap- pearing to the court to be wilful, and without lawful excuse, the court shall punish such witness by fine, and imprisonment in the county jail as the nature of the case may require in cases of contempt of court. FEES OF WITNESSES — every person attending to be examined shall be entitled to compensation at the same rate as is allowed to witnesses attending courts of record in this state; and the party requiring such 320 NOTARIES PUBLIC. [§ 363 examination shall pay the expense thereof, but may, if sueoessful in the suit, be allo-vred for the same in the taxation of costs. On the trial of every suit in chancery, oral testimony shall be taken when desired by either party. TESTIMONY PEEPETUATED— where any person shall desire to perpetuate the remembrance of any fact, matter or thing, necessary to the security of any estate, real, personal or mixed, or any private right, such person, upon filing a petition supported by afadavit in the circuit court of the proper county, setting forth, briefly and substantially, his interest, claim or title concerning which he desires to perpetuate evidence, the names of all other persons intierested or supposed to be interested therein, and whether there are any persons interested therein whose names are unknown to the petitioner, and the name of the witness proposed to be examined, may sue out from such court a dedimus potestatem or commission, authorizing the deposition of such witness. Such petition shall be docketed by the clerk as other cases in equity, the petitioner being designated as plaintiff, and the persons stated to be interested, as aforesaid, as defendants — the parties whose names are unknown being designated as "unknown owners." SEVERAL COMMISSIONS MAY ISSUE— several commissions may be issued, upon the same petition, to different commissioners or officers, either within or without this state, to take the testimony of different witnesses, or witnesses residing in different places, or the same, com- missioners or officers may proceed from place to place to take the same. NOTICE — before taking the testimony of a witness, the person suing out such commission shall give to each and every person known to be interested in the subject-matter of such testimony, or his attorney, or, if a minor, his guardian, or, if he has no guardian, or if his guardian is interested, to such guardian ad litem as shtill be appointed by the court, or to his or her conservator, if he or she has one, two weeks' notice, in writing, of the time and place when and where the testimony will be taken, which notice shall state when and where the petition was filed, the names of the parties and witnesses mentioned in the petition, and a short statement of the subject-matter concerning which the testimony is to be taken. NOTICE TO NONBBSIDENTS, ETC.— notice to nonresident parties, or such as cannot be found so as to be personally served, and to unknown owners, may be given in the same manner as is provided for notifying nonresident parties in suing out a commission to take testimony in a case pending. COUET NOTICE — when in the opinion of the court no sufficient provision is made by law for giving notice to parties adversely interested, the court may order such reason- able notice to be given as it shall deem proper. TAKING, CEETIFY- ING TESTIMONY — every person who may think himself interested in the subject of a deposition about to be taken, may attend, by himself or his attorney, at the time and place of taking such testimony, and may examine and cross-examine such deponent, and all such questions as may be proposed, together with the answers thereto by the witness, shall be reduced to writing in the English language, as near as possible in the exact words of such deponent, which said questions and answers, § 364] DEPOSITIONS. 831 when reduced to writing, shall be distinctly read over to the witness, and, if found to be correct, shall be signed by him in the presence of the officer before whom the same is taken, who shall thereupon admin- ister an oath or affirmation to such witness, as to the truth of the deposi- tion so taken, and shall annex at the foot thereof a certificate, sub- scribed by such officer, stating that it was sworn to and signed by the deponent, and the time and place when and where the same was taken; and all such depositions shall be carefully sealed up and transmitted to the clerk of the circuit court of the county from which such dedimus shall have been issued, within thirty days from the time of taking; who shall thereupon enter the same at large upon the records in his office, and shall certify on the back of such deposition that the same has been duly recorded, and return it to the person for ^vhose benefit it shall have been taken. A deposition taken under the provisions of the seven pre- ceding sections, or a certified copy of the record thereof, may be used as evidence in any case to which the same may relate, in the same man- ner and subject to the same conditions and objections as if it had been originally taken in the suit or proceeding in which it is sought to be used; and parties notified as "unknown owners," in the manner herein- before provided, shall be bound to the same extent as other parties. ELECTION CONTEST — whenever a notice shall have been given of intention to contest an election, either party may proceed to take testimony of any witness, on giving to the adverse party or his attorney ten days' notice of the time and place of taking the same, and one day in addition thereto (Sunday inclusive) for every fifty miles' travel from the place of residence of such party to the place where such deposition is to be taken. If the party entitled to notice resides in the county where the deposition is to be taken, five days' notice shall be sufficient. A copy of the notice to take depositions, with proof of the service thereof, with the deposition, shall be sealed up and transmitted by mail or otherwise to the secretary of state, with an indorsement thereon showing the names of the contesting parties, the office contested, and the nature of the papers. The officer before whom depositions are taken shall have power to compel the production of papers, and the attend- ance of witnesses; and the same proceedings may be had to compel the attendance of witnesses as are provided in the cases of taking depositions to be used in courts of law and equity. Depositions in actions before justices of the peace to be taken upon like notice and in like manner. § 364. Indiana^ — Commission to take only necessary when outside the United States. No order of court necessary; the clerk can issue it. When the commission contains the name of the officer, his attestation is sufficient, but if not containing the name and the party has no official seal, then the certificate nfiust be authenticated by the certificate and official seal of the clerk or prothonotary of any court of record where the officer exercises his duties. Must be filed with the ceurt at least one day before trial. Taken anywhere, before any ju,dge, justice 2Z2 NOTARIES PUBLIC. [§ 365 of the peace, notary, mayor or city recorder, clerk of a court of record or commissioner appointed by the court. Must be disinterested person. Eeasonable notice to be given the adverse party of the cause, court, time, place and names of the witnesses. OflScer can compel the attendance of witnesses by reporting fact to the superior or circuit court of the county. Deponent to be first sworn to testify the truth, the whole truth and nothing but the truth. He shall then be examined by the party producing him, then by the adverse party and by the officer or parties if they desire. The deposition to be written by the of- ficer or the deponent or some disinterested person, in the presence and under the direction of the officer, read to or by the deponent and sub- scribed by him. Officer to annex his certificate, stating that the deponent was sworn according to law, who wrote the deposition, if in the presence of the officer, whether the adverse party were present, time, place and the hour of taking. Officer shall sign and attest the certificate, and seal it if he has an official seal, the same to be then sealed up in an envelope, directed to the clerk of the court where the cause is pending, indorse on the envelope the names of the parties and the witnesses whose depositions are inclosed. § 365. Iowa — ^May be taken before any person authorized to admin- ister oaths, or by commissioners on interrogatories. If the action is by equitable proceedings and to be tried on written evidence, then, either party may take the deposition. WHO MAY ACT — the clerk or judge of any court- of record or any conunissioner of deeds appointed by the governor of this state to act in another state, any notary, consul or consular agent of the United States, within their jurisdiction. Eeason- able notice to be given the adverse party as to name of witness, time, place, when and where taken. Cannot take on election day or the Fourth of July. Party desiring deposition may select the commissioners or the parties m^y agree, or the court may appoint any other individual. NOTICE — when served on the attorney, ten days; on the party, five days; allowance for travel of one day for each thirty miles. No party is required to take depositions when the court is in actual session. Notice to be accompanied with the interrogatories to be asked. WHO TO SERVE NOTICE — the clerk of the court where the case is pending. If in an inferior court, the clerk of the circuit court. CEOSS-INTEE- EOGATOEIES — at or before the time the adverse party may file cross- interrogatories. If not filed, the clerk shall file the following: 1. Are you directly or indirectly interested in this action? and if interested, explain the interest you have. 2. Are all the statements in the fore- going answers made from your personal knowledge? and if not, do your answers show what are made from your personal knowledge, and what are from information, and the source of that information? if not, now show what is from information, and give its source. 3. State every- thing you know concerning the subject of this action favorable to either party. Notice, or notice and interrogatories, may be served by the same persons on the same persons, in the same manner, and may be returned. § 366] DEPOSITIONS. 223 and the return shall be authenticated in th« same waj, ai should be an original notice in the same cau»e when served other than hj publication. It may be served on the attorney of the adverse party personally. DEP- OSITION COMMISSION i'ORM— issues in the name of the court and under its seal. It must be signed by the clerk and need contain nothing but the authority conferred upon the commissioner, instructions to guide him, and a statement of the cause and court in which the testimony is to be used, and a copy of the interrogatories on each side appended. HOW TAKEN — person taking must cause the interrogatories pro- pounded to be written out, the answers inunediately underneath; as near the language of the witness as practicable, if parties require it. Must be read, sworn and subscribed to by the witness. Exhibits made by the witness must be appended to the deposition. OfScer to certify that it was subscribed and sworn to by the deponent at the time and place mentioned. The deposition, commission, etc., to be sealed up and re- turned to the clerk of tie court by mail unless otherwise agreed by the parties. Neither party to be present, unless both are present, or their attorneys, when taken upon interrogatories. The certificate shall state such fact. The title of the cause to be on the outside of the envelopment. When by the laws of any other state or country testi- mony may be taken in this state to be used therein, the persons au- thorized to take such depositions have power to issue subpcEnas and compel obedience thereto, to administer oaths, and to do any other act of a court which is necessary for the accomplishment of their pur- pose. Any sheriff or constable shall serve their subpoenas and make return. If a party to a suit in his own right, on being subpoenaed, fails to appear and testify, the other party may have a continuance, at the cost of the delinquent. If the party shows that he could not have a full personal knowledge of the transaction, the court may order his pleading to be taken as true, but subject to reconsideration during the term of the court. A deposition to be taken before a judge or justice of the peace merely by name of ofSce must contain an authentication by the clerk of the court under his seal of office, the fact that the per- son who took the deposition is really such officer. Taken in short- hand, the writer shall be sworn to take correctly and truly, and make correct extension into long hand, typewriting or print, the extension to be certified by the person taking and shall be received as the depo- sition. The shorthand notes shall be read to the witness, who shall sign, and file them with the extension. A defendant may examine witnesses in civil and criminal eases, conditionally or on commission. § 366. Kansas — May be used only when the witness is not a resident of or absent from the county, when age, infirmity or imprisonment pre- vents, or when the oral testimony of the witness is not required. Either party may take, after service upon the defendant. BEFORE WHOM — IN THIS STATE — before a judge or clerk of a court of record, county clerk, justice of the peace, notary public, mayor, chief magistrate of any city or town corporate, before a master commissioner, or any person 234 NOTAEIES PUBLIC. [§ 367 •mpow«r«d by special commission. Authority must be derived from the state, if for use in the state. OUT OF THE STATE— for use in the state — may be taken before by a judge, justice or chancellor of any court of record, a justice of the peace, notary, mayor, or chief magistrate of any city or town corporate, a commissioner appointed by the governor of this state, or any person authorized by special commission from this state. OfScer taking must not be related or interested. Any court of record in this state or any judge thereof can grant a commission. Person must be named, court seal attached, written interrogatories prepared, unless parties agree otherwise. Written notice to be given the adverse party (unless a special commission) allowing time for travel and one day's preparation, exclusive of Sunday. The action, name of court, time and place to be specified. Adjournment from day to day, if stated in the notice. Notice of taking may be given by publication in the county newspaper three consecutive weeks, when the adverse party is absent or a nonresident of the state. If there is no county paper, then the one circulating there generally. It must contain all that is required in a written notice and proved in the usual way. If taken by officers having an official seal, it must be authenticated therewith and their signature. Officers having no official seal who reside out of this state shall sign and certify to the deposition and in addition have their act and qualification certified to by the official certificate and seal of any secretary or officer of the territory having the great seal thereof, or of the clerk or prothonotary of any court having a seal. If the deposition is taken in this state by any officer having no seal or within or without the state by a special commissioner, the officer's official signature is sufficient. The deposition to be written in the officer's presence either by the witness, a disinterested person, or by the officer, and subscribed to by the witness. It must be sealed up and indorsed on the outside with the title of the cause, the name of the officer and by him addressed and transmitted to the clerk of the court of the action, there to remain sealed until opened by order of the court. It may be read in any stage of the action, or other action in the same matter. The officer taking must certify on the deposition that the witness was first sworn to tell the truth, the whole truth and nothing but the truth, by whom the deposition was reduced to writ- ing, that it was written and subscribed in the officer's presence, that it was taken at the time and place specified in the notice. The filing of the deposition must be at least one day before the trial. FEES — for taking in this state — swearing each witness, 10c; each subpoena, attach- ment, order or commitment, 50c; deposition, per 100 words, and certifi- cate, 15c; deposition can be held for fees. The fees of the sheriff and witnesses shall be added to the cost of talcing. Witness fees, per day, $1.50; witness fees before a justice of the peace, per day, 75c, and per mile travel, 5c. § 367. Kentucky— IN THE STATE— taken before examiners, judge or clerk of court, justice of the poare or notary public. OUT OF THE § 368] DEPOSITIONS. 325 STATE — 'before a commissioner appointed by the governor, commissioner appointed by consent of parties or by order of court, judge of court, justice of the peace, mayor of a city or notary public. MANNER OF TAKING — reasonable notice to adverse party, allowing one day for each thirty miles of travel, one day of preparation, or two days if more than one hundred miles. Adjournment permitted if attendance of witness cannot be procured, but officer's certificate must note cause, posting of notice, etc. If more than three days' notice, party to whom notice ' is given may require interrogatories. Interrogatories may be taken on consent or court may require on stating of account, where parties are under disability, or have not appeared or where parties are numerous. When no cross-interrogatories, clerk must file. Officer taking deposition may subpoena witness. Statements of witness to be written. Neither party nor agent to be present. Officer's certificate must state when and where deposition was taken that witness was duly sworn, that it was written and subscribed ia officer's presence, or by officer, and read, and whether parties or agent were present. Deposition to be delivered to clerk of court where action is pending. § 368. IiOTiisiaua — IN THE STATE — the commissions to take may be issued to a justice of the peace or any person authorized to administer oaths. The interrogatories to be served on the adverse party three days previous to forwarding them. When interrogatories have been annexed to the commission and communicated to the adverse party or his coun- sel, notice of time and place is unnecessary. COMMISSIONERS OUT or COURT — the clerks of the parish and district courts of the state (save New Orleans parish) are constituted commissioners to take depo- sitions. A party to a suit pending, desiring depositions, shall apply to the clerk of the court, who will proceed to take the testimony in writing, either himself or through some disinterested person in his presence, after giving, at least, two days' notice to the adverse party, or their attorneys, of the time and place; if the party or his counsel reside out of the parish, ten days' notice. The deposition shall be sworn to and signed by the witness, certified to by the clerk, under the seal of the court, and filed in the records of the suit. Should objections be made to the taking of any party, the clerk to take down the question and its answer and the objection made and by whom, on which the court will decide. The clerks of the court are empowered to compel attendance of witnesses, by subpoena or attachment, in the name of the court. In the parish of Orleans, notaries public and clerks of dis- trict courts are appointed commissioners, with all powers granted to the clerks of courts outside, they may proceed to take, on twenty-four hours' notice to the adverse party or his counsel, of the time and place. When taken, the depositions to be inclosed in an envelope and delivered to the clerk of the court where the suit is pending. Justices of the peace in this state can compel the attendance of witnesses before commissioners of other states taking depositions here. A party desiring the testimony of witness in another state, to apply to any judge having 326 NOTAEIES PUBLIC. [§ 369 jurisdiction of the cause, and not in open court, and it shall be sufficient simply to swear to its materiality. Service of three days' notice to be given the adverse party. Commission may issue any time thereafter. When the commission is returned, the party to use it must, after filing it in the clerk's office, file a notice or take a rule to serve on the adverse party, or his counsel, to show cause why the same should not be used as testimony. The adverse party is bound to urge his objections to any irregularities before trial. If the witness resides out of the parish, in or out of the state, he shall file his answers to the interrogatories within the period fixed by court, on the motion of the party" interrogating. Notice of order fixing delay, with copy of inter- rogatories, to be served on the attorney representing the party interro- gated; provided that when such party resides out of the parish his answers shall be taken by commission. FEES — for constable or sheriff — subpoenas, 50c; attachments, $1.00; for commissioners, notice and copy, 25c; each subpoena or attachment and copy, 25c; writing deposition, per 100 words, 20c; affixing seal, 25e; swearing witness, 20e. § 369. Maine — Allowed when deponent is aged, infirm, sick or unable to attend, or resident out of, or is absent from the state, or bound to sea, going out of the state, or more than sixty miles from place of trial, or is a judge of the supreme, superior or probate court and prevented by official duty; when deponent resides in another town from the trial, or was resident of same town, but subsequently re- moved or died; when deponent confined in prison until after trial. May be taken before a justice of the peace, notary public, or a com-' mission, when the same are disinterested parties. On application to a justice of the peace, or notary public, he may issue a summons to any deponent, except the adverse party, to appear at a designated time and place to give his deposition and shall issue notice to the ad- verse party to be present. The deposition may then and there be taken by him or any other justice or notary, but the deposition of the adverse party may be taken by commission. Notice to adverse party shall be served on him or his attorney, by reading it in his presence and hearing, or by giving it to him or leaving at his place or last abode an attested copy. Service may be made by officer or other per- son and proved on his affidavit. No attorney is recognized unless his name is indorsed upon the writ, or the summons left with defendant, or he has appeared for the party in the cause, or given notice in writ- ing that he .is attorney for the adverse party. Notice by the justice or notary to one or more of the plaintiffs or defendants is sufficient. The adverse party to be allowed one day for each twenty miles' travel, Sunday excepted. Verbal notice is sufficient, and when taken out of the state and not under a commission the adverse party shall have due notice. A witness may be compelled to attend and depose, but not to travel more than thirty miles. Deponent to be first sworn to tell the truth, the whole truth and nothing but the truth. Then ex- amined by the party producing him, verbally or by written interroga- § 369] DEPOSITIONS. 227 torieg, and then by the adverse party, by the justice and partias, if they Bee cause. Beposition to be written by the officer, or the de- ponent or some disinterested person, in the presence and under the direction of the officer; it shall be read to or by the deponent and subscribed to by him. If deception is used in taking, the deposition may be rejected. The officer, after the taking, shall certify and an- nex to the deposition: that the witness was sworn and when; by whom the deposition was written, and in his presence and under his direc- tion; whether the adverse party was notified and attended; the cause and names of parties; the trial court, time and place of cause for taking. The officer shall deliver the deposition to the court, or shall close and seal it up and direct it to the court or referees. A deposition shall not be used at trial if it can be shown by adverse party that the cause for no longer exists. OBJECTIONS — to the competency of a deponent or to questions or answers may be made when the deposition is produced, but if taken on written interrogatories the objection shall be made before it is answered. Depositions may be used in a second suit in the same cause. The court may admit or reject depositions taken out of the state. Justices of the supreme court may issue commissions to take, outside the state, for use in suits in the state. Depositions in 'perpetuam may be taken when requested in writing under oath, briefly stating title, interest, claim, names of parties interested and witnesses desired; present same to a judge or register of probate, notary, clerk of the supreme court, or justice of the peace and quorum, with request to take the deposition; he shall then give notice of time and place of taking to all persons, the same as in other depositions. May be used in civil suits for petitions for partition of land, libels for divorce, prosecutions for maintenance of bastard children, petitions for review, trials before probate courts, arbitrators, referees and county commissioners; in cases of contested senatorial or representative elec- tions depositions or affidavits may be taken in applications for pensions, bounties or arrears of pay under any United States law. The governor may appoint, with the advice and consent of the council, upon the written recommendation of any judge of the supreme court, competent stenographers of either sex, as commissioners to take depositions in all cases and disclosures of trustees. They shall take the oath of office, act throughout the state, hold office four years, pay $5.00 for their commis- sion, have the same powers in taking depositions of trustees as justices of the peace. Depositions may be taken stenographically with consent of the parties to the suit, the notes to be transcribed in full, by ques- tions and answers read to the deponent, and signed by him, unless read- ing is waived by him, no changes to be made, unless in the presence of the counsel who attested the taking. All facts to be stated in the com- missioner's certificate as to reading, changing, etc. Same fees allowed them as to justices of the peace, with 20c per page additional for tran- scripts. FEES — for stenographic commissioners — travel, per mile one way, and not over ten miles one way, 12c; taking transcripts, per page, 20c; subpoenas, 10c; taking affidavit or deposition of a trustee, 20c; 328 NOTARIES PUBLIC. [§ 370 writing the same "with caption and notifying the parties and witnesses, per page, 12c. § 870. Maryland — Courts of law and any of their judges in recess, upon written application filed by interested parties in causes before them, may direct their clerk, or the register of wills, to issue a commis- sion for taking the deposition of witnesses outside this state who cannot be brought into court. Same duly attested to be admitted as evidence. The depositions of such witnesses may be taken by either party to a cause in this state upon giving not less than five days' notice to the opposite party of the time and place where the testimony is to be taken, the name of the commissioner, notary or justice of the peace before whom the same is proposed to be taken and names of witnesses. When taken, same to be signed by witness, unless waived by consent of the parties, and returned to the court where cause is pending. Formal notice may be dispensed with by agreement of parties. Testimony of nonresidents may be taken in the same manner. The circuit courts, or their judges, shall appoint three commissioners for the court's county, and each of the Baltimore civil courts shall appoint two commissioners for their courts to take depositions when required in their courts. Such commissioners must take an oath before a judge or justice, "that he will faithfully and impartially execute the duties of commissioner afore- said, according to the best of his judgment. ' ' Same to be filed among the court's records. Either party in any action in said courts, after due notice to the other, or his attorney, agreeably to the court's rule, may take the deposition before any of the said commissioners. The opposite party shall be entitled to cross-examine such witness, or to examine him on notice before the same or any other commissioner. Depositions shall be certified and returned by the commissioner to the court. If the court is any other than the one by which he was appointed, then he shall have annexed to his return a certificate by the clerk under the seal of the court that he is commissioner. Any person may have the deposition of a witness taken before such commissioner, when ap- prehending himself to be interested, by giving ten days' notice to all opposite parties, their agent, attorney or guardian. An interested minor may have a guardian appointed for the purpose of having such deposi- sition taken. Depositions to be written by the commissioner, signed by deponent, certified to by the commissioner and by him lodged with the clerk of the court which appointed him. The clerk shall record same and receive same compensation as for recording a deed. Courts prescribe fees. § 371. Massa<;hus6tts — Depositions may be taken in this state when the witness lives more than thirty miles from the place of trial, or is about to go out of the state, or is sick, infirm or aged. Application may be made to a justice of the peace, special commissioner, who shall issue notice to the adverse party or his attorney or agent to appear before him or any other justice of the peace or special commissioner at the time ind place appointed for taking. If there are several plaintiffs, defend- § 373] DEPOSITIONS. 239 ants or parties on either side, a notice served on either of them shall be sufficient. Taken out of the state in any other manner, if taken before a, notary or other person authorized, may be admitted at the discretion of the court but not unless the adverse party had sufficient notice. May be taken in this state for use in other states or govern- ments under the same conditions before a justice of the peace of this state, or before commissioners appointed by such state or government. Depositions to perpetuate testimony may be taken in like manner. May be taken out of the state before a commission issued to one or more competent persons by the court trying the case, or before a commissioner appointed by the governor for that purpose, in or outside the United States, subject to the same conditions and objections as if taken in this state. Unless otherwise ordered, the same to be taken on written interrogatories filed in the clerk's office exhibited to the adverse party or his attorney, and cross-interrogatories to be filed by him, if he desires. If the defendant fails to appear, no notice of taking required to be given him. Notice to be served by delivering an attested copy not less than twenty-four hours before the appointed time, allowing one day for every twenty miles of travel, excluding Sundays. May be verbal by the justice or be waived by the party in writing. The de- ponent to be sworn to the truth, the whole truth and nothing but the truth. The officer to examine, and the parties if they desire. Testimony to be in writing. The party producing the deponent shall first examine either upon verbal or written interrogatories, then the adverse party, after which either party may propose further interrogatories. The depo- sition to be written by the officer or by the deponent, or by some dis- interested person in the presence and under the direction of the officer. It shall be read by or to the deponent and subscribed to by him. The officer shall annex to the deposition a certificate of the time and manner of taking it, the person at whose request it was taken, the cause or suit, the reason for, and whether the adverse party attended, if not, why, and statement of notice, if any, sent. The deposition to be delivered by the officer to the court, arbitrators, referees or parties before whom the cause is pending, or inclosed and sealed by them and directed to them, and shall remain sealed until opened by them. § 372. MlcMgan — IN THIS STATE — taken before any judge of a United States court or state court, or any foreign court; any commis- sioner of a circuit court in Michigan, or of the United States or any state, or any commissioner for Michigan, or any consul, consular officer, justice of the peace, notary authorized by this state or any state or of the United States, or any foreign country to administer oaths not of counsel or attorney of either party nor interested in the cause. The seal of such court or official or a certificate under the seal of any court of record shows authority: Eeasonable notice to be given the adverse party, stating names of witnesses, time and place of taking and name of party before whom taken. Any person may be compelled to appear and depose. Deposition may be taken under commission issued by the judge of the court. Written interrogatories may be attached. Courts 330 NOTARIES PUBLIC. [§ 373 of record have power to compel the attendance of -witnesses and the production of books. Witness to be sworn or affirmed. Can also ba examined orally. Testimony can be written stenographically transcribed under the direction of the officer. Must be signed by the witness and certified to by the officer. Signatures of witnesses may be waived by agreement of parties. When deposition taken, officer must indorse. Deposition to be inclosed and indorsed by the official stating the depo- sition was taken and sealed up by him and how sent, also the title of court and cause, and signed. To be sent by mail or otherwise to the court where the cause is pending. FEES — for taking, certifying, sealing and forwarding, $2.00; for each 100 words, 10c; copies furnished, per 100 words, 3c; each party to pay for their own examinations; witnesses in a court of record, per day, $1.00; witnesses before a board or officer, per day, 75c; traveling, 10c per mile from witnesses' residences. § 373. Minnesota — May be taken, upon notice, before officer author- ized to administer oaths, when witness is within state and more than thirty miles from place of trial or hearing; is about to go out of state, not intending to return in time for trial, is sick, infirm, aged, so that it is probable that he will be unable to attend trial, or is without state. Notice, stating reason to be served, so as to allow adverse party suffi- cient time, at rate of one day for hundred miles travel, and one day for preparation, exclusive of day of service and Sundays. Justice of the peace, judge or court commissioner may designate time and place by order. No notice to defaulting defendant. Examination must commence at time and place specified in order or within one -hour there- after. Either party may appear and take part. COMMISSION — issues where issue of fact has been joined, or when controversy submitted to arbitration, on application and eight days' notice, if testimony of witnes? is material, or when testimony of witness is necessary, and defendant has not answered or appeared without notice. When application is by plaintiff and no appearance by defendant, interrogatories may be an- nexed, and in other cases interrogatories served with cross-interrogatories if desired. Stipulations permitted. Witnesses to be sworn and the testimony written by the officer. Proceedings may be adjourned from day to day. Either party may appear in person or by attorney and take part. The officer to read to the witness his testimony when completed and after qualifying it the witness to sign it. The officer then to annex the notice for taking it (or the order) and his certificate under his hand and official seal (if he have one) stating his office and that by virtue thereof he was authorized to administer an oath that the witness was sworn before testifying to tell the truth and nothing but the truth relative to the cause specified in the order. TO PEEPETTJATE TESTI- MONY — party desiring shall make a brief statement in writing of his title, claim and interests, parties in interest, their residence, etc. Name of witness, same to be delivered to the judge of a court of record, who will give notice and take. § 374. Mississippi— IN THE STATE — may be taken in civil causes in § 375] DEPOSITIONS. 231 the circuit court; wheu the witness is about to leave the state, is aged, Bick or unable to attend the court; wheu it shall depend on the testi- mony of a single witness; when the witness shall be a judge of the supreme or circuit court, or chancellor, or any officer of the state or United States and on account of duties is unable to attend court; when a clerk, a court, a sheriff, or justice of the peace shall be required beyond the limits of his county residence; a female, a resident of the state more than sixty miles from the place of trial. The deposition may be taken of a witness in a civil cause before a justice of the peace, when the witness resides in a different county from the justice and under the same circumstances as the circuit courts. Affidavit shall be made by the party desiring the deposition, that the witness is material, the reasons for taking, same to be attached to the deposition. May be taken before any officer authorized to administer oaths, on ten days' notice to the adverse party or his attorney of time and place of taking. In cases of emergency, expressed in the notice, shorter time shall be sufficient. OUT OF THE STATE— party desiring the taking, shall file interrogatories with the court clerk, or justice of the peace in cases be- fore them, serve adverse party or his attorney notice ten days before issuing the commission. The adverse party may file cross-interrogatories; the clerk or justice shall then issue a commission, annex the interroga- tories and cross, as filed; the witness shall be examined by the commis- sioner, and may be cross-examined by the adverse party, the party desiring the deposition may examine in rebuttal. If the adverse party resides out of the state or his residence is unknown and he have no agent or attorney resident, the papers for taking may be filed with the clerk or justice. A commission may be directed to one or more com- missioners in the alternative, by name, or to any judge of a court of record, justice of the peace, mayor or chief magistrate of a city or town, commissioner appointed by the governor of this state, or to any one authorized to administer oaths where the deposition is taken. Witnesses to be sworn, the commissioner to examine impartially on the interroga- tories, etc. If within the state the officer may swear the witness and examine verbally or in writing as put by the parties, testimony to be fairly written down by the officer, the witness or a disinterested person in the officer's presence, and subscribed to by the witness; same with all papers and the officer's certificate, to be sealed vip and directed to the clerk of the court or the justice, and transmitted in a safe, conve- nient manner. The clerk or justice shall open same, indorse on the time of their receipt and opening, and deposit them among the papers in the cause. The examination may be adjourned from day to day on giving notice to the parties. Depositions to perpetuate testimony may be taken in same manner through the chancery court. DEPOSITION FEES — administering oath and certificate, 50c; writing or copying deposition, per 100 words, 10c. § 375. Missouri — When the witness resides out of the state the party desiring may sue out of the court or its clerk, a commission to take the deposition. If before a justice of the peace, party may sue out of a 332 NOTARIES PDELIC. [§ 376 sounty court of record. IN THE STATE — may be taken before a judge, justice of the peace, notary public, or clerk of any court having a seal in vacation of court, mayor, or chief officer of a city or town having an official seal. OUTSIDE THE STATE — before an officer authorized by the laws of this state, or some consul or commercial or representative' of the United States, having a seal, or mayor or chief officer of any city, town or borough, having a seal of office, some judge, justice of the peace, or other judicial officer, or by a notary public where the witness resides. May be taken by an officer outside this state author- ized by this state, without any commission or order of court. Notice to be given adverse party or his attorney of record when residents in this state. If nonresidents, by posting notice in the office of the justice or of the clerk of the court where suit is pending. Service of notice may be by delivery to him, or by leaving a copy at his abode with some member of his family above fifteen years of age, or at his office, with his clerk, or to any local agent, if a corporation. May be by sheriff, constable, marshal or any competent witness, who shall make affidavit of service. Three days' notice and one day additional for each fifty miles' travel, for the first three hundred miles, and beyond that one day for each one hundred miles, to be given. The party commissioned to be named in the commission. Interrogatories to be attached to the commission, drawn and signed by the parties or their counsel under the direction of the judge or court. Depositions to perpetuate testimony may be taken in the same manner. FEES — taking deposition, adminis- tering oath and certificate, 50c; writing or copying deposition, per 100 words, 10c; taking acknowledgments, 25c. Officer taking may issue subpcBnas compelling attendance of witnesses. May commit for refusal to testify. Certificate of officer taking to be appended to the deposition showing that the same was taken in his presence, subscribed and sworn to by the witness, the place, day and hour. All papers and depositions to be sealed up and directed to the court or justice before whom the case is pending. Depositions in foreign countries to be taken in the language of the witness and be translated into English by the officer taking. § 376. Montana— IN THE STATE— either party can apply for, before a judge or officer authorized to administer oaths. Five days' notice to be given the adverse party and one day for each twenty-five miles travel. Either party may attend. The deposition to be read over and signed by the witness, certified to by the officer, enclosed, sealed and directed and delivered to the court or parties agreed on. OUT OF THE STATE — may be taken any time after issue of summons or the defendant 's appearance. If a special proceeding, any time after a question of fact has arisen. In the state, it may be taken as above, when the witness is a party in the action, or an officer or member of a corporation which is a party in the action, or a person whose interest the action will bone- fit; when the witness resides out of the county, or about to leave the county, or is infirm; when the testimony is required upon a motion, or any case where the oral testimony is not required; when the witness is § 377] DEPOSITIONS. 233 the only one who can establish facts material to the issue, provided the deposition will not be used if his presence can be procured. May be taken out of the state upon commission issued from the court, under its seal, upon an order of the court, or its judge, on the application of either party, upon five days' notice to the other. If within the United States, it may be directed to any person agreed upon by the parties, or to any judge, justice of the peace, or commissioner selected by the court or judge. IF TO ANY FOREIGN COUNTET— it may be directed to a minister, ambassador, consul, vice consul, or consular agent of the United States in such country, or to any person agreed upon by the parties. Interrogatories may be prepared by the parties or officer granting the order for the commission, a day fixed in the order may be annexed to the commission; or, when the parties agree, the examination may be without written interrogatories. The commission must authorize to administer an oath to the witness before interrogating, to certify the deposition, to inclose and direct same to the court or person agreed upon, and forward it. To perpetuate testimony, applicant to petition a judge of the district court on oath, and give the adverse parties' names, the names of witnesses, and any other necessary matter. The judge will make an order, naming the officer to take, prescribing notice. If out of the state, the examination to be by question and answer and by com- mission, interrogatories to be settled as in other depositions. When complete, read and returned as in other depositions. § 377. Nebraska — ^May be used when witness is not a resident of the county or where tried; when witness is infirm, aged, imprisoned, dead or unable to attend court; when the testimony is required upon a motion, or any case where oral testimony is not required. Either party may commence taking testimony at any time after service upon the de- fendant. WHO MAY TAKE— IN THIS STATE— a judge or clerk of the supreme or district court, a county judge, justice of the peace, notary, mayor, or chief magistrate of any city or town incorporated, master commissioner, special commission. OfScer's authority must be derived within the state. OUT OF THE STATE— a judge, justice or chancellor of any court of record, a justice of the peace, notary public, mayor or chief magistrate of any city or town corporate, state commissioner of deeds, or a special commission. COMMISSION — officer taking must be disinterested, no relative or attorney. Any court of record of this state, or its judge can commission to take in or out of the state. The person commissioned must be named therein, the seal of the court attached and it must be taken upon written interrogatories unless otherwise agreed. Written notice to be given the adverse party, or his attorney, specifying the action, time and place (unless taken under a special commission), sufficient time allowed by the usual route of travel and one day for preparation, exclusive of Sundays and day of service and examination, if the notice so states, adjournment may be had from day to day. Notice to state the names of witnesses. If taken out of the state or fifty miles distant from the place of trial, the adverse party may serve cross-interrogatories within forty-eight hours to the party taking, who 234 NOTABIES PUBLIC. [§ 378 shall transmit them to the officer. "When the adverse party is absent or a nonresident and has no agent or attorney, he may be notified by publishing three consecutive weeks in a paper of such county of general circulation, notice to continue same as if written. The depoyition to be written in the presence of the officer, subscribed to by the witness; when complete, to be sealed up, title of cause, name of officer indorsed thereon, addressed and transmitted to the clerk of the court. Officer taking shall certify that the witness was first sworn to tell the truth, the whole truth and nothing bat the truth; that the taking was reduced to writing by (naming party); that it was written and subscribed in the presence of the officer certifying; that it was taken at the time and place specified in the notice. It must be filed in court, at least one day before trial. FEES — allowed in the state — swearing each witness, 5c; each subpoena, attachment or commitment, 50c; each 100 words in depo- sition and certificate, 10c. Officer may retain deposition until his fees are paid; also, if so directed by the persons entitled, he may retain for sherifE and witness' fees until paid. § 378. Nevada — May be taken any time after service of the sum- mons or appearance; in special proceedings, after a question of fact has arisen; when the witness is a party, or a person for whose benefit the action is prosecuted or defended; is officer of corporation for whose benefit action is prosecuted or defended; resides out of the county, is about to leave the county, to be absent when required; is infirm, or re- sides fifty miles from the trial. IN THE STATE — may be taken before any judge, clerk or a court, justice of the peace or notary; notice to be given the adverse party of time, place, and a copy of an affidavit show- ing the case is one mentioned as above. Forty days after the service of summons by publication and any time thereafter, when the defendant has not appeared, and his residence is unknown, notice may be served upon the clerk of the court where the action is pending, at least five days, and in addition one day for every twenty-five miles the party served shall have to travel, unless for cause shown the judge, by order, prescribed a shorter time. Either party may attend and properly ques- tion. "When completed it shall be read to the witness, corrected and subscribed to by him, certified to by the officer, inclosed, sealed and directed to the clerk of the court or to such person as the parties may agree to in writing, and delivered by mail or personally. OUT OF THE STATE — shall be taken upon a commission issued from the court, under its seal, on the application of either party, upon five days' previous notice to the other, to a person agreed upon by the parties. If they do not agree, then to any judge or justice of the peace selected by the officer, or to a commissioner appointed by the governor to take affidavits and depositions in other states. The interrogatories to be agreed upon by the parties or, if they disagree, by the officer granting the order, time and place may be annexed to the commission. The commission shall authorize the commissioner to administer at oath to the witness and then take the deposition, to certify it to the court, sealed and di- rected to its clerk or other parties as agreed, to be forwarded by mail § 380] DEPostliONS. 235 or in person. Depositions to perpetuate testimony may be done in the same manner, by application to the district judge, by petition on oath. § 379. New Hampshire— Any justice or notary may issue writs for ■witnesses to appear before himself or other justices or notary to give lawful depositions. A person may be summoned to testify or give deposition, by reading to him the writ and tendering the fees for travel to and from the place desired and for one day's attendance. If the party fails to appear, to testify, or depose, without reasonable excuse, subject to liability to the party injured, for damages sustained thereby. Every court, justice or notary before whom summoned may bring such paxty by attachment, and fine him, not exceeding $10 if imposed by a justice or notary or police court, and not exceeding $50, if imposed by any other court, and add costs. Depositions shall be sealed up by the ofificer directed to the court or justice where they are to be used. The party instituting shall give written notice to adverse party, signed by a justice or notary, of the day, hour and place of taking, to be left at his abode if resident of the state, and within twenty miles of the place of taking, or of the party taking, a reasonable time before. If the adverse party resides out of the state or twenty miles from the place or from the party requesting the taking, notice may be given his agent or attorney. No person shall be deemed an agent or attorney unless he has indorsed the writ or has appeared as such or given notice in writing. No person shall write the testimony who would be disqualified to act as juror at the trial, except exemption as a juror. Witness to subscribe to the deposition and make oath to the truth of same. The magistrate shall certify it, with time and place of taking, stating whether the ad- verse party was present or was notified or did not object. A copy of the notice sent to the adverse party, with the return or affidavit of oflicer leaving it, shall be annexed to the deposition when the adverse party fails to attend. Deposition to be filed within ten days after taking with the clerk of the court where case is pending. Any justice or notary in the state, any commissioner appointed under the laws of the state to take depositions in other states, any judge, justice, or notary in ^ny other state or country, may take depositions. Any judge of the superior court may appoint a commissioner to take outside the state for civil causes in his court, who shall have full power to act according to the laws of the state or country where the taking is done. § 380. New Jersey— IN THE STATE— may be taken when the wit- ness is aged, infirm, sick, or is about to go out of the state; may be taken de iene esse before a justice of the supreme court, or judge of the common pleas court, supreme court commissioner, master in chancery, the officer taking to give the adverse party immediate notice or at such short day as the case requires. Witness may be compelled to appear and testify and be allowed compensation. Witness to ,be first sworn to the truth. The testimony to be in writing, subscribed to by the witness in the presence of the officer taking it, and with certificate of reasons for taking, and the notice to be delivered by the officer with his own hand 336 NOTARIES PUBLIC. [§ 381 to the judge or clerk of the court, or it may be sealed up, directed and transmitted by mail or private messeager, who shall open and file it as a record. Person transmitting deposition shall make oath of delivery. May be taken stenographically but stenographer to be sworn to make true transcript. OUT OF THE STATE — of witnesses — the judge of any court where cause is pending or during vacation, on affidavit, to issue a commission under the seal of the court, to such person or persons as the court or judge may think fit, to examine de bene esse the witness on oath or affirmation. Names of witnesses to be in the commission, the .interrogatories to be drawn and signed by the parties or their attorneys, with the court or judge's approval, each being allowed to insert such questions as deemed proper, the same to be annexed to the commission. The deposition may be taken by commission or upon notice of any party to a suit, residing out of this state. Depositions out of this state may be taken de bene esse before any judge of any supreme, circuit, district or common pleas court or before a commissioner of deeds for this state where witness resides, or before a special commissioner appointed by the court; provided notice be given adverse party, or his attorney, that they may be present, time being allowed for travel (one day for every fifty miles) in all cases, ten days, exclusive of Sundays, or if in a foreign country or a Pacific Ocean state, the court shall direct the time or any judge thereof in chambers. The officer taking shall take oath to fairly and impartially take the testimony before a party authorized to take oaths in his state or country. § 381. New Hesdco — May be taken to be used in any court of this state when the witness is sick or absent from the state or county or about to leave same. IN THE STATE — ^it may be taken before any dis- trict judge, clerk of district court, county clerk, probate judge, or any notary of the county where witness resides. The party desiring the taking shall first notify the adverse party five days before issuance of commission. The notice shall state name and residence of witness, place where found, suit pending. In cases where service is by publication, must be filed twenty days before issuance of commission. IN OTHER STATES — ^before any clerk of a court of record having a seal, any notary, any commissioner of deeds, where witness resides. IF TAKEN ABEOAD — any notary, United States minister, charge d'affaires, consul, vice consul, consul general, consular or commercial agent. When taken, to be inclosed and sealed by the officer before whom taken, and by him delivered to the court, or its clerk, where the case is being tried. Offi- cer's certificate must show that the witness was sworn to the truth of his answers at the time that his signature was appended. Officer may adjourn or postpone taking as necessary, at cost of party taking. Officer may subpoena witness. Deposition may be taken ex parte if parties interested fail to attend after notice. Clerk of the court shall notify the parties in the case on the return of the deposition and they have ten days to offer objections to it. Depositions may be taken to p»rpstnate testimony. § 382] DEPOSiTioKS. 237 § 382. New York— IN THE STATE— depositions may be taken on filing affidavit with judge where suit is pending, or with eonnty judge, if pending in the supreme court, or with judge of supreme court or county judge if action is expected to be brought, stating names of parties to action, if they have appeared, name and address of attorney, nature of action, substance of judgment demanded, nature of defense, and if action is not pending, nature of controversy expected to be in- volved; also name and residence of person to be examined, that testi- mony is material. If action is pending, that person to be examined is about to depart from state, is sick or infirm, so as to afford reasonable ground to believe that he will be unable to attend trial, or that similar circumstance exist. If no action is pending, that adverse party is of full age, resident of state, or that he has ofBce in state, giving address. Same information required where two or more adverse parties and state- ment of circumstances rendering necessary perpetuation of testimony. If corporation to be examined, names of officers thereof whose testimony is necessary or material, or books and papers to be inspected or produced, should be stated. OEDER FOR EXAMINATION— must be granted by judge to whom affidavit is presented, if action is pending; if not pending, must be granted if reasonable ground of good faith of application. Order may limit examination of party. Must direct person to be exam- ined to appear before judge or referee named at time and place specified. Order must also direct service of copy to be made in state not moio than twenty nor less than five days before time fixed for examination, unless special circumstances exist making different time necessary. WITNESS PEES — to be paid or tendered when copy is served. Attend- ance of witness may be compelled. Order must be served on attorney of party who has appeared together with affidavit, or on party who lias not appeared as directed by order. If no action is pending, must be served on expected adverse parties. Upon proof of service, judge or referee must make deposition. May adjourn to another time and place. DEPOSITION BY CONSENT— may be taken in accordance with stipu- lation. EXAMINATION — subject to same rules as examination at trial. Must be read to and subscribed by witness, certified by referee, and filed in office of clerk within ten days; or, if action is not pending, in office of clerk of county where taken, together with stipulation, or order, affidavit for deposition, proof of service of copy of order and affidavit. Questions not answered must be reported to court, who must determine relevancy and whether witness must answer. WITHOUT THE STATE — may be taken on application of either party, by affidavit. COMMISSION — to issue when party is in default and testimony is required on assessment of damages, writ of inquiry, or reference, to enable court to render final judgment; where testimony is required to carry into effect final judgment rendered; where new trial may be granted on motion and testimony is material and necessary; where issues are joined and there is apprehension that witness may die, become un- able to give testimpny, or remove; where issue is joined and testimony is material to applicant and in special proceedings. Order must be 938 IfOTAEIES PUBLIO. [§ 383 granted, unless application is not in good faith, except when motion for new trial is pending in which case granting of order is discretionary. NOTICE — of application must be given to adverse party unless in de- fault. Terms may be imposed when order is granted. Interrogatories, unless settled by consent, must be settled on notice by judge of court, or in supreme court, by county judge. Interrogatories must be attached to commission. Unless parties stipulate manner of returning, judge must indorse direction. Unless directed to be returned by agent must be returned through post office. COMMISSION TO EXAMINE ON OBAL QUESTIONS — may issue. May be taken before person agreed upon, chancellor or judge of court of record, mayor or chief magistrate of city, justice of the peace, if disinterested. MANNEE OF TAKING— when no interrogatories, substance of testimony to be written. Oath or aflarmatiou administered. Deposition read to or by witness to be subscribed. Copies of exhibits, if not surrendered, to be annexed. Com- missioner to annex his name to each half sheet of deposition, close deposition under seal and address packet to clerk of court at official residence. Must be mailed immediately if so directed, or delivered to agent if so directed. § 383. North Carolina — Any party in a civil action or special proceed- ings may take the deposition of persons whose evidence he may desire, upon giving notice, without any special order, unless the witness is outside the United States. Written notice must be served on the adverse party or his attorney. If adverse party resides within ten miles of the place of the taking, three days' notice. Allow one day more for each additional twenty miles, unless it is to be taken within ten miles of a railway in running order, when one day only shall be given for every hundred miles of railway to the place of taking. If beyond the state, ten days' notice to be given, when the party whose deposition is to be taken resides within ten miles of a railway connecting with a line of railway within twenty miles of the place where the person notified resides. In other cases when there are no railways, twenty days' notice. Objection to the reading of the deposition, on account of insufficient notice, must be proved. Depositions shall be taken on commission, issuing from the court and under its seal, by one or more commissioners not of kin to either party, appointed by the clerk, subscribed to and sealed up by the officers and returned to the court, the clerk to open and pass upon them, first giving the parties or their attorneys not less than one day's notice. When passed upon by the clerk, without appeal, or by the judge upon appeal from the clerk's order, shall be deemed legal evidence, if the witness is competent. Commissioners can compel attendance to testify under penalty. SherifE to serve the sub- poena and make return. The witness to be first sworn. If the witness be summoned on five days' time and fails to appear before a commis- sioner acting under authority from courts of another state, he shall forfeit and pay to the party at whose instance he was summoned, $50, and on the trial for such penalty the summons and return shall be prima facie evidence to entitle the plaintiff to judgment. If the de- § 385] DEPOSITIONS. 239 faulting witness was to appear before a commiBsion issued by a court of this state, the fine shall be $40, but execution shall not issue until the same be ordered by the court giving witness time to show cause. § 384 North DaJsota^WHO MAY TAKE— IN THE STATE— a judge or elerk of the supreme or district court, a justice of the peace, notary public. United States circuit or district court commissioner or any specially empowered commission. OUT OF THE STATE — a i^dge, jus- tice or chancellor, or clerk of any court of record, a justice of the peace, notary public, mayor or chief magistrate of any city or town corporate, a commissioner appointed by the governor of this state, or any specially empowered commission by any court of this state. OiEeer taking must not be a relative or interested. Any court of record, or its judge, of this state can grant a commission within or without the state, upon the application of either party, upon five days' notice to the other. It must be issued to a person or persons therein named by the clerk under the seal of the court; must be taken upon written interrogatories, direct and cross, as attached to the commission by the clerk. Unless the parties agree to the interrogatories, the court or judge to settle it upon five days' notice. The ofScer taking shall certify under his signature that the witness was first sworn to testify the truth, the whole truth and nothing but the truth, was reduced to writing by (naming him), was written and subscribed to in the presence of the officer, and was taken at the time and place specified in the notice. When offered in court it must be shown to the satisfaction of the court why the witness cannot be present. The deposition to be filed in court at least one day before trial. When taken must be sealed up, the title of the cause indorsed on the back, with the name of the officer, and addressed to the elerk of the court, there to remain under seal until opened by order of the court or at the request of a party to the action, or his attorney. A deposition is deemed the evidence of the party reading it, and may be read at any stage of the proceeding. The deposition must be authenti- cated by the seal of office of the party taking it; if they have no official seal then it must be authenticated by some state officer having a seal, together with the officer's certificate. If taken by a special com- missioner, his signature is sufficient. § 385. Ohio — The deposition of a, witness may be used only when he is not a resident or is absent from the county where the proceed- ing is pending; when he is dead, or from age, infirmity or imprison- ment is unable to attend court; when the testimony is required upon a motion, or where the oral examination of the witness is not required. Either party may commence taking testimony by deposition at any time after service upon the defendant. Testimony taken in an action on the order of a court, by a referee, master commissioner, or special master commissioner, subscribed by the witness and reported to the court by the officer, may be used as a deposition taken in the case; when the testimony is required in an action pending without this state. IN THIS STATE — depositions may be taken before a judge or clerk of the supreme, circuit or common pleas court, or a probate judge, justice of 340 N-OTAEIES PUBLIC. [§ 385 the peace, notary public, mayor, master commissioner, official stenog- rapher of any court in the state, or any person empowered by special commission; but depositions taken in this state to be used therein must be taken by an officer or person whose authority is derived within the state, and if to be used out of the state they may be taken before a commissioner or officer who derives his authority from the state, district or territory in which they are to be used. OUT OF THE STATE — before any judge, justice, or chancellor of any cburt of record, a justice of the peace, notary public, mayor or chief magistrate of any municipal corporation, a commissioner appointed by the governor of this state to take depositions, or any person authorized by a special com- mission from this state. The officer must not be a relative or attorney of either party, or interested. Any court of record of this state, or judge thereof, may grant a commission to take depositions within or without the state. It must be issued by the clerk and under the seal of the court. Persons to whom granted must be named. It must be taken on written interrogatories, unless parties otherwise agree. Written notice to be given adverse party, his agent or attorney, unless taken under special commission, action to be specified, the name of the court where used, time and place of taking, and if the deposition of a party to the suit be taken, it shall not be used in his own behalf unless so specified in the notice. The deposition to be used only against such parties as are served with notice in one of the modes prescribed, sufficient time to be allowed the adverse party, exclusive of Sundays, the day of service, and one day for preparation, to travel by the usual routes and conveyances; the examination may adjourn from day to day, if so stated in the notice. If the adverse party is absent or a nonresident of the state, and has no agent or attorney of record therein, he may be notified by publication for three consecutive weeks in the county newspaper where the action is pending; if no paper is printed there, then in one of general circulation in the county, printed in the state, the publication to contain all that is required in a written notice and proved by affidavit. The deposition to be written in the presence of the officer before whom taken, either by the officer, the witness, or some disinterested person, and subscribed to by the witness. It shall be sealed in an envelope indorsed with the title of the cause, the name of the officer taking it and by him addressed and transmitted to the clerk of the court, there to remain unopened until so ordered by the court, or at the request of a party to the action or his attorney. Depositions may be admitted as evidence in a civil action pending before a justice of the peace, mayor or other judicial officer of a municipal corporation, or before arbitrators, a referee or a master. A deposition may be read in any stage of the action or in any other action upon the same matter between the same parties subject to exceptions mentioned. If taken by a judicial or other officer having a seal of office, whether resident in the state or elsewhere, shall be admitted in evidence upon the certificate and signature of such officer, under the seal of the court of which he is an officer, or his official seal. No other authentication is required. If the officer has no offi- § 386] DEPOSITIONS. 241 cial seal and the deposition was not taken in this state, it shall be certified and signed by the officer and further authenticated, either by parol proof in court, or by the certificate and seal of the secretary or other officer of state who is the custodian of the great seal of the state, or the certificate and official seal of the clerk or prothonotary of any court of the state where taken, attesting that such officer was, at the time of taking, authorized to take. If the deposition is taken in this state by an officer not having a seal, or within or without the state under a special commission, it shall be sufficiently authenticated by the official signature of the officer or commission before whom taken; and when a deposition is not certified according to law, the fact neg- lected to be certified may be shown by parol proof. The officer's certifi- cate shall show: that the witness was first sworn to tell the truth, the whole truth and nothing but the truth; that the deposition was reduced to writing by some proper person, naming him; that the deposition was written and subscribed in the presence of the officers certifying thereto, that the deposition was taken at the time and place specified in the notice. But if the deposition be taken out of the state, by an officer authorized, the certificate may be in the foregoing form, or in the form authorized by the laws of the place where taken; and in the latter case the certificate shall be deemed prima facie, as made in accord- ance with the laWs of the place where made. Notaries public have power to compel the attendance of witnesses and to punish for con- tempt when taking depositions. Exceptions to depositions shall be in writing and specify the grounds of objections, and be filed with the papers in the cause. No exceptions other than for incompetency or irrelevancy shall be regarded unless made and filed before the com- mencement of the trial; the court shall decide these before trial. Errors of the court in its decisions upon exceptions are waived unless excepted to. The deposition must be filed in court at least one day before the trial. FEES — for taking depositions in this state — swearing each wit- ness, 4e; each subposna attachment or commitment, 50e; each 100 words in the deposition and certificate, 10c. The officer shall retain the depo- sitions until paid for; he shall also tax the costs of sheriff or other officers serving process and fees of witnesses; he may, if directed by a person entitled thereto, retain the depositions until his fees are paid. § 386. Oklahoma — May be used when the witness does not reside in the county or is absent; when attendance is prevented from age, in- firmity, imprisonment or death; when testimony is required upon a motion, or in any case where the oral testimony is not required. Either party may commence taking testimony after service of notice. WHO MAY TAKE IN THE STATE — a judge or clerk of a court of record, a county clerk, justice of the peace, notary public, a master commissioner or special commission. Authority must be derived within the state. OUT OF THE STATE — a judge, justice or chancellor, of any court of record, a jtistioft of the peace, notary public, mayor or chief magis- trate of any city or town corporate, or any person authorized by a special commission from this territory. The officer must not be inter- 16 243 NOTAEIES PUBLIC. [§ 387 ested in the case nor related to either party. Any court of record of the state or any judge thereof can grant a commission to talce. The commission, name of the ofScer who takes, must be under the seal of the court. Deposition must be upon written interrogatories, unless parties agree otherwise. Unless by special commission, written notice to be given the adverse party, specifying action, court, time and place, allowing time for travel and one day for preparation, exclusive of Sunday and day of service. May adjourn from day to day, if notice so states. When adverse party is absent, or a nonresident, and has no representative in the state, three consecutive weeks' publication in a county paper is required. The deposition must be written in the presence of the officer, either by him, the witness or a disinterested person, signed by the witness, sealed up, and indorsed with the title of the case, name of the officer, certified to by him, addressed and transmitted to the clerk of the court, and remain under seal until opened by order of court. The officer's certificate must state the above facts and that the witness was first sworn to the truth, the whole truth and nothing but the truth; it must be filed in court one day before trial. FEES — allowed: swearing each witness, 10c; each subpoena, attachment or order of commitment, 50c; each 100 words, including certificate, 15c. Deposition may be retained until fees are paid. § 387. Oregon — May be taken in or out of the state in an action at law, any time after the service of summons or the appearance of the defendant, and in special proceedings any time after a question of fact has arisen. In this state, when the witness' residence is such that he is not obliged to attend on a subpoena, is a party to the action, is about to leave the county and go more than twenty miles from place of trial, is infirm, when the testimony is required upon a motion, or where the oral examination is not required. May be taken in this state before the clerk of a court of record or other person authorized to administer oaths, three days' notice to be given the adverse party if not over twenty-five miles, and one day additional for every twenty-five miles, unless the courts direct otherwise. Either party may attend and ex- amine. Deposition to be written by the officer, or by the witness or some disinterested person in his presence. When completed it shall be read to or by the witness and subscribed by him. Officer to certify the above was done (under his official seal, if he have one), and at a place mentioned, between certain hours of a day or days mentioned, and that the witness was first sworn to the truth, the whole truth and nothing but the truth. Same to be inclosed in a sealed envelope, directed to the clerk of the court or the justice of the peace where action is pending, and forwarded by mail or the usual channel. It may be used by either party, at any time. The testimony of a witness may be taken condi- tionally and perpetuated in the usual manner. Without the state, may be taken upon commission issued by the court, or without a commission by the commission appointed by the governor of this state to take depositions in other states or counties. The commission may be issued by the clerk of the court, or by a justice of the peace in a cause in his § 388] DEtosiliONS. ■ 243 court, on the application of either party, upon Ave clays' previous notice to the other. It shall be issued to a person agreed upon by the parties, or, if they do not agree, to a judge, justice of the peace, notary public, or clerk of a court, selected by the ofScer issuing it. Interrogatories, direct and cross, as the parties may prepare, or the clerk or justice, may be annexed to the commission, or if the parties agree, without written interrogatories. Commission shall authorize the commissioner to administer an oath to the witness, to take deposition as per interroga- tories, or in respect to the question in dispute, to certify to the court in a sealed envelope directed to the clerk or justice issuing same, or other person designated, and forwarded to him by mail, or other channel. In any other state it may be taken before a commissioner appointed by the governor of this state for that purpose upon giving the adverse party eight days' notice of the time and place, name of the commissioner and the witness, if the distance of the place of examination, from the place where the testimony is to be used, does not exceed fifty miles, and one additional day for every additional twenty-five miles. Either party may attend, and examine the witnesses upon oral interrogatories, but if either party by written notice to the other, within three days from the service of the original notice, requires it, it shall be taken or written interrogatories to be settled, if not agreed upon, by the same officer and in the same manner as in case of deposition upon commission and in such ease the deposition shall be taken, certified and directed by the commissioner in the same manner as a deposition upon commission. § 388. Pennsylvania — Upon the affidavit of either party or their agent, that the testimony of any material witness is wanted, who resides out of the county, or from infirmity, or other causes, cannot be ob- tained personally, a cause shall be postponed to a certain day, within such reasonable time as the distance of the witness, the season of the year and the circumstances of the roads may render it proper, to obtain the deposition of the witness wanted; and whenever a cause is post- poned at the instance of the defendant, he shall enter into a recognizance for a sum sufficient to cover the demand in question together with the costs, with one sufficient surety (for his appearance on the day fixed), and whenever a rule for taking the deposition of a witness or witnesses shall be applied for, as aforesaid, the party so applying shall file a copy of the interrogatories or questions intended to be asked the witnesses; and a copy of the same shall be delivered to the opposite party or his agent, who may also file such additional questions as he may think proper, provided, it be done within four days after receipt of the copy; which rule and interrogatories being certified by the justice before whom the cause is pending, shall be sufficient authority for the justice who may be named in said rule, to take the answers of such witnesses as may be named therein; but where the witnesses reside in the county, or in cases where the parties or their agents agree to enter a rule to take depositions, it may be done without filing interrogatories, upon notice given, agreeably to the rule, of the time and place appointed for the examination. Testimony so taken shall be read in evidence on 244 NOTARIES P0BLIO. [§ 389 the trial before the justice or referee. Either party may obtain testi- mony out of the state for causes pending before a justice of the peac« in the same manner. When not convenient to take before a justice of the peace, a commissioner may be appointed, at the suggestion of the party or parties, who on receipt of his commission, with a copy of the rule and interrogatories, certified by the alderman or justice of the peace, shall have authority to administer oaths and take the answers of the witnesses named. Same shall be as good as if taken before a justice of the peace. A court of common pleas, on receipt of letters rogatory from any court in the United States, may compel the attend- ance of witnesses, penalties to be attached, and a fine not exceeding $100 imposed. Examiners or commissioners may on request appoint a stenog- rapher; court to direct compensation together with such reasonable additional amount as the examiner may suggest, including traveling and hotel expenses and extra services. § 389. PMUpplne Islands— OUT OF THE PHILIPPINE ISLANDS— depositions may be taken by a commission issued by the court under its seal upon five days' notice to the adverse party. If the court be that of a justice of the peace the commission shall have attached to it a certificate under seal, by the clerk of the court of first instance of the province in which the court is held, to the effect that the person issuing the same was an active justice of the peace at the time. "WITHIN THE UNITED STATES — if issued to any place, it may be directed to any person agreed upon by the parties, or to any justice of the peace, any federal or state judge, to any commissioner so authorized to take. OUT OP THE UNITED STATES — to any minister, ambassador, consul, vice consul or consular agent of the United States or to any person agreed upon by the parties. Interrogatories may be attached to the commission. Witness to be sworn, the deposition to be certified to the court in a sealed envelope directed to the clerk or person designated and for- warded to him. IN THE ISLANDS — taken before any judge, justice of the peace or notary public on serving the adverse party two days' notice with an afSdavit showing that witness is party to action or mem- ber of corporation which is party, or person for whose benefit action is prosecuted or defended; that witness resides out of province, is about to leave province and will be absent; that witness is too ill or infirm to attend; that oral examination is not required and that witness is material. Eeasonable time must be given the adverse party to be present. Either party may attend and put such questions direct and cross as may be proper. Deposition must be read to the witness and corrected by him if desired; he must subscribe to it and the of&cer certify to it, seal in a wrapper, direct and deliver it to the clerk of the court or to such person as the parties agree on in writing. The deposi- tion must be written by the oflSeer, or in his presence and under hit direction by a disinterested person. May be taken stenographically. § 390. Rhode Island — ^Except in equity causes, any justice of the su- preme court, justice of the peace, or notary public, may take deposition* § 390] DEPOSITIONS. 345 of any witness to be used in the trial of a civil suit where he is a disin- terested party and commenced or pending in this state or any other state or country, the adverse party or his attorney to be notified as to time and place, before the taking. If his residence or his attorney be unknown, the justice shall prescribe the method of notice. The notification shall be issued to a disinterested party by the commissioner at least twenty-four hours, exclusive of Sundays and holidays, before the taking. It shall be read to the party, if found, otherwise, a copy to be left at his usual abode; manner and time of service to be returned and sworn to before some officer authorized to take oaths. Any person may be compelled to appear and depose within this state. The supreme, probate or district court may, on motion of either party in an action pending therein, grant a commission to take depositions. IN THIS STATE — to be used in any other state or country, may be taken before any person residing in this state to whom a commission shall be directed. OUT OP THE STATE — to be used in this state, may be obtained on an order from the trial court, and taken according to the law of such state or country, or if within the United States, it shall be taken before a commissioner appointed by the governor of this state, or a judge, chancellor, justice of the peace, notary public, or civil magistrate of such state. OUT OP THE UNITED STATES— before a resident United States official or if the deponent be in the military or naval service of the United States, before a colonel, lieutenant colonel or major in the army, or before any officer in the navy not below the grade and rank of lieutenant commander. The deponent shall be sworn to testify the truth, the whole truth and nothing but the truth, and after giving testi- mony, shall subscribe to it in the presence of the officer taking it. The deposition may be reduced to writing by the officer or by any one under his direction and in his presence, or taken in shorthand and a transcript made in long hand, typewriting, print or other reproduction sworn to by the person reporting it, and signed by the deponent. The signature in the latter case, to be attested by the officer. The deposition to be delivered by the officer's own hand to the court, or shall, together with a certificate of its having been taken, be by the officer sealed up and directed to the court, and delivered to its clerk. Por depositions in perpetual memory, the same methods are employed as in other deposi- tions. The officer taking has the same power and authority as magis- trates in acting. They can compel attendance and testimony. If party entitled to notice resides outside the state he may be served by any disinterested person. After taking, it shall be sealed up, with the petition, and directed to the clerk of the common pleas division of the supreme court in the county in which some one of the parties notified of the taking reside; if they reside outside of the state, then in the county in which the person preferring the petition resides; in case both parties reside outside the state, then in Providence county. The clerk, on its receipt, sealed and addressed, shall open and record it, on payment of the legal fees, noting on same the time received, page of the book where recorded, and return it to the party. If not recorded, it 346 NOTAEIES PUBLIC. [§ 391 eannot be received as evidence in any court in this state, unless it is opened in the court at the time of the hearing of the cause in which it is used. § 391. South Carolina — Any judge or clerk of the circuit court has power to grant commissions, under the Seal of the court, directed to two or more commissioners, to take the depositions in writing of the wit- ness or witnesses therein mentioned, where the witness resides with- out the state or county, or at a greater distance than one hundred miles from the court, or is about to go without the limits of the state before the next term of court or before trial, or when his pres- ence cannot be procured by attendance on some public official or pro- fessional duty as an attorney at such time, or by reason of sickness or infirmity. Ten days' notice to be given the adverse party with copy of interrogatories propounded. The application must be accompanied with an affidavit showing the necessity for the taking. Either party may, in the court's discretion, on motion, and a showing that two days' notice has been given the adverse party or his attorney, be entitled to a rule to compel the attendance of any witness residing in the county, or not more than thirty miles from the court. The testimony of an officer in a lunatic asylum may be taken by commission. Subpcenas may issue for witnesses to attend before the commission at a certain time and place not more than fifteen miles from his residence and answer on oath according to their knowledge the interrogatories and cross-interrog- atories annexed to the cominission. Persons unable to leave home by reason of sickness, age or infirmity shall be attended by the commis- sioners, and in case of their refusal to give evidence or answer the inter- rogatories, etc., they shall be liable for damages to the party injured. Clerks of the court of common pleas may take depositions, ten days' notice having been given the adverse party. All privileges and powers allowed as before the court. Clerk's fee for each witness, one dollar. Depositions 6,6 iene esse may be taken in civil actions pending in the court of common pleas where the witness lives outside the county or more than one hundred miles from court, or is bound for sea, going out of the state or county, or is aged or infirm. Same may be taken before any circuit court, judge or clerk, any trial justice, notary pub- lic of this state, chancellor, justice or judge of a superior or supreme court, mayor or chief magistrate of a city, trial justice, judge of a county court or court of common pleas or any of the United States or Dominion of Canada or Kingdom of Great Britain, or any notary pub- lic not being of counsel or attorney. Notice of ten days must first be given in writing by the party or his attorney to the adverse party, with notice of time and place. If impracticable, the judge of any cir- cuit court shall determine how notice to be given. MANNEE OP TAK- ING — witness to be sworn to testify the whole truth. Testimony to be reduced to writing by the officer or by the witness in officer's presence and by no other person, to be subscribed to by the witness, delivered into the court by the hand of the officer, or with a certificate of rea- sons for taking, and the notice given adverse party, be sealed up and § 393] DEPOSITIONS. 347 directed to the court by the officer and forwarded by mail or express. If witness is able to appear at the trial, the deposition shall not be used. CONTEMPT OF COURT — an attachment may issue from any circuit court for failure of the witness to answer the subpoena for attendance. Commissions issued out of any United States or other state courts for the examination of witnesses in this state, produced to a judge of the supreme or circuit courts of this state, shall have the same considera- tion as if issued by a court of this state and subpcena issued, with same fees and contempt proceedings as allowed in this state. Two days' time to be allowed the witness before attendance is required. He is en- titled to same fees for each day's attendance as allowed in civil cases, with necessary ferriages going to and coming from, to be paid by the party requiring the deposition. Commissioners are authorized to retain the deposition until same is paid. § 392. South Dakota — IN THIS STATE— may be taken by a judge or clerk of the supreme, circuit, municipal or county court, a justice of the peace, notary, United States commissioner or any person empowered by a special commission. OUTSIDE THE STATE — by judge, justice or chancellor or clerk of any court of record, justice of the peace, notary, mayor or chief magistrate of a city or town corporate, a commissioner appointed by the governor of this state, or any special commission. Officer must not be a relative or attorney of either party or interested in the action. Any judge or court of 'record of this state can appoint a commission to take, under seal of court. WITNESSES — notary can is- sue subpoena for. For failure to attend, the notary can issue attachment. Notice to be given to adverse party allowing sufficient time to attend and one day's preparation, exclusive of Sunday and day of service. If a nonresident, it may be by publication for three weeks in county newspaper. Deposition when taken must be written by the officer, or in his presence by the witness or some disinterested person, must be subscribed to by the witness, sealed up, indorsed with the title of the case, name of the officer taking, addressed and transmitted to the clerk of the court where action is pending, to be filed at least one day before trial. Officer must state in his certificate that the witness was first sworn to tell the truth, the whole truth and nothing but the truth. That the deposition was reduced to writing by some proper person, naming him. That the deposition was written and subscribed to in his presence, giving the time, date and place specified in the notice. § 393. Tennessee — May be taken when the witness, from age, infirm- ity or other cause, is incapable of attending at the trial or resides out of the state, or residing in another county of the state, in which case the adverse party may have him subpoenaed; when leaving the state, or is the only witness to a material fact, or an officer of the United States, the state, or the county, or clerk of another court of record, a member of the legislature in session, clerk or officer thereof, a prac- ticing physician or attorney, a jailer or keeper of a public prison in another jounty; when he is a notary public, whether a suit be pending 348 NOTARIES PUBLIC. [§ 393 or not; to be evidence between the same parties in any suit then, or thereafter pending, should the notary die or removej out of the state before the trial; when the suit is brought in forma pauperis. The depo- sition of any person residing in the county may be taken by either party, but the opposite party may summon the witness, in which case he shall be examined as if summoned by the party taking the deposition. It may be taken any time after action brought, upon such notice as the court or justice may order, or upon giving the usual notice. Party exempt from attending must claim at the time; he may claim exemption by application to the court. The adverse party may compel the attend- ance in court, of the deponent, unless witness is exempt by law. Witness may be cross-examined by any court or justice of the peace before whom an action is pending, may make orders and issue commissions to take depositions, upon application of either party. The clerk or his deputy may act in like manner. Court or justice may prescribe noticte. Parties may take without a commission, upon giving opposite party notice of time and place or by, filing interrogatories. May be taken in this state for use in any other state, or foreign government. Attendance of witnesses may be compelled, by implication, to any judge of the su- perior courts of the state, or to any justice of the peace of the county. "Witness to have two days to prepare and not obliged to leave the county. Service and return of the subpoena to be in the usual way and failuie of witness to appear subjects him to the penalties of the law. Witness fees to be allowed as in cases in this state. Time of notice, five days. If out of the county, for 50 miles or less, 5 days; 50 to 100, 10 days; between 100 and. 250, 15 days; 250 to 400, 20 days. If to be taken in another state west of the Eocky Mountains, such time as the court or clerk may order, not over -40 days. In foreign countries, as the court or clerk may order. Service may be made by the sheriff, coroner or constable, with the usual return notice. Service of notice as to time and place may be made on the attorney of a nonresident. If the wit- nesses reside out of the state or over 150 miles from place of trial, either party may take the deposition by filing interrogatories with the clerk, giving opposite party notice, who shall have ten days to file cross- interrogatories. OfScer taking is vested with all the powers of a court, and to control the conduct of the parties, the officer to swear the witness, the questions to be reduced to writing before being put, and read to the witness, the answers to be written down and then read to or by the witness may be typewritten. When deposition is complete, it shall be enveloped, together with the commission and other documents, sealed, the commissioner's name written across the seal, and directed to the clerk of the court, title of cause indorsed thereon and sent to the clerk of tte court. If sent by private conveyance, the person delivering must make an affidavit to the clerk that papers have not been out of his possession or opened since received by him. The court or clerk may determine whether notice shall be given to each person where more than one person is plaintiff or defendant. The clerk shall certify in the deposition how received. The commissioner can subpoena witnesses. § 394] DEPOSITIONS. 349 Penalty for failure to appear may be enforced by the tribunal having cognizance of the suit as in other cases. Depositions may be taken by any judge, justice of the peace, mayor or chief magistrate of a town or. city, the clerk of any court, or any person properly commissioned or ap- pointed by the court or clerk, not being interested, of counsel or related to either party, any notary public, in his county, and his certifi- cate to show the county. Persons may have testimony perpetuated by petitioning the circuit or chancery court judge; he will fix the time and place. Notice to a nonresident may be given by publication in such paper as the judge directs. The evidence of a notary public may be taken and perpetuated in matters oJfioially done by him, without peti- tion, upon notice to the other side. Deposition of a notary may be taken, whether a suit be pending or not, on ten days' notice to the opposite party, if resident in the state, and forty days' notice out of it, to be read as evidence between the parties in any suit then or after- wards pending, should the notary die or remove from the state before the trial. § 394. Texas — May be taken when the witness is a female, is aged, infirm, sick, or when ofiicial duty prevents attendance at court; when witness resides without the state or county, or is about to leave the state or county, and probably cannot be at the trial, or to perpetuate testimony. May be taken when residents or not of the county where suit is pending, provided, the failure to secure same shall not fe re- garded as want of diligence. The party shall file with the court clerk, or justice of the peace, as may be, a notice of his intention with interroga- tories attached. The notice to state name and residence of witness, or where he can be found, and the suit to be used in. A copy of all shall be served on the adverse party, or his attorney of record, five days be- fore the commission issues. If the adverse party is a corporation, or joint stock association, service may be on its president, secretary, treasurer, or local agent in the county where the suit is, or by leaving it at the principal ofSce of such corporation during office hours. On an affidavit, that either party is beyond the jurisdiction of the court, or cannot be found, or that he has no attorney of record, or his claimants have not become parties to the suit, and are unknown; by the party wishing the deposition, the clerk or justice of the peace shall cause a notice to be published in some newspaper for thirty days, stating the number of the suit, names of original parties, the court where pending, name and residence of witnesses, that a commission will issue on or after the thirtieth day. The style of the commission shall be, "The State of Texas"; it shall be dated and tested as other process; addressed to the officer, authorizing and requiring him to summon the witness before him forthwith, to take his answers under oath to the direct and cross-inter- rogatories, if any; a copy shall be attached to the commission, and to return without delay the commission and interrogatories and the answers of the witness thereto, to the clerk or justice of the proper court, giving his official and post office address. Cross-interrogatories may be filed by either party before commission issues. WHO MAY TAKE — IN THE 360 NOTARIES PUBLIC. [§ 395 STATE — any clerk of the district court, any judge or clerk of tbe county court or any notary public of the county. IN ANT OTHEE STATE— a elerk of a court of record' having a seal, a notary, or commissioner of deeds in that state appointed by the governor of this state. IN FOE- EiaN COUNTEIES — a United States minister, commissioner, charge d'affaires, consul general, consul, vice consul, commercial agent, vice commercial agent, deputy consul, or consular agent resident in such country, or any notary public in that country. If witness fails to appear he shall be subpoenaed through the sheriff or constable of the county. Attachment, fine and imprisonment may follow. The answers shall be written, sworn to and signed by the witness. The officer shall certify that they were so taken before him, and seal it in an envelope with the commission and interrogatories, etc., write his name across the seal, indorse on the envelope the names of the parties to the suit and the witnesses, direct it to the clerk of the court or justice from whom issued. An interpreter may be summoned and sworn by the officer. Eeturn may be made by mail, the party interested or other parties. The post- master or his deputy shall indorse their receipt upon them, the clerk or justice likewise. If sent other than by mail, party shall make affi- davit before the clerk or justice that he received them from the officer and that they have not been out of his possession nor undergone any alteration. It may be opened by the clerk or justice at the request of either party or counsel; he shall indorse upon them the date and at whose request they were opened, signing his name; they shall remain on file for either party's inspection. When cross-interrogatories have been filed and answered, either party has the right to use the deposition. When the deposition has been filed in court one day before trial, any objections to them shall be in writing and notice given to opposite counsel. They shall be read, subject to legal exceptions. Surplusage may be stricken out by the court upon objections thereto. Deposition to perpetuate testimony may be made through the proper county court, after the same manner. § 395. Utah — The testimony of a witness out of this state may be taken by deposition at any time after the service of the summons, or the appearance of the defendant, and in a special proceeding, at any time after a question of fact has arisen. IN THIS STATE — may be taken, when the witness is a party to the action, or a person for whose im- mediate benefit the action is; when he resides out of the county in which his testimony is to be used; when he is about to leave the county where action is, and will probably be absent when required; when in- firm, or his testimony is required on a motion, or in any other ease where the oral testimony is not required. OUT OP THE STATE — for use in the state — may be taken upon a commission issued from the court under its seal, upon an order of the judge, or court, or justice of the peace under his hand in any case pending before either of such courts; on the application of either party, upon five days' notice to the other. If issued to any place within the United States, it may be directed to any person agreed upon by the parties, or, if they do not agree, § 396] DEPOSITIONS. 251 to any judge or notary public, or person named or commigsioned by the officers issuing it. ANT COUNTEY OUT Or THE UNITED STATES — it may be directed to a United States minister, ambassador, consul, vice consul or consular agent in tie country, or to any person agreed upon by the parties. Parties may prepare their interrogatories, direct and cross; if they disagree, then the officer granting the com- mission shall prepare, at a day fixed in the order. If the parties agree, it may be without written interrogatories. Depositions for use in other states may be taken where witness resides in this state. If a com- mission has been issued, by producing same to a district or probate judge here, with satisfactory affidavit as to its necessity, he may subpoena the witness to appear and testify before the commissioner at a specified time and place. If a commission has not been issued, a district or probate judge, or justice of the peace, may, on the presentation of a satisfactory affidavit, subpoena the witness to appear before him and testify. The testimony to be taken in writing, certified and transmitted to the court or judge requiring same, as the law of the state requires. May be taken in this state, before a judge or officer authorized to ad- minister oaths, on at least five days' notice to the adverse party of the time and place of examination, together with a copy of an affidavit showing that the case is within the statute; allowing also one day for every twenty-five miles of distance to the place of examination from the residence of the party, unless, for cause shown, a judge by order pre- scribes a shorter time, copy of which must then be served with the notice. Either party may attend the examination and put proper ques- tions. The deposition must be read to the witness, corrected if desired, subscribed to by him, certified to by the officer, inclosed in an envelope, sealed and directed to the clerk of the court where action is pending, or to such person as the parties in writing may agree and delivered person- ally or by mail. It may be used by either party at the trial. Depo- sitions to perpetuate testimony may be taken when required. § 396. Vermont— WHO MAT TAKE— IN THE STATE— justices, notaries, masters in chancery, municipal and city judges, judges and registers of probate, shall have the same powers. Notary need not use his official seal. A resident commissioner of another state may take for use in the state of his appointment. OUT OF THE STATE — a su- perior judge may, in vacation, upon the application of a party in a suit pending in a county court, and on such notice to the adverse party, or his attorney, as the judge thinks reasonable, cause the clerk of his court to issue a commission to a person designated, to take the testimony of a person residing, or without the state; it shall be taken upon inter- rogatories settled by the order of the judge upon oral examination. May be taken by a justice so authorized by his state and a commis- sioner appointed by the governor of this state. Depositions of witnesses without this state, taken agreeable to the laws of this state, or of the state or country in which they are taken, shall be allowed in any court. TIME AND MANNER — may be taken at any reasonable time after suit is commenced, in whatever court the suit is pending, or while 253 NOTARIES PUBLIC. [§ 397 wit i» passing from one court to another. The party desiring it shall «aus6 personal notice to issue from the magistrate taking, to the advers* party, or by citation signed by a justice, municipal or city judge, notary, or master in chancery, served like a writ of summons on the adverse party, or if he resides out of the state, on his attorney, if in the state. Such notice to state the time and place of taking, the name of the magistrate, give reasonable time to be present. A party may, without notice, take a deposition when the adverse party is a nonresident and has no attorney in the state; but such deposition shall be filed in court where the cause is pending at least twenty days before the trial. A magistrate of competent authority shall issue subpoenas for witnesses at the request of either party. Attachment may issue to compel at- tendance, and a forfeiture of $10 and all just damages paid the party in whose behalf he is summoned. Refusing to depose when fees have been tendered shall cause commitment to jail, until he deposes and pays costs of commitment. Deposition cannot be used unless the officer to take has appeared at the place within two hours of the time men- tioned in the notice. The deposition subscribed and sworn to b}' the witness, the authority taking shall certify it, seal it up, and deliver it to the person at whose request it was taken, superscribed, "The within deposition of A. B. was taken and sealed up by C. D. (adding his official designation)." No interested person can write the deposition. If re- turned to the clerk of the court unsealed or with the seal broken, it shall be rejected by the court. The provisions for taking to be used in the courts of this state shall be applicable to the taking of depositions to be used in courts without this state. Testimony in perpetuam may be taken on affidavit before a judge of the supreme, superior, county, municipal or city court. § 397. Virginia— IN THE STATE— may be taken by a justice or notary or a commissioner in chancery and, if certified under his hand, may be received without proof of the signature. OUT OF THE STATE — ^if the party resides out of this state, or is out of it in the service thereof, or of the United States, it may be taken before any commis- sioner appointed by the governor of this state, any justice, notary, or other officer authorized to take depositions in the state where the witness may be. IN A POEEIGN COUNTEY— before any person that the par- ties may agree upon in writing, or any American minister plenipoten- tiary, charge d'affaires, consul general, vice consul, commercial agent appointed by the government of the United States, or any other repre- sentative of the United States in a foreign country, or the mayor, or other magistrate of any city, town or corporation in such country or any notary therein. The officer may administer an oath to the witness, take and certify the deposition with his official seal annexed; if he have none, then the genuineness of his signature shall be authenticated by some officer of the state or country, under his official seal, unless the deposition is taken by 'a justice out of this state, but in the United States, or before some person agreed upon in writing by the parties, in which case it shall be received without any seal or authentication of § 398] DEPOSITIONS. 253 the signature. If taken before Bome person agreed upon in writing by the parties other than the officer authorized to take, the said writing must accompany the deposition, or the deposition cannot be read. No commission is necessary to take a deposition except for proving a will. Beasonable notice to be given the adverse party of the time and place of taking. The deposition may be used in several suits between the same parties involving the same controversy. Notice may be served on the party's counsel, if the party is a nonresident. The deposition may be retaken without the consent of the court first obtained, if discreet. Depositions may be read in the case when the witness is dead, out of the state or one of its judges, or a superintendent of a lunatic asylum distant more than thirty miles from the place of trial, or in any public service or office, the duties of which prevent his attending the court, or be unable to attend from sickness or infirmity, or be more than a hundred miles from the place of trial. The latter may not excuse, if good cause be shown the court. When completed it shall be certified and returned, by the officer taking it, to the clerk of the court where the case is pending or to the person before whom it is to be read. When received, the clerk or other person to whom sent, after indorsing thereon the time it was received, shall file it among the papers of the suit. It may be read by either party. Testimony may be perpetuated by filing with a commissioner in chancery a petition stating the matter. § 398. Washington — May be taken to be read in evidence in an ac- tion when witness resides out of the subdistrict (county), more than twenty miles from the place of trial; is about to leave and go more than twenty miles from the place of trial and remain; is sick, infirm, aged and unable to attend trial, or resides out of the state. Either party may commence taking testimony after service of summons upon the defendants. IN THE STATE — may be taken before a judge of the superior court, justice of the peace, clerk of the supreme or superior court, mayor of a city, or notary public. Notice to be served on the adverse party, his agent or attorney of record, with time to attend by the usual route a*nd three days ' preparation, exclusive of day of service and the examination day; notice to state if any adjournment, also to specify the tribunal where it is to be used and the time and place of taking. Officer may compel attendance of witnesses within twenty miles of his abode, under penalty. OUT OF THE STATE— may be taken by a judge, justice or chancellor or clerk of a court of record, justice of the peace, notary, mayor, chief magistrate of any city or town, or by a special commission from any court of this state. Commission to take in or out of the state may, issue from any superior court or judge thereof. The commissioner must be named in the commission by the clerk, under the court seal; deposition must be upon written interroga- tories, unless the parties otherwise agree. Before granting, the party applying shall serve notice of application on the adverse party, stating time and place, notice to be served as before stated. The court or judge phall settle the interrogatories the clerk shall attach to the commission. If the adverse party is a nonresident and has no agent or attorney 254 NOTARIES PUBLIC. [§ 399 therein, notie* may be by three consecutive weeks' publication in the county newspaper. If not printed, then in a state paper circulat- ing generally in the county. It must contain all that is required in the notice and proved by affidavit. Deposition to be written by the officer or by the witness, or some disinterested person, in the presence and under the direction of the officer. It shall be carefully read to or by the witness, corrected and subscribed to by him. If taken up on notice it shall be certified by the officer. The officer to inclose it in an envelope, seal and direct it to the clerk of the court or justice, where case is pending, or as the parties in writing may agree. Delivery by mail or in person. It may be used by either party at the trial. It may be used in any other action in the same cause, between the same parties; provided, it shall have been filed with the court in the meantime. May be used on appeal. Deposition to perpetuate testimony may be taken on a sworn statement in writing by the party in interest, by filing same in the superior court. If pertaining to land, it shall be filed in the county where the land lies; in other cases, where the parties reside. § 399. West Virginia — May be taken in case pending, without a commission in or out of the state, by a justice or notary, commissioner in chancery, or before any officer authorized to take, in the county or state where they may be taken, and if certified under his hand, may be received without proof of the signature. On an affidavit that a wit- ness resides out of the state, or is out of it in the service thereof, or of the United States; his deposition may be taken by or before any com- missioner appointed by the governor of this state, or any justice, notary, or officer so authorized to take in the state where the witness may be. If in a foreign country, by or before such commissioner or commissioners agreed on by the parties or appointed by the court, or before any United States American minister, plenipotentiary, charge d'affaires, consul general, consul, vice consul, consular agent, vice deputy con- sular agent, commercial agent or vice commercial agent, or by or be- fore the mayor or other chief magistrate of any city,' town or corpora- tion in such country or any notary public thereof. The person taking may administer an oath to the witness, take and certify the deposi- tions with his official seal annexed, and, if he have none, the genuine- ness of his signature shall be authenticated by some officer of the same state or country, under his official seal; reasonable notice to be given the adverse party of the time and place of the taking. In a suit in equity, a deposition may be read if returned before the hearing of the cause, although after an interlocutory decree, if it be as to a matter not thereby adjudged, and be returned before a final decree. In a case at law, when taken on such notice, it may be read in such case, if when offered the witness be dead, out of the state, or one of its judges, or in any public office or service, the duties of which prevent attending the court, or sickness, infirmity, out of the county where case is pend- ing; the latter, on motion to the court before trial, may not excuse. § 400] DEPOSITIONS. 255 A-fter filing it may be read by either party. Depositions to perpetuate testimony may be taken on petition to a commissioner in chancery. S 400. Wisconsin — May be taken on application to the court or pre- iiding judge; court to determine whether on verbal or written interog- atories; the deponent to be sworn, ofiicer taking to insert every answer or declaration; deposition to be read and subscribed to by the witness, unless waived by counsel and so noted, sealed and delivered to the clerk of the court where matter is pending. IN THE STATE — may be taken by a justice of the peace, notary, court commissioner or other authorized officer; any time after action begun, notice to adverse party, agent, or attorney, giving witnesses' names, officer, time and place. Three days' notice and one day for each 300 miles or fraction. When taken without the state, commission may issue from any court of record. The party desiring it may prepare his interrogatories, state the conmiissioner pro- posed name of witness, residence of each, serve a copy on the adverse party; within ten days commission -will issue, subject to the objections of adverse party. OUTSIDE THE STATE — ^may be taken before any judge or justice, court commissioner or master in chancery of any court of record in the United States or state, notary, justice of the peace, commis- sioner of deeds appointed by the governor of this state, or special com- missioner. If for use in a court not of record, not more than thirty days ' notice to be given; if for a court of record, ten days' notice to be given. One day's notice shall be sufficient in case of the depositions of addi- tional witnesses desired to be examined, given during the course of the taking of any deposition where the parties on each side appear. In case the officer fails to appear, it may be taken before any other officer authorized by law. But in any action, in any court, no notice of the taking need be given to a defendant, who, having been served with process, fails to appear within the time allowed. IN A FOEEIGN COUNTEY— may be taken by commission by any judge or clerk of a court of such country, any notary, consul, vice consul, deputy consul or consular agent of the United States, resident in such country, by any officer authorized by the laws of the United States, or by a com- missioner or commissioners, whether otherwise authorized or not, ap- pointed for that purpose by such commission. When it shall appear to the judge of the court from which the commission issues that the witness is unable to speak or understand the English language, such judge may appoint a competent and disinterested person to translate the commis- sion, rules, interrogatories, etc. Same shall be sent to the commissioner in place of the original papers, or such as have been translated. Upon the return of the commission and deposition such judge shall In like manner cause the same to be translated into English, and all other proceedings; such transaction shall be filed. The translator shall ap- pend his affidavit to the translation, stating that he knows both lan- guages and that he truly translated and that it is correct; the same effect shall be had as if all the proceedings were in English, but the trial court, upon the deposition being offered in evidence, may admit the testimony of witnesses learned in such foreign language for the 356 NOTAEIES PUBLIC. [§ 401 correction of errors, and if it shall appear that the first translation was in any respect so incorrect as to mislead the witness, the court may in discretion continue the cause for the further taking of testimony. Sub- poena may issue compelling attendance of witnesses in this or other itates. FEES— witness, per day, $1.50; half day, 75c; copying papers, 10c per folio; travel, 4c per mile each way in the state; justice taking 12c per folio. Each party to pay his commissioner and witnesses. § 401. Wyoming— IN THIS STATE— may be taken before a judge or clerk of the supreme or district court, a justice of the peace, notary public, mayor or chief magistrate of a municipal corporation, or any other person authorized to administer oaths, or any person empowered by a special commission. OUT OF THE STATE — may be taken before a judge, justice or chancellor of any court of record, a justice of the peace, notary public, mayor or chief magistrate of any municipal cor- poration, a commissioner appointed by the governor of this state to take depositions, or any other person authorized to administer oaths, or any person authorized by a special commission from this state; provided, that when a deposition is taken by an officer not having a seal, his jurat shall be accompanied by a certificate of the clerk of the county in which same is taken, setting forth the fact that the officer is such officer, and that his signature is genuine. Either party may commence taking tes- timony by deposition after service upon the defendant. Officer taking must not be a relative or interested in the action. Any court of record of the state, or a judge, may grant a commission to take depositions within or without the state, to be issued by the clerk under the seal of the court. The persons to whom issued must be named therein, and deposition must be taken on written interrogatories unless parties other- wise agree. Written notice to be given the adverse party, unless taken under special commission, must specify the action, name of the court where it is to be used, the time and place of takiiJg, and in case the deposition of a party to the suit be taken, it shall not be used in his own behalf, unless the notice so specifies; it shall be served upon the adverse party, his agent or attorney of record, or left at their usual abode; it shall only be used against such parties as are so served. Sufficient time, exclusive of Sundays, day of service, and one day of preparation, and time for travel, shall be allowed. May be adjourned from day to day if so stated in the notice. Notice by publication may be given when adverse party is a nonresident, and has no agent or attorney of record in the state; the publication must be for three con- secutive weeks in a newspaper published in the county; if no newspaper there, then in one published in the state circulating generally in the county; proved by affidavit; deposition to be written in the presence of the officer, by "him or the witness or some disinterested person, and subscribed to by the witness. Officers' certificate to show that the witness was sworn to testify the truth, the whole truth and nothing but the truth; that the deposition was reduced to writing by some proper person, and subscribed to in his presence; that it was taken at the time and place specified in the notice. It shall be sealed in an envelope § 402] DEPOSITIONS. 257 indorsed with the title of the cause, the name of the officer taking; he shall address and transmit it to the clerk of the court of the action, there to remain unopened subject to the court's orders, or the request of the party to the action, or his attorney. It must bo filed in court at least one day before trial. If taken out of this state by an authorized officer, it may be taken in this form or in the form authorized where taken; in the latter case the certificate shall be deemed prima facie, as made in accordance with the laws of the place where made when it so certifies. Subpoena for witness shall be issued by the officer. A witness shall not be compelled to go out of his county. Depositions may be used only when the witness does not reside in or is absent from the county where the action is pending; when dead, aged, infirm or im- prisoned; when the testimony is required upon a motion, or the oral examination is not required. It may be read in any stage of the action, or in any other action upon the same matter, between the parties. A deposition taken by an authorized officer having a seal of office shall be admitted in evidence upon the certificate and signature of such officer, under the seal of the court of which he is an officer, or his official seal, and no other act of authentication is required. If he has no official seal, and is not taken in this state, it shall be certified and signed by the officer and further authenticated, either by parol proof in court or by the certificate and seal of the secretary or other officer of the state who is the custodian of the great seal of the state, or the certificate and seal of the clerk or prothonotary of any court of the state where taken, attesting that such officer was at the time of taking authorized to take. If taken in this state by an officer not having a seal, or within or without this state under a special commission, the official signature of the officer or commissioner is sufficient, and when not certified according to law, the fact neglected may be shown by parol proof. FEES — 15c per folio and $5 for all other services. § 402. Canada — Of witnesses outside of the province may be taken by commission upon interrogatories in discretion of court. Open com- mission can issue by consent of parties. 17 CHAPTER V. NEGOTIABLE INSTRUMENTS. § 403. Definition and Nature of Negotiable Instruments; Parties. § 404. — Negotiable Paper in General. — A negotiable in- strument is any written instrument which may be transferred by indorsement and delivery, or by delivery alone, so as to give the indorsee the legal title and enable him to sue in his own name. In a narrower sense it indicates those instruments the indorsee of which, under the law merchant, takes free of certain equities and defenses between the original parties.^ The term "negotiable" indicates that certain instruments, so described, are given by law a property by virtue of which they may be transferred by the payee therein, and his trans- ferees successively, to vest in each succeeding transferee the title thereto, unaffected by certain defenses to which they might have been subjected in the hands of the immediate or any transferer, and to which non-negotiable paper would be subject notwithstanding such transfer; provided the transfer is made according to the rules established to govern com- mercial paper.2 § 405. — Promissory Notes. — "A negotiable promissory note * * * is an unconditional promise in writing, made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money, to order or to bearer. When a note is drawn to the maker's own order, it is not complete until indorsed by him."' A promissory note must contain on its face an ex- 1 Cyc. Iiaw Diet. 8 Uniform Negotiable Instru- 2 Bays' Commercial Law, vol. 2, ments Law, § 184, post, p. 314. p. 21. The parties to a promissory note Non-negotiable paper is payable are: The maker, who makes it; only to the payee, and mentions no the drawee, to whom it is payable; "order" or bearer. the indorser, who writes his name on its back. £58 § 407] NEGOTIABLE INSTRUMENTS. 259 press promise to pay money. An instrument reading: "I. 0. U. the sum of $17.00 for value received, ' ' signed by the maker, is not a promissory note.* § 406. — Certificates of Deposit. — A certificate of deposit is an instrument issued by a bank reciting a deposit of a certain sum of money, payable on demand, or at a fixed time. It is negotiable, if drawn properly, being a form of promissory note.^ § 407. — Bills of Exchange. — "A bill of exchange is an un- conditional order in writing, addressed by one person to an- other, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money, to order or to bearer."^ The law recognizes as bills of exchange only instruments of writing for the payment of money.' The par- ties are the drawer, who makes the bill; the payee, to whom it is to be paid; the drawee, to whom it is directed; when the latter accepts it by writing his name across its face, he is the acceptor. When the payee writes his name on its back, he is the indorser. Persons subsequently writing their names upon its back likewise become indorsers. Bills are either inland or foreign. An inland bill is a bill drawn and pay- able within the same country; all others are foreign bills.^ If drawn in "Wisconsin, but dated in Illinois, and is between citizens of Illinois, it is an inland bill.^ Is a written engagement by one 6 Uniform Negotiable Instru- person to pay absolutely and un- ments Law, §§ 12&-131, post, conditionally to another person p. 307. therein named, or to his order, or 7 Bradley v. Morris, 4 111. (3 to the bearer, a certain sum of Scam.) 182. money at a specified time, or on 8 Bays' Commercial Law, vol. 2, demand, or at sight. Hall v. p. 28. Farmer, 5 Denio (N. Y.) 484, aff'd The states of the Union are for- 2 N. Y. 553; see also Coolidge v. eign to each other within the Euggles, 15 Mass. 387; Klauber v. meaning of this article. Mason v. BiggerstafE, 47 Wis. 551, 3 N. W. Dousay, 35 111. 424, 85 Am. Dec. 357 32 Am. Rep. 773. 368; Freeman's Bank v. Perkins, 4 Gray V. Eooke, 151 Mass. 115, 18 Me. 292; Dickins v. Boal, 10 23 N. B. 835, 7 L. B. A. 392, 21 Pet. (U. S.) 572, 9 L. Ed. 538. Am. St. Hep. 434. ' Strawbridge v. Robinson, 10 6 Bays' Commercial Law, vol. 2, HI. (5 Gilm.) 470, 50 Am. Dec. I' 32. 420. 260 NOTARIES PUBLIC. [§ 408 § 408. — Checks. — "A check is a bill of exchange drawn on a bank, payable on demand."^" It is not a check if drawn payable in the future, but a true bill of exchange. Its parties are the drawer, who makes it; the payee, the one to be paid; the drawee, the bank on which it is drawn. When the payee writes his name on its back, he is the indarser. A check dif- fers from a bill of exchange in that it is not due until pre- sented, and consequently may be negotiated before present- ment, in that the drawer of a check is not discharged for want of immediate presentment with due^ diligence; in that the death of the drawer rescinds the authority of the banker to pay it, while the death of a drawer of a bill of exchange does not alter the relations of the parties; and in the fact that checks are always payable without grace.^^ Checks should always be presented to the bank without delay, as either the drawer or bank might fail, the drawer might die, or check out his balance at the bank. A certified check is a check which has been recognized by the proper officer as a valid appropriation of the amount of money therein specified to the person therein named, and which bears upon itself the evidence of such recognition. Certification is usually accomplished by writing the name of the officer authorized to bind the bank in that manner across the face of the check.^^ An architect's certificate notifying the owner of a building that a certain sum was due the con- tractors, which was indorsed by the owner in the form of an order to his banker, is a cheek and not a bill of exchange.^' A check imports a payment, not a loan.^* When a check is sent to some other place than where the bank is located upon which it is drawn, and it is put into a bank for coUec- 10 Uniform Negotiable Instru- order, a named sum of money, ments Law, §§ 185-189, post, Cyc. Ljaw Diet, p. 314. 11 Cye. Law Diet. A cheek is a written order or 12 Cyc. Law Diet, request, addressed to a bank or IS Industrial Bank v. Bowes, persons carrying on the business 165 111. 70, 46 N. E. 10, 56 Am. of banking, by a party having St. Eep. 228. "' money in their hands, on deposit, 14 Bernard v. Fee's Estate, 129 desiring them to pay on present- Mich. 429, 88 N. W. 1052, citing ment, to a person named therein, Downey v. Andrus, 43 Mich. 65, 4 or bearer, or to such person, or N. W. 628. § 411] . NEGOTIABLE IlfSTEUMENTS. 361 tion, it is the duty of the bank to forward it, in proper time, to a subagent, selected with due care. The bank upon which it is drawn is not a suitable agent for its collection.^* § 409. — Drafts. — "Draft" is the common term for a bill of exchange.^^ A bank draft is a biU of exchange payable on demand, drawn by one banker or bank upon another banker or bank to the order of a person therein named. It is nego- tiable as usually drawn.^' § 410. — ^Days of Grace. — ^Negotiable instruments differ from other simple contracts in the respect of their transferability as already indicated, in the fact that a consideration will be presumed unless the contrary is shown, and in the fact that three days of grace were allowed by the common law, mean- ing that the instrument could not be sued on until three days had elapsed after the date named in the instrument for its maturity.^* Because of rapid transit, and telegraph and tele- phone communication, days of grace have been abolished in almost all states. The Uniform Negotiable Instruments Act, adopted in most states, expressly abolishes days of grace. ^^ The law of the place of payment must govern as to whether days of grace are allowed on commercial paper.*" § 411. Legal Holidays. — If a bill falls due on a Sunday or legal holiday, if entitled to grace, it is deemed to be due on the preceding day; if not entitled to grace, it is deemed to be due on the succeeding day. The computation of time is determined by the law of the place of payment, if shown. In reckoning the twenty-four hours, nonbusiness days must be excluded.'^ IBCfirson, Pine, Scott & Co. v. T. 190; id., 13 N. T. 290, 64 Am. Fineher, 129 Mich. 687, 89 N. W. Bee. 550. 570, 95 Am. St. Rep. 449. Note: Days of grace originated 16 Cyc. Law Diet. in the distance of travel consum- 17 Bays' Commercial Law, vol. ing delay in presentation. — Ed. 2, p. 33. 19 Uniform "Negotiable Instru- 18 Bays' Commercial Law, vol. 2, ments Law, § 85, post, p. 302. p. 25. ZOSkelton v. Dustin, 92 111. 49. It is premature to bring an ac- 21 Avery v. Stewart, 2 Conn. 69, tion on a promissory note on the 7 Am. Dee. 240; City Bank v. Cut- last day of grace. Wiesinger v. ter, 3 Pick. (Mass.) 414; Salter v. First Nat. Bank, 106 Mich. 291, 64 Burt, 20 Wend. (N. T.) 205, 32 N. W. 59; Bowen v. Newell, 8 N. Am. Dec. 530. 363 NOTAEIES PUBLIC. [§ 412 CONTRACTS OF PARTIES; LIABILITIES. § 412. Maker of Note. — The maker's contract is to pay the note according to its tenor, to the payee or his transferee. He cannot deny the payee's existence or his then capacity to indorse. His liability is primary.** A blank indorsement on a note above or below that of the payee renders the indorser liable prima facie as maker.** A promissory note signed by the maker through fear of violence, snatched and carried away against his will, is not validly delivered.** § 413. Drawer of Bill. — The drawer's contract is that if the bill be not accepted or paid, according to its tenor, to the payee therein, or his transferee, he, the drawer, wiU pay it, provided the necessary steps are taken to charge him. He cannot deny the payee's existence or his then capacity to indorse. His liability is secondary. He may by apt words negative his liability.** § 414. Drawee of Bill or Check. — A person, firm or cor- poration upon whom a bill or check is drawn cannot be made liable thereon unless there is an acceptance. But to the drawer there may be a liability for failure to accept or failure to pay, if such failure amounts to a breach of contract.*® § 415. Acceptor. — The acceptor of a bill of exchange con- tracts to pay it according to the tenor of his acceptance. He cannot deny the existence of the drawer or payee, or the capacity of the first to draw, the second to indorse the in- strument, or the genuineness of the drawer's signature. His liability is primary.*'' The acceptor of a bill of exchange who dishonors it is liable for (1) the amount of the bill with in- terest (a) from the maturity thereof if the bill be payable on a day certain, or (b) from the time of presentment for payment if the bill be payable on demand; (2) as special 22 Bays ' Commereial Law, vol. 2, 25 Bays ' Commercial Law, vol. 2, p. 108. p. 108. 23 National Bank of Bellows 26 Bays' Commercial Law, voL 2, Falls V. Dorset Marble Co., 61 Vt. p. 109. 106, 17 Atl. 42, 2 L. E. A. 428. 27 Bays ' Commercial Law, vol. 2, 24 Palmer v. Poor, 121 Ind. 135, p. 109. 22 N. E. 984, 6 L. E. A. 469. § 416] NEGOTIABLE INSTRUMENTS. 263 damage, the notarial expenses consequent on dishonor, and (perhaps) the loss on re-exchange incurred by an indorser who has taken up or paid the biU.** § 416, Indorsers. — ^An unqualified indorser warrants the capacity of the prior parties, the genuineness of the instru- ment, the genuineness of his title thereto, that the instrument will not be dishonored by nonacceptance or nonpayment, and undertakes that if for any of these reasons or otherwise the instrument is unpaid at maturity, he will pay the amount thereof to the holder, provided proper steps are taken to charge him. His liability is secondary.** A qualified indorser, or one who negotiates an instrument by mere delivery, i. e., without indorsement, warrants to his immediate transferee, and him only, the capacity of the prior parties, the genuineness of the instrument, the genuineness of his own title, and that he knows of nothing impairing the validity of the instrument.*" The indorser of an accommoda- tion note is responsible for the payment, when taken in good faith for value by a bank.*^ "As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise. "'^ In the absence of special agreement, successive indorsers on an accommodation note of a third person are liable in the same order as indorsers for value.*' A corporation is liable as indorser on commercial paper where notices of protest are addressed to it in its corporate name.** A note presented to the drawer when due, by the agent of the holder, is sufficient to hold the indorser.*^ An in- dorser on a note in the firm's name, subsequently dissolved, 28Ilsley V. Jones, 12 Gray ss Moore v. CusHng, 162 Mass. (Mass.) 260. 594, 39 N. E. 177, 44 Am. St. Eep. 29 Bays ' Commereial Law, vol. 2, 393; Shaw v. Knox, 98 Mass. 214. p. 110. 84 American Nat. Bank v. Junk 30 Bays ' Commercial Law, vol. 2, Bros. Lumber & Mfg. Co., 94 pp. Ill, 112. Tenn. 624, 30 S. W. 753, 28 L.' B. 81 Agawam Nat. Bank v. Down- A. 492. ing, 169 Mass. 297, 47 N. B. 1016. SBBwen v. Wilbor, 99 lU. App. 32 Uniform Negotiable Instru- 132, afE'd 208 Bl. 492, 70 N. E. 575. ments Law, § 68, post, p. 301. 264 NOTAEIES PUBLIC. [§ 417 cannot deny the existence of the firm in order to save himself from liability. A dissolution of partnership has respect to the future only. The parties remain bound for all antecedent engagements.^* § 417, Damages. — The drawer or indorser of a dishonored biU is liable for damages at the following rates: (1) Inland bill^-the amount of the bill with interest from (probably) the time of dishonor. (2) Foreign bill of exchange — the amount of the bill with interest from the time of dishonor, and the notarial expenses, or, if it be payable abroad, the re-exehange, interest and expenses. Re-exchange means the loss resulting from the dishonor of a biU of exchange in a country different from that in which it was drawn or indorsed.*' DUTIES AND LIABILITIES OP NOTARIES. § 418. Notary's Duties Concerning Negotiable Instruments. — At the common law, formal protest and notice by a notary public were only necessary upon foreign bills and notes, and not on inland. Accordingly at the common law, and in the absence of statute, when a notary gives notice and makes the protest, he acts as the holder's agent and not officially.*^ This has been changed by statute in a large number of states so that the act is official.*' The distinction is of importance in determining the liability of a person such as a holder of a negotiable instrument who employs a notary public to make presentment, give notice of dishonor and protest such an in- strument. It is a general rule of agency that a principal is 86 Hubbard v. Matthews, 54 N. 195, 44 L. R. A. 133, 70 Am. St. Y. 43, 13 Am. Bep. 562. Bep. 316. 87 Cyc. Law Diet. At the common law, protest was 38 Tevia v. Bandall, 6 Cal. 632, 65 not evidence of dishonor, but it Am. Dec. 547; Williams v. Parks, has been made so hj statute. 63 Neb. 747, 89 N. W. 395, 56 L. Bives v. Parmley, 18 Ala. 256. B. A. 759. 89 Williams t. Parks, 63 Neb. The giving of notice of dishonor 747, 89 N. W. 395, 56 L. E. A. 759. is not part of the notary's duties, Where notaries are expressly au- he being a mere agent of the thorized by statute to give notice, holder. First Nat. Bank v. Ger- it is an official duty. Williams r. man Rmk, 107 Iowa 543, 78 N. W. Parks, 63 Neb. 747, 89 N. W. 395, 56 li. E. A. 759. § 419] NEGOTIABLE INSTRUMENTS. 265 responsible to third persons who are damaged by torts com- mitted by the agent within the scope of his authority.*" Ac- cordingly, pursuant to this rule, such a principal will be liable for negligence or mistake of a notary employed by him to perform such duties. Apart from the liabilities of third persons who employ no- taries to perform duties with reference to negotiable instru- ments is the liability of the notary himself. In order to prop- erly perform his duties, a notary must have some knowledge of the law of commercial paper — ^the more the better. Grave complications are constantly arising from ignorance or neglect on the part of notaries, resulting in serious loss and damage - either to the notary himself, his bondsmen or his principal.*^ A notary who receives paper to protest owes the proper per- formance of his duty to the principal who requested the act, and to all others affected by such acts.*^ The holder of the note is entitled to rely on the diligence of the notary.*' Where promissory notes are made protestable securities by statute, such protest must be attended with all the incidents _ belonging to foreign bills of exchange.** § 419. Liabilities of Notaxies. — The failure of a notary, selected as a public officer, to discharge his duty is a breach of his bond, and renders him and his bondsmen liable for damages or loss sustained by the party who sought the no- tary's services.** There is no rigljt of action against a notary 40 Bays ' Commercial Law, vol. 4, 44 Tevis v. Bandall, 6 Cal. 632, p. 77. 65 Am. Dee. 547. 41 Post, § 419, Liabilities of 45 Williams v. Parks, 63 Neb. Notaries. 747, 89 N. W. 395, 56 L. R. A. 759; 42 Ohio Nat. Bank v. Hopkins, Wheeler v. State, 9 Heisk. (Tenn.) 8 App. Cas. (D. C.) 146; supported 393, citing Morgan v. Van Ingen, by Britton v. Niocolls, 104 TT. 8. 2 Johns. (N. Y.) 204; Nicholls v. 757, 26 L. Ed. 917. Webb, 8 Wheat. (U. S.) 326, 5 L. Notary receiving paper to pro- Ed. 628. test is agent of owner of paper, A notary is liable for loss occa- and his paramount duty is to him. sioned for his failure to make pro- Ohio Nat. Bank v. Hopkins, 8 App. test when it is required. He is Cas. (D. C.) 146. liable when he neglects to give 43 Second Nat. Bank v. Smith, proper notice to all parties en- 91 N. J. L. 531j 103 Atl. 862, 1 A. titled to notice of dishonor. His L. B. 470. position is the same as an agent 366 NOTAEIES PUBLIC. [§ 420 who is ordered to protest a bill on a wrong day, as the no- tary is not presumed to be a lawyer who is to revise or reverse the decisions of his employer as to the nature of the bill,*^ and if no loss is sustained. by reason of a notary's defective pro- test, no damages can be claimed against him.*'' § 420. Liability of Bank Employing Notary Public. — ^A bank acting as collecting agent for its correspondent, in employing a notary in his official capacity, is bound to place the paper in the hands of a competent and careful notary and pay him for his services the legal fee, charging the same to their cor- respondent.*® A disputed question exists as to the liability of a bank which employs a notary to give notices and protest, arising from the conflict of opinion as to whether such notary is a mere agent, or a public official. The prevailing rule is that the bank is not liable, in cases of negligence or mistake on the part of the notary, if it uses diligence in selecting the official.*® A large number of courts hold, however, that the bank is liable, the notary being regarded as a mere agent.^" in any other line. He can be held liable for mistakes, negligence and due diligence. He is liable for negligence in presenting or pro- testing negotiable papers. First Nat. Bank v. German Bank, 107 Iowa 543, 78 N. W. 195, 44 L. E. A. 733, 70 Am. St. Eep. 216; Dor- chester & Milton Bank v. New England Bank, 1 Gush. (55 Mass.) 177; Warren Bank v. Parker, 8 Gray (Mass.) 221; Bowling t. Ar- thur, 34 Miss. 41; Allen v. Suy- dara, 20 Wend. (N. Y.) 321, 32 Am. Dec. 555; Exchange Nat. Bank v. Third Nat. Bank of New York, 112 tr. S. 276, 28 L. Ed. 722, 5 Sup. Ct. 141. 46 Commercial Bank v. Varnum, 49 N. Y. 269. 47 Franklin v. Smith, 21 Wend. (N. Y.) 624. 48 Pierce v. Indseth, 106 TJ. S. 546, 27 L. Ed. 254, 1 Sup. Ct. 418. 49I'irst Nat. Bank v. German Bank, 107 Iowa 543, 78 N. W. 195, 44 L. E. A. 133, 70 Am. St. Eep. 216; Williams v. Parks, 63 Neb. 747, 89 N. W. 395, 56 L. E. A. 759; First Nat. Bank v. Butler, 41 Ohio St. 519, 52 Am. Eep. 94. See Brit- ton V. Niccolls, 104 U. S. 757, 26 L. Ed. 917. A bank receiving commercial paper for collection, by placing it in the hands of a notary public for protest, is not liable for fail- ure of the notary to perform his duty under the code of Missis- sippi. The liability rests upon the notary and his sureties. Tiernan v. Commercial Bank of Natchez, 7 How. (Miss.) 648, 40 Am. Dec. 83; Bowling V. Arthur, 34 Miss. 41. SODavey v. Jones, 42 N. J. L. 28, 36 Am. Eep. 505. See Brill v. Jefferson Bank, 159 N. Y. App. Div. 461, 144 N. Y. Supp. 539. Henderson v. Smith, 26 W. Va. 829, 53 Am. Eep. 139. § 422] KEGOTIABLE liJ-STEUMBNTS. 267 In one case, in a state where the notary is regarded as an official rather than an agent, a bank was held liable, but the notary in question was an officer of the bank also.*^ PRESENTMENT OF BILL FOR ACCEPTANCE. § 421. Definition of Acceptance. — An acceptance of a bill of exchange is an engagement to pay the bill in money when due. Such acceptances may be absolute, when a positive en- gagement is made to pay the bill according to its tenor; con- ditional, when an undertaking is made to pay the bill on a contingency; partial, when the acceptance varies from the tenor of the bill; qualified, when the acceptance is either con- ditional or partial; and supr.a protest, when the acceptance is after protest for nonacceptance by the drawee, for the honor of the drawer, or a particular indorser. Acceptance may also be express or implied.^^ § 422. Necessity of Presentment for Acceptance. — Present- ment for acceptance is necessary in certain cases to charge the drawer and indorsers, as where the bill is payable after sight, or in any other case where such presentment is necessary in order to fix the maturity of the instrument; or where the biU expressly stipulates that it shall be presented for acceptance; or where the bill is drawn elsewhere than at the residence or place of business of the drawee.^' In other cases presentment for payment at maturity is sufficient. When not required, presentment for acceptance may be made for the purpose of obtaining as soon as possible the liability of the drawee as an 51 Wood Eiver Bank v. First present it for acceptance within a Nat. Bank, 36 Neb. 744, 55 N. W. reasonable time. If he omits to do 239. BO, the drawer and prior indorsers 52 Cyc. Iiaw Diet. are discharged. If payable other- BSTTniform Negotiable Instru- . wise, it may be presented at any ments Law, §§ 143-151, post, time before maturity. Strong & p. 309. See also Allen v. Suydam, "Wiley Bros. v. King, 35 HI. 9, 9 20 Wend. (N. T.) 321, 32 Am. Dec. ' Am. Dec. 336; Pryor v. Bowman, 555; Walker v. Stetson, 19 Ohio 38 Iowa 92; Walsh v. Dart, 23 Wis. St. 400, 2 Am. Eep. 405. 334, 99 Am. Dec. 177; Wallace v. The holder of a bill of exchange, Agry, 4 Mason (U. S.) 336, Fed. payable at or after sight, is bound Cas. No. 17096. either to negotiate it away or to 268 NOTARIES PtTBLIO. [§ 433 acceptor, and to give, in case of nonacceptanee, a right of im- mediate recourse against the drawee and the indorsers.** § 423. SuiHciency of Presentment for Acceptance. — In order to charge the parties secondarily liable, presentment of a bill for acceptance must be made by or on behalf of the holder; within a reasonable time (or negotiated within a reasonable time) on a business day before the instrument is overdue; at a reasonable hour ; and to the drawee, his agent in that behalf, or his personal representative.^* The party who must make presentment must be the holder of the bill, or some one who acts in his behalf.*^ Any person in possession of a bill of exchange may present it for accept- ance." There is no exact date on which presentment must be made, but it must be made before the instrument is overdue, on a business day. Such day must fall within a reasonable time from the time the instrument is delivered to the payee, or within a reasonable time from the last transfer.** The holder must use due diligence,*' and delay of more than a year in the proper presentation of a draft agreed to be accepted is unrea- sonable.®" The hour of presentment must be reasonable, or if accept- ance is by or at a bank, during banking hours. What is a rea- sonable hour depends on the particular customs of the com- munity. What might be a reasonable hour in a rural district might not be such in a large city.®* Presentment must be made to the drawee personally, or to some person who has authority to accept or refuse acceptance on his behalf.®^ If there are several drawees, acceptance must be made to all, except where one or more are agents for the others in that behalf or are partners. 64 Bays ' Commercial Law, vol. 2, 59 Baer v. Liohten, 24 HI. App. p. 122. 311. B5 Bays ' Commercial Law, vol. 2, 60 First Nat. Bank of Lacon v. p. 123. Bensley, 2 Fed. 609. 56 Bays ' Commercial Law, vol. 2, 61 Bays ' Commercial Law, vol. 2, p. 123. pp. 119, 124. B7 Freeman v. Boynton, 7 Mass. 62 Bays ' Commercial Law, vol. 2, 483. p. 124; Sharpe v. Drew, 9 Ind. 281. 58 Bays ' Commercial Law, vol. 2, p. 123. § 424] NEGOTIABLE INSTSDMENTS. 269 § 424. Manner of Acceptance. — An acceptance must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money.®' If the holder demands it, acceptance must be on the face of the bill; otherwise he may treat the bill as dishonored. But a bill may be accepted by a separate paper, in which case it will be binding only in favor of one who received the bill for value.** ' An absolute promise to ac- cept a bill thereafter to be drawn will operate as an accept- ance in favor of any one who on the faith thereof received the bill for value.*^ A letter written within a reasonable time, describing a bill of exchange and promising to accept it, is, if shown to the person who afterwards takes it on the strength 68 Bays ' Coimneroial Law, vol. 2, p. 73. An oral acceptance was binding in Illinois before tbe Negotiable Instruments Act took effect. Ed- ward Hines liumber Co. v. Ander- son, 141 ni. App. 527; Soudder v. Union Nat. Bank of Chicago, 91 U. S. 406, 23 L. Ed. 245. 64 Bays ' Commercial Law, vol. 2, p. 74. An acceptance may be: First — In writing on the bill, or on a separate paper. Second — Oral, implied from acts of the drawer. Third — A written or verbal prom- ise to accept, either before or af- ter the existence of the bilL Time — Such promise must be made within a reasonable time before or after the issue of the bill. It must specify the bill to be drawn so as to distinguish it from any other. Promise — It must be taken by the holder on the faith of such promise. Coffman v. D. C. Campbell & Co., 87 HI. 98; Sturges V. Fourth Nat. Bank of Chicago, 75 111. 595; Nelson v. First Nat. Bank of Chicago, 48 111. 36, 95 Am. Dec. 510; First Nat. Bank of Chicago v. Pettit, 41 LI. 492; Jones v. State Bank of Iowa, 34 ni. 313; Scudder v. Union Nat. Bank of Chicago, 91 U. S. 406, 23 L. Ed. 245. Acceptance is usually indicated by writing across the face of the biU the word "Accepted," adding the date and party's signature. A promise in writing to accept a bill of exchange will not, in law, amount to acceptance, unless the bill was taken on the strength of the letter. Kennedy v. Geddes & Co., 8 Port. (Ala.) 263, 33 Am. Dee. 289; Mayhew v. Prince, 11 Mass. 54; Goodrich v. Gordon, 15 Johns. (N. Y.) 6; McEvers v. Ma- son, Hodgson & Co., 10 Johns. (N. T.) 207; Parker v. Greele, 2 Wend. (N. T.) 545, afE'd 5 Wend. (N. Y.) 414. 66 Bays ' Commercial Law, vol. 2, p. 74. 3'J'O NOTARIES PUBLIC. [§ 425 of the letter, a virtual acceptance, binding the person making the promise.^® § 425. Presumption of Acceptance from Retention of Bill. — The Uniform Negotiable Instruments Act provides that where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such de- livery, or within such other period as the holder may allow, to return the bill accepted, or nonaccepted to the holder, he will be deemed to have accepted the same.^'' The drawee has the right to a reasonable time, usually twenty-four hours, to ascertain the state of his accounts between himself and the drawer. After the expiration of such time, the holder has the right to know the drawee's attitude. ■ The concensus of authority is, however, that the duty rests on the holder to demand either acceptance or return of the bill, and that mere inaction on the part of the drawee has no effect.®' PRESENTMENT FOR PAYMENT. § 426. Necessity of Presentment for Payment at Maturity. — Presentment of a note to the maker thereof, or of an ac- cepted bill to the acceptor thereof, at its maturity, is not nec- essary to fix the liability of such maker or acceptor. But if a place of payment is provided in the instrument, and the party liable thereon has funds there at maturity to pay it, but no presentment is there and then made, that will bar further interest and costs, and the right to have the instrument paid at such place. As to the parties secondarily liable, present- ment for payment at maturity is necessary to charge them, except where excused or waived.®^ The parties secondarily liable are not discharged, notwithstanding lack of present- ment, when the circumstances excuse such presentment. Ac- 66 Kennedy v. Geddes & Co., 8 tention of the bill is not aecept- Port. (Ala.) 263, 33 Am. Dee. 289; ance." — Ed. Coolidge V. Payson, 2 Wheat. (TJ. 68 Bays ' Commercial Law, vol. 2, S.) 66, 4 L. Ed. 185. p. 75, citing "Westberg v. Chicago 67 Uniform Negotiable Instru- Lumber & Coal Co., 117 Wis. 589 ments Law, § 137, post, p. 308. 94 N. W. 572. Note : Illinois has omitted this 69 Bays ' Commercial Law, vol. 2 section in enacting the Act. Wis- pp. 115, 116. consin has added that "mere r©- § 439] NEGOTIABLE INSTKUMENTS. 271 cordingly presentment is not required where the drawer has no right to expect or require the drawee or acceptor to paj', where an instrument is made or accepted to accommodate an indorser, where after the exercise of reasonable diligence it cannot be made, where the drawee is a fictitious person, or where the parties entitled to presentment waive it by word or conduct.'"' § 427. Sufficiency of Presentment. § 428. — By Whom Presentment Must Be Made. — ^Present- ment for payment must be made by the holder of the instru- ment, or his agent in that behalf. Possession of a negotiable instrument payable to bearer, or properly iadorsed, shows prima facie authority to receive payment. If the holder is dead, his personal representative should make presentment.'^ § 429. — Time. — The date of presentment is the date of ma- turity of the instrument. Paper matures without grace on the date specified for payment, as days of grace, which were al- lowed at the common law, have been abolished in most states.'* Demand paper must be presented within a reasonable time to charge the drawer or indorsers.'* And where no time is spec- ified, the law implies that it must be presented within a rea- sonable time. More than a year is unreasonable.''* What constitutes reasonable time depends on the facts in each partic- ular case, and must be judged aecordingly.'* A reasonable time for presentment for payment of a check, where all the parties reside in the same city, would be until the close of banking hours of the next day after the giving of the check.''^ 70 Bays ' Commercial Law, vol. 2, 78 Bays ' Commercial Law, vol. 2, pp. 120, 121. p. 118. 71 Bays ' Commercial Law, vol. 2, 74 First Nat. Bank of Lacon v. p. 117. Bensley, 2 Fed. 609. 72 Bays ' Commercial Law, vol. 2, 75MonteIius v. Charles, 76 III. p. 118. 303. In the absence of statutory pro- 76 Brown v. Schintz, 98 111. App. vision to the contrary, a bill pre- 452, citing Gage Hotel Co. v. sented for payment on the last day Union Nat. Bank, 171 III. 531, 49 of grace is presented in proper N. E. 420, 39 L. E. A. 479, 63 Am. time. Eeese v. Mitchell, 41 HI. St. Rep. 270; Biekford v. First 365; Elston v. Dewes, 28 111. 436; Nat. Bank of Chicago, 42 HI. 238, Cook V. Benick, 19 HI. 598. 89 Am. Dec. 436; Munn v. Burch, 25 HI. 35. 372 NOTARIES PUBLIC. [§ 430 The holder's neglect to present for payment at maturity, only affects his remedy against the drawer in case of the latter 's insolvency occurring in the meantime, or some event to the prejudice of the drawer." A note payable Feb. 1, 1839, pre- sented at bank and protested June 9, 1842, did not discharge the maker in the absence of proof that he had funds there at the appointed day, nor that he has sustained any loss or in- jury by the delay in presentment." The hour of presentment must be a reasonable hour, or if payable at a bank, during banking hours, unless the party liable has no funds there, in which case presentment before the bank is closed is sufBcient.'® When not presented at a bank it may be presented any hour before bedtime.^" A note presented during business hours, at the place of payment, and payment demanded, which the maker refused, the protesting being made on the same day was not premature.*^ The notary's protest is competent evidence of its nonpay- ment. The law of the place where the bill is payable governs as to time of presentment and payment.** § 430. — Excuses for Delay. — ^An impossibility in presenting for payment is about the only excuse admissible. The inquiry will always be whether, imder the circumstances, due diligence has been used. These circumstances must be stated in the certificate, that the court and jury may see whether there has been due diligence. There must appear some fact to excuse demand, as that the maker could not be found at his last place of business, or that he had absconded, left the state, his place of residence deserted, or that the indorser, and others likely to know, had been inquired of and could not tell, or some other fact as recognized in the books. The liability of the indorser depends upon the diligence of the holder in de- manding payment of the maker. The question of diligence 77 Springfield Marine & Fire Ins. 80 Skelton t. Dnstin, 92 HI. 49. Co. V. Tineher, 30 HI. 399. 81 Guignon v. Union Trust Co., 78 Bradford v. Cooper, 1 La. 53 ni. App. 581, aff'd 156 HI. 135, Ann. 325; Wallace v. McConnell, 40 N. E. 556, 47 Am. St. Bep. 186. 13 Pet. (tJ. S.) 136, 10 L. Ed. 95. 82Wooley v. Lyon, 117 111. 244, 79 Bays' Commercial La-w, vol. 2, 6 N. E. 885, 57 Am. Eep. 867; p. 119. Pierce t. Indseth, 106 tX. S. 546, 27 L. Ed. 254, 1 Sup. Ct. 418. § 432] NEGOTIABLE INSTRUMENTS. 273 is one of law and fact, to be determined by the court and jury and not to be certified by the notary.*' § 431. — ^Place of Presentment. — If there is a place of pre- sentment specified, of course that governs, but if no place is specified, the instrument must be presented at the address given, or, if none, at the usual place of business or residence, or in any other case where the party can be found, or at his last known place of residence.^* It has been held that if, after the making and indorsement of the note, the maker absconds or moves out of the state, the holder is not bound to follow him to make the demand.*^ If demand at the place designated in the contract became impossible, as if the bank had ceased to exist, then demand at the place is excused. It is. the exist- ence, or nonexistence of the bank, as a place of payment, that excuses the want of demand at that place, and not the state of its assets, nor their location, nor the amount or character of its business. "When a particular place of payment is agreed upon, and the demand is not excused or made at such place, no personal demand of the maker can in any way fix a liabil- ity on the indorser of the paper sued upon. If a drawer of a note or acceptor of a biU, having a regular place of business, is absent from it, or has absconded before the day of pay- ment, or if his house be closed, notice of such fact is equiv- alent to notice of the demand and dishonor of the paper.** "Where the maker and indorser of a bill of exchange reside in one state and the payment is to be made in another state, the parties elect to make the bill foreign and protest must be made where it is payable.*' § 432. — To Whom Presented. — ^Presentment must be made to the person himself, or to his agent, or if he is absent or in- 83 Cockrill V. Loewenstine & or wherever they can be found. Bro., 9 Heisk. (Tenn.) 306. No formal demand is necessary 84 Bays' Commercial Law, vol. 2, where the bill is payable at a p. 119. bank. Wing t. Beach, 31 Bl. App. If not indicated on the instm- 78. ment where it is payable, then it 86 Anderson v. Drake, 14 Johns, should be presented at the party's (N. T.) 114. place of business during his busi- 86Bynum v. Apperson, 9 Heisk. ness hours. If they have no place (Tenn.) 632. of business, then at the dwelling, 87 Warren v. Warren, 16 Me. 259. 18 274 NOTARIES PUBLIC. [§ 433 accessible, then to any person found at the place where pre- sentment is made. If the person liable is dead, his personal representative must be sought out, if with reasonable dili- gence he can be found.*^ In the absence of proof to the con- trary, it is sufficient to show a demand for payment of the drawer and his refusal.^^ § 433. — ^Majiner of Presentment. — The party called upon to pay an instrument is entitled to have it exhibited, and due presentment is not made unless the instrument is exhibited. It has been held, however, that if the instrument is lost or mislaid, presentment of a copy with a promise of reasonable indemnity is a good presentment to charge the drawer and indorsers.®? § 434. —Bank's Duty to Apply Funds of Paxty Liable.— If an instrument is payable at a certaiu bank, and on the date of maturity the party liable thereon has funds on deposit at such bank, the Negotiable Instruments Act provides that the fact is equivalent to an order upon the bank to pay the in- strument, if there are funds sufficient for that purpose.^^ This was formerly a disputed question and courts have held both ways on the matter. PKOTBST. § 435. Definition; Nature and Object. — ^Protest is a notarial act, made for want of payment of a promissory note, or for want of acceptance or payment of a bill of exchange, by a notary public, in which it is declared that all parties to such 88 Bays' Commercial Law, vol. 2, personally acquainted -with the p. 119. party in charge where the paper Demand may be made of the is payable. Bank of Cooperstown maker of the note, or of the ac- v. Woods, 28 N. T. 561. ceptor of the bill, or of their res- 89 Hunt v. Maybee, 7 N". Y. 266. ident agent if the parties them- 9" Bays ' Commercial Law, vol. 2, selves cannot be conveniently p. 120. reached. The maker of a note 91 Negotiable Instruments Law, should be present personally or by S 87, post, p. 303. agent at the place of payment, Note: Illinois and Nebraska prepared to make the payment. It have omitted this section in en- is not necessary that the person acting the statute. — Ed. making the presentment should be § 437] NEGOTIABLE INSTRUMENTS. 275 instruments will be held responsible to the holder for all dam- ages, exchanges, re-exchanges, etc.®^ The term is not appli- cable, technically, to promissory notes, but by general usage includes all acts necessary by law to charge an indorser. In business, when a note is said to be protested, something more is understood than the official declaration of a notary. A re- quest by an indorser to the indorsees "not to protest, that he would waive the necessity thereof," includes all acts pop- ularly accepted by the term. The only thing necessary for the indorsees to do is to demand payment of the maker and give notice to their indorser.^* It includes all that is neces- sary to hold the indorsers.®* The protest is evidence of de- mand and protest.®* This is the formal notice to the world of the dishonor of a negotiable instrument, notice of which is sent to each and every party interested, either as majker, drawer, indorser or acceptor of it. The statutes of Illinois defining the duties of notary public "protests" are but declar- atory of their duties in this state upon the subject.®^ § 436. Necessity of Protest. — Any bill which appears on its face to be a foreign bill must be protested for nonaccept- ance or nonpayment as the ease may be, else the drawer and indorsers will be discharged.®' Inland bills and promissory notes do not need to be protested, but often are, to furnish evidence of due presentment and giving notice of dishonor.®* § 437. Who Anthorized to Make Protest. — Protest may be 92 Cyc. Law. Diet. the omission ; but the omission to 83 Coddington v. Davis, 1 N. T. allege protest in an action, if an 186. objection at all, is only one of 94 City Sav. Bank v. Hopson, 53 form. It cannot be reached by Conn. 453, 5 Atl. 601. general demurrer. Hart v. Otis, 95 Dickins v. Beal, 10 Pet. (U. 41 HI. App. 431. It must be neces- S.) 572, 9 L. Ed. 538. sary in order to fix the indorser 's 96 Skelton v. Dustin, 92 111. 49. liability, otherwise he cannot be 97 Bays ' Commercial Law, vol. 2, subjected to costs of protest. Mc p. 128; Uniform Negotiable In- Kay v. Hinman, 13 Neb. 83, 13 N, struments Law, S 152 et seg., W. 15. post, p. 310. 98 Bays ' Commercial Law, vol. 2, The protest of a. foreign bill p. 128. must be made in order to charge An inland bill need not be pro the drawer or indorser, unless tested. Smith v. Ourlee, 59 111 some good excuse can be made for 221. 376 KOTASIES PUBLIC. [§ 4=38 made by a notary public, or by any respectable resident of the place wbere the bill is dishonored, in the presence of two or more credible witnesses.'^ Almost universally, protest is made by a notary public. The other provision is made in case a notary is not available.^ Such protest must be made by the notary in person.* A notarial certificate of protest stating that the presentment and demand were made by the notary, when they were made by his clerk, voids the certificate.' § 438. Time, Place and Maaner of Protest. — The details of making protest are fully contained in the Negotiable Instru- ment Act.* Usually such protest is made on the day of dis- honor of a bill, at the place where it is dishonored, or where it is payable.* When an acceptor has been adjudged bank- rupt or insolvent, or has made an assignment for benefit of creditors, before a bill matures, the holder may cause the bill to be protested for better security against the drawer and indorsers.^ The law of the place where the notes are payable govern as to time and mode of presentment for payment, manner of process and giving of notice.' Where payment is demanded at the place the note is, by its terms, to be paid, other demand upon the maker is not required.* The notary's certificate of protest is presumptive evidence of presentment during the 99 ITniform Negotiable Instru- ments Law, § 154, post, p. 311. 1 Bays ' Commercial Law, vol. 2, p. 129. Z Bays' Commercial Law, vol. 2, p. 128. Where protest is necessary, the notary must present the bill in person, unless power has been given to him to substitute another in his place or where custom war- rants a presentment by deputy. Cribbs v. Adams, 13 Gray (Mass.) 597; Commercial Bank v. Vamum, 49 N. T. 269. A notary cannot delegate his power to protest. Cole v. Jessup, 10 N. Y. 96; Hunt V. Maybee, 7 N. T. 266. SGawtry v. Doane, 51 N. T. 84. 4 Uniform Negotiable Instru- ments Law, § 153 et seq., post, p. 310. 6 Uniform Negotiable Instru- ments Law, §§ 155, 156, post, p. 311. 6 Uniform Negotiable Instru- ments Law, § 158, post, p. 311. See also Ocean Nat. Bank v. Wil- liams, 102 Mass. 141; Jaceard v. Anderson, 37 Mo. 91. TWooley v. Lyon, 117 111. 244, 6 N. E. 885, 57 Am. Eep. 867; Pierce v. Indseth, 106 U. S. 546, 27 L. Ed. 254, 1 Sup. Ct. 418. 8 Guignon v. Union Trust Co., 53 111. App. 581, afif'd 156 111. 135, 40 N. E. 556, 47 Am. St. Eep. 186. § 4-38] NEGOTIABLE INSTRUMENTS. 277 proper business hours. These, except where the paper is due from a bank, for the purpose of presenting a note or bill for payment, range until bedtime in the evening." The protest must be annexed to the bill, or must contain a copy thereof, and must be under the hand and seal of the notary making it, and must specify (1) the time and place of presentment; (2) the fact that presentment was made and the maimer thereof; (3) the cause or reason for protesting the bill; (4) the demand made and the answer given, if any, or the fact that the drawee or acceptor could not be found. ^" A notary's protest of commercial papers must be made on his own knowledge of the facts, and not on hearsay.^^ A statement of the facts in connection with a notary's pro- test cannot vitiate a protest otherwise properly made. A nec- essary statement or averment, well stated, is not weakened or in any manner affected by the statement of facts not neces- sary to be stated.^^ No authority is given by statute to any notary to certify a fact independent^of the protest.^' A note protested by Wm. H. Scudder, Jr., and signed Wm. H. Seud- der, sworn to by "Wm. H. Scudder, Jr., does not justify the inference that two different persons officiated in the protest.^* Under the civil law the signature alone of the notary was sufficient without the seal. Many English writers mention only the signature. The protest is said to be a part of the constitution of a foreign bill of exchange. The form is gov- erned by the lex loci contractus (where the contract was made) and when required cannot be dispensed vsrith. "When the pro- test, or authenticated copies, is to be received in evidence, the lex fori (court where received) governs.^^ Courts take judi- cial notice of the law merchant, which prevails throughout the United States, except in states where it is so far modified by statute. A notarial protest is known under that law, and 9 Skelton v. Dustin, 93 HI. 49. era ' Bank of Chattahoochie, 8 10 Uniform Negotiable Instru- Port. (Ala.) 258. ments Law, § 153, post, p. 310. l4Guignon v. ITnion Trust Co., 11 Williamson v. Turner, 2 Bay 53 HI. App. 581, aff'd 156 HI. 135, (S. G.) 410, 1 Am. Dec. 625. 40 N. E. 556, 47 Am. St. Eep. 186. IZEeapers Bank v. Willard, 24 16 Bank of Rochester v. Gray, 2 Bl. 439. Hill (N. Y.) 227, 18 Whitman & Hubbard v. Farm- 278 ITOTARIES PtrsMO. [§ 439 it requires no witnesses in conjunction with the notary. His act, certified by his signature and official seal, suffices.^' § 439. Record of Protest as Prima Facie Evidence. — The statute, making a notary's record of the protest 6f bills which he is required to keep, or a certified copy thereof, prima facie evidence of the facts therein stated, applies to all bills, both domestic and foreign. Such record or copy is prima facie evidence of demand of payment of the drawee, and of notice of dishonor to the drawer. It is liable, however, to be rebutted by other competent evidence.^'' A certificate of protest by a notary of another state, under the notary's seal, is prima facie evidence that the act had been done by him.^* In the case of inland bills of exchange, the notarial protest is not evidence of a demand of payment on the drawee nor of notice of nonpayment to the drawer.^® The notarial certificate of protest is not evidence of that fact.^" A notarial certificate of protest under seal is good on mere production.^^ § 440. National Bank Notes. — Whenever any national bank- ing association fails to redeem in the lawful money of the United States any of its circulating notes, upon demand of payment duly made during the usual hours of business, at the office of such association, or at its designated place of re- demption, the holder may cause the same to be protested, in one package, by a notary public, unless the president or cash- ier of the association whose notes are presented for payment, or the president or cashier of the association at the place at which they are redeemable, offers to waive demand and notice of the protest and, in pursuance of such offer, makes, signs and delivers to the party making such demand an admission 16 Bradford v. Cooper, 1 La. 21 So held in Johnson v. Brown, Ann. 325. 154 Mass. 105, 27 N. E. 994, sup- 17 Montelius v. Charles, 76 HI. ported by Porter v. Judson, 1 Gray 303. (Mass.) 175; Carter v. Burley, 9 18 Fletcher v. Arkansas Nat. N. H. 558, 566; Browne v. Phila- Bank, 62 Ark. 265, 35 S. W. 228, delphia Bank, 6 Serg. & R. (Pa.) 54 Am. St. Eep. 294. 484, 9 Am. Dec. 463; Pierce v. 19 Kaskaskia Bridge Co. v. Shan- Indseth, 106 U. S. 546, 27 L. Ed. non, 1 Gilm. (lU.) 15. 254, 1 Sup. Ct. 418; Townsley v. 20 McAllister v. Smith, 17 HI." Sumrall, 2 Pet. (U. S.) 170, 7 L. 328, 65 Am. Dec. 651. Ed; 386. § 441] NEGOTIABLE INSTEUMENTS. 279 in writing, stating the time of tlie demand, the amount de- manded, and the fact of the nonpayment thereof. The notary public, on making such protest or upon receiving such ad- mission, shall forthwith forward such admission or notice of protest to the comptroller of the currency, retaining a copy thereof. If any satisfactory proof is produced to the notary public that the payment of the notes demanded is restrained by order of any court of competent jurisdiction, he shall not protest the same. "When the holder of any notes causes more than one note or package to be protested on the same day, he shall not receive pay for more than one protest.^* After a default on the part of an association to pay any of its cir- culating notes has been ascertained by the comptroller, and notice (if forfeiture of the bonds thereof) has been given by him to the association, it shall not be lawful for the associa- tion suffering the same to pay out any of its notes, discount any notes or bills, or otherwise prosecute the business of bank- ing, except to receive and safely keep money belonging to it, and to deliver special deposits.^^ Where no stipulation for interest is made in the note it can only be allowed from the time of protest.^ § 441. Marine Protest. — Marine protest is a writing at- tested by a justice of the peace, a notary public, or a consul, made and verified by the master of a vessel, stating the severity of a voyage by which a ship has suffered, and show- ing that it was not owing to the neglect or misconduct of the master. 26 If any vessel from any foreign port, compelled by distress of weather, or other necessity, shall put into any port of the United States, not being destined for the same, the mas- ter, together with the mate or person next in command, may, within twenty-four hours after her arrival, make protest in the usual form upon oath, before a notary public, or other person duly authorized, or before the collector of the district where the vessel arrives, setting forth the cause or circumstances of such distress or necessity. Such protest, if not made before 28 IT. S. Bev. Stat. 1878, sec. 24 Bradford v. Cooper, 1 La. 5226. ^"i- 325. 23 U. S. Bev. Stat. 1878, sec. 8S Cyc. liaw Diet. 5228. 280 NOTARIES PUBLIC. [§ 442 the collector, shall be produced to him, and to the naval offi- cer, if any, and a copy thereof lodged with him or them. The master shall also, within forty-eight hours after such arrival, make report in writing to the collector of the vessel and her cargo, as is directed hereby to be done in other cases. And if it appear to the collector, by the certificate of the wardens of the port, or other officers usually charged with and accus- tomed to ascertain the condition of vessels arriving in dis- tress, if any, or by the certificate of two reputable merchants, to be named by the collector for that purpose, if there are no such wardens, or other officers duly qualified, that there is a necessity for unloading the vessel, the collector and naval officer, if any, shall grant a permit for that purpose, and shall appoint an inspector to oversee such unloading, who shall keep an account of the same, to be compared with the report made by the master of the vessel.^® NOTICE OP DISHONOR. § 442. Necessity of Notice of Dishonor. — "Dishonor" is a term applied to the nonfulfillment of commercial engagements. To dishonor a bill of exchange or promissory note is to refuse or neglect to pay it at maturity.^'' A party secondarily liable on negotiable paper is entitled to immediate notice that the party who should have accepted it, or paid it, has failed or refused to do so.*' Unless notice is given according to the provisions of the law, any party entitled to such notice, who does not receive it, is discharged.*® The reputed insolvency 26 U. S. Eev. Stat. 1878, sec. per is entitled to notice of protest 2891. and nonpayment; if no notice is 27 Cye. Law Diet. received by him he is not liable 28 Bays ' Commercial Law, vol. 2, thereon. Apple v. Lesser, 93 Ga. p. 128. 749, 21 S. E. 171. In order to fix the liability of 29 Bays ' Commercial Law, vol. 2, indorsers to a promissory note p. 126; Williams v. Paintsville they must be promptly notified Nat. Bank, 143 Ky. 781, 137 S. W. that demand had been made of the 535, Ann. Cas. 1912 D 350; Mekell maker and payment refused, and v. Bradshaw, 94 Ore. 580, 183 Pac. that the holder looks to them for 12. payment. Lawrence v. Miller, 16 Failure to notify the indorser N. T. 235. not only discharges him as a party An indorser of commercial pa- to the note, but also a debtor upon § 443] NBXSOTIABLE INSTRUMENTS. 881 of the maker of a note is no excuse for not sending notice to the indorser.^" Bills of exchange are always dishonored be- fore they are handed to a notary to protest. The presentment and demand are practically of no moment to any one. The material thing is notice of dishonor.*' Diligent search must be made for the maker before protest, otherwise the note is not dishonored and the indorsers are discharged from lia- bility. If payment has been made by an indorser under a notice of dishonor he is entitled to recovery and interest as damages from the time of payment.** Every joint indorser is entitled to notice.** No demand or notice is necessary on an absolute guaranty;** nor when the drawer and drawee are the same.*^ Noting or initial protest is a memorandum made on the in- strument, with the notary's initials, date, and the amount of noting charges, together with a statement of the cause of dis- honor, such as "no effects," "no advice," or "no account." This is done to charge the memory of the notary, and should be done on the day of dishonor. If the instrument is promptly protested, there is no necessity of noting.*^ § 443. Excuses for Not Giving Notice. — Notice to a drawer is excused when after the exercise of reasonable diligence it cannot be given to or does not reach such drawer, as where the drawer is fictitious or lacks capacity to contract, or where the drawer is the person to whom the instrument is presented for payment, or where the drawer has no right to expect or the original consideration, though Commonwealth, 12^ Mass. 67, 37 it be secured by a mortgage or Am. Eep. 302. deed of trust. Fitehburg Mut. SSghepard v. Hawley, 1 Conn. Fire Ins. Co. v. Davis, 121 Mass. 367, 6 Am. Dec. 244. 121; Miers v. Brown, 11 M. & W. Joint indorsers not given notice 372. of dishonor are discharged. Wil- 30 Oliver v. Munday, 3 N. J. L. liams v. Paintsville Nat. Bank, 143 982; Snyder v. Findley, 1 N. J. L. . Ky. 781, 137 S. "W. 535, Ann. Cas. 78, 1 Am, Dec. 193. 1912 D 350. 81 Commercial Bank of Ken- 84 City Sav. Bank v. Hopson, 53 tueky V. Vamum, 49 N. Y. 269, Conn. 453, 5 Atl. 601. citing Chitty on Bills (13th Ed.) 35 Kaskaskia Bridge Co. v. Shan- 457. non, 1 Gilm. (111.) 15. 88 Talbot V. National Bank of 86 Commercial Bank v. Barks- dale, 36 Mo. 563. 282 NOTARIES PUBLIC. [§ 444 require the drawee or acceptor to honor the instrument, or where the drawer has countermanded payment.*'' In a similar manner, notice to an indorser is excused when after the ex- ercise of reasonable diligence it cannot be given or does not reach such indorser, or where the indorser at the time of the indorsement knew that the drawee was fictitious or had no capacity to contract, or where the indorser is the person to whom the instrument is presented for payment, or where the instrument was made or accepted for his accommodation.*' The circumstances which excuse demand do not relieve the holder from giving due notice to the indorser, if like circum- stances do not intervene to prevent that also. Mere personal knowledge by the indorser will not dispense with notice.*' The circumstances which in the law merchant wiU excuse the demand and notice necessary to charge an indorser are such as amount, in themselves, to a dishonor of the paper by operation of law. They are such as impose a moral or physical impossibility to make the demand with the exercise of that prudent and diligent forecast and attention that a prudent man would use in relation to his own affairs, or the absence of all necessity for demand, superinduced by the changed condition or relation of the parties.*" An illegible indorse- ment excuses notice of protest.*^ § 444. Waiver of Notice. — The party entitled to notice may waive it by waiver embodied in the instrument or in his in- dorsement, or by word or deed, before or after time for giving notice.*^ One who indorses a promissory note, inserting over his signature a waiver of demand and notice, is not entitled to any demand and notice.** 87 Bays ' Commercial Law, vol. 2, An indorser may wai'ye demand p. 126. and notice by express words, or by 88 Bays' Commercial Law, vol. 2, implication of acts or conduct, p. 127. Sheldon v. Hortou, 43 N. T. 93, 3 39 Lane & Co. v. Bank of West Am. Eep. 669. The presentation Tennessee, 9 Heisk. (Tenn.) 419. of the bill at maturity may be 40 Lane & Co. v. Bank of West waived by agreement. Curtiss v. Tennessee, 9 Heisk. (Tenn.) 419. Martin, 20 111. 557. 41 Sublette Exch. Bank v. Fitz- 43 Woodman v. Thurston, 8 Cush. gerald, 168 HI. App. 240. (Mass.) 157. 42 Bays ' Commercial Law, vol. 3, Where the indorser signs a pa- p. 127. per waiving demand, protest and § 445] NEGOTIABLE INSTRUMENTS. S83 A neglect on the part of the drawer to provide funds in the hands of the drawee, to meet the bill, amounts to a waiver of notice of protest.** Where one "waives protest" he there- by also waives presentment and notice of dishonor.*' § 445. Form of Notice; Sufficiency. — In view of the im- portance of notice of dishonor to charge the parties second- arily liable, the law provides in detail as to the time, man- ner and sufficiency of notice.** The notice may be in writing or merely oral and may be given in any terms which sufficient- ly identify the instrument, and indicate that it has been dis- honored by nonacceptance or nonpayment.*^ A written notice need not be signed and an insufficient written notice may be notice of a note, he is an original promisor and not entitled to no- tice. State Trust Co. v. Owen Pa- per Co., 162 Mass. 156, 38 N. E. 438. 44Brower v. Eupert, 24 111. 182. 45 Bays ' Commercial Law, vol. 2, p. 127. 46 Uniform Negotiable Instru- ments Law, i§ 89-118, post, p. 303. 47 Uniform Negotiable Instru- ments Law, § 96, post, p. 304. No particular phrase or form is necessary. The object of it is to inform the party to whom it is sent; first, that the bill or note has been presented; second, that it has been dishonored by nonacceptance, or nonpayment; and third, that the holder considers him liable, and looks to him for payment. And in framing the notice, all that is necessary to apprise the party of the dishonor of the instrument is to intimate that he is expected to pay it. It should comprise, first, a sufficient description of the bill or note to ascertain its iden- tity; second, that it has been duly presented for acceptance or pay- ment to the drawee, acceptor or maker; third, that it has been dis- honored by nonacceptance or non- payment; fourth, that the holder looks to the party notified for pay- ment. Gilbert v. Dennis, 3 Mete. (Mass.) 495, 38 Am. Dec. 329; Mills V. Bank of United States, 11 Wheat. (U. S.) 431, 6 L. Ed. 512. No particular form of words is necessary, but such as to convey notice of dishonor and a descrip- tion of the bill showing the facts of refusal to accept or pay upon presentment at the right time and place. Bynum v. Apperson, 9 Heisk. (Tenu.) 632. No precise form of words is necessary in giving notice. The terms used must be expressed or implied, sufficiently to identify the note, that payment of it on due presentment has been neglected or refused by the maker. Cook v. Litchfield, 9 N. Y. 279; Cayuga County Bank v. Warden, 1 N. T. 413; Id. 8 N. T. 19. Notice may be written or verbal. Coddington v. Davis, 1 N. T. 186; Cayuga County Bank v. Warden, 1 N. Y. 413, 284 NOTARIES PUBLIC. [§ 445 supplemented and validated by verbal communication.*' The notary's name may be printed at the foot of the notification.*^ Requirements as to notice to the indorser of nonpayment of a note need not be stated in express words, but it is sufScient if they follow by necessary or reasonable implication from the language used.^" A single seal to several certificates of a notary's is sufficient; he may certify to each act separately and by one certificate verify them all. If it be under his hand and seal of office, it is sufficient. It is unimportant where the seal is affixed. He is not required to certify to the sealing.^^ The notice should describe or perfectly identify the note or bill,^* and usually the name of the maker must be stated.^* A misdescription of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact misled thereby.^* Although the Uniform Negotiable Instruments Act has been adopted in nearly all states, there still exists some conflict in the law. Where such conflict exists, it is a general rule that the manner of giving notice and its sufficiency is gov- 48 TJaif orm Negotiable Instru- ments Law, § 95, post, p. 304. 49 Sussex Bank v. Baldwin, 17 N. J. Ii. 487; Bank of Cooperstown V. Woods, 28 N. Y. 561. BO Kewanee Nat. Bank v. Iiadd, 175 lU. App. 151. It is not necessary to state that the note was presented for pay- ment, or that the holder looks to the indorser; this may be made to appear by implication. Burgess V. Vreeland, 24 N. J. L. 71, 59 Am. Dee. 408. Bi Oleott V. Tioga E. Co., 27 IST. Y. 540, 84 Am. Dec. 298. B2 Notice to an indorser of a note of nonpayment must contain the description of the note. Ke- wanee Nat. Bank v. Ladd, 175 HI. App. 151. The notice should describe the bill or note in unmistakable terms; should state where the note Ib, that the party notified may find it; should state who the holder is, and who gives the notice, or at whose request it is given. The object of the law in requiring a correct de- scription in the notice to the drawer or indorser is that he may be put upon notice of the extent of his liability, and placed in posses- sion of the material facts neces- sary to enable him to secure the liability of others over to him. Rowland v. Adrain, 30 N. J. L. 41. A notice sufficiently descriptive to perfectly identify a note in mind, without knowledge of others of same tenor and date, is suffi- cient. Bank of Cooperstown v. AVoods, 28 N. Y. 561. B3 Home Ins. Co. v. Green, 19 N. Y. 518, 75 Am. Dec. 361. 64 Uniform Negotiable Instm- ments Law, | 95, post, p. 304. § 446] NEGOTIABLE INSTKUMENTS. 285 emed by the law of the place where the note is payable." § 446. To Whom Notice Is Given. — In general, notice must be given to the drawer and each indorser, and any drawer or indorser to whom such notice is not given is discharged.^® Each indorser of a bill or note is entitled to notice, and so also is the drawer of a bill payable to a third party, as bills generally are. The acceptor of a bill and the maker of a note are not entitled to notice, they being the primary debtors ; nor are those who, from their irregular execution of the in- strument, are adjudged joint makers or sureties, their contract being to pay in default of the principal at aU events.^'' It is usual for the holder only to give notice to the person from whom he immediately received the bill or note, especially if he is ignorant of the residence of the other parties. His neglect to give notice cannot deprive either of the others of the right to proceed against the person who indorsed to him, provided he in his turn has duly forwarded notice.^^ A primary debtor, not an indorser, is not entitled to notice of dishonor of a note.^® Notice to the assignor of an instrument need not be given by the assignee to charge the assignor.®" A bill of exchange must be presented to the drawee within a reasonable time, and where payment is refused, notice must be given promptly to the drawer, otherwise he cannot be held liable.®^ Failure 56 Guernsey v. Imperial Bank Mfg. Co., 82 HI. 579; Kupfer v. of Canada, 188 Fed. 300. Bank of Galena, 34 111. 328, 85 B6 Uniform Negotiable Instru- Am. Dec. 309. ments Law, § 89, post, p. 303. Notice should be sent to all the When a bill is dishonored, due parties meant to be held liable for notice of dishonor, unless excused, payment. Daniel's Neg. Inst., is a condition precedent to the lia- p. 46. bUity of the drawer or any in- 67 Walker v. Rogers, 40 HI. 278, dorser thereof. Benjamin's Chal- 89 Am. Dee. 348. mers Bills & Notes, p. 182; Wood 68 Whitman & Hubbard v. Farm- V. Surrells, 89 HI. 107; Walker v. ers' Bank, 8 Port. (Ala.) 258. Rogers, 40 HI. 278, 89 Am. Dee. 59 Guignon v. Union Trust Co., 348; Kupfer v. Bank of Galena, 34 53 III. App. 581; afE'd 156 111. 135, 111. 328, 85 Am. Dec. 309. 40 N. E. 556, 47 Am. St. Rep. 186. Notice of refusal to pay must 60 Harding v. Dilley, 60 111. 528; be given to the drawer, where he State Bank v. Hawley, 1 Scam, has or expects funds in the hands (HI.) 580. of the drawee, for the protection 61 Industrial Bank v. Bowes, 165 of both. Welch v. B. C. Taylor 111. 70, 46 N. E. 10, 56 Am. St. S86 NOTARIES PUBLIC. [§ 446 to promptly present a check for payment and to promptly notify the drawer of its nonpayment does not discharge the drawer unless he has suffered some loss or injury thereby.®* Notice may be given either to the party himself or to his agent in that behalf,®' and if a party is dead, the notice must be given to his personal representative.®* When an indorser be- comes bankrupt and assigns, notice of protest to his assignee will bind such indorser.®* Where the parties to be notified are partnisrs, notice to any one partner is notice to the firm, even though there has been a dissolution.®® Bep. 228; Montelius v. Charles, 76 m. 303; Bickford v. First Nat. Bank of Chicago, 42 Bl. 238, 89 Am. Dee. 436. 62 Industrial Bank v. Bowes, 165 HI. 70, 46 N. E. 10, 56 Am. St. Eep. 228. 63 Uniform Negotiable Instru- ments Law, § 97, post, p. 304. Notice to agent is notice to the principal. Iglehart v. Gibson, 56 111. 81. If the holder of a note sends it to a bank or other agent for col- lection, it is sufficient to hold prior indorsers if the agent gives notice of the dishonor in due time to his principal, and if he without delay transmits notice to the prior in- dorser. First Nat. Bank v. Smith, 132 Mass. 227, supported by Colt V. Noble, 5 Mass. 167; Church v. Barlow, 9 Pick. (Mass.) 547; True V. Collins, 3 Allen (Mass.) 438; Eagle Bank v. Hathaway, 5 Mete. (Mass.) 212. 61 Uniform Negotiable Instru- ments Law, §§ 97, 98, post, p. 304. If the holder be dead, notice may be given by his personal rep- resentative. White V. Stoddard, 11- Gray (Mass.) 258; Massachu- setts Bank v. Oliver, 10 Cush. (Mass.) 557; Cayuga County Bank V. Bennett, 5 Hill (N. T.) 236. If the party entitled to notice be dead, and this is known to the holder, notice should be sent to his executor or administrator. The address should be to such party by name. To one of several execu- tors, or administrators, is suffi- cient. Massachusetts Bank v. Ol- iver, 10 Cush. (Mass.) 557; Beals V. Peck, 12 Barb. (N. Y.) 245. Where a notary makes inquiry at the bank where paper is pay- able and receives information that the indorser is dead and of the ap- pointment of an executor, a notice of protest mailed to the indorser by name in care of the executor who is named is sufficient evidence of reasonable diligence. Second Nat. Bank v. Smith, 91 N. J. L. 531, 103 Atl. 862, 1 A. L. E. 470. 65 American Nat. Bank v. Junk Bros. Lumber & Mfg. Co., 94 Tenn. 624, 30 S. W. 753, 28 L. B. A. 492. See Uniform Negotiable Instru- ments Law, § 101, post, p. 304. 66 Uniform Negotiable Instru- ments Law, § 99, post, p. 304. Where a bill indorsed by a part- nership is dishonored, notice to either of the late partners is suffl:- eient to bind all. Hubbard v. Matthews, 54 N. T. 43, 13 Am. § 448] KEGOTIABLE INSTRUMENTS. 287 § 447. Who May Give Notice. — The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up, would have a right to reimbursement from the party to whom notice is given.®'' Bach party to a bill or note, whether by indorsement or mere delivery, has, in all cases, until the day after he has received notice to give or forward notice to his prior indorser.** It should emanate from the holder at the time of its dishonor.®^ Notice by an agent may be given either in his own name, or in the name of the party entitled to give notice, whether that party be his principal or not.''" § 448. Maimer of Giving Notice. — Where a party has added an address to his signature, notice of dishonor must be sent to that address, but if he has not given such address, then the notice must be sent either to the post office nearest to his place of residence, or if he live in one place and has a place of business in another, to either of such places. If he is sojourning in another place, notice may be sent to the place where he is sojourning.''^ Where the notice is actually re- ceived hy the party within the time specified, it is sufficient.''* Eep. 562; supported by Coster, tion to give notice through the Eobinson & Co. v. Thomaaon, 19 post office at Memphis. Tomeny Ala. 717; Brown v. Turner, 15 Ala. v. German Nat. Bank, 9 Heisk. 832; Slocomb v. De lizardi, 21 La. (Tenn.) 493. Ann. 355, 99 Am. Dec. 740; Gates If the indorser resides out of V. Beeeher, 60 N. Y. 518, 19 Am. the state it may be mailed to his Eep. 207. place of business or where he re- 67 Uniform Negotiable Instru- ceives his mail. Wooley v. Lyon, ments Law, § 90, post, p. 303. 117 HI. 244, 6 N. E. 885, 57 Am. 68 Whitman & Hubbard v. Eep. 867. Farmers ' Bank of Chattahoochie, '2 Uniform Negotiable Instru- 8 Port. (Ala.) 258. ments Law, § 108, post, p. 305. 69 Cromer v. Piatt, 37 Mich. 132, If the parties are not to be 26 Am. Eep. 503; Bank of Utiea found at their place of business, it V. Smith, 18 Johns. (N. Y.) 230. may be left at their residence 70 Uniform Negotiable Instru- with any one residing in the fam- ments Law, § 91, post, p. 303. ily, providing the party himself is 71 Uniform Negotiable Instru- not at home. John v. City Nat. ments Law, § 108, post, p. 305. Bank, 57 Ala. 96; Blakely v. Adding the word "Memphis" Grant, 6 Mass. 386; Adams v. under his name, by the indorser, Wright, 14 Wis. 408. may be held as an implied diree- If left at the indorser 's office in S88 UroTAElES PUBLIC. [§ 448 It is not incimibent on the indorser to show the holder where the maker is to be found, so that he may make a demand on the maker, when no application is made to him by the holder.'* If facts exist which render a notice uncertain or equivocal, and the knowledge of these facts are confined to the indorser, or is not brought home to the holder of the paper, the notice is sufficient to charge the indorser.'* Where notice of dishonor is duly addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.'^ Notice is deemed deposited in the post office when it is deposited in any a, conspicuous place, it is suffi- cient. Hobbs V. Straine, 149 Mass. 212, 21 N. E. 365. Notice left at the room where indorser does business and re- ceives mail, although he is often absent for some time, is sufSeient. Lamkin v. Edgerly, 151 Mass. 348, 24 N. B. 49. When the indorser resides at the place of presentment and dis- honor of the note, the notice must be served on him personally, or left at his dwelling or place of business, if he has one there. Van Vechten v. Pruyn, 13 N. Y. 549, supported by Sheldon v. Benham, 4 Hill (N. Y.) 129, 40 Am. Dec. 271; Ransom v. Mack, 2 Hill (N. Y.) 587, 38 Am. Dec. 602; Smedes v. Bank of TItiea, 20 Johns. (JST. Y.) 372; Ireland v. Kip, 10 Johns. (N. Y.) 490. 78 Lane & Co. v. Bank of West Tennessee, 9 Heisk. (Tenn.) 419. 74 Bank of Cooperstown v. Woods, 28 N. Y. 545. 75 Uniform Negotiable Instru- ments Law, § 105, post, p. 304; Second Nat. Bank v. Smith, 91 N. J. L. 531, 103 Atl. 862, 1 A. L. E. 470. Notice sent to the indorser 's place of business, and there re- mailed to his residence by his bookkeeper, duly stamped, with return card on envelope, and sent to the post office by the office boy, as customary with the daily mail, is sufficient, although never re- ceived by the indorser. Swamp- scott Mach. Co. v. Eice, 159 Mass. 404, 34 N. B. 520. If addressed to the indorser and left at the post office where he is postmaster, it is sufficient. Cook V. Eenick, 19 111. 598. If sent by mail it must be prop- erly addressed to the party at a distance. It should be directed to the post office at or nearest to the party's place of residence or place of business. Daniel's Neg. Inst., p. 77; Sherman v. Clark, 3 McLean (U. S.) 91, Fed. Cas. No. 12763; Bank of Columbia v. Law- rence, 1 Pet. (U. S.) 578, 7 L. Bd. 269. It is immaterial whether the indorser receives notice so long as he is properly served. The rights of a holder of a note are not af- fected if the notice does not reach the indorser. Due diligence in serving him notice is sufficient. Gawtry v. Doane, 51 N. Y. 84; Dickins v. Beal, 10 Pet. (U. S.) 572, 9 L. Ed. 538. § 449] NEGOTIABLE INSTRUMENTS. 289 branch post office or in any letter box under the control of the post office department.'® Evidence of a manager of a collect- ing bank as to mailing notices of dishonor in the usual course of business has been held sufficient to admit secondary evi- dence of the contents of the notices, against another in- dorser." The main thing is to show that notice was received by the proper person within proper time. A notice stating that it had been given in writing, of the demand, nonpayment and protest to the indorsers and left at their offices, is sufficient.'* "Where the parties reside in the same town, a notice left at the place of business of the individual is sufficiently described as the office of the party.'® Where an indorser has no res- idence in the city where the note is payable, and notice is mailed to him in care of subsequent indorsers, the failure of such subsequent indorsers to forward the notice is not negli- gence rendering a bank who employs the notary liable.*" § 449. Time of Notice. — The time of giving notice is ex- pressly stated by the Uniform Negotiable Instruments Act, and where the parties giving and to receive notice reside in the same place, it must be given so as to reach the person to be notified on the day following.*^ If the person giving notice and the person to receive it reside at different places, such notice must be deposited in the post office in time to go by mail the day following, or by the next mail.*^ A party receiv- 78 Uniform Negotiable Instni- N. T. App. Div. 461, 144 K Y. ments Law, § 106, post, p. 305. Supp. 539. Depositing notice in a street 81 Uniform Negotiable Instru- post office box is the same as in ments Law, § 103, post, p. 304. the post office. Johnson v. Browne, 82 Uniform Negotiable Instru- 154 Mass. 105, 27 N. E. 994, sup- ments Law, § 104, post, p. 304. ported by Pearce v. Langflt, 101 Notice must be placed in the Pa. St. 507, 47 Am. Eep. 737. post office in time to go by mail 77 W. A. Powler Paper Co. v. of the day following the day of Bert Jones Sales Book Co., 183 dishonor. It is necessary to show m. App. 310. positively that the notice was de- 78 Curry v. Bank of Mobile, 8 posited in time for the mail of Port. (Ala.) 360. the day following. Burgess v. 79 Curry v. Bank of Mobile, 8 Vreeland, 24 N. J. L. 71, 59 Am. Port. (Ala.) 360. Dec. 408; State Bank of Elizabeth SOBriU V. Jefferson Bank, 159 v. Ayers, 7 N. J. L. 130, 11 Am. Dec. 535. 19 290 NOTARIES PUBLIC. [§ 450 ing notice has the same time, after such receipt, to give notice to antecedent parties.^^ Strict proof of mailing at the time specified is required to charge the indorsers. The notice must be given in accordance with the statute.^* It is the duty of the holder to give immediate notice to the drawer if it be a bill, and to the indorser whether it be a bill or note. The party primarily liable is not entitled to notice, for it was his duty to have provided for payment of the paper ; and the fact that he is maker or acceptor for accommodation does not change the rule. Notice is not due to any party to a bill or note not negotiable.*^ By presentment on the day of maturity and giving notice of dishonor, the liability of the drawer of an inland biU is fixed.*^ Negligence in sending notice of protest is no excuse. If the indorser fails to receive notice he is discharged from liability unless the holder shows he has used due diligence in his ef- forts to find him. Wher.e this can be shown, however, it is im- material that the notice does not reach the indorser.*'' An indorser who has changed his residence without the knowl- edge of the holder is bound by notice sent to his former place of residence, if the holder is not guilty of negligence in his failure to have knowledge of the change.** § 450. Notary's Certificate as Evidence. — Ordinarily a no- tary's certificate is sufficient proof of failure to pay at ma- turity, and of notice of dishonor,** and under some statutes, 88 Uniform Negotiable Instru- 753, 28 L. E. A. 493; Harris v. ments Law, § 107, post, p. 305. Memphis Bank, 4 Humph. (Tenn.) 84]Srickell v. Bradshaw, 94 Ore. 518. 580, 183 Pae. 12. 89 Feigenspan v. McDonnell, 201 85 King V. Crowell, 61 Me. 244, Mass. 341, 87 N. E. 624. 14 Am. Kep. 560; Farmers' Bank Certificate is prima facie proof V. Duvall, 7 GiU & J. (Md.) 78. that notice was given in compli- 86 Wood V. Surrells, 89 HI. 107. ance with the Uniform Negotiable 87 American Nat. Bank v. Junk Instruments Act, § 108. Scott v. Bros. Lumber & Mfg. Co., 94 Tenn. Brown, 240 Pa. 328, 87 Atl. 431. 624, 30 S. W. 753, 28 L. E. A. 492. Demand for payment of a for- 88Eequa v. Collins, 51 N. T. eign bill of exchange, refusal, pro- 148; Bank of Utica v. Phillips, 3 test and notice may be proved by "Wend. (N. Y.) 408; American the notary's certificate under his Nat. Bank v. Junk Bros. Lumber seal. Sublette Exch. Bank v. & Mfg. Co., 94 Tenn. 624, 30 S. W. Fitzgerald, 168 HI. App. 240. § 450] NEGOTIABLE INSTRUMENTS. 291 a certificate of protest of a foreign notary is admissible with- out proof as to the authenticity of the notary's signature.®' A memorandum made at the bottom of a certificate stating the fact of sending of notice of protest, which is not part of the certificate, is not evidence of such faet.®^ To destroy the effect of the certificates of the notary as pre- sumptive evidence, the party must positively deny a receipt of the notice. An affidavit denying receipt upon information and belief wiU not answer the requirements of the statutes and cannot be treated as an affidavit.*^ UNIPOEM NEGOTIABLE INSTEUMENTS LAW. The Uniform Negotiable Instruments Law is a revision of the English Bills of Exchange Act of 1882, with such changes as adapt it to the existing American Law. It was prepared by a committee of the American Bar Association, and has been adopted in the great majority of the states.®' GENERAL PROVISIONS. Definition. — This act shall be known as the Negotiable Instruments Law. In this act, unless the context otherwise requires: "Acceptance" means an acceptance completed by delivery or notification. "Action" includes counterclaim and set-off. "Bank" includes any person or as- sociation of persons carrying on the business of banking, whether incor- porated or not. "Bearer" means the person in possession of a bill or note which is paj'able to bearer. "Bill" means bill of exchange and "note" means negotiable promissory note. "Delivery" means transfer of possession, actual or consecutive, from one person to another. "Hold- er" means the payee or indorser of a bill or note, who is in possession of it, or the bearer thereof. "Indorsement" means an indorsement com- Oertiflcate of foreign notary as the removal or death of the no- to presentment, demand for pay- tary); the demand and refusal ment and notice of dishonor are must be proved by other evidence, incompetent to establish such facts Barkalow v. Johnson, 16 N. J. L. as to promissory note, though evi- 397. dence as to foreign bill of ex- 90 City Nat. Bank v. Given, 103 change. Vaughan v. Potter, 131 S. 0. 174, 87 S. E. 998. 111. App. 334. 91 Zollner v. Moffltt, 222 Pa. 644, On a foreign bill, the notarial 72 Atl. 285. protest and seal is evidence of the 92 Gawtry v. Doane, 51 N. T. 84. fact, but in case of a promissory 93 See post, § 451 et seq., Statu- note it is not (unless in case of tory Requirements. 293 NOTARIES PUBLIC. [§ 450 pleted by delivery. " Instniment " means negotiable instrument. "Is- sue" means the first delivery of the instrument, complete in form to a person who takes it as a holder. "Person" includes a body of per- sons, whether incorporated or not. "Value" means valuable considera- tion. "Written" includes printed, and "writing" includes print. THE PERSON "PRIMABILT" LIABLE on an instrument is the person who by the terms of the instrument is absolutely required to pay the same; all other parties are "secondarily" liable. REASON- ABLE TIME — In determining what is a "reasonable time" or an "unreasonable time," regard is to be had to the nature of the instru- ment, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case. TIME COMPUTED— Where the day, or the last day, for doing any act herein required or permitted to be done falls on Sunday or on a holiday, the act may be done on the next succeeding secular or business day. APPLICATION — The provisions of this act do not app"ly to negotiable instruments made and delivered prior to the passage hereof. LAW MERCHANT — In any case not provided for in this act the rules of the law merchant shall govern; TITLE I. NEGOTIABLE INSTRUMENTS IN GENERAL. ARTICLE I. FORM AND INTERPRETATION. Section 1. Form-^-An instrument to be negotiable must conform to the following requirements: (1) It must be in writing and signed by the maker or drawer, (2) must contain an unconditional promise or order to pay a sum certain in money, (3) must be payable on demand, or at a fixed or determinable future time, (4) must be payable to order or to bearer, and (5) where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reason- able certainty. Sec. 2. The sum payable is a sum certain within the meaning of this act, although it is to be paid (1) with interest, or (2) by stated instalments, or (3) by stated instalments, with a provision that upon ddfault in payment of any instalment or of interest, the whole shall become due, or (4) with exchange, whether at a fixed rate or at the current rate, or (5) with costs of collection or an attorney's fee, in case payment shall not be made at maturity. Sec. 3. An unqualified order or promise to pay is unconditional, within the meaning of this act, though coupled with (1) an indication of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount, or (2) a statement of the transaction which gives rise to the instrument. But an order or promise to pay out of a particular fund is not unconditional. See. 4. An instrument is payable at a determinable future time, § 450] NEGOTIABLE INSTEUMEWTS. 1893 within the meaning of this aet, which is expressed to be payable (1) at a fixed period after date or sight, or (2) on or before a fixed or determinable future time specified therein, or (3) on or at a fixed period after the occurrence of a specified event, which is certain to happen, though the time of happening be uncertain. An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect. Sec. 5. Additional provision not aSecting negotiability — An instru- ment which contains an order or promise to do any act in addition to the payment of money is not negotiable. But the negotiable character of an instrument otherwise negotiable is not affected by a provision which (1) authorizes the sale of collateral securities in case the in- strument be not paid at maturity, or (2) authorizes a confession of judgment if the instrument be not paid at maturity, or (3) waives the benefit of any law intended for the advantage or protection of the obligor, or (4) gives the holder an election to require something to be done in lieu of payment of money. But nothing in this section shall validate any provision or stipulation otherwise illegal. Sec. 6. Omissions; aeal; particular money — The validity and nego- tiable character of an instrument are not affected by the fact that (1) it is not dated, or (2) does not specify the value given, or that any value has been given therefor, or (3) does not specify the place where it is drawn or the place where it is payable, or (4) bears a seal, or (5) designates a particular kind of current money in which payment is to be made. But nothing in this section shall alter or repeal any statute requiring in certain eases the nature of the consideration to be stated in the instrument. Sec. 7. Payable on demand. — An instrument is payable on demand (1) where it is expressed to be payable on demand, or at sight, or on presentation, or (2) in which no time for payment is expressed. Where an instrument is issued, accepted, or indorsed when overdue, it is as regards the person so issuing, accepting, or indorsing it, payable on demand. Sec. 8. Payable to order — The instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. It may be drawn payable to the order (1) a payee who is not maker, drawer, or drawee, or (2) the drawer or maker, or (3) the drawee, or (4) two or more payees jointly, or (5) one or some of several payees, or (6) the holder of an office for the time being. Where the instrument is payable to order the payee must be named or otherwise indicated therein with reasonable certainty. See. 9. Payable to bearer — The instrument is payable to bearer (1) when it is expressed to be so payable, or (2) when it is payable to a person named therein or bearer, or (3) when it is payable to the order of a fictitious or nonexisting person, and such fact was known ■ to the person making it so payable, or (4) when the name of the payee does not purport to be the name of any person, or (5) when the only or last indorsement is an indorsement in blank. 294 NOTARIES PUBLIC. [§ 450 Sec. 10. Language — The instrument need not follow the language of this act, but any terms are sufficient which dearly indicate an intention to conform to the requirements hereof. Sec. 11. Date — Where the instrument or an acceptance or any in- dorsement thereon is dated, such date is deemed prima facie to be the true date of the making, drawing, acceptance, or indorsement, as the case may be. Sec. 12. Post dated — The instrument is not invalid for the reason only that it is antedated or postdated, provided this is not done for an illegal or fraudulent purpose. The person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery. Sec. 13. Undated; holder may insert date — Where an instrument expressed to be payable at a fixed period after date is issued undated, or where the acceptance of an instrument payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the instrument shall be payable accord- ingly. The insertion of a wrong date does not avoid the instrument in the hands of a subsequent holder in due course; but as to him, the date so inserted is to be regarded as the true date. Sec. 14. Blanks may be filled by holder — Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to completfe it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature, in order that the paper may be converted into a negotiable instrument, operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument, when completed, may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given, and within a reason- able time. But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and efEectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accord- ance with the authority given, and within a reasonable time. Sec. 15. Incomiplete instrument not delivered — ^Where an incomplete instrument has not been delivered, it will not, if completed and nego- tiated, without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery. Sec. 16. Delivery — Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the pur- pose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by, or under the authority of, the party making, drawing, accepting, or indorsing, as the case may be; and in such case the delivery may be shown to have been con- ditional, or for a special purpose only, and not for the purpose of trans- ferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all § 450] KEGOTIAELE INSTRUMENTS. 295 parties prior to him, so as to make them liable to him, is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional deliv- ery by him is presumed until the contrary is proved. Sec. 17. Ambiguous language — Where the language of the instru- ment is ambiguous, or there are omissions therein, the following rules of construction apply: (1) Where the sum payable is expressed in words and also in figures, and there is a discrepancy between the two, the sum denoted by the words is the sum payable; but if the words are ambiguous or uncertain, reference may be had to the figures to fix the amount. (2) Where the instrument provides for the payment of interest, without specifying the date from which inter- est is to run, the interest runs from the date of the instrument, and if the instrument is undated, from the issue thereof. (3) Where the instrument is not dated, it will be considered to be dated as of the time it was issued. (4) Where there is conflict between the written and printed provisions of the instrument, the written provisions pre- vail. (5) Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either, at his election. (6) Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser. (7) Where an instru- ment containing the words, "I promise to pay," is signed by two or more persons, they are deemed to be jointly and severally liable thereon. Sec. 18. Liable for signature — No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name. Sec. 19. Signature by agent — The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency. See. 20. Liability of agent signing — Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representa- tive character, without disclosing his principal, does not exempt him from personal liability. See. 21. A signature by "procuration" operates as notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority. Sec. 22. The indorsement or assignment of the instrument by a corporation or by an infant passes the property therein, notwithstand- ing that from want of capacity the corporation or infant may incur no liability thereon. Sec. 23. Where a signature is forged or made without the authority 396 NOTARIES rUBLIC. [§ 450 of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be ac- quired through or under such signature, unless the party against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority. AETICLE n. CONSIDEEATION. Sec. 24. Valuable consideration — Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value. Sec. 25. WTiat constitutes value — Value is any consideration suffi- cient to support a simple contract. An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is pay- able on denjand or at a future time. See. 26. Holder for value — Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time. Sec. 27. Holder has lien — Where the holder has a lien on the in- strument, arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien. Sec. 28. Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto whether the failure is an ascer- tained and liquidated amount or otherwise. Sec. 29. An acconunodatiou party is one who has signed the in- strument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instru- ment knew him to be only an accommodation party. AETICLE HL NEGOTIATION. Sec. 30. Negotiated; transferred — An instrument is negotiated when it is transferred from one person to another in such manner as to con- stitute the transferee the holder thereof. If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder completed by delivery. Sec. 31. The indorsement must be written on the instrument itself or upon a paper attached thereto. The signature of the indorser, with- out additional words, is a sufficient indorsement. Sec. 32. Indorsement entire — The indorsement must be an indorse- § 450] NEGOTIABLE INSTEUMENTS. 297 ment of the entire mstrument. An indorsement which purportg to transfer to the indorsee a part only of the amount payable, or •which purports to transfer the instrument to two or more indorsees severally, does not operate as a negotiation of the instrument. But where the instrument has been paid in part, it may be indorsed as to the residue. Sec. 33. Indorsement special or blank — ^An indorsement may be either special or in blank; and it may also be either restrictive or qualified, or conditional. See. 84. A special indorsement specifies the person to whom, or to whose order, the instrument is to be payable; and the indorsement of such indorsee is necessary to the further negotiation of the instru- ment. An indorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer, and may be negotiated by delivery. Sec. 35. The holder may convert a blank indoisement into a special indorsement by writing over the signature of the indorser in blank any contract consistent with the character of the indorsement. See. 36. An indorsement Is restrictive which either (1) prohibits the further negotiation of the instrument, or (2) constitutes the in- dorsee the agent of the indorser, or (3) vests the title in the indorsee in trust for or to the use of some other person. But the mere absence of words implying power to negotiate does not make an indorsement restrictive. Sec. 37. Effect of restrictive indorsement — ^A restrictive indorse- ment confers upon the indorsee the right (1) to receive payment of the instrument, (2) to bring any action thereon that the indorser could bring, (3) to transfer his rights as such indorsee, where the form of the indorsement authorizes him to do so. But all subsequent indorsees acquire only the title of the first indorsee under the restrictive in- dorsement. Sec. 38. A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser 's signature the words "without recourse," or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument. Sec. 39. Where an indorsement Is conditional, a party required to pay the instrument may disregard the condition, and make payment to the indorsee or his transferee, whether the condition has been ful- filled or not. But any person to whom an instrument so indorsed is negotiated will hold the same, or tibe proceeds thereof, subject to the rights of the person indorsing conditionally. Sec. 40. Indorsement payable to bearer — Where an instrument, payable to bearer, is indorsed specially, it may nevertheless be further negotiated by delivery; but the person indorsing specially is liable as indorser to only such holders as make title through his indorsement. ' Sec. 41. Payable to order — Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others. 298 NOTARIES PUBLIC. [§ 450 Sec. 42. Dra'wii or indorsed to cashier — Where an instrument is drawn or indorsed to a person as "cashier" or other fiscal officer of an bank or corporation, it is deemed prima facie to be payable to the bank or corporation of which he is such officer; and may be nego- tiated by either the indorsement of the bank or corporation, or the indorsement of the officer. Sec. 43. Wrong names — Where the name of a payee or indorsee is wrongly designated or misspelled, he may indorse the instrument as therein described, adding, if he thinks fit, his proper signature. See. 44. Bepresentative indorsement — Where any person is under obligation to indorse in a representative capacity, he may indorse in such terms as to negative personal liability. Sec. 45. Date of indorsement — Except where an indorsement bears date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue. Sec. 4S. Place of indorsement — ^Except where the contrary appears, every indorsement is presumed prima facie to have been m.ade at the pla«e where the instrument is dated. Sec. 47. Negotiable xintil paid — ^An instrument negotiable in its origin continues to be negotiable until it has beei\ restrictively in- dorsed or discharged by payment or otherwise. Sec. 48. The bolder may at any time strike out any Indorsement which is not necessary to his title. The indorser whose indorsement is struck out, and all indorsers subsequent to him, are thereby relieved from liability on the instrument. Sec. 49. Effect of transfer without Indorsement — Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferer had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferer. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made. Sec. 50. Wiere an instrument is negotiated back to a prior party, such party may, subject to the provisions of this act, reissue and fur- ther negotiate the same. But he is not entitled to enforce payment thereof against any intervening party to whom he was personally liable. AETICLE rv. RIGHTS OF THE HOLDER. Sec. 51. Efolder may sue — The holder of a negotiable instrument may sue thereon in his own name; and payment to him in due course discharges the instrument. Sec. 52. A holder in due course is a holder who has taken the in- strument under the following conditions: (1) That it is complete and regular upon its face, (2) that he became the holder of it before it was § 450] NEGOTIABLE lNSTUUMEKa?S. 299 overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any in- firmity in the instrument or defect in the title of the person negotiat- ing it. Sec. 53. A holder not In due course — ^Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course. Sec. 54. Notice before full amount paid — Where the transferee re- ceives notice of any infirmity in the instrument or defect in the title of the person negotiating the same before he has paid the fuU amount agreed to be paid therefor, he will be deemed a holder in due course only to the extent of the amount theretofore paid by him. Sec. 55. Title defective — The title of a person who negotiates an instrument is defective within the meaning of this act when he ob- tained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circum- stances as amount to a fraud. Sec. 56. Notice of defect — To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. Sec. 57. A holder in due course holds the Instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instru- ment for the full amount thereof against all parties liable thereon. Sec. 58. When subject to the same defenses — In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter. Sec. 59. Every holder is deemed prima, facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title. 300 NOTARIES PUBLIC. [§ 450 AETICLE V. JJABILITIES OF PARTIES. See. ^60. The maker of a negotiable instrument by making it en- gages that he will pay it according to its tenor; and admits the exist- ence of the payee and his then capacity to indorse. Sec. 61. The drawer by drawing the instrument admits the exist- ence of the payee and his then capacity to indorse; and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it. But the drawer may insert in the instrument an express stipu- lation negativing or limiting his own liability to the holder. Sec. 62. The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits (1) the existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and (2) the existence of the payee and his then capacity to indorse. Sec. 63. Indorser — A person placing his signature upon an instru- ment otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his inten- tion to be bound in some other capacity. Sec. 64. Irregular Indorser — ^Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules: (1) If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties. (2) If the instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer. (3) If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee. Sec. 65. Warranty by delivery or indorsement — Every person nego- tiating an instrument by delivery or by a qualified indorsement, war- rants (1) that the instrument is genuine and in all respects what it purports to be; (2) that he has a good title to it; (3) that all prior parties had capacity to contract; (4) that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. But when the negotiation is by delivery only, the war- ranty extends in favor of no holder other than the immediate transferee. The provisions of subdivision three of this section do not apply to per- sons negotiating public or corporate* securities, other than bills and notes. Sec. 66. General indorser — Every indorser who indorses without qualification warrants, to all subsequent holders in due course, (1) the matters and things mentioned in subdivisions one, two, and three of the next preceding section and (2) that the instrument is at the time of his indorsement valid and subsisting. And, in addition, he § 450] NEGOTIABLE INSTHOMENTS. 301 engages that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it. Sec. 67. lilabillty of indorser — Where a person places his indorse- ment on an instrument negotiable by delivery he incurs all the liabilities of an indorser. See. 68. Liable in order of Indorsement — Aa respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among them- selves they have agreed otherwise. Joint payees or joint indorsees who indorse are deemed to indorse jointly and severally. Sec. 69. Where a broker or other agent negotiates an instrument without indorsement, he incurs all the liabilities prescribed by section 65 of this act, unless he discloses the name of his principal, and the fact that he is acting only as agent. AETICLB VI. PEESENTMENT EOE PAYMENT. Sec. 70. Want of demand on principal — ^Presentment for payment is not necessary in order to charge the person primarily 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 provided, presentment for payment is necessary in order to charge the drawer and indorsers. See. 71. Where the instrument is not payable on demand, pre- sentment 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. Sec. 72. Presentment for payment, to be sufficient, must be made (1) by the holder, or by some person authorized to receive payment on his behalf; (2) at a reasonable hour on a business day; (3) at a proper place, as herein defined; (4) to the person primarily liable on the instrument, or, if he is absent or inaccessible, to any person found at the place where the presentment is made. Sec. 73. Presentment for payment is made at the proper place: (1) Where a place of payment is specified in the instrument and it is there presented; (2) where no place of payment is specified but the address of the person to make payment is given in the instrument and it is there presented; (3) where no place of payment is specified and no address is given and the instrument ia presented at the usual place of business or residence of the person to make payment; (4) in any other case, if presented to the person to make payment wherever he 302 NOTARIES PUBLIC. [8 450 can be found, or if presented at his last known place of business or residence. Sec. 74. The instrument must be exhibited to the person from whom payment is demanded, and when it is paid must be delivered up to the party paying it. Sec. 75. Where the instrument is payable at a ban^ 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 presentment at any hour before the bank is closed on that day is sufficient. Sec. 76. Drawer dead— Where the person primarily liable on the instrument is dead, and no place of payment is specified, presentment for payment must be made to his personal representative, if such there be, and if with the exercise of reasonable diligence, he can be found. See. 77. Partners — ^Where the persons primarily liable on the in- strument are liable as partners, and no place of payment is specified, presentment for payment may be made to any one of them, even though there has been a dissolution of the firm. Sec. 78. Joint debtors — Where there are several persons, not part- ners, primarily liable on the instrument, and no place of payment is specified, presentment must be made to them all. See. 79. Presentment for payment is not required in order to charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument. See. 80. Presentment for payment is not required in order to charge an. indorser where the instrument was made or accepted for his ac- commodation, and he has no reason to expect that the instrument will be paid if presented. See. 81. Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence. Sec. 82. Presentment for payment is dispensed with: (1) Where after the exercise of reasonable diligence presentment as required by this act cannot be made; (2) where the drawee is a fictitious person; (3) by waiver of presentment, express or implied. Sec. 83. The instrument is dishonored by nonpayment when (1) it is duly presented for payment and payment is refused or cannot be obtained, or (2) presentment is excused and the instrument is overdue and unpaid. Sec. 84. Persons secondarily liable — Subject to the provisions of this act, when the instrument is dishonored by nonpayment, an imme- diate right of recourse to aU parties secondarily liable thereon, accrues to the holder. Sec. 85. Days of grace; maturity — Every negotiable instrument is payable at the time fixed therein without grace. When the day of maturity falls upon Sunday or a holiday, the instrument is payable § 450] NEGOTIABLE INSTRnMENTS. 303 on the next succeeding business day. Instruments falling due on Saturday are to be presented for payment on the next succeeding busi- ness day, except that instruments payable on demand may, at the option of the holder, be presented for payment before twelve o'clock noon Saturday when that entire day is not a holiday. See. 86. Time; after date; sight; how computed — ^Where the instru- ment is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run, and by in- cluding the date of payment. Sec. 87. Where the Instrument is made payable at a bank it is equivalent to an order to the bank to pay the same for the account of the principal debtor thereon. See. 88. Pajrment is made in due course when it is made at or after the maturity of the instrument to the holder thereof in good faith and without notice that his title is defective. AETICLE Vn. NOTICE OF DISHONOR. Sec. 89. Notice to whom — Except as herein otherwise provided, when a negotiable instrument has been dishonored by nonaeceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged. See. 90. Notice for whom — The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up, would have a right to reimbursement from the party to whom the notice is given. See. 91. Notice by agent — Notice of dishonor may be given by an agent either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not. Sec. 92. Effect of notice for holder — "Where notice is given by or on behalf of the holder, it inures for the benefit of all subsequent holders and all prior parties who have a right of recourse against the party to whom it is given. Sec. 93. Effect of notice by party entitled to — ^Where notice is given by or on behalf of a party entitled to give notice, it inures for the benefit of the holder and all parties subsequent to the party to whom notice is given. Sec. 94. When agent may give notice — Where the instrument has been didhonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal upon the receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder. 304 NOTARIES PUBLIC. [§ 450 Sec. 95. Wlien notice sufacient — A written notice need not be signed and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact misled thereby. Sec. 96. Form of notice — The notice may be in writing or merely oral and may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored by nonacceptance or nonpayment. It may in all cases be given by delivering it per- sonally or through the mails. Sec. 97. To whom notice may be given — Notice of dishonor may be given either to the party himself or to his agent in that behalf. Sec. 98. When any party Is dead, and his death is known to the party giving notice, the notice must be given to a personal representa- tive, if there be one, and if, with reasonable diligence, he can be found. If there be no personal representative, notice may be sent to the last residence or last place of business of the deceased. Sec. 99. Where the parties to be notified are partners, notice to any one partner is notice to the firm, even though there has been a dissolution. Sec. 100. Notice to joint parties who are not partners must be given to each of them, unless one of them has authority to receive such notice for the others. See. 101. Where a party has been adjudged a bankrupt or an in- solvent, or has. made an assignment for the benefit of creditors, notice may be given either to the party himself or to his trustee or assignee. Sec. 102. Notice may be given as soon as the instrument is dis- honored; and unless delay is excused as hereinafter provided, must be given within the times fixed by this act. Sec. 103. Where the person giving and the person to receive notice reside in the same place, notice must be given within the following times: (1) If given at the place of business of the person to receive notice, it must be given before the close of business hours on the day following; (2) if given at his residence, it must be given before the usual hours of rest on the day following; (3) if sent by mail, it must be deposited in the post office in time to reach him in usual course on the day following. See. 104. Where the person giving and the person to receive notice reside in difierent places, the notice must be given within the follow- ing times: (1) If sent by mail, it must be deposited in the post office in time to go by mail the day following the day of dishonor, or if there be no mail at a convenient hour on that day, by the next mail there- after. (2) If given otherwise than through the post office; then within the time that notice would have been received in due course of mail, if it had been deposited in the post office within the time specified in the last subdivision. Sec. 105. Where notice of dishonor te duly addressed and deposited § 450] NEGOTIABLE INSTEUMENTS. 305 tn the post ofB,ce, the sender is deemed to have given due notice, not- withstanding any miscarriage in the mails. Sec. 106. Notice Is deemed to have been deposited tn the post office when deposited in any branch post office or in any letter box under control of the post office department. Sec. 107. Notice to subsequent party; time— Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor. Sec. 108. Where notice to be sent — Where a party has added an address to his signature, notice of dishonor must be sent to that ad- dress; but if he has not given such address, then the notice must be sent as follows: (1) Either to the post office nearest to his place of residence, or to the post office where }ie is accustomed to receive his letters; or (2) if he live in one place, and have his place of business in another, notice may be sent to either place; or (3) if he is so- journing in another place, notice may be sent to the place where he is sojourning. But where the notice is actually received by the party within the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section. Sec. 109. Notice of dishonor may be waived either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied. Sec. 110. WTio affected by waiver — ^Where the waiver is embodied in the instrument itself, it is binding upon all parties; but where it is written above the signature of an indorser, it binds him only. Sec. 111. A waiver of protest, whether in the case of a foreign bill of exchange or other negotiable instrument, is deemed to be a waiver not only of a formal protest, but also of presentment and notice of dishonor. Sec. 112. Notice of dishonor ie dispensed with when, after the exer- cise of reasonable diligence, it cannot be given to or does not reach the parties sought to be charged. Sec. 113. Delay In giving notice of dishonor Is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate, notice must be given with reasonable diligence. Sec. 114. Notice of dishonor Is not required to be given to the drawer in either of the following cases: (1) Where the drawer and drawee are the same person; (2) where the drawee is a fictitious person or a person not having capacity to contract; (3) where the drawer is the person to whom the instrument is presented for pay- ment; (4) where the drawer has no right to expect or require that the drawee or acceptor will honor the instrument; (5) where the drawer has countermanded payment. Sec. 115. Notice of dishonor is not required to be given to an in- dorser in either of the following cases: (1) Where the drawee is a 20 306 NOTARIES PUBLIC. [§ 450 fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument; (2) where the indorser is the person to whom the instrument is pre- sented for payment; (3) where the instrument was made or accepted for his accommodation. Sec. 116. Where due notice of dishonor by nonacceptance has been given, notice of subsequent dishonor by nonpajmient Is not necessary, unless in the meantime the instrument has been accepted. Sec. 117. An omission to give notice of dishonor by nonacceptance does not prejudice the rights of a holder in due course subsequent to the omission. Sec. 118. Protest — Where any negotiable instrument has been dis- honored it may be protested for nonacceptance or nonpayment as the case may be; but protest is not . required, except in the case of foreign bills of exchange. AETICLE Vm. DISCHAEGE OF NEGOTIABLE INSTRUMENTS. Sec. 119. How — A negotiable instrument is discharged: (1) By payment in due course by or on behalf of the principal debtor; (2) by payment in due course by the party accommodated, where the instru- ment is made or accepted for accommodation; (3) by the intentional cancellation thereof by the holder; (4) by any other act which will discharge a simple contract for the payment of money; (5) when the principal debtor becomes the holder of the instrument at or after ma- turity in his own right. Sec. 120. A person secondarily liable on the Instrument Is dis- charged: (1) By any act which discharges the instrument; (2) by the intentional cancellation of his signature by the holder; (3) by the discharge of a prior party; (4) by a valid tender of payment made by a prior party; (5) by a release of the principal debtor, un- less the holder's right of recourse against the party secondarily liable is expressly reserved; (6) by any agreement binding upon the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved. Sec. 121. Where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights as regards all prior parties, and he may strike out his own and all subsequent indorsements, and again nego- tiate the instrument, except (1) where it is payable to the order of a third person, and has been paid by the drawer; and (2) where it was made or accepted for accommodation, and has been paid by the party accommodated. Sec. 122. The holder may expressly renounce his rights against any party to the instrument, before, at, or after its maturity. An § 450] NEGOTIABLE INSTRUMENTS. 307 absolute and unconditional renunciation of his rights against the prin- cipal debtor made at or after the maturity of the instrument dis- charges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon. Sec. 123. A cancellation made unintentionally, or under a mistake or without the authority of the holder, is inoperative; but where an instrument or any signature thereon appears to have been canceled the burden of proof lies on the party who alleges that the cancellation was made unintentionally, or under a mistake or without authority. Sec. 124. Where a negotiable instrument is materially altered with- out the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized, or assented to the alteration and subsequent indorsers. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor. Sec. 125. What constitutes alteration — Any alteration which changes (1) the date, (2) the sum payable, either for principal or interest, (3) the time or place of payment, (4) the number or the relations of the parties, (5) the medium or currency in which payment is to be made, or which adds a place of payment where no place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect, is a material alteration. TITLE n. BILLS OF EXCHANGE. ARTICLE L FOEM AND INTEEPRETATION. Sec. 126. Definition of bUl of ezcliange — A bill of exchange is an un- conditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. See. 127. A bill of itself does not operate as an assignment of tli« funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bUl unless and until he accepts the same. Sec. 128. A bill may be addressed to two or more drawees jointly, whether they are partners or not; but not to two or more drawees in the alternative or in succession. Sec. 129. An Inland bill of exchange is a bill which is, or on its face purports to be, both drawn and payable within this state. Any other bill is a foreign bill. Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill. 308 NOTARIES PUBLIC. [§ 450 Sec. 180. VThm bill may be treated as a promissory note — Where in a bill drawer and drawee are the same person, or where the drawee is a fictitious person, or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or a promissory note. Sec. 131. Keferee In case of need — The drawer of a biU and any indorser may insert thereon the name of a person to whom the holder may resort in ease of need, that is to say, in case the bill is dishon- ored by nonacceptance or nonpayment. Such person is called the referee in ease of need. It is in the option of the holder to resort to the referee in case of need or not as he may see fit. AETICLB n. ACCEPTANCE. Sec. 132. How made— The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the pay- ment of money. Sec. 133. The holder of a biU presenting the same for acceptance may require that the acceptance be written on the bill, and if such a request is refused, may treat the bill as dishonored. Sec. 134. An acceptance on separate paper — Where an 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. Sec. 135. Promise to accept — An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value. Sec. 136. 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. Sec. 137. Liability of drawee for destroying bill — 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 nonae- cepted to the holder, he will be deemed to have accepted the same. Sec. 138. Acceptance of incomplete bill — A bill may be accepted before it has been signed by the drawer, or while otherwise incom- plete, or when it is overdue, or after it has been dishonored by a previous refusal to accept, or by nonpayment. But when a bill payable after sight is dishonored by nonacceptance and the drawee subsequently accepts it, the holder, in the absence of any different agreement, is entitled to have the bill accepted as of the date of the first present- ment. Sec. 139. An acceptance Is either general or qualified — ^A general § 450] NEGOTIABLE INSTEUICENTS. 309 acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn. See. 140. General acceptance — An acceptance to pay at a particular place is a general acceptance unless it expressly states that the bill is to be paid there only and not elsewhere. Sec. 141. Qualified acceptance — 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 bUl is drawn; (3) local, that is to say, an acceptance to pay only at a particular place; (4) qualified as to time; (5) the acceptance of some one or more of the drawees, but not of all. Sec. 142. Rights of parties as to qualified acceptance — 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 qualified accept- ance, 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. ARTICLE m. PBE8ENTMENT TOR ACCEPTANCE. See. 143. Presentment for acceptance must be made: (1) Where the bill is payable after sight, or in any other case where present- ment for acceptance is necessary in order to fix the maturity of the instrument; or (2) where the bill expressly stipulates that it shall be presented for acceptance; or (3) where the bill is drawn payable elsewhere than at the residence or place of business of the drawee. In no other case is presentment for acceptance necessary in order to render any party to the bill liable. Sec. 144. Failure to present releases drawer and Indorsers — Except as herein otherwise provided, the holder of a bill, which is required by the next preceding section to 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. Sec. 145. Presentment; how made — ^Presentment for acceptance must be made by or on behalf of the holder at a reasonable hour, on a business day and before the bill is overdue, to the drawee or some person authorized to accept or refuse acceptance on his behalf; and (1) where a bUl is addressed to two or more drawees who are not partners, presentment must be made to them all, unless one has au- thority to accept or refuse acceptance for all, in which case present- ment may be made to him only. (2) Where the drawee is dead, 310 NOTARIES PUBLIC. [§ 450 presentment may be made to his personal representative. (3) Where the drawee has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, presentment may be made to him or to his trustee or assignee. Sec. 146. Days for presentation — A bill may be presented for ac- ceptance on any day on which negotiable instruments may be presented for payment under the provisions of sections seventy-two and eighty-five of this act. "When Saturday is not otherwise a holiday, presentment for acceptance may be made before twelve o'clock noon on that day. See. 147. Time insufficient — Where the' holder of a bill drawn pay- able 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 presenting the bill for acceptance before presenting it for payment is excused, and does not discharge the drawers and indorsers. Sec. 148. Presentment for acceptance Is excused, and a bUl may be treated as dishonored by nonacceptance, in either of the following cases: (1) Where the drawee is dead, or has absconded, or is a ficti- tious person, or a person 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, accept- ance has been refused on some other ground. Sec. 149. A bill is dishonored by nonacceptance: (1) When it is duly presented 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. Sec. 150. Duty of holder when not accepted — When a bill is duly presented for acceptance and is not accepted within the prescribed time, the person presenting it must treat the bill as dishonored by nonaccept- ance or he loses the right of recourse against the drawer and indorsers. Sec. 151. Eights of holder when not accepted — When a bill is dis- honored by nonacceptance, an immediate right of recourse against the drawers and indorsers accrues to the holder, and no presentment for payment is necessary. AETICLE IV. PROTEST. Sec. 152. Protest necessary — Where a foreign bill appearing on its face to be such is dishonored by nonacceptance, it must be duly pro- tested for nonacceptance, and where such a bill has not previously been dishonored by nonacceptance is dishonored by nonpayment, it must be duly protested for nonpayment. 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 in case of dishonor is unnee- essary. Sec. 153. How made — The protest must be annexed to the bill or § 450] NEGOTIABLE INSTRUMENTS. 311 must contain a copy thereof, and must be under the hand and seal of the notary making it, and must specify (1) the time and place of presentment; (2) the fact that presentment was made and the manner thereof; (3) the cause or reason for protesting the bill; (4) the de- mand made and the answer given, if any, or the fact that the drawee or acceptor could not be found. Sec. 154. By whom — Protest may be made by (1) a notary public; or (2) by any respectable resident of the place where the bill is dis- honored, in the presence of two or more credible witnesses. See. 155. When to be made — ^When a bill is protested, such protest must be made on the day of its dishonor, unless delay is excused as herein provided. When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting. Sec. 156. Where ma/de — A bill must be protested at the place where it is dishonored, except that when a bill, drawn payable at the place of business or residence of some person other than the drawee, has been dishonored by nonacceptance, it must be protested for nonpayment at the place where it is expressed to be payable, and no further pre- sentment for payment to, or demand on, the drawee is necessary. Sec. 157. Nonacceptance and nonpayment — A bill which has been protested for nonacceptance may be subsequently protested for nonpay- ment. Sec. 158. Protest before maturity; insolvency — Where the acceptor has been adjudged a bankrupt or an insolvent, or has made an assign- ment for the benefit of creditors, before the bill matures, the holder may cause the bill to be protested for better security against the drawer and indoTsers. Sec. 159. Protest Is dispensed with by any circumstances which would dispense with notice of dishonor. Delay in noting or protesting is excused when delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct, or negli- gence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence. Sec. 160. Where a bill Is lost or destroyed or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof. AETICXiE V. ACCEPTANCE FOE HONOR. Sec. 161. When may be — ^Where a bill of exchange has been pro- tested for dishonor by nonacceptance or protested for better security and is not overdue, any person not being a party already liable thereon may, with the consent of the holder, intervene and accept the bill supra protest for the honor of any party liable thereon or for the honor of the person for whose account the bill is drawn. The accept- ance for honor may be for part only of the sum for which the bill is drawn; and where there has been an acceptance for honor for one 312 NOTARIES PUBLIC. [§ 450 party, there may be a further acceptance by a different person for the honor of another party. Sec. 162. How — ^An acceptance for honor eupra protest must be in writing and indicate that it is an acceptance for honor, and must be signed by the acceptor for honor. See. 163. When deemed for drawer — Where an acceptance for honor does not expressly state for whose honor it .is made, it is deemed to be an acceptance for the honor of the drawer. Sec. 164. The acceptor for honor is liable to the holder and to all parties to the bill subsequent to the party for whose honor he has accepted. Sec. 165. The acceptor for honor by such acceptance engages that he will on due presentment pay the bill according to the terms of his acceptance, provided it shall not have been paid by the drawee, and provided also that it shall have been duly presented for payment and protested for nonpayment and notice of dishonor given to him. Sec. 166. Maturity when payable after sight — ^Where a bill payable after sight is accepted for honor, its maturity is calculated from the date of the noting for nonacceptance and not from the date of the acceptance for honor. Sec. 167. Protest when accepted for honor — Where a dishonored bill has been accepted for honor supra protest or contains a reference in case of need, it must be protested for nonpayment before it is pre- sented for payment to the acceptor for honor or referee in case of need. Sec. 168. Presentment for payment to the acceptor for honor must be made as follows: (1) If it is to be presented in the place where the protest for nonpayment was made, it must be presented not later than the day following its maturity. (2) If it is to be presented in some other place than the place where it was protested, then it must be forwarded within the time specified in section 104. See. 169. Delay excused — The provisions of section 81 apply where there is delay in making presentment to the acceptor for dishonor or referee in case of need. Sec. 170. When dishonored must be protested — When the biU is dishonored by the acceptor for honor it must be protested for nonpay- ment by him. ARTICLE VI. PAYMENT FOE HONOB. Sec. 171. Who may make — where a bill has been protested for non- payment, any person may intervene and pay it supra protest for the honor of any person liable thereon or for the honor of the person for whose account it was drawn. See. 172. How made — The payment for honor supra protest in order to operate as such and not as a mere voluntary payment must be at- § 450] NEGOTIABLE INSTRUMENTS. 313 tested by a notarial act of honor which may be appended to the pro- test or from an extension to it. Sec. 173. Declaration before payment — The notarial act of honor must be founded on a declaration made by the payer for honor or by his agent in that behalf declaring his intention to pay the bill for honor and for whose honor he pays. Sec. 174. Preference of parties oSering to pay — ^Where two or more persons offer to pay a bill for the honor of different parties, the person whose payment will discharge most parties to the bill is to be given the preference. See. 175. Effect on subsequent parties — Where a bUl has been paid for honor, all parties subsequent to the party for whose honor it is paid are discharged, but the payer for honor is subrogated for, and succeeds to, both the rights and duties of the holder as regards the party for whose honor he pays and all parties liable to the latter. See. 176. Where the holder of a biU refuses to receive payment supra protest, he loses his right of recourse against any party who would have been discharged by such payment. Sec. 177. Eights of payer for honor — The payer for honor on paying to the holder the amount of the bill, and the notarial expenses incident to its dishonor, is entitled to receive both the bill itself and the protest. AETICLE Vn. BILLS IN A SET. Sec. 178. Bills In set constitute one bill — ^Where a bill is drawn in a set, each part of the set being numbered and containing a refer- ence to the other parts, the whole of the parts constitute one bUl. Sec. 179. Bights of holders of different parts — Where two or more parts of a set are negotiated to different holders in due course, the holder whose title first accrues is, as between such holders, the true owner of the bill. But nothing in this section affects the rights of a person who in due course accepts or pays the part first presented to him. See. 180. Where the holder of a set indorses two or more parts to different persons he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed, as if such parts were separate bills. Sec. 181. The acceptance may ba written on any part and it must be written on- one part only. If the drawee accepts more than one part, and such accepted parts are negotiated to different holders in due course, he is liable on every such part as if it were a separate bill. See. 182. When the acceptor of a bUl drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereon. See. 183. Paymeint of one discharges all — Except as herein otherwise provided, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is discharged. 314 KOTAUIES ftfBLIO. [§ 451 TITlrE m. PEOMISSOBY NOTES AND CHECKS. Sec. 184. ITote defined — A negotiable promissory note within the meaning of this act is an unconditional promise in writing made by one person to another signed by the maker engaging to pay on demand or at a fixed or determiable future time, a sum certain in money to order or to bearer. Where a note is drawn to the maker's own order, it is not complete until indorsed by him. See. 185. Check defined — A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this act, applicable to a bill of exchange payable on de- mand, apply to a cheek. Sec. 186. A check must be presented for payment within a reason- able time after its issue or the drawer wUl be discharged from liability thereon to the extent of the loss caused by the delay. See. 187. Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance. Sec. 188. Where the holder of a check procures it to be accepted or certified the drawer and all indorsers are discharged from liability thereon. See. 189. A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check. STATUTORY EEQUIEEMBNTS. § 451. Alabama— PROTEST — See Uniform Negotiable Instruments Law. Damages cover exchange in this country. For foreign currency add exchange. DAYS OF GRACE— abolished. HOLIDAYS— Sunday, Jan. 1, Jan. 19, Feb. 22, April 13, April 26, June 3, July 4, first Mon- day in September, Thanksgiving Day. If any fall on a Sunday, then the following Monday; paper entitled to days of grace, or subject to protest falling due on a holiday, must be taken as due on the next suc- ceeding day. LEGAL INTEREST- 8 per cent. § 452. Alaska^PROTEST— bUls of exchange within United States but out of district draw interest, 5 per cent damages, costs and charges of protest. When payable without limits of United States, protest subjects party liable for contents of bill, damages at rate of 10 per cent, interest and expenses. HOLIDAYS — Sunday, Christmas Day, or other legal holiday, Thanksgiving Day. DAYS OF GRACE — allowed. § 453. Arizona, — See Uniform Neogtiable Instruments Law. DAYS OF GRACE— abolished. HOLIDAYS— Sunday, Jan. 1, Feb. 14, 22, May 30, July 4, first Monday in September, Oct. 12, Dec. 25, general election days, Thanksgiving Day, Arbor Day. If any of these fall on Sunday, the following Monday is observed. Time computed by § 456] NEGOTIABLE INSTRUMENTS. 315 excluding first and including last day, unless a holiday. LEGAL INTEREST — 6 per cent; but parties may agree in writing for a larger rate not exceeding 10 per cent. § 454. Arkansas — See tTniform Negotiable Instruments Law. DATS OF GRACE — abolished. HOLIDAYS— Christmas, New Tear's Day, July 4, Thanksgiving Day, Washington's birthday. Labor Day (the first Monday in September), General Robert E. Lee's birthday (January 19), all general biennial election days, June 3, Jefferson Davis' birth- day, October 12, Columbus Day (not affecting commercial paper, execu- tion of instruments nor interfering with judicial proceedings). DAM- AGES — for protested bills of exchange drawn or negotiated within the state, for value received. First. If drawn on any person at any place within the state, 2 per cent on the principal. Second. If payable in Alabama, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, Indiana, Illinois, Missouri or any Ohio river point, 4 per cent on the principal. Third. If payable within the United States other than before stated, 5 per cent on the principal. Fourth. If payable without the United States, 10 per cent on the principal. If for value received, and payable to order or bearer, drawn on any person at any place jyithin the state, accepted and protested for nonpajrment. First. Drawn by any person at any place within this state, 2 per cent on principal. Second. If drawn outside this state but within the United States, 6 per cent on principal. Third. If drawn outside the United States, at 10 per cent on principal. In addition, protest fees and interest at 10 per cent per annum on the principal are allowed from the date of protest until paid. Eight of action allowed if properly protested. LEGAL INTEREST— 6 per cent; can in writing contract for 10 per cent. I 455. California — See Uniform Negotiable Instruments Law. DATS OF GRACE — abolished. HOLIDATS — Sunday, 1st day of January, 12th and 22nd days of February, 30th day of May, 4th day of July, 9th day of September, first Monday of September, 12th day of October, 25th day of December, first days of election in the state, every fast. Thanks- giving or holiday appointed by the President of the United States or the governor of the state. If these days fall on a Sunday, then the next day, Monday, is a holiday. LEGAL INTEREST— 7 per cent; a higher rate permitted by agreement if in writing. § 456. Colorado — See Uniform Negotiable Instruments Law. HOLI- DAYS — in cities of 100,000 population, during June, July and Aug., Saturday after 12 o'clock, Sunday, Jan. 1, Feb. 12, 22, May 30, July 4, Dec. 25, Thanksgiving Day, first Monday in September, Novem- ber, election day. If any of these days fall on a Sunday, then the Monday following. When the day of maturity falls upon Sunday, a holiday or part holiday, the instrument is payable on the next succeed- ing business day. If payable on Saturday it must be presented on the next succeeding business day, except, when payable on demand, may, at the option of the holder, be presented for payment before 12 o'clock 316 NOTARIES PUBLIC. [§ 457 noon. The day of date is not a part of the time. LEGAL INTEEEST — 8 per cent. I 457. Connecticttt — See Uniform Negotiable Instruments Law. HOLIDAYS— Jan. 1, Feb. 12, 22, May 30, July 4, Sept. first Monday, Oct. 12, Dec. 25, Sunday, or any day appointed by the President or governor, as Thanksgiving or fasting or religious observance. When any of these come on Sunday, the following Monday is to be observed. On Saturday of each week banking hours end at 12 o'clock. LEGAL INTEEEST— 6 per cent. § 458. Delaware — See Uniform Negotiable Instruments Law. HOLI- DAYS — Jan. 1, Feb. 12, 22, May 30, July 4, first Monday in September, Oct. 12, Thanksgiving Day, Dec. 25, general election day, and in Kent and New Castle counties, Saturday afternoon after 12 o'clock is a legal holiday. If any holiday falls on Sunday, the following Monday is observed. DAYS OF GEACE— abolished. DAMAGES — on foreign protested biUs of exchange, 20 per cent. LEGAL INTEEEST— 6 per cent. § 459. District of Columbia — See Uniform Negotiable Instruments Law. HOLIDAYS — Jan. 1, Feb. 22, May 30, July 4, first Monday in September, Thanksgiving Day, Dec. 25, Presidential Inauguration Day, Saturday afternoon after 12 o'clock noon. Any holiday falling on Sunday, the following Monday is observed. LEGAL INTEEEST — 6 per cent. § 460. Florida, — See Uniform Negotiable Instruments Law. HOLI- DAYS — Sunday, Jan. 1, 19, Feb. 22, April 26, June 3, July 4, first Monday in September, second Friday in October (Farmer's Day), gen- eral election day. Thanksgiving Day, Nov. 11 (Liberty Day), Dec. 25, Good Friday, and Shrove Tuesday in cities or towns having carnival associations. Whenever any of these days fall on a Sunday, the follow- ing Monday is to be observed. All bills, notes and checks falling due on these days are presentable the succeeding day. DAMAGES — on foreign protested bills, 5 per cent. LEGAL INTEEEST — 8 per cent. ACTION ON NOTES— limited to 5 years. § 461. Georgia — ^INDOESEE — anyone indorsing or transferring a negotiable instrument may limit their responsibility by express re- strictions. Every transferer of a negotiable instrument warrants, un- less otherwise agreed by the parties, that he is the lawful holder, and that the instrument is genuine. If there are several indorsers each is liable to subsequent ones, or the indorser will not be held liable there- on; but it shall not be necessary to protest in order to bind in- dorsers, except, when a paper is made payable on its face at a bank or banker's office, or when it is discounted at a bank or banker's office, or when it is left at a bank or banker's offi.ce for collection. Damages on bills of exchange payable out of this state and in the United States, when returned protested for nonacceptance or nonpayment, the holder § 463] NEGOTIABLE INSTRUMENTS. 317 shall be entitled to recoTer of the drawer and indorsers in the first case and the acceptor also in the latter case, in addition to the prin- cipal, interest and protest fees, 5 per cent damages on the principal. If without the United States, 10 per cent. The indorser may be sued in the same action, and in the same county with the maker, or drawer, or ac- ceptor. The holder of a negotiable instrument receiving the same before due, without notice of any defect or defense, shall be protected from any defenses set up by the maker, acceptor or indorser, except non est factum, gambling or immoral and illegal considerations, or fraud in its procurement. PEOTEST AND NOTICE— when bills of exchange and promissory notes are made for negotiation or intended to be nego- tiated at a chartered bank, and are not paid at maturity, notice of non- payment and of the protest for nonpayment or nonacceptance must be given to the indorsers within a reasonable time, either personally or by post (if the residence of the indorser be known). DAYS OF GEACE — abolished. HOLIDAYS— Jan. 1, 19, Feb. 22, April 26, June 3, July 4, Dec. 25, first Monday in September, Thanksgiviiig Day or any other declared by the law of Georgia to be a public holiday, shall as regards the presenting for payment or acceptance, and the protesting and giving notice of the dishonor of bills of exchange, bank checks and promissory notes, be treated and considered as the first day of the week, called Sunday, and as public holidays; such bills, checks and notes, otherwise presentable on said days, shall be deemed to be pre- sentable on the secular or business day thereafter. Paper payable on demand is due immediately. When no time is specified for the pay- ment of a bill or order, it is due as soon as presented and accepted. DAMAGES — on bills payable outside the state, protested, 5 per cent; outside the United States, 10 per cent in addition to principal, in- terest and protest fees. LEGAL INTEEEST — 7 per cent; may permit 8 per cent in writing. ACTION ON NOTES — ^limited to 6 years. § 462. Hawaiian Islands— HOLIDAYS — Jan. 1, Feb. 22, May 30, June 11, July 4, first Monday in September, Deo. 25. DAYS OP GEACE— three allowed in all bills. If they fall on Sunday, then only two days. LEGAL INTEEEST — 6 per cent; on written contract 1 per cent per month is permitted. § 463. Idaho — See Uniform Negotiable Instruments Law. PEE- SENTMENT FOE ACCEPTANCE — must be made, where the bill is payable after sight or in any other case where presentment for ac- ceptance IS necessary in order to fix the maturity of the instrument; or where the bill expressly stipulates that it shall be presented for accept- ance; or where the bill is drawn payable elsewhere than at the resi- dence or place of business of the drawee. In no other case is present- ment for acceptance necessary in order to render any party to the bill liable. PEOTEST — may be made by a notary public; or by any re- spectable resident of the place where the bill is dishonored, in the presence of two or more credible witnesses. Must be made on the day of its dishonor unless delay is excused as provided for by the law. Protest must be made where the bill is dishonored unless drawn pay- 318 NOTARIES PUBLIC. [§ 464 able at the place of business or residence of some person other than the drawee. Where dishonored by nonacceptanee, it must be protested for nonpayment at the place where it is expressed to be payable, and no other presentment for payment to, or demand on, the drawee is neces- sary. A bill protested for nonacceptanee may be protested for non- payment. Delay in noting or protesting is excused when delay is caused by circumstances beyond the control of the holder, and not imputable to' his default, misconduct or negligence. "When the delay ceases the bill must be protested with reasonable diligence. NOTICE — of dishonor must be given to the drawer and to each indorser; those to whom it is not given are discharged. It may be given by or on behalf of the holder, or by or on behalf of any party to the instru- ment who might be compelled to pay it vo the holder, and who, upon taking it up, would have a right to reimbursement from the party to whom the notice is given. DAYS OF GEACE— abolished. HOLIDAYS — Sunday, Jan. 1, Feb. 22, May 30, June 15, July 4, first Monday in September, Oct. 12, Dec. 25, election days throughout the state. Thanks- giving or fast days appointed by the President or governor. Any act of a secular nature falling upon these days may be performed upon the next business day. LEGAL INTEREST— 7 per cent; permit 10 per cent on written contract. ACTION ON NOTES — limited to 5 years. § 464. niinols — See Uniform Negotiable Instruments Law. HOLI- DAYS — the first day of January, New Year's Day; twenty-second day of February, Washington's Birthday; thirtieth day of May, Decoration Day; Fourth of July, Declaration Day; the twelfth day of October; twenty-fifth day of December, Christmas Day; first Monday of Sep- tember, Labor Day; twelfth day of February, Lincoln's birthday; first day of each week, Sunday; any day appointed by the governor of the state or the President of the United States, as a day of fast, or Thanksgiving; Saturday, from 12 o'clock noon to midnight in cities of 200,000 are declared legal holidays. All notices falling due or matur- ing on these days shall be deemed as due on the day following, and when two or more of these days come together, or immediately succeed each other, then upon the day following the last of such days. DAYS OP GEACE— abolished. MONEY NOTES— the rights of the lawful holders of promissory notes payable in money, and the liabilities of all the parties to or upon said notes shall be made the same as that of like parties to inland bills of exchange according to the custom of merchants. Every assignor of every other note, bond, bill or other instrument in writing shall be liable to the action of the assignee or lawful holder thereof, if such assignee or lawful holder shall have used due diligence by the institution and prosecution of a suit against the maker thereof, for the recovery of the money or property due thereon, or damages in lieu thereof. But if the institution of such suit would have beea unavailing, or the maker had absconded or resided without or had left the state when such instrument became due, such assignee or holder may recover against the assignee as if due diligence by suit § 467] KEGOTIABLB INSTRUMENTS. 319 had been used. Persons severally liable upon bills of exchange or prom- issory notes, payable in money, may all, or any of them severally, be included in the same suit at the option of the plaintiff, and judgment rendered in said suit shall be without prejudice to the rights of the several defendants as between themselves. LEGAL INTEEEST — 5 per cent; permit 7 per cent in writing. ACTION ON NOTES— limited to 10 years. I 465. Indiana — See Uniform Negotiable Instruments Law. DAYS OF GEACE— abolished. HOLIDATS— Sunday, Jan. 1, July 4. Dec. 25, Thanksgiving Day, Feb. 12, 22, May 30, first Monday in September, Oct. 12, general, national or state election days. When legal holiday comes on Sunday, day following is observed. ATTOENEY'S FEES — agreements as to attorney's fees depending upon conditions as set forth in any bill of exchange, acceptance, draft, or other written evidence of indebtedness, are illegal and void. DAMAGES — on protest bills drawn or negotiated in this state, on persons in other states, 5 per cent. Outside the United States, 10 per cent. Interest from date of protest. If upon notice of protest and demand, the principal is paid, the cost of protest only to be charged. Holder must have given a valuable consideration. Damages do not apply to notes discounted at bank and protested for nonpayment. LEGAL INTEREST — 6 per cent; permit 8 in writing. ACTION ON NOTES— limited to 10 years. On any bill drawn or negotiated in this state, and payable at any place without the state, but in regard to which it shall appear that it was not to be presented for acceptance or payment at that place, if means were provided for its discharge within the state, no damages or charges for protest shall be allowed. The holder of any note or bill of exchange, negotiable by the law merchant or by the law of this state, may institute one suit against the whole or any number of the parties liable to such holder, but shall not, at the same term of court, institute more than one suit on said note or bill; provided, that no judgment shall be ren- dered in such suit against any maker of such note, drawer or acceptor of such biU unless suit is brought in the county where one or more of such makers, drawers or acceptors reside at the time such suit is begun. § 466. Iowa — See Uniform Negotiable Instruments Law. DAYS OF GRACE — abolished, only demand may be made on any of the three days following maturity. HOLIDAYS — Sunday, Jan. 1, Feb. 22, May 30, July 4, first Monday in September, Thanksgiving Day, Dee. 25, general election day. Bills of exchange, checks, promissory notes and any bank or mercantile paper falling due on these days are due on the succeeding day. LEGAL INTEEEST — 6 per cent; permit 8 per cent in writing. ACTION ON NOTES— limited to 10 years. § 467. Kansas — See Uniform Negotiable Instruments Law. DAYS OF GEACE— abolished. HOLIDAYS — Sunday, July 4, Dec. 25, Jan. 1, Feb. 22, May 30, Thanksgiving Day and the first Monday in Septem- ber, are legal holidays. If any of these fall upon a Sunday, the day 320 NOTAKIES PUBLIC. [§ 468 succeeding will be observed. LEGAL. INTBEEST— 6 per cent, but parties may stipulate not to exceed 10 per cent. ACTION ON NOTES — limited to 5 years. § 468. Kentucky — See Uniform Negotiable Instruments Law. DATS OF GEACE— abolished. HOLIDAYS— Jan. 1, Feb. 12, 22, May 30, July 4, first Monday in September, Oct. 12, Dec. 25, Thanksgiving Day, and shall be treated as Sunday. If any of these fall on a Sunday, the day following shall be observed. All notes, bills, drafts, checks, etc., falling due on these days may be presented for acceptance and payment, and other action, on the Saturday previous. LEGAL IN- TEREST— 6 per cent. ACTION ON NOTES— limited to 5 years. § 469. Louisiana — See Uniform Negotiable Instruments Law. No obligations for the payment of money, made within this state, shall be received as evidence of a debt when the whole sum shall be expressed in figures, unless the same shall be accompanied by proof that it was given for the sum expressed. The cents may be in figures. PROTEST — New Orleans notaries protest throughout the parish. If no notary can be found, protest may be made in the presence of two witnesses, residents of the parish, they to certify and subscribe to same. Notaries in New Orleans can appoint deputies to assist them, notary to be re- sponsible fot their acts. The certificate to state demand, manner, cir- cumstances, manner of service of notice, etc. Same to be evidence of the facts stated. NOTICE — of protest to be mailed to parties residing elsewhere may be addressed to the place indicated on the bill or note, if no other address is known. DAYS OF GEACE — abolished. HOLIDAYS— Jan. 1, 8, Feb. 22, Mardi Gras, in New Or- leans, July 4, Dec. 25, Sunday, June 3, Nov. 1, Thanksgiving Day (aa designated by the President), first Monday in September, Oct. 12, Saturday after 12 o'clock in cities and towns over 10,000, and Good Friday. Bills falling due on these days shall be deemed due the fol- lowing business day. DAMAGES — on protested biUs — if drawn and payable in foreign countries, $10 per hundred; if drawn and payable in any other state in the United States, $5 per hundred. Damages are in lieu of interest, protest, and all other charges, but the holder shall be entitled to demand and recover lawful interest and damages from the time of protest. If the amount of the bill is expressed in United States money, the rate of exchange has no consideration. LEGAL INTEEEST— 5 per cent. § 470. Maine — See Uniform Negotiable Instruments Law. DAYS OP GEACE — are abolished. HOLIDAYS — Sunday, Thanksgiving Day, Jan. 1, Feb. 22, April 19, May 30, July 4, Dec. 25, first Monday in September, and Saturday after 12 o'clock. Any note, draft, check or bill of exchange falling due on these days shall be payable or pre- sentable on the succeeding secular or business day. LEGAL INTEE- EST— 6 per cent. ACTION ON NOTES— limited to 5 years, witnessed notes to 20 years. § 473] NEGOTIABLE INSTEUMENTS. 321 S 471. Maryland — See ITniform Negotiable Instruments Law. HOI/I- DAYB— Jan. 1, Feb. 22, July 4, Dec. 25, Good Friday, general and congressional election days throughout the state, May 30, Thanksgiving Day. Any of these days falling on a Sunday, the day following shall be observed. All bills, notes, drafts and checks due or presentable on these days shall be deemed presentable the day preceding. Saturday afternoon is a legal holiday for the City of Annapolis. All negotiable paper falling due or protested on that day will be deemed due the following business day. DAMAGES — -on a bill of exchange drawn in this state on persons in other states, protested 8 per cent, with costs of protest and legal interest from protest. An indorser paying same can recover with interest. On persons in foreign countries, 15 per cent on the principal, with protest costs and legal interest from protest. LEGAL INTEEEST— 6 per cent. ACTION ON NOTES— limited to 6 years. • § 472. Massachusetts — See Uniform Negotiable Instruments Law. DAYS OP GBACE — are allowed on bills of exchange, and drafts payable in the state at sight only. HOLIDAYS — Christmas Day, Thanksgiving Day, Feb. 22, May 30, July 4, first Monday of September, April 19. When these occur on Sunday, the following day is a legal holiday. Promissory notes, checks, drafts or bills of exchange falling due on Sunday or a legal holiday shall be payable and presentable on the next succeeding business day, except those payable on demand may be presented before 12 o'clock on Saturday when that entire day is not a holiday. DAMAGES — on a protested bUl drawn or indorsed within the state and payable beyond the limits of the United States, 5 per cent at current rate of exchange at time of demand, with interest from date of protest, in fuU for all damages, charges and expenses. If payable in Maine, New Hampshire, Vermont, Ehode Island, Connecticut or New York, 2 per cent; if in New Jersey, Pennsylvania, Maryland or Delaware, 3 per cent; if in Virginia, West Virginia, North Carolina, South Carolina or Georgia, or in the District of Columbia, 4 per cent; if in any other state, 5 per cent. The rate of damages on a sum of money not less than $100, payable not less than 75 miles distant from the place where drawn or indorsed, and not accepted, shall be 1 per cent in addition to the principle and its interest. LEGAL INTEEEST — 6 per cent; permit 7 per cent. ACTION ON NOTES — ^limited to 6 years. § 47S. Michigan — See Uniform Negotiable Instruments Law. DAYS OF GEACE— abolished. HOLIDAYS— Jan. 1, Feb. 12, 22, May 30, Jiily 4, first Monday in September, Dec. 25, Thanksgiving Day, Satur- day after 12 noon, election days. Any of these days falling on Sunday, the following Monday shall be observed. Notes, bills of exchange, or cheeks falling due on these days shall be deemed due on the next succeeding secular day. Saturday unless a whole holiday deemed a secular or business day. LEGAL INTEEEST— 5 per cent; permit 7 per cent in writing. ACTION ON NOTES— limited to 6 years. 21 322 NOTAKIES PUBLIC. [§ 474 § 474. Minnesota — See Uniform Negotiable Instruments Law. DAYS OF GEACE— abolished. HOLIDAYS — Sunday, Thanksgiving Day, first Monday in September, election day the first Tuesday after the first Monday of November in each even-numbered year. Good Fri- day, Nov. 11, Dec. 25, Jan. 1, Feb. 12, 22, July 4, May 30, or the following day when either of the last six occur on Sunday. DAMAGES — on bills of exchange drawn or indorsed in this state, and payable without the United States, protested, 10 per cent, together with inter- est from time of protest. If payable in the United States, 5 per cent, with legal interest, costs and charges. Due notice being given in both. LEGAL INTEEEST — 6 per cent; permit 10 per cent in writing. AC- TION ON NOTES— limited to 6 years. § 475. Mississippi — See Uniform Negotiable Instruments Law. PEOTESTS — bills of exchange and indorsed notes may be protested by any notary public, justice of the peace, mayor of a city, town or village, or by the clerk of a circuit or chancery court. Immediately after protest, the officer shall give notice in writing to each party pro- tested against. NOTICE — may be served by mail directed to the party at his known or usual place of abode or business. The officer shall deliver to the holder a copy of his protest, signed and yerified by oath. DAYS OF GEACE— abolished. HOLIDAYS— Jan. 1, 19, Feb. 22, April 26, June 3, July 4, first Monday in September, Thanksgiving Day, Dec. 25. When a bill or note should be presented for acceptance or payment, according to its terms, on a Sunday or legal holiday, it shall be presented on the day next before the day on which by its terms it is presentable, as shall not be one of the days herein specified, but such provision does not apply to negotiable instruments. DAM- AGES — on bills of exchange, drawn upon any person, or body in the United States, and out of this state, and protested for nonacceptance, 5 per centum on the sum drawn for, and interest and principal. If pay- able out of the United States, 10 per centum, with interest. Holder is in all cases entitled to costs and charges. Domestic bills, drawn and payable in this state, for $20 or more, shall be protested for nonaccept- ance or for nonpayment same as foreign bills. No damages to accrue, they shall be subject to and governed by the customs and usages of foreign bills. LEGAL INTEEEST— 6 per cent; permit 10 in writing. ACTION ON NOTES— limited to 6 years. § 476. Missouri — See Uniform Negotiable Instruments Law. DAYS OF GEACE— not allowed. HOLIDAYS— Jan. 1, Feb. 22, May 30, July 4, first Monday in September, a general state election day. Thanks- giving Day, Dec. 25. If any fall on Sunday, the following Monday. Negotiable instruments falling due or presentable on these days for acceptance or payment, giving notice if for dishonor, shall be due or presentable the next succeeding day. DAMAGES — on bills drawn or negotiated in the state on persons in the state and protested, 4 per cent; on persons in other states, 10 per cent; on persons in other countries, 20 per cent. No damages allowed if bill is paid with interest § 482] NEGOTIABLE INSTRUMENTS. 323 and protest charges ■within 20 days after dishonor. Damages are in lieu of protest and other charges and expenses incurred previous to or at the time of giving notice. LEGAL INTEREST — 6 per cent; permit 8 per cent in writing. ACTION ON NOTES— limited to 10 years. § 477. Montana — See Uniform Negotiable Instruments Law. HOLI- DAYS — Sunday, Jan. 1, Feb. 22, May 30, July 4, first Monday of September, Oct. 12, Dec. 25, election day throughout the state. Thanks- giving Day. If any fall on Sunday, the following Monday to be ob- served. Contracts falling due on these days may be performed the next business day. LEGAL INTEREST — 8 per cent; permit any rate in writing. ACTION ON NOTES — ^limited to 8 years. § 478. Nebraska — See Uniform Negotiable Instruments Law. DATS OF GEACB— abolished. LEGAL HOLIDAYS— Jan. 1, Feb. 22, April 22, first Monday in September, Oct. 12, Dec. 25, May 30, July 4, and Thanksgiving Day. When they occur on Sunday, the day following. LEGAL INTEREST — 7 per cent; permit 10 per cent in writing. § 479. Nevada — See Uniform Negotiable Instruments Law. DAYS OF GRACE — abolished. Three are allowed on all bills or drafts, except those payable on sight. Holidays coming within these days shall be treated as one of such days. HOLIDAYS — ^Jan. 1, Feb. 22, July 4, Thanksgiving Day, Dec. 25. Bills and notes falling due on these days shall be due and payable on the day previous. LEGAL INTER- EST — 7 per cent; permit any rate in writing. ACTION ON NOTES— limited to 6 years. § 480. New Hampshire — See Uniform Negotiable Instruments Law. HOLIDAYS — Thanksgiving, fast day, Labor Day, Oct. 12, day on which biennial elections are held, Christmas, July 4, Feb. 22, May 30. DAYS OF GRACE— abolished. LEGAL INTEREST- 6 per cent. § 481. Nerw Jersey — See Uniform Negotiable Instruments Law. HOLIDAYS— Jan. 1, Feb. 12, 22, Good Friday, May 30, July 4, first Monday of September, Oct. 12, Dec. 25, any general state election day, Thanksgiving Day, and Saturday from 12 o'clock noon to 12 o'clock midnight. Bills, notes and checks presentable for acceptance, or pay- ment on these days, shall be presentable on the secular day succeeding, and on the half holiday, shall be presentable before 12 o'clock noon of the same day, provided that for the protesting or otherwise holding liable parties to any bill, note or check, not paid before 12 o'clock on Saturday, demand may be made and notice of protest or dishonor given on the next succeeding business day; provided further, that the party receiving such for collection shall not be deemed negligent or liable. Any of these days falling on Sunday, the next succeeding day shall be observed; paper due on that day shall be deemed due the next business day. LEGAL INTEREST— 6 per cent. ACTION ON NOTES — limited to 6 years. § 482. New Mexico — See Uniform Negotiable Instruments Law. 324 KOTARIES PUBLIC. [§ 483 PROMISES — to pay are assignable by indorsement. An assignee has a right of action in his own name, subject to any set-off of the maker or debtor before notice of the assignment. The assignor may discharge himself from liability by specifying in the assignment that the same is made without recourse. DATS OF GEACE— abolished. LEGAL HOLI- DAYS— July 4, Dec. 25, Jan. 1, Oct. 12, Thanksgiving Day. Paper due on Sunday, or a legal holiday shall be due the next business day. DAMAGES — on nonaccepted or nonpayment bills of exchange, drawn or indorsed in this state, when recoverable: If drawn outside the United States 12 per cent; in the United States 6 per cent; from time of protest. LEGAL INTEREST — 6 per cent; permit 12 per cent in writ- ing. ACTION ON NOTES — limited to 6 years. § 483. New York — See Uniform Negotiable Instruments Law. HOLIDAYS— Jan 1, Feb. 12, 22, May 30, July 4, first Monday of September, Oct. 12, Dec. 25. If any are Sunday, then the day thereafter. Each general election day and Thanksgiving Day. The term half holiday includes from noon to midnight of each Saturday not a holiday. LEGAL INTEREST— 6 per cent. ACTION ON NOTES — ^limited to 6 years. Notes given for "Patent Rights" or for farm produce "Speculation" must be so marked on their face, if not, it is a, misdemeanor to handle or deal in them. Bonds with coupons, not intended to circulate as money in New York, not registered, may be issued, having on them, that they are the property of such holder and the money is payable only to him, his legal representatives or assigns, unless they are transferred in blank, payable to bearer, or order, with assignor's residence added. § 484. North Carolina — See sec. 458, Uniform Negotiable Instru- ments Law. HOLIDAYS— Jan. 1, 19, Feb. 22, April 12, May 10, 20, July 4, first Monday in September, Nov. 11, general election days. Thanksgiving Day, Dec. 25; any of which falling on Sunday, the Mon- day following shall be observed. Papers due on such Sunday, or holiday, payable on the day succeeding. LEGAL INTEREST — 6 per cent. ACTION ON NOTES— limited to 3 years. § 486. North Dakota — See Uniform Negotiable Instruments Law. HOLIDAYS— Sunday, Jan. 1, Feb. 12, 22, July 4, first Monday in Sep- tember, Oct. 12, Dec. 25, May 30, Thanksgiving Day, state election day throughout the state. If any of these fall on Sunday, then the Monday following. Acts of a secular nature may be performed upon the day following. DAMAGES — on foreign bills of exchange, drawn upon any person in this state, $2 on each $100; on persons out of this state, but in the states of Nebraska, Iowa, Minnesota, South Dakota, Wisconsin, niinois, Missouri and Montana, $3 on each $100; if on a person in any of the other states, $5 on $100; if on a person outside the United States, $10 on $100; with interest from notice of dishonor. LEGAL INTER- EST — 7 per cent; cannot exceed 12 per cent. ACTION ON NOTES — limited to 6 years. § 489] NEGOTIABLE INSTKUMENTS. 335 § 486. OIliO — See Uniform Negotiable Instmments Law. HOLI- DAYS— Jan. 1, July 4, Dec. 25, Feb. 12, 22, May 30, Thanksgiving Day, first Monday in September, Oct. 12, ghall be considered as Sunday for presenting and protesting all negotiable paper. If these days occur on a Sunday, the succeeding Monday shall be so observed. LEGAL TN- TEEEST — Q per cent; permit 8 per cent in writing. ACTION ON NOTES— limited to 15 years. § 487. Oklahoma — See Uniform Negotiable Instruments Law. HOLIDAYS — Sunday, Jan. 1, Teb. 22, July 4, Dec. 25, May 30, election day throughout the state, and Thanksgiving Day. If Jan. 1, Feb. 22, July 4 and Dec. 25 fall upon Sunday, the Monday following is holi- day. A negotiable instrument falling due on these days shall be deemed due the folowing business day. LEGAL INTEEBST — 6 per cent; per- mit 10 per cent in writing. ACTION ON NOTES — ^limited to 5 years. § 488. Oregon — See Uniform Negotiable Instruments Law. HOLI- DAYS — Sunday, Jan. 1, Feb. 12, 22, May 30, July 4, first Monday in September, Oct. 12, Nov. 11, Dec. 25, election day throughout the state. Thanksgiving Day. Any of these falling on Sunday, the Monday following shall be observed. Negotiable instruments falling due on these days shall be due and payable on the next succeeding business day. LEGAL INTEEEST— 6 per cent; permit 10 per cent in writing. AC- TION ON NOTES— limited to 6 years. § 489. Pennsylvania — See Uniform Negotiable Instruments Law. PEESENTMENT — for payment to be made elsewhere than in this state, referred to only in the margin of the bill, or below the name of the drawee, shall not be so construed as to charge the indorsers for nonpayment, unless place was, at the date of the bill, the actual place of the drawee, or is expressed as such in the reference, or it appear by the protest that, upon diligent inquiry, the place could not be found. LEGAL HOLIDAYS— Jan. 1, Feb. 12, 22, Good Friday, May 30, July 4, first Monday of- September, Oct. 12, first Tuesday after the first Monday of November, Dec. 25, Saturday after 12 o'clock, and Thanksgiving Day. Paper presentable for acceptance, payment, or protesting, or giving notice of, on these days shall be presentable or protested on the business day next succeeding except when payable at sight or on de- mand. If on a Saturday half holiday, shall be payable at or before 12 o'clock on that day; providing, that for the purpose of protesting or holding liable a party to a bill not paid before 12 o'clock, a demand for acceptance or payment shall not be made and notice of protest or dishonor shall not be given until the next succeeding business day. Any one receiving such paper for collection, etc., on such half holiday shall incur no liability or neglect in not presenting same. The entry, issuance, service, or execution of any writ, summons, confession of judgment, or other legal process on any holiday or half holiday desig- nated here, shall not be prevented or invalidated, nor shall any bank be prevented from keeping its doors open for business on such after- 326 NOTARIES PUBLIC. [§ 490 noon if its directors so elect. When holidays fall on Sunday, the following Monday shall be observed. DAMAGES— bills, etc., returned protested are entitled to damages above the principal and protest charges from time of notice and demand. In the United States, 5 per cent, except California, New Mexico and Oregon; there 10 per cent. In Asia, Africa or Pacific Islands, 20 per cent. In Mexico, Spanish main, West Indies or Atlantic islands, east coast of South America, or Europe, 10 per cent. On west coast of South America, 15 per cent. Any other part of the world, 10 per cent. In lieu of in- terest and charges other than protest, to the time of notice. Bate of exchange same as at time of protest. LEGAIi INTEREST— 6 per cent. § 490. Philippine Islands— HOLIDAYS— Sunday, Jan. 1, Feb. 22, May 30, July 4, Holy Week (Thursday and Friday), Aug. 13, Thanks- giving Day, Dec. 25, 30. Paper falling due on these days is due the previous day. If it is a holiday, then the previous day to that. If falls on Sunday, then the day succeeding. § 491. Porto Rico— HOLIDAYS— Sunday, Jan. 1, Feb. 22, March 22, Good Friday, May 30, July 4, 25, first Monday in September, Dec. 25, Thanksgiving Day. When these fall on Sunday, the following day ia to be observed. Bills, notes and checks to be presented for accept- ance or payment on the following secular day. § 492. Khode Island — See Uniform Negotiable Instruments Law. DAYS OF GRACE- three allowed on sight drafts. HOLIDAYS-^an. 1, Feb. 22, second Friday in May, May 30, July 4, first Monday of September, Oct. 12, Dec. 25, Tuesday after the first Monday of Novem- ber in every second year after 1896, Thanksgiving Day. When either of the said days fall on Sunday, then the day following it. Bills, notes, drafts, or other evidences of indebtedness due and, payable on such holidays to be made on the business day next following. In default of payment, same may be protested and such protest shall be valid. Saturday is a holiday after 12 o'clock noon. This shall not apply to checks or demand drafts presented before 12 o'clock noon on Saturday. LEGAL INTEREST — 6 per cent, unless a different rate is expressly stipulated. DAMAGES — any foreign bill of exchange drawn or in- dorsed within this state, returned protested, shall be subject to 10 per cent damages and charges for protest, and 6 per cent interest from the date of protest. Action may be brought for the principal, dam- ages, interest and charges of protest against the drawers and in- dorsers, jointly or severally. § 493. South Carolina — See Uniform Negotiable Instruments Law. DAYS OF GRACE— abolished. HOLIDAYS— National Thanksgiving Day, general election days, Jan. 1, 19, Feb. 22, May 10, June 3, July 4, Dec. 25, first Mofaday in September. In Charleston county add Satur- day afternoons after 12 o'clock. Paper payable on Sunday or a legal holiday shall be payable the next day, provided it be not a, Sunday or § 496] NEGOTIABLE INSTKUMENTS. 337 legal holiday; if so, then on the first day thereafter. Any holiday falling on Sunday, the following Monday to be observed. DAM- AGES — on protested bills on parties out of this state, 10 per cent. In any other part of North America or the West Indies, 12% per cent. Any other part of the world 15 per cent, and all charges incidental with interest until paid. Bills and notes drawn for less than $1.00 payable to order or bearer are void. LEGAL INTEEBST — 7 per cent. ACTION ON NOTES— limited to 5 years. § 494. South Dakota — See Uniform Negotiable Instruments Law. DAYS OF GEACE— abolished. HOLIDAYS— Sunday, Jan. 1, Feb. 12, 22, July 4, Dee. 25, May 30, first Monday in September, Thanksgiving Day, election days. If Feb. 12, 22 or July 4, fall on Sunday, the Mon- day following is holiday. Bills falling due on these days must be pre- sented on the following business day. LEGAL INTEREST — 7 per cent; permit 12 per cent in writing. ACTION ON NOTES — ^limited to 6 years. § 495. Tennessee — See Uniform Negotiable Instruments Law. HOLI- DAYS — Jan. 1, 19, Feb. 22, July 4, Dec. 25, Good Friday, Decoration Day (May 30), Memorial Day (June 3), first Monday in September; when these days fall on Sunday, then the following Monday; also Thanksgiving Day, all days set apart for county, state or national elections throughout the state. Negotiable paper falling due on these days shall be due and payable the first business day following. DAM- AGES — on protested foreign bills, 3 per cent if drawn upon person or corporation in another state; 15 per cent if drawn upon person in other place in North America or West Indies; 20 per cent in any other part of the world. LEGAL INTEEEST— 6 per cent. ACTION ON NOTES— limited to 6 years. § 496. Texas— PROTEST AND NOTICE— the holder of a bill or note may fix. the liability, also, by protesting and giving notice accord- ing to the usage and custom of merchants by a notary public. The notary shall set forth, in his protest and record, a full statement of the facts, specifying demand, sum of money, of whom, when and where; also serve notices of protest on the drawers and indorsers made liable, and note in his protest record, with time, place and man- ner of service. Protest or copy of the record certified under his hand and seal shall be admitted as evidence in all courts of this state. DAYS OF GEACE — three allowed on all bills and notes negotiable. HOLIDAYS— Jan. 1, Feb. 22, March 2, April 21, June 3, July 4, first First Monday in September, Oct. 12, Dec. 25, Thanksgiving Day, and general state election day. Same are treated as Sunday for presen- tation, protesting and giving notice of on bills of exchange, notes, etc. All exemptions and requirements usual on legal holidays may be observed. If a holiday falls on a Sunday, the day following shall be observed, but bills of exchange, etc., may be presented on the preced- ing Saturday and proceeded on accordingly. DAMAGES — on protested 328 N-OTAEIES PUBLIC. [§ 497 bills — the holder of any protested bill, etc., drawn by a merchant within the limits of this state upon his agent or factor, living outside this state shall, after having fixed the liability of the drawer or in- doTser, be entitled to recover 10 per cent damages on the amount of the bill, with interest and cost of suit accruing. LIABILITY — of par- ties may be fixed without protest and notice, by the holder instituting suit after the right of action accrues. A biU not accepted renders the drawer immediately liable. Assignee may sue in his own name. LEGAL INTEREST — 6 per cent; permit 10 per cent in writing. AC- TION ON NOTES— limited to 4 years. S 497. Utah — See Uniform Negotiable Instruments Law. HOLI- DAYS— Sunday, Jan. 1, Feb. 12, 22, May 30, July 4, 24. Oct. 12, Dec. 25, April 15, first Monday in September, Thanksgiving Day. When such days fall on Sunday, the following Monday shall be observed. In ease Sunday and the holiday come together, said note or bill must be presented on the day next succeeding said Sunday or holiday. LEGAL INTEEEST — 8 per cent, permit 12 per cent in writing. ACTION ON NOTES— limited to 6 years. I 498. Vermont — See Uniform Negotiable Instruments Law. DE- MAND NOTE — is overdue sixty days after date. No presentment shall charge the indorsers unless made on or before sixty days. PROTEST — a negotiable promissory note, inland bill of exchange, draft, or check, may be officially protested for nonpayment by a notary public and notice given by him to the parties to the instrument. The certificate of a notary, under his hand and official seal, is evidence of notice. NOTICE — by mail to the nearest post office of the party, prepaid, is sufficient. DAYS OF GRACE- abolished. HOLIDAYS— Jan. 1, July 4, Aug. 16, May 30, Dec. 25, Feb. 22, first Monday in September, Oct. 12, Thanksgiving Day, shall, for presenting for acceptance or payment, protesting, and giving notice of the dishonor of bills, etc., be consid- ered like Sunday. Any of these days falling on Sunday, the preceding Saturday shall, for such purposes, be considered like Sunday. Falling due on Sunday or a legal holiday, it shall be considered as due on the following Monday. SUIT — the indorsee or holder may maintain in hiS own name. The indorser shall have the same right to pay as the principal, and upon maturity may tender the true amount. If the holder refuse, he is discharged from liability. LEGAL INTEREST— 6 per cent. ACTION ON NOTES— limited to 6 years. § 499. Virginia — See Uniform Negotiable Instruments Law. HOLI- DAYS — Jan. 1, 19, Feb. 22, June 3, July 4, Doe. 25, Thanksgiving Day, or a day of fasting and prayer appointed by the President or the gov- ernor of the state. May 30, first Monday in September, Tuesday after first Monday in November, Saturday afternoons. Negotiable instru- ments presentable for acceptance or payment on these days shall be presentable on the preceding business day. Such holidays falling on Sunday, the Monday following shall be observed as a holiday, and § 503] NEGOTIABLE INSTKUMENTS. 329 negotiable instrumeiits falling due shall be presentable on the next business day. Notice of dishonor need not be given until the first day thereafter which is not a Sunday or such public holiday. Action may be maintained upon any note or writing by which there is » promise, undertaking, or obligation to pay money, if signed by the party T.'ho is charged thereby, or his agent, and in an action of assumpsit, on any such note or writing, the rule as to averment and proof of con- sideration, shall be the same as in any action of debt thereon. LEGAL INTEREST— 6 per cent. ACTION ON NOTES— limited to 5 years. § 50O. WasHington — See Uniform Negotiable Instruments Law. HOLIDAYS — Sunday, Jan. 1, Feb. 22, Thanksgiving Day, Memorial Day, general election day, July 4, Dee. 25, Saturday from 12 o'clock noon to Sunday at midnight. Treated as Sundays for the presentation for acceptance or payment or protest of bills, notes, checks, etc. The other holidays do not apply to bills and notes. LEGAL INTEREST— 6 per cent; permit 12 per cent in writing. ACTION ON NOTES— limited to 6 years. § 601. West Virginia — See Uniform Negotiable Instruments Law. HOLIDATS— Jan. 1, Feb. 12, 22, July 4, May 30, Dec. 25,, first Mon- day in September. If any of these fall on Sunday, the following Monday is to be observed. Any bills, notes or checks due on these days are payable on the following business day. LEGAL INTEREST —6 per cent. ACTION ON NOTES— limited to 10 years. § 502. Wisconsin — See Uniform Negotiable Instruments Law (few exceptions). HOLIDATS — Sunday, Jan. 1, Feb. 22, May 30, July 4, Labor Day, Thanksgiving Day, general election day, Dec. 25. If any of these fall on Sunday, the following Monday is observed. Notes, drafts and bills falling due on these days are payable on the succeeding business day. FOREIGN BILLS — dishonored by mere acceptance must be protested for nonacceptance and where such bill, not previously so dishonored, is dishonored by nonpayment, it must be protested for nonpayment. If not so protested the drawer and indorsers are dis- charged. If not a foreign bill on appearance protest in case of dis- honor is unnecessary. Notice of protest must be given in writing to the drawer, maker and each indorser of. Every protested bill or note must have the notary's certificate attached, under his seal and hand, stating presentment, demand, refusal and protest for nonacceptance or nonpayment. Contents of notice giving time, manner of service, post of&ce and reputed residence of each person notified by mail, and a record must be kept of same with description of instrument protested. LEGAL INTEREST — 6 per cent; permit 10 per cent in writing. AC- TION ON NOTES — limited to 6 years. I 503. Wyoming — See Uniform Negotiable Instruments Law. HOLI- DAYS— Jan. 1, Feb. 12, 22, May 30, July 4, Dec. 25, Thanksgiving Day and general election days. If any fall on Sunday, the Monday following 330 NOTARIES PUBLIC. [§ 504 shall be observed. LEGAL INTBEEST — 8 per cent; permit 12 per cent in -writing. ACTION ON NOTES— limited to 5 years. § 504. Oanada— HOLIDAYS— Sunday, New Year's, Good Friday, Easter Monday, Victoria Day, Dominion Day, Christmas, Thanksgiving Day, Labor Day, any day appointed by the lieutenant governor. (Some Provinces: Epiphany, Annunciation, Ascension, Corpus Christi, St. Peter and St. Paul's, All Saint's Day, Conception Day, Ash Wednesday.) PROTEST AND NOTICES— notaries perform these duties. CHAPTEE VI. COMMISSIONER OF DEEDS. § 505. Commissioners of Deeds. — ^A eommissioner is a per- son holding a commission authorizing him to discharge certain duties. A commissioner of deeds is one authorized to take acknowledgments or proofs of written instruments in a for- eign state or country. Most of the states of this country have a statute authorizing the governor of its state to appoint a number of residents of other states and countries to act in the taking of acknowledgments or proofs of written instru- ments, taking depositions of witnesses, taking affidavits and the oaths of persons resident in that state or country for use in the state making the appointment. They are, usually, ap- pointed for a term of years, or during good behavior. They are required to take an oath for faithfulness in office, to have an oiBcial seal with which all their acts are to be attested, together with their signature. This seal to contain their name and the name of the state for which they are appointed, to- gether with the word "commissioner." They are usually re- quired to pay a fee for the appointment to the secretary of the state making the appointment, and are often restricted as to the fee they charge for their acts. Before acting they are required to file with the secretary of the state appointing them an impression of their official seal, together with their signature, which is kept on file for comparing instruments signed by them. § 506. Acknowledgments, — ^Acknowledgments must be taken by the officers prescribed by statute. Where a deed is ac- knowledged only before a commissioner of deeds and' not be- fore some officer authorized by the laws of the state from whence the commission issues to take an acknowledgment and privy examination, such acknowledgment is void.^ If an ac- knowledgment is taken by a notary public, who is not the of- 1 Wood V. Lewey, 153 K. 0. 401, 69 8. E. 268. 331 332 NOTARIES PUBLIC. [§ 507 fleer prescribed by statute for performing such duty, it is immaterial that the notary is also a commissioner and an at- torney, and that he is authorized ia either of the last two named capacities to take such proof. The act, having been performed in the capacity of notary, will be invalid.' A certificate of acknowledgment made by a commissioner of another state need not be under seal. The want of a date to the acknowledgment would not vitiate it, if the acknowl- edgment was sufficient when the deed was offered in evidence.' In Iowa, the certificate of a commissioner of deeds was held not sufiSciently authenticated by seal, when the word "Iowa" was written in the body of the seal instead of impressed on the paper, as required by statute.* A deed acknowledged by a commissioner of deeds residing out of the state requires no authentication of his of&cial character.^ Commissioners of affidavits regularly appointed have full authority to take acknowledgments within the state for which they are appointed, of lands lying in North Carolina, and, when necessary, to take the privy examination of a married woman, who is a grantor, joining her husband in the execu- tion. When the certificate of such commissioner is adjudged correct by the clerk of the superior court of the county in which the land lies, and the deed is registered upon the order of the latter, the registration will be deemed valid for all purposes.^ An acknowledgment before a commissioner of deeds in one county cannot be read in evidence in another county without the certificate of the clerk of the former county.' § 507. Administration of Oaths; Affidavits. — ^A commissioner of deeds for Illinois residing in another state can administer oaths lawfully required in Illinois.' A petition in bankruptcy has been held properly verified, when the verification was taken before a commissioner of deeds.* • Partridge v. Mechanics ' Nat. 6 James Meyer Buggy Co. v. Pe- Bank, 77 N. J. Eq. 208, 77 Atl. 410. gram, 102 N. C. 540, 9 S. E. 412. 8 Irving Y. Brownell, 11 111. 402. 7 Wood v. Weiant, 1 N. T. 77; 4 Gage V. Dubuque & P. E. Co., Borst v. Empie, 5 N. T. 33. 11 Iowa 310, 77 Am. Dec. 145. SKassiug v. GrifBth, 86 HI. 265. 6 Vance r. Schuyler, 1 Gilm. 9 In re Morse, 210 Fed. 900. (ni.) 160. § 512] 001£MISSI0K:Eai OF DEEDS. 333 STATTJTOBY EEQUIEEMENTS. § 508. Alabanur-APPOINTMENT— by the governor. TEEM— four years. POWEES — to take and certify depositions, acknowledg- ments, proof of conveyance and wills, and a£Sdavits, for record in this state by persons outside. S 509. Alaska^APPOINTMENT— by the governor. TEEM— four years. COMMISSION FEE— $5.00. POWBBS— to take proofs or acknowledgments of conveyances or other written instruments, acknowl- edgments of satisfaction of any judgment or decree of a court in this district, affidavits or depositions, any other duties conferred or imposed by the Alaska code or statute. SEAL — ^provide himself with an official seal. OATH — for the faithful performance of his official duties to be taken before a judicial officer of his county, city or town, and file same, together with an impression of his official seal, in the office of the secretary of Alaska territory. § 510. Arizona,— APPOINTMENT— by the governor. COMMIS- SION— fee — $2.50. TEEM— four years. POWEE — within his state or country. To administer and certify oaths, take depositions, affidavits and acknowledgments. SEAL — provide an official seal having en- graved upon it the words "Commissioner of Deeds for the State' of Arizona" and the name of his state. All his official acts to be authen- ticated with the same. His acts have the same force and effect as those executed in this state by an officer so authorized. OATH — of office to be taken and subscribed to before an officer authorized in his state or country to take oaths for faithful performance of his duties. Same to be filed with the secretary of state within six months after taking. FEES — to be the same as those prescribed for notaries. § 511.. Arkansas — APPOINTMENT— by the governor. Fee — $5.00. TEEM — at the pleasure of the governor. POWEE — to administer oaths, take depositions, affidavits and acknowledgments. The same, when cer- tified by them, to be effectual in law as by any other authorized officers. OATH — of office to be taken and subscribed to before some officer au- thorized to administer oaths in their state, before acting. The oath, signature and an impression of his official seal to be filed with the secretary of this state within six months after appointment. SEAL — to be provided to authenticate his official acta. FEES — ^prescribed gen- erally. See Notaries. § 512. California — APPOINTMENT— by the governor. Fee — $5.00. TEEM — four years. POWEE — within his state and country to admin- ister oaths, take and certify depositions, affidavits and acknowledgments. SEAL — to be procured having engraved upon it the coat of arms of this state, the words "Commissioner of Deeds for the State of California" and the name of his state. All his official acts to be authenticated with it. His acts have the same effect as if done and certified in this state by any officer so authorized. OATH — of office must be filed with the 334 NOTARIES PUBLIC. [§ 5-13 secretary of this state within six months after the appointment. FEES — to be the same as those prescribed for notaries public. Names of commissioners to be published three times at the seat of government of the state in some weekly paper. § 513. Colorado— APPOINTMENT— by the governor. Tee— $5.00. Commission — $1.00 O. and B. TEEM — at the pleasure of the governor. POWEES — to take acknowledgments, depositions, affidavits and ad- minister oaths. SEAL — to be procured to authenticate their acts with name of state on it. OATH — of office to be taken and subscribed to be- fore a judge or clerk of a court of record where he resides. Oath, im- pression of his seal, and signature to be deposited with the secretary of this state within six months after appointment. His acts under official seal have the same effect as any officer so authorized. FEES — to be the same as notaries. Noting for protest, 50e; protest and record, 75c; notice of protest, each, 50c; certificate and seal, 50c; acknowledg- ments, 50c; additional, 25c; taking depositions, 15c per 100 words; affidavit, 25e; other fees same as a justice of the peace. § 514. Connecticut— APPOINTED— by the governor. Fee- $10.00. TEEM — ^five years. POWEE — to take acknowledgments, oaths, etc., examine witnesses, take depositions. OATH — of office to be filed with the secretary of state. SEAL — official seal to be procured to authenti- cate their acts with. FEES— taking acknowledgments, signing or issuing subpcenas, 25c; taking bond, recognizance, affidavit or administering oath, 10c. See Notaries. § 515. Delaware— APPOINTED — by the governor. Fee— $10.00. TERM— seyen years. JUEISDICTION— for the state in which they re- side or are appointed. SEAL — to be procured; same requisites as no- tary's seal. POWEE — to administer oaths, take depositions, affidavits, acknowledgments and the private examination of any married woman, party to a deed. OATH — of office signed and certified to be filed with the county recorder. FEES — same as notaries. § 516. District of Columbia — APPOINTMENT — by the President. No fee required. TEEM— five years. POWEE — to take acknowledg- ments of deeds for conveyance of property in the district, to administer oaths, take depositions in cases pending In the courts of the district. SEAL — his acts properly attested by hand and seal of office have fuU faith and credit. § 517. Florida— APPOINTMENT— by governor. Fee— $7.00. TEEM — during pleasure of the governor. POWEE — to take acknowledgments for conveyances in this state, any contracts, letters of attorney or other writings under seal to be used or recorded in this state, to administer oaths. OATH — of office to be taken before a notary or justice of the peace in his city or county for faithful performance of all duties, same to be filed with the secretary of this state. SEAL — to be procured to authenticate his acts. § 522] COMMISSIONER OF DKEDS. 335 i 518. Georgia^-APPOINTMENT— by the governor. Fee — $5.00. TEEM — no statute. POWEES — to take and certify acknowledgments or proofs of conveyances, take depositions, powers of attorney, wills, affidavits, oaths and other writings requiring attestation in this state. OATH — of office to be taken before any one authorized to administer oaths and filed with the secretary of state. SEAL — of office to be pro- cured to authenticate his official acts. FEES — regulated by the state where resident. § 519. Idaho— APPOINTMENT— by the governor. Fee— $5.00. TEEM — four years. POWEE — to take depositions, afSdavits, acknowl- edgments and oaths, within his state. SEAL — of office to be procured for authenticating his official acts with, having on it " Commissioner for the State of Idaho," his name. His oath of office to be filed with the secretary of this state within six months. FEES — same as allowed notaries. § 520. Illinois — APPOINTMENT — ^by the governor. Not to exceed five for any city or county and one for every 10,000 inhabitants in cities, states and territories. Fee — $6.00 for commission and instructions. TEEM— four years. OATH — to be taken before a court of record where resident. POWEES — take release of dower, acknowledgments, contracts, assignments, transfers, letters of attorney, satisfaction of judgments or mortgage, or any instrument for record in the state. To certify to the official character, seal or signature of any other officer within their dis- trict authorized to take acknowledgments or oaths; take depositions. His properly executed acts to have same effect as any officer in this state so authorized. SEAL — to be procured having on it "A Commis- sioner for the State of Ulinois, " together with the name of state and county, town or city of his appointment. Within six months of his appointment he shall file with the secretary of this state his oath, signature and impression of his seal. Failure to qualify within six months forfeits appointment. No one can act before qualifying. FEES — see notaries. § 521. Indiana.— APPOINTMENT— by the governor. Fee— $5.00. TEEM — four years. POWEES — to take depositions and affidavits to be used in the courts of this state, acknowledge deeds and other documents for rec(wd in this state, same to be attested with their official seal. OATH — of office to be subscribed to before some officer authorized to administer it, same to be filed in the office of the secretary of this state. SEAL — to procure an official seal to authenticate his acts with. FEES — certificate and seal, 50o; depositions, etc., per 100 words, 10c; adminis- tering oath, lOe; protest, 50e; notice of, 25e; acknowledgments and seal, 25c; per 100 words, copying protests, lOe. § 522. Iowa— APPOINTMENT— by the governor. Fee— $5.00. TEEM — three years. POWEES — to take depositions, aflSdavits, ac- knowledgments and oaths. SEAL — to procure same having on it "Com- missioner for Iowa," his surname at length and at least the initials of 336 NOTARIES PUBLIC. [§ 523 hig Christian name and state, game with signature received as evidence in this state. OATH — for faithfulness to be taken before a judge or elerk of a court of record or an authorized commissioner for Iowa, under the hand and official seal of party taking, same with signature added and impression of the seal of the -appointee to be sent to the secretary of this state. Commissioners of like nature appointed by other states for this state are invested with the authority of justices of the peace to issue subpoenas for witnesses before them, and can administer oaths when permitted by such state. False swearing is subject to the perjury laws of this state. Such commissioner shall file a certificate of his authority and appointment with the secretary of this state. FEES — same as allowed in his state for like services. § 523. Kansas— APPOINTMENT— by the governor. Fee— $1.00. TERM — during pleasure of the governor. POWBES — to administer oaths, take depositions, affidavits and acknowledgments of deeds, etc., powers of attorney and instruments for record in this state, same to be effectual in law. OATH — of office to be taken and subscribed to before a justice of the peace or other officer authorized to administer oaths. Same to be filed with the secretary of this state; also his signature and impression of official seal. SEAL — to be procured to authenticate his official acts with. FEES — no statute. § 624. Kentucky— APPOINTMENT— by the governor. Fee— $5.00. TEEM — ^two years. AFFIDAVIT — to well and truly perform his duties, to be made before an officer authorized to administer oaths, same to be transmitted for filing to the secretary of this state. POWBES — to take proofs, acknowledgments (except wills), oaths and depositions for record in this state. All his acts certified under his hand and seal are entitled to record. SEAL — of office to be procured to authenticate his acta. FEES — ^making a deed, $1.50; taking deposition, $2.00; more than one for same party, each, $1.00. Not to exceed $3.00 per day against each party. Subpoenas and other papers same as circuit court clerks. Court may allow for extras. § 525. Iiouisiana — APPOINTED— by the governor. Fee — $5.00. TEEM — four years. ELIGIBILITY — of known integrity and ability, resident in that state. POWERS — to take depositions by virtue of a commission, to take acknowledgments and any writings to be used in this state, oaths or affirmations, etc., to attest signatures, official capacity and official acts of any judge, justice of the peace or other public officer holding a commission or acting under authority of the state in which he resides. His power extends only to parties resident of his state, except in taking testimony under a commission. Their commission to conform to the laws of this state. Their signature and official seal to be attached. They can act as notaries in the state where appointed. SBAI/ — of office to be provided bearing name, office and state. Their signature and impression of seal to be deposited with the secretary of this state. American ministers, charge d'affaires, § 528] 00MMI88I0NEE OF DEEDS. 337 consnlB general, cohbuIs, vice consuls and commeTcial agents in any foreign country can act and use their own seals of office. Notaries of other states may act, -vrith proof of their signature. § 526. Maine— APPOINTMENT— by the governor. Fee— $5.00. A justice of the supreme court or the governor of the state of the applicant must sign the application. TEEM — at the governor's pleasure. POWERS — to take acknowledgments and certify same under his official seal, to administer oaths, to take and certify depositions. OATH — of office to be taken and subscribed to before a judge or clerk of the su- perior court of hie state or country. Same with impression of his official seal to be filed with the secretary of this state. False certificates of acknowledgments, or signatures, shall be punished as forgeries. SEATj— to be provided to authenticate his acts. FEES — no statute regarding. § 527. Maryland— APPOINTMENT— by the governor, with the senate's consent, biennially. Fee — $10.00. TEEM — two years. OATH — of office to be taken before a justice of the peace or notary public in the city or county of his residence. SEATi— he shall provide an official seal for authenticating all his official acts. An impression of his seal with his oath of office to be filed with the secretary of this state. POWERS — after qualifying he can administer oaths for use in tLls state, take acknowledgments, and other instrum.ents for record in this state. The record of his appointment with the governor's certifi- cate under the great seal of the state shall be evidence of appointment. § 528. Massachusetts — ^APPOINTMENT— by the governor, with consent of council. Fee — $5.00. TERM — ^three years. OATH — of office to be taken and subscribed to within three months after the appoint- ment, before a justice of the peace or other magistrate of the city or county where he resides or before a clerk of a court of record of his county. SEAli— to be provided with the words "Commissioner for Massachusetts," and the name of the state, city or county in which he resides. An impression of such seal, with his oath of office and sig- nature, to be filed with the secretary of the commonwealth. POWERS — to administer oaths, take affidavits, depositions, acknowledgments in his state for record in this state, certified under his official seal. FOEEIGN COMMISSIONERS— oath of office to be taken before a judge or clerk of a court of record of his country or before a resident United States minister or consul. The same, with an impression of his official seal, shall be filed with the secretary of this commonwealth. SPECIAL COMMISSIONERS— appointed and qualified shall have the same powers as justices of the peace in administering oaths, taking depo- sitions, affidavits and acknowledgments, and to issue summonses. Women who are twenty-one years of age may be appointed by the governor with consent of the council. TEEM — seven years. FEES — oath and certificate, $1.00; ackowledgments, $1.00; depositions, per page, 50c; affidavit, 50e; oath on deposition, $1.00; other fees same as a jus- tice of the peace. Court may add more for depositions. Sealing and 22 338 I NOTAEIES PUBLIC. [§ 539 sending depositions, $1.00. Officers must make a detailed statement of fees or forfeit three times the amount paid. Fee list to be posted in his office. Fee to be indorsed on each writ. § 629. Michigan — APPOINTED — by the governor on written applica- tion with recommendation of governor, or judge of court of record where applicant resides, or other satisfactory evidence of fitness. Fee — $3.00. TEEM — five years. POWERS — to take acknowledgment of deeds, mortgages or other conveyances of lands, etc., lying in this state, any contract, power of attorney or other writings under seal to be used or recorded in this state, to administer oaths. Same must be under his seal of office. OATH — for the faithful discharge of the duties of the office to be furnished, subscribed to before any party authorized to administer oaths where applicant resides. Same to be filed with the secretary of this state. FEES — ^no statute regulating. See notaries. § 530. Miimesolia — APPOINTMENT — ^by the governor.. TEEM — pleasure of the governor. OATH — to be taken and subscribed to. BOND — ^not required. POWEES — to take acknowledgments, oaths, etc. SEAL — to be attached to papers to be effective. [Note: The statute governing appointment of commissioners (Gen. St. 1894, §§ 5646-5649) was repealed by Eev. Laws 1905, § 5518.. The officer is referred to in the .statute naming officers who may take acknowledgments (Gen. St. 1913, § 5744, subd. 3). It is believed that the power of appointment exists because of a general statute authorizing the governor to appoint necessary officers (Gen. St. 1913, § 58), and the oath is required by a similar statute applicable to officers in general (§ 5733).] — Ed. § 5»1. Mississippi — APPOINTMENT— by the governor. Fee — $5.00. TEEM — four years. POWEE — to administer oaths, certify acknowl- edgments, take and certify depositions and affidavits, for use or record in this state, same to be as effectual as if done in this state by an authorized officer. OATH — for faithfulness in office to be taken and subscribed to before an officer authorized to administer oaths. FEES — deposition, certificate and oath, 50c; acknowledgments, 25c; deposition, per 100 words, 10c. [Note: A similar situation exists in this state as in Minnesota, the late revision of statutes containing no specific statute governing ap- pointment of commissioners. — ^Ed.] § 532. Missouri— APPOINTMENT— by the governor. Fee— $7.50. TEEM — the pleasure of the governor. POWEES — take relinquishments of dower, administer oaths, take depositions, acknowledgments or proof of any writings under seal or note to be used and recorded in this state. If in a foreign country, they may certify to the official character, signa- ture or seal of any officer in their district authorized to take acknowl- edgments or oaths, administer oaths and take and certify depositions. OATH — of office to be taken before a judge or clerk of a court of record where he resides, to well and faithfully execute and perform all the duties of his office, under and by virtue of the laws of the state of Mis- § 536] COMMISSIONER OF DEEDS. 339 souri. The oath, impression of his official seal and signature to be filed ■with the secretary of this state within six months after appointment. FEES — the same as clerks of courts of record. Taking acknowledgments, 50c; administering oaths, 35c; certificate and seal, 50c; affidavits, certifi- cate, 15c; summons, 50c; witness fees, per day, $1.00; outside county, per day, $1.25; travel, per mile, 5c; oaths and affidavits, 25e; subpoanas, 25c; making deed, $1.00. § 533. Montana — ^APPOINTMENT — by the governor, for five years, subject to removal. Tee — $5.00. POWEE — to act in the state or county where appointed. To certify and take depositions, acknowledgments, oaths and affidavits. SEAL — to provide and keep an official seal and authenticate their acts with, having engraved on it, their name, "Com- missioner of Deeds for the State of Montana," and the name of their state. OATH — their official oath and impression of their seal to be filed with the secretary of this state within six months from their appoint- ment. PEES — same as notaries public. § 534. Nebraska — APPOINTMENT — by the governor. Fee — $1.00. TEEM — four years. DUTIES — to take acknowledgments, administer oaths, take depositions. OATH — to take oath of office before an officer authorized to take oaths. SEAL — to procure a seal of office having on his name, "A Commissioner for Nebraska," with the name of his city, county and state. The oath, impression of seal and signature to be filed with the secretary of state. His acts must be certified to by the secretary of state before admitted to record or read in evidence. To act only within his place of appointment, and specify the day, city, town or county where act was done. Must personally know or have identified persons making acknowledgments. I 535. Nevada— APPOINTMENT— by the governor. Fee— $10.00. TEEM — ^four years, unless sooner removed. POWEE — to administer oaths, take depositions and affidavits and acknowledgments, to be used in this state, to certify same under his hand and seal. Same have the same effect as if done by a notary. OATH — of office to be taken and filed with secretary of state within six months before acting. SEAL — to procure seal and authenticate his acts therewith. FEES — affidavit, deposition, etc., per folio, 30o; oath or affirmation, 25c; sealing an in- strument, 50c; acknowledgments or proofs, with seal and certificate, $1.00; each additional signature, 50c. § 536. New Hampshire — APPOINTMENT— by the governor, with the advice of the council. Fee— $1.00. TEEM — five years. OATH — to be taken and subscribed to before a judge of a court of record for faithful performance of duties of the office before acting, same to be filed with secretary of state within six months. POWEES — to ad- minister oaths, take depositions and affidavits, notify parties of the time and place thereof, take acknowledgments for use or record in this state, in the same manner and with the same effect as a justice of the peace of this state. Commissioners of other states with Uke powers 340 NOTABIES PUBLIC. [§ 537 in this stats to be used in other states or appointed by the supreme eouxt or justices thereof, shall have power to administer oaths and affirmations, to issue sumjuons to witnesses, to proceed against same for neglect to answer summons or testify, and in all proceedings under his commission that is vested in justices of the peace in like eases. FEES ■■—controlled by the courts. § 537. New Jersey — APPOINTED — ^by senate and general assembly in this state. Fee — $10.00, and $1.00 for recording seal. ELIGIBIL- ITY — competent. POWEES — to take acknowledgments; may take out- side his own state or county. TEEM — ^begins on the first day of April; five years. EEMOVAL — from township, town, city or borough, voids the appointment. OATH — of office to be taken and subscribed to before the county clerk within two months, before acting. PEES — ^the same as notaries (see § 67). FOEEIGN COMMISSIONEES— APPOINTED— by the governor. Pee — $10.00. TEEM — three years. Eemovable at pleasure of governor. EEMOVAL — of residence from his state vitiates his commission. Malconduet or overcharging of fees incurs removal from office. Eesignations permitted. POWEES — to take acknowledg- ments or proofs, to administer oaths, affirmations and affidavits. SEAL — to provide themselves with an official seal to attest their acts with. An impression of same with their oath of office to be sent to the secre- tary of this state. FEES — for acknowledgments or proof, $1.00; each oath, 25c. OATH — of office to be taken and subscribed to before the mayor or other chief magistrate of the city where resident or before a judge of the ^preme or superior court of his state, to faithfully perform the duties of his office. This before acting. Commissioners for New York and Pennsylvania may reside in this state but not to act here. Women axe eligible to the appointment. § 538. New Mexico — APPOINTMENT— by the governor. Pee — $5.00. TEEM — at the governor's pleasure. POWEES — to take depositions, affidavits, acknowledgments or proofs of written instruments, and to administer oaths. The same certified under his hand and appropriate seal to be as effectual in law for all intents and purposes as if done and certified by a justice of the peace in this state. OATH — to be taken and subscribed to before some judge or clerk of a court of record where he is to exercise his appointment, for faithfulness in office, before acting, same to be certified under the hand of the party taking it, and the seal of the court. The oath and certificate, with the commissioner's signature and an impression of his official seal on paper and on wax or wafer, to be filed with the secretary of the state. Same to have the same force as evidence as those of a notary public. FEES — allowed to be the same as those allowed for like services by the laws of his state or territory. Commissioners of other states and territories appointed in this state with like authority, are invested with the authority of a justice of the peace, to issue subpoenas requiring the attendance of witnesses before them to give their testimony by deposition or affidavit, can administer oaths in any matter required or permitted by the law of their state or § 540] COMMISSIONER OF DEEDS. 341 territory. Talse swearing is subject to the penal laws of this territory relating to perjury. SEAL— of office to b« procurad to authenticate their acts with. § 539. New York— APPOINTMENT— in the cities of the state— by the city commoii council. TEEM — ^two years. Number to be appointed, to be determined at the end of every two years in cities of 300,000 to 550,000. POWEES — to take acknowledgment of all written instruments. APPOINTMENT — ^in other states and countries — by the governor. EUCGIBILITY — to reside where appointed. TEEM — ^four years, unless sooner revoked. COMMISSION— fee— $5.00. OATH— of ofSce to be taken, if in the United States, before a justice of the peace, or some other magistrate. If abroad, before a person authorized by the laws of this state to administer oaths in such country, or before a clerk or judge of a court of record. SEAL — of office to be provided having on his name and the words "Commissioner of deeds for the State of New York," and the name of the city or county, and the state or country from which appointed; shall file a clear impression of such seal, his signature and oath certified by the officer before whom taken, in the office of the secretary of state. Upon receipt of same, he shall receive instructions and forma. POWEES — within the place of his appointment to take acknowledgments, or proofs of written instruments, except a bill of exchange, promissory note, or will. To take oaths, same to be ad- mitted as evidence or for record. In foreign countries, to certify to existence of patent, record or other document in country. NEW TOEK CITY— APPOINTMENT— by the board of aldermen. TEEM— two years; not required to be approved by the mayor or city council. OATH — of office shall be taken before the commissioner of deeds clerk. DUTIES — to take acknowledgments. In counties where his signature and seal have been recorded, his acts may be performed without his official seal. He is liable to parties injured for any misconduct in office. PEES — ^if for another state, not to exceed four times the amount al- lowed by the laws of such state. In no case for an acknowledgment or an oath over $1.00. IN GEEAT BEITAIN — ^taking acknowledgments and issuing certificates, four shillings, administering ' an oath, one shil- ling. IN FEANCE OE OTHER FOEEIGN COUNTRY— administering an oath, and certifying, one franc and twenty-five centimes. Taking an acknowledgment or certifying to the correctness of a copy of a patent, etc., five francs. Foreign commissioners must have their acts certified by the secretary of the state of their appointment. Commissioner of deeds appointed by common council of cities, population not less than 300,000 nor more than 550,000, expires on 31st day of December of the even number year, next after appointment to be made in November. TEKAl — two years, notification to be made by county clerk. OATH — of office to be taken within ten days before county clerk. Fee — $1.00. § 540. North Carolina.— APPOINTMENT— by the governor. TEEM — two years. POWERS — to take acknowledgments or proofs of deeds and other instruments in writing, to take the private examination of 342 NOTARIES PUBLIC. [§ 541 married ■women to certify same, and it , shall have the same force and effect as if taken in this state. To administer oaths or afBrmations, take depositions and examine witnesses. OATH — to be taken and sub- scribed before a justice of the peace in the city or county where he resides, well and faithfully to execute the duties of his office, before acting, and the same to be filed with the secretary of this state, who will record and issue the commission and certify the appointment to the clerks of the superior courts, who shall record the same., Clerks of courts of records in other states have power as commissioners of affi- davits and deeds. The clerk of the superior court, having jurisdiction, shall adjudge deed or instrument acknowledged or proved by other state commissioners. FEES — affidavit, 40 cents; affixing seal, 25 cents; ac- knowledgments, 25 cents. § 541. North Itekota^-APPOINTMENT— by the governor. Fee— $10.00. TEEM — six years. POWERS — ^to take acknowledgments and proofs of instruments, administer oaths, take and certify depositions and affidavits. SEAL — to be procured for authenticating his official acts having engraved on it "Commissioner of Deeds for the State of North Dakota," also the name of his state or country, with the date his com- mission expires. Acts to be as effectual in law as those of any officer so authorized in this state, when certified under his seal of office. OATH — of office to be taken and subscribed to before a judge or clerk of a court of record or officer having a seal in his state or country, well and faith- fully to perform all the duties of his office by virtue of the laws of this state. Pile with signature and an impression of seal with the secre- tary of this state. BOND — ^for $500, with a surety company as security; to be filed with the secretary of this state. PEES — same as notaries in his state. § 542. OMo— APPOINTMENT— by the governor. Pee— $3.00. TERM — ^three years. ELIGIBILITY — governor to determine. AU- THORITY — to take affidavits, depositions, and acknowledgments for record in Ohio. SEAL — tp be procured for authenticating his acts. OATH — of office to be taken and subscribed to before a judge of a court of record or some Ohio commissioner within the state or country. Same with signature thereto and an impression of his seal of office shall be transmitted to the governor and filed in the office of the secretary of state. PEES — swearing witnesses, 25 cents; deposition, each 100 words, and certificate or affidavit, 10 cents; authenticating, sealing up, and directing same, $1.00; taking acknowledgment, $2.00; affidavits, $1.00. LIABILITY — excess of these charges, dishonesty or unfaithfulness in office subjects him to removal by the governor and public notice. § 543. Oklahoma — The law authorizing appointments of commission- ers has been eliminated as obsolete. § 544. Oregon— APPOINTMENT-by the governor. Pee— $2.50. TERM — four years. Jurisdiction where appointed for. POWERS— to take acknowledgments, affidavits, depositions, etc. SEAL — of office to § 548] COMMISSIONER OF DEEDS. 343 be provided, haying the arms of this state, in its center, anrrounded by "Commissioner for Oregon," with his state name. OATH — to be taken and subscribed to before a judicial officer. Oath and impression of his seal to be filed with the secretary of state. § 545. Pennsylvania^— APPOINTMENT— by the governor. Tee — $5.00. TEEM — five years. Women may be appointed. WheA they marry must report name to the governor so their certificate can be changed. POWEES — ^to take acknowledgments, oaths, for use in this state, and certify same under their hand and seal. Oath of office to be taken before a justice of the peace of his county. Same to be filed with the secretary of this state, all before acting. FEES — acknowledg- ments, $1.00. FOEEIGN C0MMI8SI0NEBS— TEEM— at governor's pleasure. OATH — to be taken before a judge or clerk of a court of record, where resident. SEAL — to be procured to authenticate their official acts. Impression of seal, signature and oath to be filed with the secretary of this state. FEES — same as other commissioners. § 546. Porto Eico— APPOINTMENT— by the governor. TEEM— four years. Fee — $1.00. OATH — to be taken before a justice of the peace or other magistrate of the city, town or clerk of court of record of state or territory within three months or forfeit the office. SEAL — ^to be pro- cured having engraved on it, his name, "Commissioner for Porto Eico," name of the state or territory, city and county, where he resides. An impression of his seal, oath of office and signature to be filed in the office of the secretary of the island. DUTIES AND POWEES — to administer oaths, take depositions, affidavits and acknowledgments for record in Porto Eico, same, under his official seal, shall be as effectual as if taken on the island. FEES — taking oaths, $1.00; acknowledgments, $1.00; depositions or affidavits, per page, 50c; administering oath to each de- ponent, $1.00; authenticating, sealing up and directing each deposition, $1.00. Court may allow further fees if necessary. Other fees same as notary publics. Documents may be written in English where notary and parties know the language. I 547. Ehode Island— APPOINTMENT— by the governor. Pee— $2.00. TEEM — five years. OATH — of office to be taken before an authorized officer, and filed with the secretary of state before acting, within six months. POWEES — to take depositions, acknowledgments, affidavits and oaths for record in this state. SEAL — ^to provide an official seal with which to authenticate his acts. EEMOVAL — after notice and opportunity for defense, by goveiTior. FEES — no statute. § 548. South Carolina— APPOINTMENT— by the governor. Fee— $3.25. TEEM — at the governor's pleasure. OATH — of office to be taken and subscribed to, before acting; any authorized officer in his city or county can take it. Same with the commission, to be filed with the secretary of state, who shall give notice of such in one or more gazettes of the state. POWEE — ^to take renunciation of dower, ac- knowledgments, or any writing under seal, to be used or recorded in 344 KOTARIES PUBLIC. [§ 549 this state, when certified under his hand and seal. Also power to administer oaths. Verifications of pleadings, affidavits and proofs of claims made before notaries public in other states shall have the same effect as if made before a commissioner of deeds for this state. To use his official seal. SEAL — of office to be provided for authenticating his official acts. FEES — same as notaries. § 549. South Dakota^-APPOINTMENT — by the governor. Fee— $5.00. TEEM — at the governor's pleasure. POWERS — take acknowl- edgments of deeds and other instruments for record in this state, oaths, and depositions. OATH — of office to be taken and subscribed to before a judge or clerk of a court of record having a seal. File with the state secretary, also copy of seal. SEAL — to be procured having on it "Com- missioner of South Dakota," his surname, and at least the initials of his Christian name, the name of the state commissioned for. To au- thenticate his official acts with same. FEES — ^no statute regulating. § 550. Tennessee — APPOINTMENT — ^by the governor. Fee — $10.00. TERM — ^four years. POWERS — to take acknowledgments, depositions, affidavits, powers of attorney, probate deeds, etc., for record in the state. Same to conform to the Tennessee statutes. Some doubt seems to exist as to the power of a commissioner to take the acknowledgment and privy examination of a married woman to an instrument executed by her and her husband, that such examination must be by a court of equity or, a commissioner appointed by such court. OATH — of office to be taken. SEAL — of office to be procured to authenticate official acts with. § 551. Texas— APPOINTMENT— by the governor, on the recom- mendation of the executive of the state or country of applicant. Fee — $1.00. TEEM — two years, or his successor qualified. POWERS — to take acknowledgments and proofs, oaths, depositions, same to be as effective as if made in this state. OATH — of office to be taken before a clerk of a court of record of his county, subscribed and sworn to under the hand and official seal of the clerk, and filed with the secretary of this state. SEAL — of office to be procured to authenticate all his official acts with, having in the center "A star of five points" and "Commissioner of the State of Texas" engraved thereon. His acts have no effect un- less so certified. FEES — ^not regulated. § 552. Utah— APPOINTMENT- by the governor. Fee— $5.00. TEEM — ^four years unless removed by governor. POWERS — to admin- ister oaths, take depositions, affidavits and acknowledgments, for use or record in this state. The same when certified under his hand and seal are as effectual in law for all intents and purposes as if done by an authorized officer in the state. OATH — to be taken and subscribed to before a judge or clerk of a court of record, in the state of the com- missioner, certified by the person taking, under his hand and seal of the court. The oath and impression of his seal to be filed with the secretary of this state within six months. SEAL — of office to be pro- § 556] OOltMISSIONEE OF DEBajS. 345 cured, upon which must be engraved his name, the words ' ' Commissioner of Deeds for the State of Utah," and the name of the state for which he is commissioned. All his of&cial acts must be authenticated with this seal. Commissioners for other states residing in this state shall file with the secretary of state a certified copy of their commission, together with a statement of their place of residence. PEES — the sume as notaries. § 553. Vermont— APPOINTMENT— by the governor. Fee— $5.00. The applicant must have the indorsement of the governor or a member of the supreme bench of his state. TEBM — five years. POWERS — to take depositions, affidavits, oaths and acknowledgments, for use in this state. OATH — of ofEce to be taken before a magistrate of his locality. BOND — required for $500, approved by the governor, before acting, and filed with the secretary of state. SEAL — to procure an official seal with which to authenticate their official acts. FEES — allowed, not regu- lated by statute. § 554. Virginia — APPOINTMENT — by the governor. Fee — $5.00. TEEM — at the pleasure of the governor for two years. OATH — of office required, can be taken before a justice of the peace or other commis- sioner or one authorized to take oaths. SEAL — of office to be procured to authenticate their acts with. POWEES — to take acknowledgments, depositions, oaths. § 555. Washington— APPOINTMENT— by the governor. Fee— $5.00. TEEM— four years. POWEES — to administer oaths, take depo- sitions and affidavits, to be used in this state, also acknowledgments for record. OATH — ^before acting, they shall subscribe to an oath before clerk of court of record or any officer having an official seal and so au- thorized, a certificate of which, to be filed with the secretary of state. SEAL — of office to be procured having on it his name and the words "Commissioner of Deeds for the State of Washington," and the name of the state for which he is commissioned, with date of expiration of his commission. § 556. West Virglnia^-APPOINTMENT— by the governor. Fee— $5.00. TEEM — four years, governor to notify the legislature. POWEES — to administer oaths, take affidavits, depositions and acknowledgments for use in this state. SEAL — to be procured designating his name, residence, and the words (either full or intelligently abbreviated) "Com- missioner for West Virginia," and name of his state. An impression of his seal and signature to be filed with the secretary of this state. His certificate to be authenticated by his signature and official seal. OATH — ^for faithfulness in office to be taken before a justice of the peace, notary, court or judge of the county in which he resides, or where his duties are to be performed, and certified to by the officer. Not to act until qualified, under penalty, and to qualify within sixty days, otherwise office is vacant. FEES — see notaries. 346 KOTAEIES PUBLIC. [§ 557 § 557. Wisconsin— APPOINTMENT — by the governor. Fee — $5.00. TEEM — four years. OATH — of office to be taken before a judge or clerk of a court of record where the applicant resides. SEAL — of office to be procured with which he shall authenticate his acts. An impression of same, with his oath of office and statement of post office address to be filed with the secretary of this state. POWEBS — to take acknowl- edgments, depositions and oaths, certify same with his hand and official seal. FEES — allowed, same as other officers. § 558. Wyomijig— APPOINTMENT — by the governor. Fee — $5.00. TERM — at the governor's pleasure. POWEE — to take depositions, ac- knowledgments, affidavits and oaths, for use in this state. SEAL — of office to be procured, with which all his official acts shall be authenti- cated. OATH — of office to be taken and subscribed to before an author- ized officer having an official seal, where applicant resides, same with signature and official seal impression to be filed with the secretary of this state. Must state in each certificate the date of expiration of his commission. FEES — allowed, same as notaries. § 559. Canada,— APPOINTMENT — by the governor in council. Fee— $10.00. DUTIES — to take acknowledgments, releases of dower, attesta- tions under oath, affidavits. CHAPTEE VII. I FORMS. § 560. The following forms are presented as a guide. It is the substance which the statutes require more than a literal copy. Observe carefully the preceding chapters for the full re- quirements, as to witnesses, seals, personal appearance and separate examinations for acknowledgments, deeds, etc. Depositions vary so much for each case that it is hardly necessary to enumerate for each State. Also affidavits. Follow carefully the requirements of the chapter on Nego- tiable Instruments and the statutory requirements of each State. ACKNOWLEDGMENTS. FOEMS EECOMMENDED BY THE AMERICAN BAB ASSOCIATION. No. 1. In CASE OF NATURAL PERSONS. On this day of 19.., before me personally appeared , to me known to be the person. . described in and who executed the foregoing instrument, and acknowledged that ..he., executed the same as free act and deed. No. 2. ACTING BY ATTORNEY. On this day of , 19.., before me personally appeared , to me known to be the person who executed the foregoing instrument in behalf of , and acknowledged that . .he. . executed the same as the free act and deed of said No. 3. A CORPORATION. On this day of , 19. ., before me appeared , to me personally known, who, being by me duly sworn (or affirmed) did say that he is the president (or other officer) of (describe corporation), and that the seal affixed to said instrument is the corporate seal of said corporation (or association), and that said instrument was signed and sealed in behalf of said corporation (or association) by authority of its 347 ss. 348 NOTAEIES PUBLIO. [§ 560 board of directorg (or trustees), and said aoknowledgsd said inBtniment to be the free act and deed of said corporation (or associa- tion). No. 4. (Alabama.) HUSBAND AND WIFE. State of ) V S3 County of f I, , hereby certify that C. B. and A. B., whose names are signed to the foregoing instrument, known to me, personally appeared, and being made acquainted with the contents thereof, acknowledged the same this day to be their free act and deed, for the purposes therein expressed; said A. B., wife of the said C. B., was examined separate and apart from her husband. Given under my hand and seal of office, this day of , A, D. 19.. No. 5. (Alabama.) State of I County of ( I., M. N. (give officer's title), hereby certify that A. B., whose nama is signed to the foregoing conveyance and who is known to me, acknowl- edged before me on this day that being informed of the contents of the conveyance he executed the same voluntarily on the day the same bears date. Given under my hand, this day of , 19.. No. 6. (Arizona.) State of Arizona, ) ss County of ^ This instrument was acknowledged before me, this day of 19. ., by (if by a natural person or persons, here insert name or names; if by a person acting in a representative or official capacity, or as attorney in fact, then insert name of person as executor, attorney in fact, or other capacity; if by an officer or officers of a corporation then insert name or names of such officer or officers as the president or other officer of such corporation, naming it). A B Notary Public (or other officer). State of Arizona, | County of J Before me, , on this day, personally appeared , known to me (or proved to me on the oath of) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me' that he executed the same for the purpose and consideration therein ex- pressed. Given under my hand and seal of office, this day of , A. D My commission expires day of , A. D § 560] FORMS. 349 No. 7. (Arkansuk) i 88. State of County of On this day of , 19. ., before me, a notary public in and for said county, duly authorized by the laws of Arkansas, personally appeared C. D., to me personally known (or proved by the subscribing witnesses) to be the person whose name appears as grantor to the foregoing instrument, and stated that he executed the same for the consideration and purposes therein set forth. In testimony whereof, I have hereunto set my hand and official seal, as such notary public in and for said county, on this day of 19-- Note: Conveyance by husband and wife must state that husband acknowledges that he executed the deed for the "consideration and purposes therein mentioned and set forth" and that the wife acknowl- edges that she has executed it for the "purposes therein contained and set forth." The certificate of acknowledgment of the wife must show that she executed the deed "without compulsion of undue influence of her husband." — ^Ed. No. 8. ACKNOWLEDGMENT BY CORPORATION. State of Arkansas, '^ County of C On this day of 19. ., before me , a Notary Public, (or before any ofBcer within this State or without the State, now qualified under existing law to take acknowledgments) duly commis- sioned, qualified and acting, within and for said County and State, appeared in person, the within named and (being the person or persons authorized by said corporation to execute such instru- ment, stating their respective capacities in that behalf to me personally well known, who stated that they were the and of the , a corporation, and were duly authorized in their respective capacities to execute the foregoing instrument, for and in the name and behalf of said corporation, and further stated and acknowledged that they had so signed, executed and delivered said foregoing instru- ment for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY "WHEREOF, I have hereunto set my hand and ofaeial seal this day of , 19. . No. 9. (California.) State of 1 „„ > SB. County of ) On this day of , in the year , before me (officer's name and quality of officer), personally appeared , known to me (or proved to me on the oath of ) * to be the person whose name 350 NOTAEIES PUBLIC. [§ 560 is subscribed to the within instrument, and acknowledged to me that he (she or they) executed the same. No. 10. COBPOEATION. The name of the president or secretary must be inserted, together with the name of the company, viz., same as above to then follow: (*) to be the president (or secretary) of the corporation who executed the within instrument, on behalf of the corporation therein named, and acknowledged to me that such corporation executed the same. No. 11. ATTOENEY IN FACT. Begin (*) to be the person whose name is subscribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name of thereto as principal, and his own name as attorney in fact. No. 12. (Colorado.) State of Colorado, ) County of . appeared before me this day of , 19. ., in person and acknowledged the foregoing instrument to be his act and deed for the uses specified therein. Witness my hand and o£S.clal seal. , (Title of Officer.) The acknowledgment to the statutory form of deeds or mortgages is as follows, — State of Colorado, ) > ss. County of J I, , in and for said County, in the State aforesaid, do hereby certify that who personally known to me to be the persons whose name subscribed to the foregoing deed, ap- peared before me this day in person and aeWnowledged that signed, sealed and delivered the said instrument of writing as free and voluntary act and deed, for the uses and purposes therein set forth. Given under my hand and seal, this day of , A. D My commission expires A. D.. No. 13. (Connecticut.) BY HUSBAND ANI> WIFE. } State of County of , A. D. 19. ., then and there before me, , within and for the county and State aforesaid, duly commissioned and acting as such. § 560] POEMS. 351 personally appeared and , his wife, signers and sealers of the foregoing instrument, and severally acknowledged the same to be their free act and deed, before me. Witness my hand and seal of ofiSee, on this day of , A. D. 19.. No. 14. (Delaware.) State of ■^ County, f Be it remembered, that on this day of , A. D. 19.., personally came before me, , a notary public for the State of Delaware, and , his wife, parties to this indenture, known to me personally (or proved upon the oath of ) to be such, and severally acknowledged this indenture to be their deed; and the said being at the same time privately examined by me, apart from her husband, acknowledged that she executed the said indenture will- ingly, without compulsion, or threat, or fear of her husband's dis- pleasure. Criven under my hand and seal of office the day and year aforesaid. No. 15. (District of Columbia.) County (or city, etc.) to wit: I, , a (official title) in and for the District of Columbia do hereby certify that , a party to a certain deed, bearing date on the day of , and hereunto annexed, appeared before me in said District, the said being personally well known to me, as (or proved by the oaths of credible witnesses before me to be) the persons. . who executed the said deed and acknowledged the same to be his (her or their) act and deed. Given oAder my hand and seal this day of (Seal.) No. 16. (District of Columbia.) WIFE. County (or city) to wit: I, (officer's title), in the county aforesaid, in the State of , do hereby certify that , the wife of , party to a certain deed bearing date on the day of and hereunto an- nexed, personally appeared before me in the county (or city) aforesaid, the said being well knovfn to me (or proved on the oaths of credible witnesses before me to be) the person who executed the said deed, and being by me examined privily and apart from her husband, and having the deed aforesaid fully explained to her, she, the said , acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it. Criven under my hand and seal this day of 358 NOTAHIBS PCBLIO. [§ 660 No. 17. (Tlorida.) State rf V County of y **• Before me personaJly came C. T., to me well known as the person who executed the foregoing deed, and acknowledged that he exeoutsd the same for the purposes therein expressed, and prays that it may be admitted to record. In witness whereof I have hereunto set my hand and seal, this day of , A. D. 19.. No. 18. (Georgia.) MAEBIED "WOMAN. I, A. B., the wife of C. D., do declare that I have freely and without any compulsion signed, sealed and delivered the above instrument of writing, passed between D. B. and C. D., and I do hereby renounce all title or claim to dower that I might claim or be entitled to, after the death of C. D., my said husband, to or out of the lands or tene- ments therein conveyed. In witness whereof, I have hereunto set my hand and seal. Before me, John Smith, a notary public, personally came A. B., the wife of 0. D., to me known to be the person whose signature is at- tached to the foregoing deed, and did declare that she did freely and voluntarily and without compulsion from her husband sign, seal and deliver the said deed for the purposes therein mentioned. Sworn to and subscribed before me this day of , 19. . No. 19. (Hawaiian Islands.) Territory of Hawaii 'J Island of C On this day of A. D., personally appeared before me A B, (*) known to me to be the person described in and who executed the foregoing instrument, who acknowledged to me that he executed the same freely and voluntarily and for the uses and purposes therein set forth. When the party is unknown to the officer but identified by a wit- ness, insert (*) satisfactorily proved to me to be the person described in and who executed the written instrument, by the oath of D, a cred- ible witness for that purpose, to me known and by me duly sworn, and he the said A B acknowledged that he executed the same freely and voluntarily for the uses and purposes therein set forth. No. 20. (Idaho.) State of Idaho, > ss. County of \ On this day of , in the year of , before me (officer's name and office) personally appeared , known to me (or proved to me on the oath of ) to be the person whose name § 560] FOEMS. 353 is Bnbseribed to the within instrument,* and acknowledged to me that he (or they) executed the same. No, 21. CEBTIPICATB OF ACKNOWIjEDGMENT OF MAEEIED "WOMAN. Same as above, to * adding described as a married woman and upon an examination without the hearing of her husband I made her acquainted with the contents of the instrument and thereupon she acknowledged to me that she executed the same and that she does not wish to retract such execution. No. 22. (nUnois.) State of I County of I, , hereby certify that , , who are each per- sonally known to me to be the same persons whose names are sub- scribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered said instrument as their free and voluntary act for the uses and purposes therein set forth. Given under my hand seal, this day of , A. D No. 23. (Illinois.) PARTY PEESONALLT KNOWN TO THE OFFICER. State of Illinois, 1 *- ss. County of Cook. ( I, John Doe, a notary public in and for said county and State, do hereby certify that Richard Smith (and if acknowledged by wife, her name, and add "his wife"), personally known to me to be the same person. . whose name is (or are) subscribed to the foregoing instru- ment, appeared before me this day in person and acknowledged that he (she or they) signed, sealed and delivered the said instrument as his (her or their) free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official seal, this sixteenth day of January, A.D. 19.. JOHN DOE, Notary Public. No. 34. (Illinois.) PARTY NOT KNOWN. State of Illinois, ) County of Cook. | I John Doe, a notary public in and for said county and State, do hereby certify that Richard Smith (proved by James Jackson, the sub- scribing witness), who is personally known to me to be the same person 23 354 NOTARIES PUBLIC. [§ 560 whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act for the uses and purposes therein set forth. Given under my hand and ofScial seal, this sixteenth day of January, A. D. 19.. JOHN DOE, JAMES JACKSON (Seal), Notary Public. Subscribing Witness. No. 25. (minois.) WITH HOMESTEAD WAIVER. State of ) > ss. County of \ I, , a notary public in and for the said , in the State aforesaid, do hereby certify that , personally known to me to be the same person., whose name subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that ..he., signed, sealed and delivered the said instrument as free and voluntary act, for the uses and purposes therein set forth, including the release and waiver of the right of homestead. Given under my hand and notarial seal, the day of , A. D. 19... , Notary Public. No. 26. (Illinois.) FOR CORPORATION. State of Illinois, ) > 88. County of I I, , a notary public in and for the county and State aforesaid, do hereby certify that , president, and , secretary of the , who are personally known to me to be the same persons whose names are subscribed to the foregoing as such president and secretary, appeared before me this day in person and acknowledged that they signed, sealed and delivered the said instrument of writing as their free and voluntary act, and as the free and voluntary act of the said for the uses and purposes therein set forth, and caused the corporate seal of said company to be thereto attached. Given under my hand and notarial seal, this day of , 19.. , Notary Public. No. 27. (Illinois.) ACKNOWLEDGMENT TO CHATTEL MORT- GAGE BY A NONRESIDENT. This chattel mortgage was acknowledged before me by Richard Smith, this 15th day of July, 19.. Witness my hand and seal. JOHN DOB. 560] F0HM6. 355 No. 28. (Indiana.) ige annexed deed (or mortgage) Before me, E. F. (a judge or justice as the case may be), this day of , A. D , A. B. acknowledged the execution of the (Signature and title.) No. 29. IOWA. State of 1 County of f On this day of , A. D , before me personally appeared A B (or A B and C D), to me known to be the person. . named in and who executed the foregoing instrument, and acknowl- edged that . . he . . executed the same as (his or their) voluntary act and deed. Notary Public in and for said county. No. 30. (Iowa.) COEPOEATION. Same as above and follow with: On this day of , A. D , before me appeared A B, to me personally known, who, being by me duly sworn (or affirmed) did say that he is the president (or other officer) of (describe the corporation) and that the seal affixed (if they have one) to said In- strument is the corporate seal of said corporation and that said instru- ment was signed and sealed in behalf of said corporation by authority of its board of directors and said A B acknowledged said instrument to be the voluntary act and deed of said corporation. Kansas, same as Iowa. No. 31. (Kentucky.) MABEIBD WOMAN OUT OF THE STATE. Commonwealth (or ), l .... County (or) of , | I, (title of officer), do certify that this instrument of writ- ing from and wife, , was this day produced to me by the parties, and the contents and efEeet of the instrument being explained to the said by me, separately and apart from her husband, she thereupon declared that she did freely and voluntarily execute and deliver the same, to be her act and deed and consented that the same might be recorded. (Seal.) Given under my hand and seal of office. If the husband join in the deed and acknowledge before the officer, his acknowledgment may be certified with that of the wife, following the word "parties," thus "which was acknowledged by the said C. D. to be his act and deed." 356 NOTAKIES PUBLIC. [§ 560 No. 32. (Kentucky.) MAEEIED WOMAN IN THE STATE. Officer to simply certify that it was acknowledged before him and where. No. 33. (Louisiana.) State of ■) County of 1 Be it remembered, that on this day of , 19 . . , before me, a notary public in and for said county duly authorized, personally ap- peared A. B., to me known to be the party who executed the within in- strument, and acknowledged to me that he did sign, seal and deliver the same, as his free act and deed for the uses and purposes therein stated. In witness whereof, I have hereunto set my hand, and affixed my official seal and signature this day of , 19.. No. 34. (Maine.) State of I County of f day of , 19 . . , personally appeared 0. F. and acknowl- edged the foregoing instrument to be his free act and deed. No. 35. (Maryland.) ACKNOWLEDGMENT. State of Md., County, to wit: I hereby certify, that on this day of , in the year , before the subscriber (name of official) personally appeared and (name of married woman) his wife and did each acknowl- edge the foregoing deed to be their respective act. No. 36. (Massachusetts.) ACKNOWLEDGMENT. State of Mass., | County of J ' ' , on this day of , 19. ., before me personally ap- peared A. B., to me known to be the person. . described in and who executed the foregoing instrument, and acknowledged that . .he. . exe- cuted the same as free act and deed. No. 37. BY ATTOENET. On this day of , 19.., before me personally appeared A. B., to me known to be the person who executed the foregoing instru- ment in behalf of C. D., and acknowledged that he executed the same as the free act and deed of said C. D. § 560] FORMS. " 357 No. 38. COEPOEATIONS. On this day of , 19.., befdre me appeared A. B., to me personally known, who being by me duly sworn (or affinned) did say that he is the president (or what officer) of (name of corporation) and that the seal affixed to said instrument is the corporate seal of said cor- poration, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said A. B. acknowledged said instrument to be the free act and deed of said corporation. If the corporation has no seal omit the words "the seal affixed to said instrument is the corporate seal of said corporation and that," and add, at the end of the affidavit clause, the words "and that said cor- poration has no corporate seal." In all oases add signature and title of the officer taking the acknowledgment. No. 39. (Michigan.) SAME FOEMS AS MASSACHUSETTS. No. 40. (Minnesota.) SAME AS MASSACHUSETTS. No. 41. (Mississippi.) Caption. Personally appeared before me, (officer's name and office), the within named A. B., who acknowledged that he signed and delivered the foregoing instrument on the day and year therein mentioned. Given under my hand, this the day of , A. D No. 43. A WITNESS. Caption. Personally appeared before me, , C. D., one of the subscribing witnesses to the foregoing instrument, who being duly sworn, deposeth and saith that he saw the within named A. B., whose name is sub- scribed thereto, sign and deliver the same to the said E. P. (or that he heard the said A. B. acknowledge that he signed and delivered the same to the said E. F.) ; that he, this affiant, subscribed his name as a wit- ness thereto in the presence of the said A. B. In all cases add signature and title of the officer taking, and attach his official seal if he have one. No. 43. (Mississippi, See No. 140.) No. 44. (Missouri.) SEE MASSACHUSETTS. No. 45. (Montana.) SEE MASSACHUSETTS. No. 46. (Nebraska.) SEE IOWA. (Add one witness.) 358 NOTARIES PUBLIC. [§ 560 No. 47. (Nevada.) ACKNOWLEDGMENT. State of Nevada, ) County of C On this day of , A. D. , personally appeared before me (name of officer) in and for said county, A. B., known to me to be the person described in and who executed the foregoing instru- ment, who acknowledged to me that he executed the same freely and voluntarily and for the uses and purposes therein mentioned. (The exact form is not required, the substance is.) No. 48. (New Hampshire.) SEE MASSACHUSETTS. No. 49. (New Jersey.) State of 7 > ss. County of I Be it remembered that on this day of , 19 . . , before me, a notary public in and for said county, being duly authorized, person- ally came 0. E. and M. F., his wife, who I am satisfied are the grantors in the foregoing deed, and I having made known to them the contents thereof, they each acknowledged that they signed, sealed, and delivered the same as their voluntary act and deed for the uses and purposes therein mentioned. No. 50. (New Mexico.) SAME AS MASSACHUSETTS. No. 51. (N. T.) See Massachusetts for Individuals. State of New York, ) ss. County of f On the day of , in the year , before me per- sonally came , to me known, who, being by me duly sworn, did depose and say that he resided in ; that he is the (president or other ofB.cer) of the (name of corporation), the corporation described in and which executed the above instrument; that he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. (Signature and office of officer.) If such corporation have no seal, that fact must be stated in place of the statements required respecting the seal. No. 52. (North Carolina.) State of. ;:} ss. . County. I, A. B. (title of officer), do hereby certify that (name of grantor, and if acknowledged by wife, her name, and add his wife), personally appeared before me this day and acknowledged the due execution of the § 560] l-OEMs. 359 foregoing (or annexed) deed of conveyance (or such instrument as it is), and (if the wife is a signer) the said (here give wife's name), being by me privately examined separate and apart from her said husband, touching her voluntary execution of the same, doth state that she signed the same, freely and voluntarily, without fear or compulsion of her said husband, or any other person, and that she doth still voluntarily assent thereto. Witness my hand and seal (private or official), this day of , A. D , (Seal.) No. 53. (North Dakota.) State of I County of f On this. day of , in the year , before me person- ally appeared , known to me (or proved to me on the oath of ) to be the* person who is described in and who executed the within instrument, and acknowledged to me that he (or they) exe- cuted the same. If a corporation add * (name of officer) of the corporation that is described in and that executed the within instrument, and acknowl- edged to me that such corporation executed the same. No. 54. (Ohio.) BY HUSBAND AND WIFE. State of ) > ss. County of J Be it remembered that on the day of , before me, a notary public in and for said county, personally appeared A. B. and C. B., his wife, the grantors in the foregoing deed, personally known to me, and acknowledged the signing and sealing of the same to be their act and deed for the purposes therein mentioned. And the said C. B., wife of the said A. B., being examined separate and apart from her hus- band, and the contents having been made known to her by me, declared that she did voluntarily sign and acknowledge the same and is satis- fied therewith as her act and deed. In testimony whereof, I have hereunto set my hand and affixed my official seal. Two witnesses. No. 55. (Oklahoma.) State of Oklahoma, 1 „ . > ss. County. J Before me, , in and for said county and state, on this day of , 19.., personally appeared and , to me known to be the identical person., who executed the within and foregoing instrument, and acknowledged to me that executed the same as free and voluntary act and deed for the uses and purposes therein set forth. 360 NOTARIES PUBLIC. [§ 560 No. 56. (Oregon.) State of Oregon, ^ County of f Before the undersigned, a justice of the peace for the precinct of , in the county and State aforesaid, personally appeared the within named A, B., and C. D., his wife, to me known to be the in- dividuals described in and who executed the within conveyance, and the said A. B. acknowledged that he executed the same, and the said C. D., being by me examined separate and apart from her said husband, then and there acknowledged that she executed such conveyance freely and without fear or compulsion from any one, this day of , 19 . . B. F., Justice of the Peace. No. 57. (Pennsylvania.) Corporation's power to Attorney to acknowledge for the corporation. I hereby certify that on this day of , in the year of our Lord , before me the subscriber (title of officer) per- sonally appeared (name of attorney) the attorney named in the fore- going (name of instrument) and by virtue and in pursuance of the authority therein conferred upon him, acknowledged the said (name of instrument) to be the act of the said (corporation's name). Witness my hand and seal the day and year aforesaid. No. 68. State of ) 'f ss. County of ] Be it remembered that on this day of , before me, a notary public in and for said county, duly authorized, personally came C. D., and A. D., his wife, personally known (or proved) to me, and ac- knowledged the signing and sealing of the within instrument to be their act and deed, that the same might be recorded as such. And the said A. D., being of lawful age, was examined by me separate and apart from her husband and the contents made known to her, she de- clared that she did voluntarily and of her own free will and accord and as her own free act and deed, without any compulsion from her husband, deliver the same. In witness whereof, I have hereunto set my hand and of&eial seal, this day of , A. D. (One witness.) No. 59. (Ehode Island.) HUSBAND AND WHTB. State of Rhode Island, ) ^ BS County of ( In the town of , in the said county and State, on this day of , A. D. 19.., personally appeared before me the within named C. D., and acknowledged the within instrument by him signed to be his free, voluntary act and deed. ' § 560] FORMS. 361 And at the same time came A. D., wife of the said C. D., being by me examined separate and apart from her husband, acknowledged and declared the said instrument by her signed, to be her free act and deed, and that she did not wish to retract it. No. 60. (South Carolina.) MABEIED WOMAN. State of South Carolina, | County. f I, F. G. (officer's title), do hereby certify unto all whom it may con- cern that E. B., the wife of the within named A. B., did this day appear before me, and upon being privately and separately examined by me, did declare that she does fteely, voluntarily and without any compul- sion, dread, or fear of any person or persons whomsoever, renounce, release and forever relinquish unto the within named C. D., his heirs and assigns, all her interests and estate, and also all her right and claim of dower, of, in or to all and singular the premises within men- tioned and released. Given under my hand and seal, this day of , A. B. (li. S.) Signed, F. G. E. B. Official seal of officer to be attached. No. 61. (South Dakota.) State of South Dakota, ) > ss. County of J On this day of , in the year before me person- ally appeared , known to me (or proved to me on the oath of ) to be the person who is described in and who executed the within instrument and acknowledged to me that he (or they) executed the same. No. 62. (Tennessee.) State of Tennessee, | County. f Personally appeared before me, clerk of the court of said county, the within named bargainer, with whom I am personally acquainted, and who acknowledged that he executed the within instrument for the purposes therein contained. Witness my hand, at office, this day of , 19. . No. 63. (Tennessee.) BY COEPOEATION. State of Tennessee, | ^^ County of ^ Before me, , the State and county aforesaid, personally ap- peared , with whom I am personally acquainted, and who, upon oath acknowledged himself to be the president (or other officer author- 362 NOTARIES P.UBLIC. [§ 560 ized to execute) of the , the within named bargainer, a corpora- tion, and that he as such , being authorized so to do, executed the foregoing instrument for the purpose therein contained, by signing the name of the corporation by himself as Witness my hand and seal, at oflfice in this day of Corporation seal not necessary. No. 64. (Texfis.) State of ■) County of f Before me, , on this day personally appeared , known to me (or proved to me on the oath of ) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration there- in expressed. Given under my hand and seal of office, this day of , A. D (Seal.) ss. No. 65. (Utah.) State of Utah, | County of . . . . f On the day of , A. D , personally appeared be- fore me, , the signer of the above instrument, who duly acknowl- edged to me that he executed the same. , This properly executed by an authorized officer and attached to the instrument, is sufficient. No. 66. (Utah.) GEANTOE UNKNOWN TO OFFICES. State of Utah, 1 County of .... f On this day of , A. D , personally appeared be- fore me A. B., satisfactorily proved to me to be the signer of the above instrument by the oath of C. D., a competent and credible wit- ness for that purpose, by me duly sworn, and Be, the said A. B., ac- knowledged that he executed the same. No. 67. (Utah.) BY COEPOEATION, State of Utah, ) !> ss. County of . . . . ( On the day of , A. D , personally appeared be- fore me A. B., who being by me duly sworn (or affirmed), did say, that he is the president (or other officer or agent) of (name corporation), and that said instrument was signed in behalf of said corporation by authority of its by-laws (or by resolution of its board of directors as § 560] FORMS. 363 the ease may be) and said A. B. acknowledged to me that said corpora- tion executed the same. No. 68. (Vermont.) State of I County of f The day of , A. D. 19.., personally appeared C. G., and A. Gr., his wife, to me known, and severally acknowledged the within instrument, signed and sealed, to be their free act and deed, before me. (Two witnesses.) No. 69. (Virginia.) County of , to wit: I, (oflicer's name and title), for the county aforesaid, in the State of , do certify that E. F., whose name is signed to the writ- ing above, bearing date on the day of , has acknowledged the same before me in my county aforesaid. Given under my hand, this ...... day of No. 70. COMMISSIONER OP DEED'S CEETIFICATE. State of ) . > to wit. I, , a commissioner appointed by the Governor of Virginia for the said State of , do certify that E. P., whose name is signed to the writing above, bearing date on the day of , has ac- knowledged the same before me, in my State aforesaid. Given under my hand, this day of , A. D. 19 . . No. 71. ("Washington.) State of Washington, "J County of f I, , do hereby certify that on this day of , 19.., personally appeared before me (and his wife if she joins), to me known to be the individuals described in and who executed the within instrument, and acknowledged that . . he . . signed and sealed the same as free and voluntary act and deed, for uses and purposes therein mentioned. Given under my hand and official seal, this day of , A. D. 19.. No. 72. ("Washington.) COEPOEATION. State of ) „„ County of J On this day of , A. D , before me personally appeared , to me known to be the (name of officer of the corpora- tion) of the corporation that executed the within and foregoing in- 364 NOTAKIES PUBLIC. [§ 560 strument, and acknowledged the said instrument *d be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that he was authorized to exe- cute said instrument and that the seal afBxed is the corporate seal of said corporation. In witness whereof, I have hereunto set my hand and afixed my oflicial seal the day and year first above written. No. 73. (West Virginia.) State of I County of f I, , a commissioner, appointed by the Governor of the State of "West Virginia, for the said State of , do certify that , whose name is signed to the writing above, bearing date on the day of , has this day acknowledged the same before me, in my said Given under my hand, this day of No. 74. (West Virginia.) COEPOEATION. State of 1 ^ County of j I, , a notary of the said County of ....... do certify that personally appeared before me in my said , and being by me duly sworn (or aflirmed), did depose and say that he is the president of (or other officer) the corporation described in the writing above, bearing date the day of , 19 . . , authorized by said corpora- tion to execute and acknowledge deeds and other writings of said cor- poration, and that the seal affixed to said writing is the corporate seal of said corporation, and that said writing was signed and sealed by him in behalf of said corporation by its authority duly given. And the said acknowledged the said writing to be the act and deed of said corporation. If the corporation has no corporate seal, omit the words "seal affixed to said writing is the corporate seal of said corporation" and say "said corporation has no seal," and in such case omit the word "sealed" after the words "signed and," and insert in lieu of it the word "executed." No. 75. (Wisconsin.) State of Wisconsin, ) County. J Personally came before me this day of , 19. ., the above (or within) named , and , his wife, to me known to be the persons who executed the foregoing (or within) instrument, and acknowledged the same. s 560] FORMS. 365 s No. 76. CEETEPICATE TO BE ATTACHED TO AN ACKNOWLEDG- MENT TAKEN OUTSIDE THIS STATE. State of ) County of f ' I, , clerk of the , in and for said county, which is a court of record, having a seal (or I, , the Secretary of State of State), do hereby certify that , by and before whom the foregoing acknowledgment (or proof) was taken, was, at the time of taking the same, a notary public (or other officer) residing (or author- ized to act) in said county, and was duly authorized by the laws of said State (or territory) to take and certify acknowledgments or proofs of deeds in said State, and further that I am well acquainted with the handwriting of said , and that I verily believe that the signature to said certificate of acknowledgment is genuine. In testimony whereof, I have hereunto set my hand and affixed the seal of the said court (or State), this day of 19. . No. 77. (Wyoming.) State of Wyoming, | County of C I (name of officer and title) do hereby certify that (name of gran- tor, if wife joins add her name, "and his wife") personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that they signed, sealed and delivered said instrument as their free and voluntary act, for the uses and purposes therein set forth (if home- stead is released state, including the release and waiver of the right of homestead). CANADA. No. 78. I hereby certify that , personally known to me, appeared be- fore me and acknowledged to me that , the person., mentioned in the annexed instrument as the maker. . thereof, and whose name subscribed thereto as part that know., the con- tents thereof, and that executed the same voluntarily. In testimony whereof, I have hereto set my hand and seal of office, at , this day of , in the year of Our Lord one thousand nine hundred and No. 79. FOE WITNESS. I hereby certify that , personally known to me, appeared be- fore me and acknowledged to me that , the person whose name is subscribed to the annexed instrument as witness, and having been 366 KOTAEIES PUBLIC. [§ 560 duly sTTorn by me, did prove to me that did execute the same in his presence voluntarily. In testimony whereof, I have hereto set my hand and seal of office, at , British Columbia, this day of , in the year of our Lord one thousand nine hundred and AFFIDAVITS. No. 80. GENEEAL AFFIDAVIT. State of I County of ( of the of County of and State of being duly sworn, doth depose and say, that And further this deponent says not. 1 Subscribed and sworn to before me this day of A. D. 19.... 2 (1) This line is for signature of affiant. (2) This line is for signature and title of officer administering oath. No. 81. AFFIDAVIT OF ACCOUNT. State of I County, f I, William Smith, of the firm of Smith, Brown & Co., do solemnly swear that the several items mentioned in the annexed account are just and true; that the articles were furnished, as therein charged, and that the amount claimed, to wit, the sum of fifty dollars, is due and unpaid, after allowing all just credits. Subscribed and sworn to before me, this day of , 19.. Notary PubUo. No. 82. AFFIDAVIT OF HEIRSHIP. State of Pennsylvania, | County of C In the matter of the real estate of John J. Belst, of Philadelphia, lately deceased. To whom it May Concern: We respectfully make oath to show: That, John J. Belst died by railroad accident in the State of owning and seized of the following described real estate situated in the City of Chicago, County of Cook and State of Illinois, to-wit: Lots 2 and 3 in Block 5 in Cornell or Subdivision in Sections 6 and § 560] FORMS. 367 35, Township 36 North, Eange 14 East of Principal Meridian in Cook County, Illinois. That John J. Belst and Ellen L. B., his wife, had no children or heirs of their bodies. That the names of the only heirs of the said John J. Belst, deceased, and the interests of each of said heirs in the above described premises of which said John J. Belst died seized, are as follows: * » • (names and residences, and interests of each). Sworn and subscribed to before me this day of A. B. 19.. No. 83. LOSS OF NOTES, State of ) > 88. County of ( I, , on oath,' depose and say: That on the day of , A. D. 19. .,1, , together with , made a certain deed of trust to , to secure the payment of the certain prin- cipal promissory note of that date, for dollars, payable in years from said date, to the order of , with interest at per cent, per annum, payable in semi-annual installments of $ each, which semi-annual payments were evidenced by coupon interest notes, as in said deed described. That said coupons were numbered from 1 to , inclusive, and in the order they respectively became due, that said deed was filed in the ofice for the registry of deeds for ...'... County, State of , on the day of , A. D. 19.., and recorded in Book , of , page ; that all of said notes have been paid and canceled, and are herewith produced, excepting coupons numbered , which, although diligent search has been made therefor, cannot be found; that said missing notes have been either mislaid, lost or destroyed, and therefore cannot now be produced; that thip afS.davit is made to obtain the release of the afore- mentioned deed of trust. Subscribed and sworn to before me, at , this day of , A. D. 19. . Witness my hand and official seal. Notary Public. No. 84. MEMOEANDA. Tot reason of the statements contained in the foregoing afSdavit, I have this day of , A. D. 19.., executed a release of the aforementioned deed of trust. , Trustee. No. 85. (Georgia.) AFFIDAVIT. You, A. B., do swear (or afBrm) that the foregoing defense is true, to the best of your knowledge and belief, so help you God. 368 NOTARIES rUBLIC. [§ 560 Where material words are omitted by accident or mistake in an affidavit to appeal in forma pauperis, such omission is amendable. Affidavits of illegality are, upon motion and leave of court, amend- able instanter by the insertion of new and independent grounds; pro- vided, the defendant will swear that he did not know of such grounds when the original affidavit was filed. All affidavits for the foreclosure of liens, including mortgages, ana all affidavits that are the foundation of legal proceedings, and all coun- ter affidavits, shall be amendable to the same extent as ordinary declarations, and with only the restrictions, limitations, and consequences now obtaining in the case of ordinary declarations and pleas. In all civil cases founded on unconditional contracts in writing, where there is an issuable defense, and where the defendant does not reside in the county where suit is pending, the agent or attorney of the defendant may make oath to the plea and swear it to be true according to the best of his knowledge and belief. Where claimants are unable to give bond and security as required, it shall and may be the privilege of such claimants to file, in addition to the oath required, an affidavit as follows: I, A. B., do swear that I do not interpose this claim for delay only; that I bona fide claim the right and title to the same; that I am advised and believe that the claim will be sustained; and that from poverty T am unable to give bond and security as now required by law. When said affidavit shall have been made and delivered to the levying officer, the same shall suspend the sale in the same manner as if bond and security had been given. Attorneys cannot take affidavits required of their clients, unless specially permitted by law. Oath includes affirmation. No. 86. (Illinois.) AFFIDAVIT OF AGE OF CHILD, School Ceetificate. The office of (city) (State) . Employment Ceetificate. This certifies that I have made a careful examination of all the proofs, documentary and otherwise, required by section 5 of an Act entitled, "An act concerning child labor*' approved and in force , for (name of minor), and find the following: (a) That the above named minor can read and write legibly, simple sentences in the English language, and has completed the work of the grade in the school, and that he has attended school at least 130 days during the year previous to this date, or between his thirteenth and fourteenth birthdays. (b) That the above named minor is physically fit to do the work specified in the statement submitted in accordance with the requirements § 360] FORMS. 369 of section 6 of the afoiesaid Act; and that hia height ie (feet an 88. 370 NOTAEIES PUBLIC. [§ 560 the court, A. B. (or C. J>., agent for A. B.), and, being duly- sworn, says that E. F. is justly indebted to the said A. B. in the sum of after allowing all just off-sets, and that the said E. F. is ( set forth the cause of attachments). A. B , . Or C. D., Agent f or A. B Sworn and subscribed before me, this day of . . . ., A. D Clerk. No. 91. (Vermont.) TO A MOETGAGB. We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the conditions thereof, and for no other purpose, and that the same is a just debt, due and owing from the mortgagor to the mortgagee. Which affidavit, with the cer- tificate of the oath signed by the authority administering the same shall be appended to such mortgage and recorded therewith. When a corporation is a, party it may be made and subscribed to by a director, trustee, cashier, or treasurer, or by a person authorized by the corporation. When a partnership is a party one of its members may subscribe to it. OFTICIAI. OATHS. No. 92. OATH OF GOVEENMENT OFFICEES. 1, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen there- of; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise the func- tions of any office whatever, under any authority, or pretended author- ity, in hostility to the United States; that I have not yielded a volun- tary support to any pretended government, authority, power, or con- stitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and al- legiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God. § 560] FORMS. 371 No. 93. OATH OF GOVEENMENT OFTICEES EOEMEBLY PAE- TICIPANTS IN THE EEBELLION. I, A. B., do solemnly swear (or affirm) that I ■will support and de- fend the constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God. No. 94. NOTAET'8 OATH. I do solemnly swear that I will support the constitution of the United States and the constitution of the State of , so long as I continue a citizen thereof, and that I will faithfully discharge, accord- ing to law, the duties of the office of to the best of my ability, so help me God. No. 95. OATH EBQUIEED TO BE TAKEN BY ALT; PEESONS BE- FOEE ENTEEING UPON THE DUTIES OP THEIE OFFICE IN E3!NTUCKY. FOEM. I do solemnly swear (or affirm) that I will support the constitution of the United States and the constitution of this commonwealth, and be faithful and true to the commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of according to law, and I do further . swear (or affirm) that since the adoption of the present constitution, I being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to flght a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God. No. 96. OATH OF OFFICE IN NEVADA. I, , do solemnly swear (or affirm) that I will support, protect, and defend the constitution and government of the United States, and the constitution and government of the State of Nevada, against all enemies, whether domestic or foreign; and that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution, or law of any State convention or legislature to the contrary notwithstanding; and further, that I do this with a full determination, pledge, and pur- pose, without any mental reservation or evasion whatsoever, and I do further solemnly swear (or affirm) that I have not fought a duel, nor 373 NOTAKIES PUBLIC. t§ ^^^ sent or accepted a challenge to fight a duel, nor been a second to either party, nor in any manijer aided or assisted in such duel, nor been know- ingly the bearer of such challenge or acceptance, since the adoption of the constitution of the State of Nevada, and that I wiU not be so en- gaged or concerned, directly or indirectly, in or about any such duel, during my continuance in office; and further, that I will well and faith- fuUy perform all the duties of the office of , on which I am about to enter (if an oath) "so help me God," (if an affirmation), under the pains and penalties of perjury. No. 97. IN NOETH CAEOLINA. Party to lay his hand on the holy evangelists of Almighty God, in token of his engagement to speak the truth, as he hopes to be saved in the way and methods of salvation pointed out in that blessed volume; and in further token, that, if he should swerve from the truth, he may be justly deprived of all blessings of the gospel and made liable to that vengeance which he has imprecated on his own head; and he shall kiss the holy gospel, as a seal of confirmation to the said engagements. If conscientiously opposed to taking the Book, he may stand with his right hand uplifted and say: "I, , do appeal to God, as a witness of the truth and the avenger of falsehood, as I shall answer the same at the great day of judgment when the searcher of all hearts shall be known," etc. No. 98. OATH EEQUIRED OF AN OFFICEE OF VIEGINIA. I, , do declare myself a citizen of the commonwealth of Vir- ginia, and do solemnly swear that I will support and maintain the con- stitution and laws of the United States, and the constitution and laws of the State of Virginia; that I recognize and accept the civil and political equality of all men before the law; and that I will faithfully perform the duty of to the best of my ability. So help me God. No. 99. OATH OF COMMISSIONBE OF DEEDS. I, , swear (or affirm) that I wUl faithfully perform the duties of commissioner to the best of my ability. So help me God, No. 100. OATH ALLOWED TO OFFICE HOLDEES. I swear (or aflirm) that I have not since the removal of my disabil- ities by an act of the general assembly, approved the day of , nineteen , fought in a duel, the issue of which was or might have been the death of either party; nor have I been know- ingly the bearer of any challenge or acceptance to fight a duel actually fought; nor have I been otherwise engaged or concerned, directly or indirectly, in a duel actually fought since said time; nor will I during § 560] FORMS. 373 my continuance in office be so engaged, directly or indirectly. So help me God. No. 101. OATHS GBNBEALLY. Should be administered while standing with the head uncovered and the right hand raised. 1. You do solemnly swear, that you will true answers make to such questions as shall be put to you, touching the execution of this con- veyance. So help you God. 2. Tou do solemnly, sincerely and truly declare and affirm that you will true answers make to such questions as shall be put to you, touch- ing the execution of this conveyance. No. 102. TO A WITNESS. 3. You do solemnly swear, that you will true answers make to such questions as shall be put to you, touching the identity of the parties (or, the subscribing witness) to this conveyance. So help you God. 4. You do solemnly swear by the overliving God, that the contents of this affidavit by you subscribed to are true. 5. You do solemnly swear, that the evidence which shall be given by you, touching the matters in controversy between C. D. and G. B., shall be the truth, the whole truth, and nothing but the truth. So help you God. 6. You do solemnly swear by the overliving God, that the state- ment herein set forth and subscribed to by you is the truth. 103. AFFIEMATION. 7. You do solemnly, sincerely and truly declare and affirm. No. 104. (Indiana.) OATH. Swear to tell the truth, the whole truth, and nothing but the truth. No. 105. OATH. Shall be most consistent with and binding upon the conscience of the party taking it. No. 106. TO WITNESS IN MINNESOTA. You do solemnly swear that the evidence you shall give relative to the cause now under consideration shall be the truth and nothing but the truth. So help you God. No. 107. AFFIDAVIT. You do solemnly swear, that the contents of this affidavit, by you subscribed to, are true, as therein stated. So help you God. 374 NOTAEIES PUBLIC. [§ 560 No. 108. FORM FOE AN INFIDEL. You do honestly and sincerely promise and declare that the testi- mony you shall give relative to the cause now under consideration shall be the truth, the whole truth, and nothing but the truth, and this under the pains and penalties of perjury. No. 109. CANADA, Canada, ) . .. ' > to wit: Province of British Columbia. J I, A. B., solemnly declare that (state facts), and I make this solemn declaration, conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath, and by virtue of the "Canada Evidence Act, 1893." Declared before me, , at , this day of , A. D No. 110. AFFIRMATION FORM. I, A. B., do solemnly, sincerely and truly affirm and declare that the taking of an oath is, according to my religious belief, unlawful; and I do also solemnly, sincerely and truly affirm and declare, etc. No. 111. BILL OF SALE. Know all men by these presents, that , of the , in the County of , and State of , part. . of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, to in hand paid, at or before the ensealing and delivery of these presents, by of the second part, the receipt whereof is hereby acknowledged, ha. . granted, bargained, sold, and delivered, and, by these presents, do . . grant, bargain, sell and deliver, unto the said part . . of the second part, all the following goods, chattels, and property, to wit: To have and to hold the said goods, chattels, and property unto the said part . . of the second part, heirs, executors, administrators, and assigns, to and for own proper use and behoof, forever. And the said part. . of the first part do. . vouch to be the true and lawful owner. . of the said goods, chattels, and property, and have in full power, good right, and lawful authority, to dispose of the said goods, chattels, and property, in manner, as aforesaid: And do, for heirs, executors, and administrators, covenant and agree to and with the said part. . of the second part, to warrant and defend the said goods, chattels, and property to the said part . . of the second part, executors, administrators, and assigns, against the lawful claims and demands of all and every person and persons whomsoever. In witness whereof, have hereunto set hand., and § 560] FOEHfl. 375 seal.., the day of , in the year one thousand nine hun- dred and (Seal.) (Seal.) Sealed and delivered in the presence of State of , I County, f I, , in and for said county, do hereby certify, that this instru- ment was duly acknowledged before me, by the above named , this day of , A. D. 19 No. 112. AGEEEMENT. This agreement made this day of , between T. B. of , merchant, of the first part, by C. J., his attorney, and W. F. of , merchant, of the second part, by C. S., his attorney, witnesseth. That the said party of the first part, in consideration of dollars to him in hand paid, agrees to (state agreement). (Signed and sealed by both attorneys.) No. 113. AGEEEMENT FOE SALE AND PURCHASE. This agreement, made this day of , between T. S., of , farmer, and G. S., of , merchant, witnesseth: That the said T. S , in consideration of the agreement hereinafter contained, to be performed by G. S., agrees to sell and deliver to the said G. S., at his warehouse in (specify goods,), on or before the day of , 19. ., and the said G. S., in consideration thereof, agrees to pay to the said T. S. the sum of dollars per for the said immediately upon the completion of the delivery thereof. In witness whereof we have this day and year as above written set our hands and seals. No. 114. AGEEEMENT FOE WAEEANTT DEED. Articles of agreement, made this day of , in the year of our Lord one thousand nine hundred and , between , party of the first part, and , party of the second part; witnesseth, that if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on part to be made and performed, the said party of the first part hereby covenants and agrees to convey and assure to the said party of the second part, in fee simple, clear of all incumbrances whatever, by a good and suffi- cient warranty deed, the lot. ., piece.., or parcel of ground, situated in the County of , and State of , known and described as , and the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of dol- lars in the manner following: , with interest at the 376 NOTABIES PDBLIO. [§ 560 rate of ...... per centum per annum, payable annually, on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments or impositions that may be legally levied or imposed upon said land, subsequent to the year, And in case of the failure of the said party of the second part to make either of the payments, or any part thereof, or perform any of the covenants on part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by sus- tained, and . ., shall have the right to re-enter and take possession of the premises aforesaid It is mutually agreed, by and between the parties hereto, that the time of payment shall be the essence of this contract and that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns Of the respective parties. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. (Seal.) (Seal.) (Seal.) Sealed and delivered in presence of No. 115. ASSIGNMENT OF AN ACCOUNT. Know all men by these presents, that I, A. B., of , in consider- ation of dollars, lawful money of the United States [to me paid before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged (c)], have sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over unto Y. Z., of , his executors, administrators, and assigns, to his and their own proper use and benefit [aU my right, title, and interest in and to]*, any and all sum or sums of money now due or to grow due upon the annexed account, or upon the sales [or, services, or loans, or whatever transactions may be the basis of the account] therein mentioned. And I do hereby give the said Y. Z., his executors, administrators,, and as- signs, the full power and authority, for his or their own use and benefit, but at his or their own cost, to ask, demand, collect, receive, compound, and give acquittance for the same, or any part thereof, and in my name or otherwise to prosecute and withdraw any suits or proceedings at law or in equity therefor. In witness whereof, I have hereunto set my hand and seal, this day of , 19 In presence of (Signature.) (Seal.) (Signature of witness or witnesses.) § 560] FORMB. 377 No. lie. ASSIGNMENT OF LEASE. (As in rorm 115 to the *, continuing thus:) a certain indenture of lease, bearing date the day of , in the year one thou- sand nine hundred and , made by , of , to me the said , of a certain dwelling-house and lot, situate in , with all and singular the premises therein mentioned and de- scribed, and the buildings thereon, together with the appurtenances; (h) to have and to hold the same unto the said , his heirs, executors, administrators, and assigns, from the day of next, for and during all the rest, residue, and remainder of the term of years mentioned in the said indenture of lease; subject, never- theless, to the rents, covenants, conditions, and provisions therein also mentioned. And I do hereby covenant and agree to and with the said that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judg- ments, executions, back rents, taxes, assessments and incumbrances whatsoever. In witness, etc. No. 117. ASSIGNMENT OF MOETGAGB. Know all men by these presents, that whereas ., of , on day of , by his deed of mortgage of that date, for the consideration of , did grant, bargain, sell, and convey unto me, , of , my heirs and assigns, all and singular (here describe the mortgaged premises), to have and to hold the same to me the said , my heirs and assigns, forever, upon condition (here recite the conditions of the mortgage). Now, therefore, I, the said , in consideration of the sum of , to me in hand paid before the ensealing hereof, do by these presents sell, assign, transfer, and set over unto , of , his heirs and assigns, forever, the said (premises) to have and to hold the same to him, the said , ., his heirs and assigns, forever, as fully and in as ample a man- ner as I, the said , my heirs or assigns, might hold and enjoy the same by virtue of the mortgage-deed aforesaid, and not otherwise. And I do, for myself, my heirs, executors, and administrators, hereby authorize and empower the said , his heirs, executors, and ad- ministrators, to receive to his and their own use the sum or sums men- tioned in the condition of said deed, whenever the same shall be tendered or paid to him or them, by the said , his heirs, executors, or administrators, agreeably thereto, and to discharge the said mortgage, or to take and pursue such other steps and means for recovery of the said sum or sums, with the interest, by sale of the said mortgaged premises, or otherwise, as by law are provided, as fully to all intents and purposes as I, the said , my heirs, executors, or adminis- trators might or could do. And I do, for myself, my heirs, executors, and administrators, cove- nant with the said , his heirs and assigns, that I have good 378 NOTABIES PUBLIC. [§ 560 right to assign, the said premises as aforesaid; and that he, the said , shall, and may have, hold, occupy, possess, and enjoy the same (subject, however, to the right of redemption, as by law in such cases is provided), against the lawful claim of all persons. In witness, etc. No. 118. BOND FOE DEED. Know, all men by these presents, that , of the County of , and State of , held and firmly bound unto , of the County of , and State of , in the penal sum of dol- lars, to be paid unto the said heirs, executors, administrators or assigns, to which payment, well and truly to be made bind heirs, executors, administrators, and every of them, firmly by these presents. Sealed with seal.., and dated the day of , A. D. 19... The condition of the above obligation is such, that, whereas, the above bounden ha., this day sold to the said , heirs and assigns, for the sum of dollars, all the following described lot . . , piece. ., or parcel. . of land, to wit: which sum of dollars is to be paid in the manner following; , with interest at the rate of per cent, per annum payable annually on the whole sum remaining from time to time unpaid. Upon the payment of the said sums being made at the time and in the manner aforesaid, and of all taxes, assessments, or impositions that may be legally levied or imposed upon said land subsequent to , A. D. 19. ., the said , heirs, executors, and assigns, covenant. . and agree. . to and with the said , heirs, execu- tors, administrators and assigns to execute a good and sufficient deed of conveyance, in fee simple, free from all incumbrance, with full cove- nants of warranty for the above described premises. Now, if the said shall well and truly keep, observe, and per- form covenants and agreements herein contained on part, to be kept and performed, then this obligation to be void; otherwise to remain in fuU force and virtue. It is expressly understood and agreed by and between the parties hereto, that time is of the essence of this contract, and, that in the event of the nonpayment of said sum of money, or any part thereof, or the interest thereon, at the time or times herein named for its payment, that then the said ab- solutely discharged at law and in equity from any and all liability to make and execute such deed. (Seal.) (Seal.) Sealed and delivered in the presence of § 560] FOEMS. 379 No. 119. BOND FOB MONEY. Know all men by these presents, that I, , of the town of , in the county of , and State of , merchant, am held and firmly bound unto , of said town, farmer, in the sum of dollars (inserting the penal sum, which is commonly double the amount of the principal sum intended to be secured, in order to cover interests, costs, expenses, and other contingencies), good and lawful money of the United States, to be paid to said , his executors, administrators, or assigns, for which payment well and truly to be made I do bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, and dated the day of , 19. . . . The condition of this obligation is such, that if the above-bounden , his heirs, executors, and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the above-named , his executors, administrators, or assigns, the just and full sum of dollars (inserting the principal intended to be secured), with interest at the rate of per cent, per annum (or, with legal interest), for the same, on (or before), (b) the day of , which will be in the year one thousand nine hundred and , with- out fraud or other delay, then this obligation is to be void, otherwise to remain in full force. (Seal.) No. 120. CEETIPICATE. The undersigned T. S., fence viewer of the town of , hereby certifies, after due inquiry, that G. B. is entitled to receive from the owner of the which came upon his inclosed lands in said town on the day of , 19.., the sum of dollars as his reasonable charges for keeping the same from the day of , 19.., to the day of , and that my fees in this matter amount to dollars. No. 121. CONTEACT. / This agreement made the day of , 19. ., by and between T. C, of the of , in the County of and the State of , of the first part, and by W. C, of , of the second part, witnesseth: That the said party of the second part covenants and agrees to and with the party of the first part to (insert agreement). And the said party of the first part covenants and agrees to pay unto the said party of the second part, for the same, the sum of dol- lars in the following installments: dollars on the day of and dollars on the day of , with per cent, interest due and payable at the time. And for the true and faithful performance of all and every of 380 NOTARIES PUBLIC. [§ 560 the covenants and agreements above mentioned the parties to these presents bind themselves, each imto the other, in the penal sum of dollars as liquidated damages, to be paid by the failing party. In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of No. 122. CONTRACT WITH EMPLOYEE. This agreement, made this , day of , 19. . . ., between , of , of the first part, and , of , of the second part, witnesseth: That the said agrees faithfully and diligently to serve the said , as clerk, in the store of the said (or otherwise), at , for the period of from and after the day of next, for the sum of dollars per In consideration of which service so to be per- formed, the said agrees to pay the said the sum of per month (payable as follows: on the .- . . day of , and on the day of each month following, during said term, and at the expiration thereof, the balance of such sum as has not then been already paid). And it is understood and agreed that the death of either of them occurring prior to the expiration of said term of , shall ter- minate this agreement. In witness (etc., as above). No. 123. CONTEACT FOE SALE OF EEAL ESTATE. Chicago, , 19 Eeeeived of , dollars, as part payment towards the purchase of the following described real estate: which is hereby bargained and sold to the said for the sum of dollars, ...'... dollars more to be paid on the delivery of a good and sufficient warranty deed of conveyance for the same within days from this date, or as much sooner thereafter as the deed is ready for delivery, after the title has been examined and found good, and the balance to be paid as follows: To be secured by trust deed or mortgage on the property above de- scribed. Should the title to the property not prove good, then this .$ to be refunded. But should the said fail to perform this contract on his part promptly at the time and in the manner above specified (time being of the essence of this 'contract), then the above dollars shall be forfeited by as liquidated damages, and the above contract shall be and become null and void. (Seal.) (Seal.) § 560] POEMS. 381 No. 124. WAEEANTT DEED— BY COEPOEATION— LONG FOEM. This indenture, made this day of , in the year of our Lord one thousand nine hundred and , between , a cor- poration created and existing under and by virtue of the laws of the State of and doing business in the State of , party of the first part, and , a corporation created and existing under and by virtue of the laws of the State of , having its principal of&ce in the of and State of , party of the second part. Witnesseth, that the said party of the first part, for and in con- sideration of the sum of dollars in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part forever released and discharged therefrom, has granted, bargained, sold, remised, released, conveyed, aliened and confirmed, and by these presents does grant, bargain, sell, remise, release, convey, alien and confirm, unto the said party of the second part, and to its successors and assigns, forever, all the following described lot.., piece.., or parcel., of land, situated in the of , County of , and State of , and known and described as follows, to wit: Together with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thcTeof; and all the estate, right, title, interest, claim or demand whatsoever, of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances: To have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, its successors and assigns, forever. And the said , party of the first part, for itself and its suc- cessors, does covenant, grant, bargain and agree, to and with the said party of the second part, its successors and assigns, that at the time of the ensealing and delivery of these presents, it is well seized of the premises above conveyed, as of a good, sure, perfect, absolute and inde- feasible estate of inheritance in law, in fee simple, and has good right, full power, and lawful authority to grant, bargain, sell and convey the same in manner and form aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and incumbrances, of every kind or nature whatsoever; and the above bargained premises, in the quiet and peaceable possession of the said party of the second part, its successors and assigns, against all and every other person or persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part shall and will warrant and forever defend This deed is executed pursuant to authority given by the board of of said company. In testimony whereof, the said company hath hereunto caused its corporate seal to be affixed, and these presents to be signed by its 383 NOTARIES PUBLIC. [§ 560 president, and attested by its secretary, the day and year first above written. By , President. Attest: , Secretary. Signed, sealed and delivered in presence of State of I County of f I, , in and for said county, in the State aforesaid, do hereby certify that , personally known to me to be the president of the company, and personally known to me to be the secretary of said company, whose names are subscribed to the fore- going instrument, appeared before me this day in person and severally acknowledged that as such president and secretary, they signed and delivered the said instrument of writing as president and secretary of said company, and caused the corporate seal of said company to be afiixed thereto, pursuant to authority given by the board of of said company as their free and voluntary act, and as the free and voluntary act and deed of said company, for the uses and purposes therein set forth. Given under my hand and seal this day of , A. D. 19... No. 125. QUITCLAIM DEED— LONG POEM. This indenture, made this day of , in the year of our Lord one thousand nine hundred and , between , of the , in the County of , and State of , party of the first part, and , of the , in the County of , and State of , party of the second part: Witnesseth, that the said party of the first part, for and in con- sideration of the sum of dollars, in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, and the said party of the second part forever released and discharged therefrom, ha. . remised, released, sold, conveyed and quitclaimed, and by these presents do. . remise, release, sell, convey, and quit- claim, unto the said party of the second part, heirs, and assigns, forever, all the right, title, interest, claim, and demand, which said party of the first part ha., in and to the following described lot.., piece.., or parcel., of land, situated in the County of , and State of , and known and described as follows, to- wit: '. ... To have and to hold the same, together with all and singular the appurtenances and privileges thereunto belonging, or in anywise there- unto appertaining; and all the estate, right, title, interest, and claim whatever, of the said party of the first part, either in law or equity § 560] FORMS. 383 to the only proper use, benefit and behoof of the said party of the second part, heirs, and assigns, forever. And the said party of the first part hereby expressly waive . . and re- lease. . any and aU right, benefit, privilege, advantage, and exemption, under or by virtue of any and all statutes of the State of Illinois, providing for the exemption of homesteads from sale on execution or otherwise. In witness whereof, the said party of the first part hereunto set hand., and seal., the day and year first above written. (Seal.) A. D. 19.... Signed, sealed and delivered, in the presence of . (Seal.) County of | State of ^ I, , in and for the said county, in the State aforesaid, do hereby certify, that , personally known to me to be the same person., whose name subscribed to the foregoing instrument appeared before me this day in person, and acknowledged that . . he . . signed, sealed, and delivered the said instrument as free and voluntary act, for the uses and purposes therein set forth, including the release and waiver of the right of homestead. Given under my hand and seal, this day of , A. r>. 19 No. 126. WAEEANTY DEED— JOINT TENANCY FOR ILLINOIS. This Indenture, made this day of , 19...., between of the in the county of and State of part. . . of the first part, and of the in the County of and State of parties of the second part: "Witnesseth, that the part ... of the first part, for and in considera- tion of the sum of Dollars, in hand paid, convey and warrant to the said parties of the second part, not as tenants in common, but as- joint tenants, the following described Beal Estate, to wit: situated in the County of Cook, in the State of Ulihois, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of the State of Illinois. To have and to hold the above granted premises unto the said parties of the second part forever, not in tenancy in common, but in joint tenancy. In witness whereof, the said part.... of the first part ha.... here- 384 NOTARIES PUBLIC. [§ 560 unto set hand.... and seal.... the day and year first above ■written. (Seal.) ..(Seal.) No. 127. MORTGAGEE'S DEED. This indenture, made this day of , in the year of our Lord, one thousand nine hundred and > between of the , in the County of , and State of , party of the first part, and ..,..., of the , in the County of , and State of , party of the second part: Witnesseth that, whereas, of the in the County of , and State of , by a certain indenture of mortgage, dated the day of , A. D. 19. . ., did bargain, sell, and convey unto , heirs and assigns forever, all the premises hereinafter described, to secure the payment of the sum of dollars and in- terest, according to the conditions of , certain , bearing date on the A. D. 19. . ., which said mortgage was afterwards on the day of , A. D. 19...., at o'clock in the noon, duly recorded in the re- corder 's office of Cook County, in the State of Illinois, in Book of mortgages, on pages And whereas, the said mortgage contained a power of sale, among other things, authorizing and empowering the said party of the second part in said mortgage, heirs, executors, administrators, attor- neys or assigns, if default should be made in the payment of the said in said mortgage mentioned, or any part thereof, or the interest thereon, or any part thereof, according to the tenor and effect of said or in case of waste, or nonpayment of taxes or assessments, or neglect to procure or renew insurance, or in case of the breach of any of the covenants or agreements in said mortgage contained, after publish- ing a notice in the Chicago Legal News or in any newspaper published in the City of Chicago, in said Cook County, for successive weeks before the day of such sale, to sell the said mortgaged premises or any part thereof at public auction to the highest bidder for cash, and to make, execute and deliver to the purchaser or purchasers thereof good and sufficient deed or deeds of conveyance in the law for the same And whereas, also, default having been made in the payment of , and whereas, in pursuance of said power of sale in said mortgage contained and above recited, and of the statute in such case made and provided, , the undersigned, , party of the first part, on the day of , A. D. 19. . ., caused due notice to be published in the Chicago Legal News, a newspaper published in the said City of Chicago, that said premises hereinafter described would, on the day of , A. D. 19. . ., at the hour of o 'clock in the noon of said day, be sold at public auction, at the , in said County § 560] FOEMB. 385 of Cook, to the highest bidder for cash, by virtue of the power and authority in vested by said mortgage; which said notice was duly published weekly for successive weeks in the said Chicago Legal News, and that the date of the first paper containing the same was the day of , A. D. 19. . . ., and of the last the day of , A. D. 19 And whereas, also, the said premises having been by the said party of the first part, on the day of , A. D. 19 . . . ., at o 'clock in the noon of said day, in the manner prescribed in and by said mortgage, and at the place last aforesaid, in pursuance of said notice, offered for sale at public auction, to the highest bidder, for cash, and the said party of the second part having been the highest bidder therefor, and having bid for the tract hereinafter named, the sum of dollars, duly declared the purchaser thereof. Now, therefore, this indenture witnesseth, that the said party of the first part, by virtue of the authority in vested by said mort- gage as aforesaid, and of the statute in such case made and provided, for and in consideration of the sum so bid as aforesaid, to in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, ha. . sold, conveyed, aliened, remised, released, and confirmed, and by these presents, do . . sell, convey, alien, remise, release, and confirm unto the said party of the second part, and to heirs and assigns forever, all the following described lot . . , piece.., or parcel., of land, situated in the County of Cook, and State of Illinois, known and described as follows, to wit: Together with all and singular the tenements, hereditaments, and ap- purtenances thereunto belonging, as the same are described and con- veyed in and by the said mortgage; and also all the estate, right, title, interest, property, claim, and demand whatsoever, both in law and equity, of the said , as well as of the said party of the first part, of, in and to the above described premises, with the appurtenances, as fully, to all intents and purposes, as the said party of the first part hath power and authority to grant, sell, and convey the same by virtue of the said mortgage and of the statute in such case made and provided, to have and to hold the said above granted premises, with their ap- purtenances, and every part thereof, unto the said party of the second part, heirs and assigns, forever. In witness whereof, the said party of the first part has hereunto set hand. . and seal.., the day and year first, above written. (Seal.) (Seal.) No. 128. RELEASE DEED. Know all men by these presents, that , of the County of , and State of , for and in consideration of one dollar, and for other good and valuable considerations, the receipt whereof 25 386 N'OTAEIES PUBLIC. [§ 560 is hereby confessed, do hereby remise, convey, release and quitclaim, unto , of the County of , and State of , all the right, title, interest, claim, or demand whatsoever may have acquired in, through, or by a certain trust deed, bearing date the day of , A. D. 19 , and recorded in the recorder's office of County, in the State of , in Book of , page , to the premises therein described, as follows, to wit: Together with all the appurtenances and privileges thereunto belonging or appertaining. Witness hand. . and seal. ., this day of , A. D. 19 (Seal.) (Seal.) State of ) n i ' > SS. County. J I, , in and for the said county, in the State aforesaid, do hereby certify, that , personally known to me to be the same person., whose name subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged, that ..he.. signed, sealed, and delivered the said instrument as free and voluntary act for the uses and purposes therein set forth. Given under my hand and seal, this day of , A. D. 19 No. 129. (Indiana.) WAERANTY BEBD. A. B. conveys and warrants to C. D. (describe premises) for the sum of this day of (Acknowledgment.) Signed (Seal.) No. 130. (Indiana.) QUITCLAIM DEED. A. B. quitclaims to C. D. (describe the premises) for the sum of , same to be signed, sealed and acknowledged. No. 131. (Iowa.) QUITCLAIM DEED. Tot the consideration of dollars, I hereby quitclaim to A. B. »U my interest in the following tract of real estate (describe it). No. 132. (Iowa.) WAEEANTY DEED. For the consideration of dollars, I hereby convey to A. B. the following tract of real estate (describe it), and I warrant the title against all persons whomsoever (or other words of warranty as may be desired). § 560] roKHS. 387 No. 133. (Iowa.) DEED "WITHOUT WAEEANTY. Tor the consideration of dollars, I hereby convey to A. B. the following tract of real estate (describe it). No. 134. (Kansas.) "WAEEANTY DEED. A. B. conveys and warrants to C. D. (here describe premises) for the sum of Same to be dated, signed and acknowledged by the grantor. No. 135. QUITCLAIM DEED. A. B. quitclaims (describe the premises) for the sum of Same to be dated, signed and acknowledged by the grantor. The word "heirs" and other terms of inheritance are not necessary. No. 136. (Maryland.) DEED. This deed, made this day of in the year , by me (name of grantor), witnesseth, that in consideration of (consideration), I, the said , do grant unto (name of grantee), all that (describe property) . Witness my hand and seal. Test., No. 137. MAEEIED "WOMAN A PAETT. This deed, made this day of , in the year , by us, and , his wife, witnesseth, that in consideration of , we, the said and his wife, do grant unto "Witness our hands and seals. Test., (Seal.) No. 138. (Minnesota.) QUITCLAIM DEED. The grantor (insert names and residence) for the consideration of (insert consideration) conveys and quitclaims to (insert names of grantees) aU interest in the following described real estate (insert de- scription), situate in the County of ,. in the State of Minnesota. Dated this day of , A. D Acknowledgment of notary follows. No. 139. (Minnesota.) "WAEEANTY DEED. The grantor (insert names and residence), for and in consideration of (here insert consideration) in hand paid, conveys and warrants to (name of grantee) the following described real estate (insert descrip- tion), situate in the County of , in the State of Minnesota. 388 NOTARIES PUBLIC. [§ 560 Dated this day of , A. D State of Minnesota, 1 County of f On this day of before me personally appeared A. B., to me known to be the person (or persons) described in and who exe- cuted the foregoing instrument, and acknowledged that ..he., executed the same as free act and deed. Notary Public. Every deed in substance in the above form conveys and warrants in fee simple. No. 140. (Mississippi.) DEED. State of I County of ^ In consideration of , I convey and warrant to the land described Witness my signature, the day of , A. D If only a special warranty is intended, add the word "specialty" to the word warrant in the conveyance. No. 141. (North Dakota.) GEANT OF LAND. This grant, made the day of in the year , between A. B., of , of the first part, and C. D., of , of the second part, witnessetK: That the party of the first part hereby grants to the party of the second part, in consideration of dollars, now received, all the real property situated in and bounded (or described) as follows : Witness the hand of the party of the first part. If not acknowledged must be attested by one witness. No. 142. (Oklahoma.) WABBANTY DEED. Know all men by these presents: That , part . . of the first part, in consideration of the sum of dollars, in hand paid, the receipt of which is hereby acknowl- edged, do hereby grant, bargain, sell and convey unto the fol- lowing described real property, and premises, situate in County, State of Oklahoma, to wit: together with all the improvements thereon and the appurtenances there- unto belonging, and warrant the title to the same to have and to hold said described premises unto the said party of the second part, , heirs and assigns forever, free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and encumbrances of whatsoever nature. Signed anol delivered this day of ...... § 560] FOEMS. 389 A quitclaim is subBtantially the same, only inserting "quitclaim" before the words grant, bargain, etc., and omitting "and warrant the title to same." No. 143. (South Carolina.) CONVEYANCE. The State of South Carolina. Know all men by these presents, that I, A. B., of , in the State aforesaid, have granted, bargained, sold and released, and by these presents do grant, bargain, sell and release, unto the said C. D. all that ( describe), together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonging, or in any wise incident or appertaining, to have and to hold all and singular the premises before mentioned, unto the said C. D., his heirs and assigns, forever, and I do hereby bind myself, my heirs, executors and adminis- trators to warrant and forever defend all and singular the said premises unto the said C. C, his heirs and assigns, against myself and my heirs, and against any person whomsoever lawfully claiming or to claim the same, or any part thereof. Witness my hand and seal, this day of in the year of our Lord , and in the year of the independence of the United States of America L. S. The above executed in the presence of two or more credible witnesses, and certified to by the County Auditor, will entitle it to record. No. 144. (Tennessee.) DEED OF "WAEEANTY. I hereby convey to A. B. the following tract of land ( de- scribe it) and I warrant the title against all persons whatsoever. No. 145. SPECIAL WAEEANTY DEED. Add "I covenant that I am seized and possessed of the said land, and have a right to convey it, and 1 warrant the title against all persons claiming under me." No. 146. QUITCLAIM. I hereby convey to A. B. all my interest in the following land. No. 147. (Utah.) QUITCLAIM DEED. A. B., grantor (here insert names and residence), hereby quitclaims to C. D., grantee (here insert names and residence), for the sum of dollars, the following described tract of land, in County, Utah (here describe the premises). Witness the hand of said grantor this day of , A, D 390 NOXAEIES PUBLIC. [§ 560 No. 148. (Utah.) WAEEANTT DEED. A. B., grantor, hereby conveys and warrants to C. D., granto*, for the sum of dollars, the following described tract of land in County, Utah (here describe the premises). Witness the hand of said grantor this day of , A. D No. 149. (West Virginia.) DEED. This deed, made the day of , in the year , be- tween (parties' names), witnesseth: That in consideration of the said doth grant unto the said all (describe premises and covenants). Witness the following signature and seal. No. 150. (Wisconsin.) WAEEANTT DEED. A. B., grantor, of County, Wisconsin, hereby conveys and warrants to C. D., grantee, of County, Wisconsin, for the sum of dollars, the following tract of land in County (here describe premises). Witness the hand and seal of said grantor this day of , 19.... In the presence of (Seal.) (Seal.) No. 151. (Wisconsin.) QUITCLAIM DEED. A. B., grantor, of County, Wisconsin, hereby quitclaims to C. D., grantee, of County, Wisconsin, for the sum of dollars, the following tract of land in County (here describe the premises). Witness the hand and seal of said grantor this day of 19... In the presence of (Seal.) (Seal.) The above, when acknowledged, conveys fee simple. No. 152. TEUST DEED. This Indenture witnesseth that the grantor, of the in the County of and State of , for and in consideration of the sum of dollars in hand paid, conveys and warrants to of the County of and State of the follow- ing described real estate, to wit: situated in the County of , in the State of , hereby releas- ing and waiving all rights under and by virtue of the Homestead Execution Laws of the State of , and all right to retain possession § 560] FOEMB. 391 of said premises after any default in payments or of a breach of any of the covenants or agreements herein contained in trust, nevertheless, for the purposes. Whereas, the said , grantor herein, justly indebted upon .... promissory note bearing even date herewith, payable to the order of Now, if default be made in the payment of the said promissory note or any part thereof, or the interest thereon, or any part thereof, at the time and in the above manner specified for the payment thereof, or in case of waste, or nonpayment of taxes, or assessments on said premises, or of a breach of any of the covenants or agreements herein contained, then in such case the whole of said principal sum secured by the said promissory note shall thereupon, at the option of the legal holder or holders thereof, become immediately due and payable, and, on the application of the legal holder of said promissory note, or either of them, it shall be lawful for the said grantee, or his successor in trust, to enter into and upon and take possession of the premises hereby granted, or any part thereof, and to collect and receive all rents, issues and profits thereof; and in his own name or otherwise, to file a bill or bills in any court having jurisdiction thereof against the said party of the first part, heirs, executors, administrators or assigns, to obtain a decree for the sale and conveyance of the whole or any part of said premises for the purposes herein specified, by said party of the second part, as such trustee or as special commissioner, or otherwise, under order of court, and out of the proceeds of any such sale to first pay the costs of any such suit, all costs of advertising, sale and convey- ance, including the reasonable fees and commissions of said party of the second part, or person \rho may be appointed to execute this trust, and dollars attorney's and solicitor's fees, and also all other ex- penses of this trust, including all moneys advanced for insurance, taxes and other liens or assessments, with interest thereon at seven per cent, per annum, then to pay the principal of said note, whether due and payable by the terms thereof or the option of the legal holder thereof, and interest due on said note up to the time of such sale, rendering the overplus, if any, unto the said party of the first part, legal rep- resentatives or assigns, on reasonable request, and to pay any rents that may be collected after such sale and before the time of redemption expires, to the purchaser or purchasers of such sale or sales, and it shall not be the duty to the purchaser to see to the application of the purchase money. When the said note and all expenses accruing under this Trust Deed shall be fully paid, the said grantee or his successor, or legal representa- tives, shall reconvey all of said premises remaining unsold to the said grantor or heirs or assigns, upon receiving his reasonable charges therefor. In ease ot the death, resignation, removal from said County, or other inability, to act of said grantee, then of said is hereby appointed and made successor in trust herein with like power and authority, as is hereby vested in said grantee. It is agreed that said grantor shall pay all costs and attorney's fees incurred or 392 NOTAEIES PUBLIC. [§ 560 paid by said grantee or the holder or holders of said note in any suit in which either of them may be plaintiff or defendant, by reason of being a party to this Trust Deed, or a holder of said note, and that the same shall be a lien in said premises, and may be decreed in any decree order- ing the sale of said premises and taken out of the proceeds of any sale thereof. Witness the hand and seal of the said grantor this day of , A. D. 19 (Acknowledgment follows.) No. 153. DEPOSITION OF EESIDENT WITNESS. The deposition of of the County of and State of witness.... of lawful age, produced, sworn and examined on corporal oath, on the day of A. D. 19 . . . ., at in the in the County of and State of by me a within and for said in pursuance of the hereto annexed, for the examina- tion of the said witness.... to be read in evidence on behalf of the on the trial of a certain suit now pending and undetermined in the Court of the wherein plaintiff. . and defendant. . The said being first by me duly sworn, according to law, previous to the commencement of his examination, to testify the truth, the whole truth, and nothing but the truth, as well on the part of the plaintiff. . as of the defendant. . in relation to the matters in contro- versy between the said parties, so far as ..he should be interrogated thereto, on oath, testified as follows: State of Illinois, -v County, \ ^^• I, a within and for the said do hereby certify that in pursuance of the annexed I caused the said the witness . . named in the said and whose name subscribed to the foregoing deposition. ., to appear before me on the day of , 19 .... , as in said specified; that previous to the commencement of the examination of the said ..he., w.... sworn by me according to law, to testify the truth, the whole truth, and nothing but the truth, relative to the matters in con- troversy in the said cause now pending and undetermined in the Court of between plaintiff, and defendant, so far as . .he. . should be interrogated concerning the same; that the said deposition., w.... taken at in the said on the day of , 19 .... , between the hours of o 'clock a. m. and o 'clock p. m. of said day, and was reduced to writing by me, who am neither of the parties in said suit, nor the attorney of either, nor interested in the event of the same; that after said deposi- tion., w.... taken by me as aforesaid, the interrogatories and the answers thereto of each witness, as written down, were read over to § 560] FORMS. 393 and that thereupon the same were signed and sworn to by the before me, at the place and on the day and year aforesaid, and that the plaintiff present ^. . and that the defendant In witness whereof, I have hereunto afSied my hand and seal, this day of , 19 No. 154. DEPOSITION TAKEN BEFOEB NOTAET BY AGREEMENT OR NOTICE. In the Court of County, Of Term, A, D. 19 State of , ) County. J Be it remembered, that on this day of , A. D. 19...., personally appeared before me, , a notary public in and for the , and State of Dlinois, to testify on the part of , in the above entitled cause. And the said , having been first duly sworn to testify the truth, the whole truth, and nothing but the truth, in the cause aforesaid, did depose and say as follows, to wit: State of , ^ County, f I, , a notary public in and for the , of , and State of Illinois, do hereby certify that on the day of , A. D. 19. . . ., by agreement of and , personally appeared before me, at the office of , Illinois, witness to testify on the be- half of the in a certain cause now pending in the , wherein and And I do hereby further certify, that the aforesaid witness. . w first duly sworn to testify the truth in relation to the matter in con- troversy in the cause aforesaid, so far as ..he., should be interro- gated, and that the testimony of said witness . . w . . . . reduced by me to writing, and first carefully read to said witness. ., and the same subscribed to by said witness . . in my presence. In testimony whereof I have hereunto set my hand, and affixed my notarial seal, this day of , A. D. 19 Notary PnbUc. Notary's Fee, $ 394 NOTAEIES PUBLIC. [§ 560 No. 1B5. NOTICE TO TAKE DEPOSITION— COUET IN BLANK. State of niinoiB, ^ County. J In the Court of County, State of Illinois. Term, 19 Mr The above named Sir, Please take notice, that, on the day of , A. D. 19 , at o 'clock, M., and to continue from day to day, if necessary, at the of , in , in the County of , and State of Illinois, before , a , or some other ofScer authorized by law to take depositions in such oases, shall proceed to cause to be taken the deposition. . of of said County, to be read in evidence on the trial of the above entitled cause, on the part of said , when and wftere you may attend, and cross-examine the said witness. ., if you shall see fit so to do. Dated this day of , A. D. 19 Attorney for No. 156. (Wisconsin.) DEPOSITION CEETIFICATE. State of Wisconsin, ■) County. f I, (name and office), in and for said county, do hereby certify that the above deposition was taken before me, at my office, in the town of , in said county, on the day of , 19. . . ., at o'clock noon; that it was taken at the request of the plaintiff (or defendant), etc., upon verbal (or written) interrogatories; that it was reduced to writing by myself (or by deponent, or by , a disinterested person, in my presence, and under my direction) ; that it was taken to be used in the action of , now pending in court (or as the case may be), and that the reason for taking it was ; that attended at the taking of such deposition (or that a notice of which the annexed is a copy, was served upon , on the day of , 19...., or that the deposition was taken in pursuance of the annexed stipulation) ; that said deponent before examination was sworu to testify the truth, the whole truth, and noth- ing but the truth, relative to said cause, and that said deposition was carefully read to (or by) said deponent and then subscribed by him. § 560] roKMS. 395 No. 157. JURAT. Sworn and ■ubseribed to before me, on the day of , 19. . Signature of Officer, Title of Office. No. 158. LEASE— SHOET FOEM. This agreement made the day of , in the year one thou- sand nine hundred and , between , of the first part, and , of the second part. Witnesseth, that the said part., of the first part ha., agreed to let, and hereby do. . let to the said part. . of the second part, and the said part., of the second part ha., agreed to take, and hereby do., take from the said part . . of the first part, for the term of , to commence on the day of , A. D. 19. . . ., and to end on the day of , A. D. 19. . . . And the said part., of the secpnd part hereby covenant., and agree. . to pay unto the said part. . of the first part, the rent or sum of payable And to quit and surrender the premises, at the exJ)iration of the said term, in as good state and condition as they were in at the commence- ment of the term, reasonable use and wear thereof and damages by the elements excepted. And the said part., of the second part further covenant., that will not assign this lease, nor let or underlet the whole or any part of the said premises, nor make any alteration therein without the written consent of the said part. . of the first part, under the penalty of forfeiture and damages; and that will not occupy or use the said premises, nor permit the same to be occupied or used for any business deemed extrahazardous on account of fire or otherwise, with- out the like consent, under the like penalty. And the said part., of the second part further covenant., that will permit the said part., of the first part, or agent, to show the premises to persons wishing to hire or purchase, and on and after the first day of February next preceding the expiration of the term, will permit the usual notice of "to let " or " for sale " to be placed upon the walls or doors of said premises, and remain thereon without hindrance or molestation. And also, that if the said premises, or any part thereof, shall be- come vacant during the said term, the said part., of the first part, or representative, may re-enter the same, either by force or other- wise, without being liable to any prosecution therefor; and relet the said premises as the agent of the said part. . of the second part, and re- ceive the rent thereof, applying the same first to the payment of such expenses as may be put to in re-entering, and then to th? payment of the rent due by these presents; and the balance (if any) to be paid over to the said part. . of the second part, who shall remain liable for any deficiency. 396 JfOTAEIES PUBLIC. [§ 560 And the said part., of the second part hereby further covenant., that if any default be made in the payment of the said rent, or any part thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein con- tained, the said hiring, and the relation of landlord and tenant, at the option of the said part . . of the first part shall wholly cease and de- termine; and the said part., of the first part shall and may re-enter the said premises and remove all persons therefrom; and the said part., of the second part hereby expressly waive., the service of any notice in writing of intention to re-enter, notice to terminate the tenancy, notice to quit or demand for possession. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. (Seal.) Sealed and delivered in the presence of (Seal.) (SeaL) No. 159. LEASE— CHICAGO FORM. This indenture, made this day of , in the year of our Lord one thousand nine hundred and , between , party of the first part, and party of the second part, Witnesseth, that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, executors, administrators and assigns, has demised and leased to the said party of the second part, all those premises situate, lying and being in the City of Chicago, in the County of Cook, in the State of Illinois, known and described as follows, to wit: To have and to hold the said above described premises, with the ap- purtenances, unto the said party of the second part, executors, administrators and assigns, from the day of , in the year of our liord one thousand nine hundred and , for and during and until , nineteen hundred and And the said party of the second part, in consideration of the leas- ing of the premises aforefsaid by the said party of the first part to the said party of the second part, does covenant and agree with said party of the first part, heirs, executors, administrators and assigns, to pay the said party of the first part, as rent for said premises, the sum of Said party of the first part shall have the right to put up notices to rent, and show the premises at reasonable hours, for thirty days prior to the expiration of this lease. And the said party of the second part further covenants with the said party of the first part, that said party of the second part has received said demised premises in good order and condition, and that § 660] FORMS. 397 at the expiration of the time in this lease mentioned, or sooner de- termination thereof by forfeiture, ..he. . will yield up the said premises to the said party of the first part in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable accident or ordinary wear excepted; and also will keep the said premises in good repair during this lease, at own expense. It is further agreed by the said party of the first part, that neither . . he . . nor legal representatives, will underlet said premises or any part thereof, or assign this lease, without the written assent of the said party of the first part had and obtained thereto. And the said party of the second part, for executors, adminis- trators and assigns, agree . . further to pay (in addition to the rents above specified), all water rents taxed, levied or charged on said prem- ises, for and during the time for which this lease is granted, and save said premises and the said party of the first part harmless therefrom, and that ..he., will keep said premises in a clean and wholesome con- dition, in accordance with the ordinances of the city and directions of the health officers. And it is further agreed that all plumbing, water pipes, gas pipes, and sewerage, shall be at the risk of the said party of the second part. And, provided the said party of the first part shall pay for any water rent, or for repairs of hydrants, supply or waste pipes, or sewers on said premises which may be ordered by the board of public works, or for the removal of any night soil removed by the order or direction of the board of health or any of its officers, the amount so paid shall be considered as additional rent, and the said party of the first part may collect the same of the said party of the second part in the same manner as other rents under this lease. It is expressly understood and agreed by and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid on the day of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants or agreements herein contained, to be kept by the said party of the second part, executors, administrators and assigns, it shall and may be lawful for the said party of the first part, heirs, ex- ecutors, administrators, agent, attorney or assigns, at election, to declare said term ended, and into the said premises, or any part thereof, either with or without process of law, to re-enter; and the said party of the second part, or any other person or persons occupying, in or upon the same to expel, remove and put out, using such force as may be necessary in so doing, and the said premises again to repossess and enjoy as in first and former estate, and to distrain for any rent that may be due thereon upon any property belonging to said party of the second part, whether the same be exempt from execution and distress by law or not; and the said party of the second part in that case hereby agree . . to waive all legal rights which . . he . . now ha. . or may have to hold or retain any such property, under any ex- emption laws now in force in this State, or in any other way, meaning 398 NOTAfilES PUBLIC. [§ S60 and intending hereby to give to the said party of the first part, heirs, executors, administrators or assigns, a valid and first lien upon any and all goods and chattels and other property belonging to the said party of the second part, as security for the payment of said rent, in manner aforesaid, anything hereinbefore contained to the contrary notwithstanding. And if at any time said term shall be ended at such election of said party of the first part, heirs, executors, administrators or assigns, as aforesaid, or in any other way, the said party of the second part, executors, administrators and assigns, do hereby covenant and agree to surrender and deliver up the said above described premises and property peaceably to said party of the first part, heirs, executors, administrators or assigns, immedi- ately upon the determination of the said term, as aforesaid; and if shall remain in possession of the same after such default, or after the termination of this lease, in any of the ways above named, shall be deemed guilty of a forcible detainer of said premises under the statute, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated. And the said party of the second part hereby waives right to any notice from said party of the first part of election to declare this lease at an end, under any of its provisions, or any demand for the payment of rent or the possession of the premises leased hereinj but the simple fact of the nonpayinent of the rent reserved, shall constitute a forcible detainer as aforesaid. And it is further covenanted and agreed by and between the parties, that the party of the second part shall pay and discharge all costs, attorneys' fees and expenses that shall arise from enforcing the cove- nants of this indenture by the party of the first part. In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written. No. 160. (West Virginia.) LEASE. This deed, made the day of , in the year , be- tween (names of parties), witnesseth: That the said doth demise unto the said , his personal representatives and assigns, all (de- scribe premises), from the day of , for the term of , thence ensuing, the said paying to the said therefore, during the said term, the rent of (amount and mode of payment). Witness the following signature and seal . . No. 161. NOTICE TO TERMINATE LEASE. I hereby give you notice, that in pursuance of the power for this purpose given to me by the indenture of lease, dated the day of , and made between you, of the one part, and me, of the other part, it is my intention to determine the lease thereby made, on the day of next, and I shall therefore quit and deliver up possession to you (or, require you to quit and deliver up possession § 560] FOEMS. 399 to me) of the messtiage (etc., here briefly describe the premieeg). (Date.) (Signature.) (Address.) No. 162. MABINE PEOTEST. THE UNITED STATES OF AMBEICA. State of , I County of f To all People to whom these Presents shall Come or may Concern: I, , a notary public, in and for the County of , in the State aforesaid, by letters patent, under the great seal of the said State, duly commissioned and sworn, dwelling in , send greeting: Know ye, that on the day of , in the year of our Lord one thousand nine hundred and , before me, the said notary, appeared , master of the vessel called the , of , burthen 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 aforesaid, again comes the said , master, and requires me to extend his protest, and together with the said master, also comes , mate and , , , , sea- men, belonging to the aforesaid vessel, all of whom, being by me duly sworn, voluntarily, freely and solemnly, do declare and depose as fol- lows, that is to say: That on the day of , 19. ., at o'clock . . . .M., the said vessel left , in the State of , bound thence to the port of , in the State of , laden with ; that the said vessel was then stout, staunch and strong; had her cargo well and sufficiently stowed and secured; was well mastered, manned, tackled, victualed, 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 oc- curred 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 sol- emnly protest against winds, weather 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 suffered or sustained damage or injury, for all losses, costs, charges, expenses, 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 400 NOTAKIES PUBLIC. [§ 560 person or persona 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 obliga- tions; 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 and protested, in , this day of , 19 ... . , Master. , Mate. Seamen. In witness whereof, as well the said appearers, as I, the said notary, have hereunto subscribed these presents, and I, the said notary, here- unto attached my notarial seal, the day and year last aforesaid. Notary Public. State of \ ......County. I I, , a notary public in and for said county, in the State afore- said, do hereby certify that the foregoing contains a true and correct copy of the original protest entered on record before me, by , master of the , said protest having been noted on the day of , 19 , and extended before me on the day of , 19.... In witness whereof, I have hereunto set my hand and notarial seal, this day of ,19 Notary Public. No. 163. MARINE NOTE OF PROTEST BY MASTER. THE UNITED STATES OF AMERICA. State of , County of , ss. Be it known, that on this day of , 19..., before me, , a notary public for and in the County of , and State of , personally appeared , master of the , or vessel called the , of the burthen of tons, or thereabouts, who de- clares that he sailed last in the vessel under his command, laden with a cargo of , on the day of , 19. . ., from the port of , and bound for the port of , in the State of Thus the said master notes this, his protest, before me, reserving to § 560] FORMS. 401 himself tbe right to extend the same at any time and place convenient. Subscribed and sworn to before me, this day of , 19... Notary Public. No. 164 MECHANICS' MEN NOTICE. To , Esquire, clerk of the city and county of New York: Sir — ^Please to take notice, that I, , residing at No , in street, in , have a claim against , of , owner (or contractor) amounting to the sum of dol- lars, due to , (or if not due, state when it will become due), and that the claim is made for and on account of (here state the ground of claim) furnished and done before the whole work on said building was completed, and which work and materials were done and furnished with- in three months of the date of this notice; and that such work and ma- terials were done and furnished in pursuance of a contract for , between and , which building is owned by , and is situated in the ward of the city of New Tork, on the side of street, and is known as No The fol- lowing is a diagram of said premises (here insert diagram). And that I have and claim a lien upon said house or building, and the appurtenances and lot on which the same shall stand, pursuant to the provisions of an act of the Legislature of the State of New Tork, entitled, "An Act to secure the payment of mechanics, laborers and persons furnishing ma- terials towards the erection, altering or repairing of buildings in the city of New York," passed May 5, 1863, and of the acts amending the same. (Signature.) (Date.) No. 165. (California.) MOETGAGE FOEM. This mortgage, made the day of , in the year , by A. B., of , mortgagor, to C. D., of , mortgagee, wit- nesseth: That the mortgagor mortgages to the mortgagee (here describe the property), as security for the payment to him of dollars, on (or before) the day of , in the year , with interest thereon (or as security for the payment of an obligation, describing it, etc. No. 166. (Indiana.) , A MOETGAGE. A. B. mortgages and warrants to C. D. (describes property) to secure the repayment of (here recite the sum for which the mortgage is granted or the notes or other evidence of debt, or a description thereof, sought to be secured, also the date of the repayment) 26 402 NOTARIES PUBLIC. [§ 560 No. 167. (Iowa.) MOETGAGB. The same as deed, adding, "To be void upon condition that I pay," etc. No. 168. (Oklahoma.) MOETGAGE. Know all men by these presents. That and , of County, in the of , part. . of the first part, have mortgaged and hereby mortgage to , of County, of , part. . the second part, the following described real estate and prem- ises, situated in County, State of Oklahoma, to wit: , with all the appurtenances thereto belonging, and warrant the title to the same This mortgage is given to secure the principal sum of dollars, with interest, thereon at the rate of per centum per annum, payable annually, from , according to the terms of certain promissory note, described as follows, to wit: Dated this day of No. 169. (Tennessee.) MORTGAGE. I hereby convey to A. B. the following land (describe it), to be void upon condition that I pay, etc. No. 170. (Tennessee.) TEUST DEED. For the purpose of securing to A. B. a note of this date, due at twelve months, with interest from date (or as may be), I hereby convey to C. D., in trust, the following property: and if the note is not paid at maturity I hereby authorize C. D. to sell the property herein conveyed (state the manner, place of sale, notice, etc.), to execute a deed to the purchaser, to pay off the amount herein secured, with interest and costs, and to hold the remainder subject to my order. No. 171. (trtah.) MOETGAGE. A. B., mortgagor (here insert name and residence), hereby mortgages to C. v., mortgagee (insert names and residence), for the sum of dollars, the following described tract., of land in County, Utah (describe premises). This mortgage is given to secure the following indebtedness (here state amount and form of indebtedness, maturity, rate of interest, by and to whom payable, and where). The mortgagor agrees to pay all taxes and assessments in said prem- ises, and the sum of dollars, attorney 's fee, in case of foreclosure. Witness the hand of said mortgagor, this day of , A. D. 19.... § 560] FOHMB. 403 No. 178. (Wisconsin.) MOETGAGB. A. B.j mortgagor, of County, 'Wisconsin, hereby mortgages to C. D., mortgagee, of County, "Wisconsin, for the sum of dollars, the f oUowing tract of land in County (here describe the premises) . This mortgage is given to secure the following indebtedness (here state amount and form of indebtedness, whether on note, bond or other- wise, time due, rate of interest, by and to whom payable, etc.) The mortgagor agrees to pay all taxes and assessments on eaid prem- ises, and the sum of dollars, attorney's fees, in case of foreclosure thereof. Witness the hand and seal of said mortgagor this day of , 19.-. In presence of (Seal.) (Seal.) (Must be acknowledged.) No. 173. (Wisconsin.) ASSIGNMENT OF MORTGAGE. For value received, I, A. B., of , Wisconsin, hereby assign to C. D., of , Wisconsin, the within mortgage (or a certain mortgage executed to , by C. F. and wife, of County, Wisconsin, the day of , 19. . ., and recorded in the office of the register of deeds of County, Wisconsin, in Vol of Mortgages, on page ), together with the and indebtedness therein men- tioned. Witness my hand and seal this day of , 19. . . In presence of A. B. (Seal.) (Seal.) No. 174. NOTICE OF MORTGAGE SALE. By virtue of a chattel mortgage executed by to , dated the ...... day of , 19 , and filed in the office of the county clerk of the county of , (or, the town clerk of the town of , or, the register of the city and county of New York), on the day of , 19 , and upon which default has been made, I will expose for sale at public auction, on day, the day of , 19...., at o'clock, in the noon, at (designating the particular place of sale), the property mortgaged, consisting of 187 horses, 35 stages, 16 sleighs, 250 tire bolts, 800 weight of iron, 800 weight of steel, two large iron safes. (The terms of sale to be made known on the day of sale.) Dated, , the day of , 19 (Signature of attorney or auctioneer.) 404 NOTARIES PUBLIC. [§ 560 No. 175. CHATTEL MOBTGAGE FOE EBSIDENT— SHORT FOBM. Know all men by these presents, that , of the Town of , in the County of , and State of , in consideration of the sum of dollars, to paid by , of the County of , and State of , the receipt whereof is hereby acknowledged, do . . hereby grant, sell, convey and confirm, unto the said , and to heirs and assigns, the following goods and chattels, to wit: To have and to hold all and singular the said goods and chattels, unto the said mortgagee herein, and heirs, executors, ad- ministrators and assigns, to and their sole use, forever. And the mortgagor herein, for and for heirs, executors and administrators, do . . hereby covenant to and with the said mort- gagee...., heirs, executors, administrators and assigns, that said mortgagor lawfully possessed of the said goods and chattels, as of own property; that the same are free from all incumbrances, and that will, and executors and administrators shall, warrant and defend the same to the said mortgagee . . . . , heirs, executors, administrators and assigns, against the lawful claims and demands of all persons. Provided, nevertheless, that if the said mortgagor , ex- ecutors or administrators, shall well and truly pay unto said mort- gagee , executors, administrators or assigns, then this mortgage is to be void, otherwise to remain in full force and effect. And, provided, also, that it shall be lawful for the said mort- gagor. ..., executors, administrators and assigns, to retain pos- session of the said goods and chattels, and at own expense, to keep and use the same, until or executors, administrators or assigns, shall make default in the payment of the said sum of money above specified, either in principal or interest, at the time or times, and in the manner hereinbefore stated. And the said mortgagor...., hereby covenant . . and agree . . that in ease default shall be made in the payment of the note . . aforesaid, or of any part thereof, or the interest thereon, on the day or days respectively on which the same shall become due and payable ; or if the mortgagee . . , executors, administrators or assigns, shall feel insecure or unsafe, or shall fear diminution, removal or waste of said property; or if the mort- gagor. . . . shall sell or assign, or attempt to sell or assign, the said goods and chattels, or any interest therein; or if any writ, or any distress warrant, shall be levied on said goods and chattels, or any part thereof; then, and in any or either of the aforesaid cases, all of said note. . and sum of money, both principal and interest, shall, at the op- tion of the said mortgagee...., executors, administrators or assigns, without notice of said option to any one, become at once due and payable, and the said mortgagee . . . . , executors, adminis- trators or assigns, or any of them, shall thereupon have the right to take immediate possession of said property and for that purpose may pursue the same wherever it may be found, and may enter any of the § 560] POEMS. 405 premises of the mortgagor , with or -without force or process of law, wherever the said goods and chattels may be, or be supposed to be, and search for the same, and if found, to take possession of, and remove, and sell and dispose of the said property or any part thereof, at public auction, to the highest bidder, after giving days ' notice of the time, place and terms of sale, together with a description of the prop- erty to be sold, by notices posted up in three public places in the vicinity of such sale, or at private sale, with or without notice, for cash or on credit, as the said mortgagee . . . . , heirs, executors, adminis- trators or assigns, agents or attorneys, or any of them, may elect; and, out of the money arising from such sale, to retain all costs and charges for pursuing, searching for, taking, removing, keeping, stor- ing, advertising, and selling such goods and chattels, and all prior liens thereon, together with the amount due and unpaid upon said note.., rendering the surplus, if any remain, unto said mortgagor. . . ., or legal representatives. "Witness, the hand., and seal., of the said mortgagor.., this day of , in the year of our Lord one thousand nine hundred and (Seal.) (Seal.) Sealed and delivered in the presence of State of ] County of j I, , a justice of the peace in the Town of , in and for said county, do hereby certify, that this mortgage was duly acknowl- edged before me by the above named , the mortgagor., therein named, and entered by me this day of , A. D. 19 . . . " Witness my hand and seal. (Seal.) Justice of the Peace. State of ) ss County of ^ of said County, being duly sworn, deposes and says: That the lawful owner., of the goods and chattels described in the within chattel mortgage to which this is attached, and made a part thereof; and that said goods and chattels are free and clear of all liens or incumbrances, except the said mortgage to which this paper is attached. And that there are no judgments or executions against , the said , that affect the title of said goods and chattels named in said mortgage By and under the foregoing representation have obtained a loan of ($ ) dollars, which said chattel mortgage is given to secure the payment thereof, and interest. (Seal.) Subscribed and sworn to before me, this day of , 19... 40/5 NOTAEIES PUBLIC. [§ 560 No. 176. EELEASB OF CHATTEL MOBTGAGB. Know all men by these presents, that , of the County of , and State of ....... do hereby certify, that a certain indenture of mortgage, bearing date the day of , A. D. 19..., mads and executed by of the first part to of the second part, conveying certain personal property therein mentioned as security for the payment of dollars and cents as therein stated and recorded in the recorder 's office of County, in the State of , in Book , of , on page , on the day of , A. D. 19 is, with the note. . accompanying it, and the aforementioned debt fully paid, satisfied, released, and discharged. Witness, hand . . and seal. ., this day of , A. D. 19... Certificate follows. No. 177, CHECK. Chicago, HI., , 19. . . No THE MEST NATIONAL BANK OF CHICAGO. Pay to the order of , $ dollars. No. 178. DEAFT OE INLAND BILL OF EXCHANGE. No $ Chicago, January 1, 19. . . Three months after date pay to the order of Thomas Smith & Co. one hundred dollars, value received, and charge to the account of To Brown Bros., A. H. JONES. Centralia, Ky. No. 179. FOEEIGN BILL. No Exchange of £100. Chicago, January 1, 19.. Six months after sight of this first of exchange (second and third unpaid), pay to the order of Mr. Don Carlos, one hundred pounds, value received, and charge the same to account of Messrs. Smith & Co. against your letter of credit No. \. To Mr. S. Jackson, JAMES JOHNSON. London, England. No. 180. CERTIFICATE OF PEOTEST State of 1 County. Css. Be it known, that On this day of , in the year of our Lord one thousand nine hundred and , I, , a notary public § 560] FOEMS. 407 duly commissioned and sworn, and residing in the , in said county, and State, at the request of , went with the original which is above attached, to the office of , and demanded thereon, which was refused Whereupon I, the said notary, at the request of the aforesaid, did protest, and, by these presents, do solemnly protest, as well against the of said the indorsers thereof, as all others whom it may or doth concern, for exchange, re-eiehange, and all costs, charges, dam- ages, and interest already incurred by reason of the non- of the said And I, the said notary, do hereby certify, that, on the same day and year above written, and within forty-eight hours from the time of such protest, due notice of the foregoing protest was put in- the post office at , as follows: ' Notice for Notice for '. Notice for Notice for Notice for Each of the above-named places being the reputed place of residence of the person to whom this notice was directed. In testimony whereof, I have hereunto set my hand and affixed my official seal, the day and year first above written. Notary Public. No. 181. NOTICE or PEOTEST OP NOTE. State of ,1 County of Iss. , 19.. Sir:— A. for $ , dated , payable signed by , indorsed by , being this day due and unpaid, and by me protested for nonpayment, I hereby notify you that the payment thereof has been duly demanded, and that the holders look to you for payment, damages, interest and costs. Done at the request of , Notary Public. To No. 182. (Mississippi.) PEOTEST. Be it known that I, A. B., a justice of the peace of the County of , at the usual place of of C. D., presented to him the bill or note of which the annexed is a copy, for payment (or acceptance) 408 NOTARIES PUBLIC. [§ 560 which he did not pay (or accept); where as I did protest the said bill (or note) ; and immediately thereafter I deposited in the post office at , postage paid, a written notice of the protest, directed to E. F., at , which is his known (or usual) place of abode (or business). Bated at , this day of , A. B No. 183. PROTEST. United States of America, State of New York, ss. On the 14th day of November, 19 . . , at the request of Marshall Pield, I, Richard Jones, notary public in and for the State of New York, duly commissioned and sworn, dwelling in said City of New York, did present the original promissory note, a copy of which is hereunto annexed, dated the 5th day of July, 19. ., for one thousand dollars, to the maker, Thomas Brown, personally, at 500 Broadway, New York City, and demanded pay- ment, which was refused. Wherefore I, the said notary public, at the request aforesaid, did protest, and by these presents do publicly protest, as well against the maker and indorsers of said note, as against all others whom it may concern, for exchange, re-exchange, and all costs, damages, interest already incurred, and to be hereafter incurred, for want of payment of the same. And I do further certify that on the 14th day of November, 19. ., and after presentment aforesaid, due notice of the protest of the said note was deposited In the post office in the City of New York, and postage prepaid, in time for the next regular mail, addressed to Eussell Sage, at Yonkers, Queens County, State of New York, which is his reputed place of residence. In witness whereof, I have hereunto subscribed my name, and affixed my notarial seal. Witness: RICHARD JONES, Notary Public, 50 Broadway St., New York City. No. 184. COPY OF NOTE. (Indorsed. Russell Sage.) $1,000. New York, July 5, 19. . One month after date I promise to pay Marshall Field, or order, one thousand dollars, value received. THOMAS BROWN. The notary generally retains the original protest, and in case of inland bills and promissory notes, an abbreviated protest, like the following, is attached to the note and returned to the party for whom it is protested: State of New York, City and County of New York. § 560] POEMS. 409 Be it known that the promissory note hereunto annexed was this day protested for nonpayment. New York, Nov. 14, 19... EICHAED JONES, Witness: Notary Public. This memorandum is attached to the note or biU, and in case action is commenced application is made to the notary for the original protest. No. 185. PKOMISSORY NOTE. $300.00. New York, July 30, 19.. Four years after date I promise to pay John Doe, or order, three hundred dollars, with six per cent, interest per annum, for value received. No. 5. THOMAS NOBODY. No. 186. RECEIPT. $300.00. Eeceived, Chicago, July 1, 19. ., of Thomas Smith, three hundred dollars, in full of account. THOMAS JACKSON & CO. No. 187. WAIVER ON BIXiL OR NOTE. Presentment, demand, and notice waived. THOMAS JONES. No. 188. (Hlinois.) BOND OP NOTARY PUBUC. Know all Men by these Presents, That we, , , , of the County of , in the State of Illinois, are held and firmly bound unto the People of the State of Illinois, in the penal sum of one thousand dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and assigns, jointly and sever- ally, firmly by these presents. Witness our hands and seals, this day of , 19.. The condition of the above obligation is such, that whereas, the said has been appointed notary public in and for the County of , residing in the of Now, therefore, if the said shall perform and discharge all the duties required of him by law, as such notary public, to the best of his skill and ability, then this bond to be void, otherwise to remain in full force. (Seal.) (Seal.) (Seal.) Approved; Governor. 410 NOTAKIES PUBLIC, [§ 560 State of Illinois, 1 County of p^" I, , hereby certify that , , , who are each personally known to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that they signed, sealed and delivered said instrument aa their free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal, this day of , 19 . . No. 189. (lUinois.) NOTAEIAL OATH. State of Illinois, ) County. I I, , do solemnly swear that I will support the constitution of the United States, and the constitution of the State of Illinois, and that I will faithfully discharge the duties of notary public according to the best of my ability. Subscribed and sworn to before me, this day of , 19.. N. B. — The appointee must sign both bond and oath, and return to the Secretary's office, with official signature, impression of seal (if he has one) at the place indicated, P. O. address, etc. A strict compliance , with sections 2, 3 and 4 of chapter 99, Jones & Addington's Ann. Stat. 117 7838-7840, is required to secure the appointment of a notary public. No. 190. (Illinois.) NOTAEIAL PETITION. State of , County. of , , 19-- To His Excellency, Governor of The undersigned, legal voters of the of , in the County of , respectfully petition that Tour Excellency wiU appoint to be a notary public in and for said county. Have this petition filled out and signed in ink by fifty legal voters of the city or town in which you reside. No. 191. (Illinois.) CLEEK'S CEETIFICATB OF NOTAETSHIP. State of Illinois, ) ^ ss County of f I, , Clerk of the County Court, in and for said county, do hereby certify that , whose name is subscribed to the proof or acknowledgment of the annexed instrument in writing was, at the time § 560] FOEJtS. 411 of taking Bueh proof or acknowledgment, a notarj public in and for said county, duly commissioned, sworn and acting as such, and authorized to take the same; and further, that I am well acquainted with his handwriting, and verily believe that the signature to the said proof 01 acknowledgment is genuine; and further, that the annexed instru- ment is executed and acknowledged according to the laws of the State of Illinois. In testimony whereof, I have hereunto set my hand and afiixed the seal of said court, at , in County, this day of , A. D. 19. . , Clerk. No. 192. NOTARIAL EEGISTBR. Date of Date of Demand Holder Copy of Endorsers Notice Expenses and How Paper and How No. 193. NOTICE TO QUIT. I hereby give you notice to quit and deliver up, on the day of next [if the current year of your tenancy expires on that day, or otherwise on the day on which the current year of your tenancy will expire, next after the end of half a year (or, of a quarter year; or, of a month) from the time of your being served with this notice], the possession of the messuage (etc., here briefly describe the prop- erty) which you now hold of me as a yearly tenant. (Date.) (Signature of Iiandlord.) (Address to Tenant.) No. 194. DECLABATTON FOR RESTORATION TO THE PENSION ROLLS OP A PERSON WHOSE NAME HAS BEEN DROPPED UNDER THE ACT OF FEBRUARY 4, 1862. State of ,7 County of ) On this day of , A. D. one thousand nine hundred and , personally appeared before me , the same being a court of record within and for the county and State aforesaid, , aged years, who, being duly sworn according to law, makes the fol- lowing declaration asking to be restored to the pension rolls; that he is the identical who was pensioned on the roUs of the agency 413 NOTARIES PUBLIC. [§ 5G0 at , and whose pension certificate No , is herev.'itti returned; that . .he has resided, since the first day of January, A. D. 1861, as fol- \ows: 1 Ihat during this period .... means of subsistence have been 2 that has not borne arms against the government of the United States, or in any manner aided or abetted the rebellion, or those prose- cuting the rebellion, or manifested a sympathy with the cause, but on the contrary, did, during the said rebellion, earnestly desire its sup- pression by force of arms; that he was last paid pension to the day of ,19.. » that hereby appoints attorney to prosecute the above claim; that residence is at No , in street, in the of , County of , State of , and that post office address is ... . , (Attest.) (Claimant's signature.) Also personally appeared , residing at No , in street, in , and , residing at No , in street, in , persons whom I certify to be respectable and entitled to credit, and who, being by me duly sworn, say that they were present and saw , the claimant, sign name (make mark) to the fore- going declaration; that they have every reason to believe, from the appearance of said claimant and their acquaintance with that is the identical person represents self to be, and that they have no interest in the prosecution of this claim. > (Signatures of witnesses.) Sworn to and subscribed to before me, this day of A. D. 19 . . ; and I hereby certify that the contents of the above declara- tion, etc., were fully made known and explained to the applicant and witnesses before swearing, including the words , erased, and the words , added; and that I have no interest, direct or indirect, in the prosecution of this claim. , (Signature.) (L-S.) , (Official Character.) 1 Here name the place or places at which the applicant has resided. 2 Here name the employment or other means by which a livelihood has been gained. 3 Here insert, if an invalid, ' ' and that the disability for which he was pensioned still continues in a pensionable degree, and that he has not since re-enlisted or been paid in the military, naval, or marine service of the United States"; if a widow or mother, "and she has not re- married since that date," or if remarried, give date. § 560] FORMS. 413 No. 195. POWER OF ATTORNEY. BJiow all men by these presents, that I, .. , of , in the Oonnty of , and State of , do hereby make, constitute, and appoint , of , in the County of , and State of , my true, sufficient and lawful attorney, for me and in my name, to , and to do and perform all necessary acts in the execution and prosecution of the aforesaid business in as full and ample a manner as I might do if I were personally present. In witness whereof, I have hereunto set my hand and seal, the day of , 19.. •••••••• t (Signature.) Signed, sealed and delivered in presence of No. 196. PROXY TO VOTE. Know all men by these presents, that , , of , in the State of , do hereby appoint , of , in the State of , to be substitute and proxy, with power of substitution, for and in name and behalf, to vote at any election of the company, and at any meeting of the stockholders of said as fully as might or could were personally present. In witness whereof, have hereunto set hand., and seal. ., the day of , 19. . (Seal.) (Seal.) Signed, sealed and delivered in presence of No. 197. PRECIPE, Before Demand $ Issue summons returnable on the day of J 19. ., at o'clock, .... M., and give the same to constable Defendant at Credit plaintiff with $ advance costs. • , Attorney. State of , ^ County. J J being first duly sworn, on oath says that he is , and that the demand of the plaintiff. . in the above entitled cause is for , and the amount due to said plaintiff., from the defendant., in said 414 NOTAKIBS PUBLIC. [§ 5G') cause after allowing to said defendant., all his just deductions, credits and Bet off, if any, is dollars and cents. Subscribed and sworn to before me, this day of , 19.. •••'• > ■Notary Public. No. 198. SUBPCENA, NOTAEY PXTBUCa State of Illinois, | ^^ ^^^ ^^ ^^ ^^^ g^^^^ ^^ Illinois. County. I To : You are hereby commanded to appear before me, a notary public in and for said county, at my office, No , Street, in the .... in said County, on the day of , A. D. 19. ., at ... o'clock ....M., then and there to testify the truth in a suit now pend ing in the Court of County aforesaid, wherein plaintiff.., and , defendant.., and this you shall in no wise omit, under the penalty of the law. Given under my hand, and notarial seal, this day of .... A. D. 19.. , Notary Public. No. 199. (New Hampshire.) SUMMONS. 88. To li. S. You are required to appear at , in the County of .... on the day of , to testify what you know relating to .... then and there to be heard, in which is and Hereof fail not, as you will answer your default under the penalties prescribed by law. Dated at , the day of , No. 200. WILL. I, Thomas Smith, of the County of Kent, and State of Ohio, do make, ordain, and establish this to be my last will and testament, hereby revoking all other wills executed by me. I give and bequeath all my real and personal property unto my beloved wife, Sarah Smith, and I hereby appoint John Jones my sole executor without bonds. In witness whereof, I have hereunto set my hand and affixed my seal, this 10th day of May, In the year of our Lord, 19 . . THOMAS SMITH. (Seal.) The above instrument, consisting of one sheet, was at the date thereof signed, sealed and delivered by the said Thomas Smith as and for his last will and testament, in the presence of us, who at his request, and in § 560] FORMS. 415 hii presence, and in the pregence of each other, have subscribed our names as witnesses thereto. JONATHAN EDWARDS, Carbondale, Ohio. HENEY JENKINS, Carbondale, Ohio. No. 201. WrLL. I, , of , do hereby make, publish and declare this to be my last will and testament, hereby revoking and annulling any other will by me heretofore made or declared. I bequeath unto my beloved wife, Sarah, all my wearing apparel, to be disposed of in such manner as she may see fit. I also bequeath to her such articles of my household goods and furniture, and such consumable supplies as may be on hand at the time of my death, as she may choose to retain for her own use; and also all the rest and residue of my personal estate, whatsoever, and wheresoever, of what nature, kind, and quality soever the same may be, and not hereinbefore given and disposed of (after paying my debts, legacies, and funeral expenses), I give and bequeath unto my said wife, Sarah, to her own use and benefit absolutely. And I do hereby constitute and appoint my said wife, Sarah, sole executrix of this my last will and testament without bonds. In witness whereof, I, James Dick, the testator, have to this, my will, written on one sheet, set my hand and seal, this day of , A. D. one thousand nine hundred and .... JAMES DICK. (L. 8.) Signed, sealed, published, and declared by the above-named James Dick, as and for his last will and testament, in the presence of us, who have hereunto subscribed our names at his request as witnesses thereto, in the presence of the said testator, and of each other. C. D. B. F. No. 202. WILIi. I, WilUam Smith, of Chicago, County of Cook, and State of Illinois, declare this my last will and testament. I will and bequeath unto my beloved wife, Mary Smith, all the per- sonal and real property which I may die possessed of, after the payment of all my just debts. I hereby appoint my beloved wife my sole executrix, without bond. In witness whereof, I hereunto set my hand and seal, at Chicago aforesaid, this sixth day of May, one thousand nine hundred and WILUAM SMITH. (Seal.) Signed, sealed, published and declared, etc., as above. (Two witnesses.) No. 203. WILL. Be it remembered, I, William Good, of the City of Cincinnati, Ohio, 416 NOTAEIES PUBLIC. [§ 560 a bachelor, being of sound and disposing mind, memory and under- standing, do make and declare this my last will and testament. First — I direct that all my just debts be paid. Second — ^I give and bequeath unto the Cemetery of Spring Grove the sum of two hundred dollars, to be invested and the income to be applied to the care of my family burial lot in said Cemetery. Third — I give and bequeath unto the Old People's Home, in the City of Cincinnati, five thousand dollars, same to be invested and the income applied to the maintenance of said institution. Fourth — I give and bequeath to my sister, Jane Thompson, the sum of five thousand dollars. Fifth — I give and bequeath unto my brother, Joseph Good, the sum of five thousand dollars. Sixth — ^I give and bequeath to the Law Library Association of Kings- ton, Indiana, Lots 5 and 6 in Block 4, Simmons subdivision in Section 26, township 35 N., E. 14 E. of P. M. in Bogue County, Indiana. The same to be used for building on a law and miscellaneous library for the use of residents of said city. Seventh — I give and bequeath one thousand dollars to the purchase of books for said library. Eighth — I give and bequeath the residue of my estate, real and personal, to such charitable purposes as my executors see fit. Lastly, I appoint Joseph Cook, lawyer, and my brother, Joseph Good, my sole executors without bonds. Signed, sealed, &c. Witnessed usual way. No. 204. ABSTRACT OF TITLE. To The East 10 acres of the South half of North West Quarter of Section 4, Township 39 North, Eange 13 East of the 3rd Principal Meridian in Lake County, Illinois. Note 1 — From memoranda relating to sales of public lands in Lake County, Illinois, it appears that a United States patent, dated Oct. 1, 1839, was issued to C. L. Harmon and H. G. Loomis, granting the East 10 acres of Section 4 aforesaid. Note 2 — C. L. Harmon H. G. Loomis and Harriet, his wife, to J. Penfold and W. Penfold. Doc. 4,324. Note 3— Affidavit by E. 0. Harmon. Doc. 494,084. Warranty Deed dated Nov. 3, 1836, re- corded Nov. 7, 1836, in Book R., page 220. Consideration, $1,600. Conveys East 10 ►acres Section 4 in T. 39 N. E. 13 E. of 3rd P. M., in Lake Co., Illinois, Acknowledged Nov. 4, 1836. Subscribed and sworn to Sept. 10, 1883, ^ and recorded Sept. 12, 1883, in Book 1,372, p. 205. Affiant states {inter alia) that he is the § 560] 70BICB. 417 son of C. li. Eknnon, deceased; that said C. L. Harmon died on or about Nov. 2, 1868, intestate, and that the mother of the affiant died about the year 1867; that said C. L. Harmon wai never married except to the mother of this affiant. Deed dated Feb. 1, 1856; recorded Teb. 22, 1856, in Book 104, page 466. Consideration, ^,000. Grant, bargain, sell, etc., land in Town of Princeton, Lake Co., HI., to wit: the East >-5 acres of Section 4, in T. 39 N., E. 13 E., according to government survey, more or less. Subject to taxes since 1852. Certificate of acknowledgment dated Feb. 12, 1856, by notary public. State of New York, states that the wives on a private examination, apart from their husbands, acknowledged, etc., but does not say contents of deed were made known to them. I>eed dated Feb 1, 1856, and recorded March 15, 1872, in Book 67, page 800. Consideration, $4,000. Grant, bargain, sell, remise, alien, conve; and confirm land in Town of Princeton, Lake Co., 111., to wit: West 5 acres of Section 4, in ""T. 39 N. of B. 13 Bast, according to govern- ment survey, more or less. First parties covenant that the above bargained premises in the quiet and peaceful possession of second party, his heirs and assigns, against all and every person or persons lawfully claiming or to claim the whole or any part thereof, they shall and will warrant and forever defend, subject to all taxes and assessments levied or assessed on or against said premises since 1852. Certificate of acknowledgment dated Feb. 12, 1856, by T. H. Lane, a notary pubUe in and for New York City and County of New York, who does not certify that said Phebe Ann Penfold and Joan Penfold were informed of the contents of said deed. A re-record of deed, recorded Feb. 22, 1856, as Doc. 67,699, in Book 104 of Deeds, page 466, as appears by the recorder's certificate appended to this record. Note 4. John Penfold and Phebe Ann, his wife, Wm. Penfold and Joan, his wife, all of City, County and State of New York, to C. H. Duck. Doc. 67,699. Note 5. John Penfold and Phebe Ann his wife, and Wm. Penfold, and Joan, his wife, all of New York City, to C. H. Duck, of Cook Co., m. Doc. 18,284. "^ Quitclaim Deed dated May 21, 1856, and recorded May 22, 1856, in Book 114, page 402. Convey 3 acres of Section 4, T. 39, B. 13E. Note 6. Charles H. Duck and wife to Wm. 8. Davison and Wm. J. Eobertson. Doc. 71,188. -> Note 7 — It does not appear that any proceedings have been had in 27 418 NOTAKIES PUBLIC. [§ 560 the County or Probate Courts of Lake Co., Ill,, in the matter of the estate of Wm. 8. Davison, deceased, nor that anything in the relation thereto has been filed for record in the recorder's ofSce of said county. No. 205. APPLICATION POB INITIAL BEGI8TRATI0N OP TITLE TO LAND. State of Illinois, ^ County of Cook, f To the Judges of the Circuit Court of Cook County. In Chancery sitting: I hereby make application to have registered the title to the land hereinafter described, and do solemnly swear that the answers to the questions herewith, and the statements herein contained, are true to the best of my knowledge and belief. 1st. Name of applicant, ; age of applicant, ; residence, ; married to ; residence 2d. Application made by 3d. Description of real estate situate in Cook County, Illinois, is as follows: Estate or interest claimed therein is in fee simple, and is subject to homestead. 4th. The land is occupied by whose address is The estate, interest or claim of occupant is that of 5th. Liens and incumbrances on the lands are Name of owner or holder thereof, ; post office address, ; amount of claim, $ ; recorded book , page 6th. Other person.., firm or corporation having or claiming any estate, interest or claim in law or equity in possession, remainder (re- version, or expectancy in said land are , ; address Character of estate, interest or claim is 7th. Other facts connected with said land are 8th. Therefore the applicant prays the court to find and declare the title or interest of the applicant in said land and decree the same, and order the Eegistrar of Titles to register the same, and to grant such other and further relief as shall be according to equity. Signature of Applicant. Subscribed and sworn to before me by the above named as owner, this day of , 19.. (Seal.) J Notary Public. I hereby assent to the registration of the above described real estate as prayed for by , who is my (husband or wife). Signature of Husband or Wife. § 560] FOEMS. 419 State of Ulinois, | County of Cook. ^ ^' I, a notary public in and for said County in the State aforesaid, do hereby certify that , personally known to me to be the same per- son whose name is subscribed to the foregoing assent, appeared before me this day in person and acknowledged the said assent as free and voluntary act for the uses and purposes therein set forth. Given under my hand and seal, this day of , A. D. 19.. (Seal.) , Notary Public. I hereby assent to the registration of the above described real estate as prayed for by , , [The Chicago Legal News Co. and Sharp and AUeman's Lawyers' Directory have kindly contributed, partly, to these forms.] INDEX [KErEBERCES ABE TO SECTIONS ZSCCEPT AS INDICATED.] ▲ ABBREVIATIONS designation of notary's official character in certificate, 24. jurat, effect of letters "N. P." when seal attached, 113. ABSTRACTS OF TITLE affidavits required, 108. sufficiency, 109. definition and purpose, 199. examination, 200. judgments, 228. forms, p. 416, No. 204. how prepared, 200. real estate, how sold, 173. statutory provisions, 272-326. titles to realty, see Titus. ACCOUNTS assignments, forms, p. 376, No. 115. ACKNOWLEDGMENTS agency of notary, 5. amendment or correction of certificate, 261. bond of notary, liabilities, 33. eare required of officers, 248. certificates, necessity, essentials, 246. chattel mortgages, 265. clerical errors, 259. commissioners of deeds, duties and powers, 506, statutes, 508-559. conditional bill of sale, execution, 172. deeds, how proved, recording, 217. definition, 245. disqualification of officer taking, 21, 269. officers of corporations, 271. stockholders, 270. essentials, 249. compliance with statutes, 355. designation of officer's character, 260. (431) 422 INDEX. [BEFEKENOES ABE TO SECTIONS EXCEPT AS IITOICATED.] AOKNOWLEDGMiafTS— continued. knowledge of identity of grantor or p«r«on appearing, 850. introductions as giving knowledge «f identity of grantor, 250. statutes, 272-326. personal appearance of person acknowledging, 2S2. telephoned acknowledgment, effect, 253. seal, 260. signature of officer, 260. statutory provisions, 272-326. evidence, certificate as, 262. false certificates, liability, 251. forms, pp. 347-366, Nos. 1-79. impeachment of certificates, 267. jurisdiction of officer taking, 258. liabilities, statutory provisions, 37-90. manner of taking, 248. married women, private examination, 234. nature of act, judicial or ministerial, 248. necessity and purpose, 247. negligence of officers, 248. officers who may take, 19, 257. statutes, 272-326. penal liabilities of notaries, 34. place for certificate on instrument, 256. place of taking acknowledgment, 258. powers and duties of notaries generally, 19. statutory provisions, 37-90. probate of deed, 263. seal of notary, necessity, 26. statutory provisions, 272^326. time of executing certificate, 33. town plats, 266. ACTION FOR RECOVERY see Recovebt, Action fob. ACTIONS notary's bond^ liabilities, 33. ADOPTION heirs, relationship, 194. ADVERSE POSSESSION definition, title to realty, 196. AFFIDAVITS ch. II, 91-115. abstracts of title, affidavits required, 108. certificate as evidence, notice of dishonor, 450. certificate of authority to administer oaths, 114. INDEX. 423 [aETERENCES ABE TO SECTIOj^S EXCEPT AS IN'DICATBD.] AiTID A VITS— continued. commissioners of deeds, administration of oaths, 507. duties, 505. statutes, 508-559. powers, 506. corporations, affidavits by, 106. definition, 91. depositions, affidavits to take, 337. manner of taking, 330. distinction from deposition, 91. forms, pp. 366-370, Nos. 80-91. information and belief, statements as to, 110. jurat, see title Jueat. necessity and propriety, 107. oaths, see title Oaths. personal appearance of affiant, necessity when acknowledgment is taken, 252. powers and duties of notaries generally, 19. statutory provisions, 37-90. signature of affiant, 112. statutory requirements, 116-169. sufficiency, 109. venue or caption, 111. APFIEMATION definition, 91. forms, p. 373, No. 103; p. 374, No. 110. manner of administration, sufficiency, 100. statutory requirements, 116-169. AGE conveyances, age to convey, statutes, 272-326. AGENCY acknowledgments, disqualification of officer taking, 269. bills and notes, bank's liability, employment of notary, 420. notary's duties, 418. notice of dishonor, to whom given, 446. who may give notice, 447. presentment for payment, by whom made, 428. to whom presented, 432. disqualification from interest in transaction, 21. notaries as agents, 5. real estate, agent's contracts, 219 ALIENS de facto notaries, 16. eligibility as notaries, 8. parties to deeds, 208. statutory provisions, 272-326. 424 INDEX. [REFEREHCES ABE TO SECTIONS EXCEPT AS INDICATED.] ALTERATIONS amendment of certificate of acknowledgment, 261. deeds, effect of erasures, 214. depositions, correction of errors, 345. "wills, execution, changes, 243. AMENDMENTS acknowledgments, amendment of certificate, 261. certificate of authority to administer oaths, amendment, 114. jurat, necessity of official seal, cure of omission, 113. APPEAL removal of notary, appeal to courts, 14. APPOINTMENT OF NOTARIES AND COMMISSIONERS commissioner of deeds, statutes, 508-559. notaries public, judicial notice, 30. manner of appointment, 6. notaries in the United States, in general, 3. proof of qualifications, 8. rules as to eligibility, 8. statutory provisions, 37-90. ASSIGNMENTS definition, 236. forms, p. 376-378, Nos. 115-117; p. 403, No. 173. ATTACHMENT affidavit, forms, p. 369, No. 90. certificate of authority to administer oaths, 114. powers of notaries, statutory provisions, 37-90. ATTORNEYS disbarment, penal liabilities of notaries, 34. disqualification preventing notary from acting, 21. acknowledgments, 269. depositions, 336. fees, bills and notes, statutory requirements, 451-504. notary's liabilities in general, 32. oaths, administration, disqualification of notary, 99. AUTHENTICATION certificate of acknowledgment of commissioner of deeds, 506. B BANKRUPTCY protest of bills and notes, necessity, 438. verification of petition, commissioner of deeds, 507. BANKS agency of notaries, liability of principal, 5. bills and notes, employment of notary, liability, 420. presentment, bank's duty to apply funds, 434. INDEX. 435 [BEFEBENCES ABE TO 8ECTI0RB EXCEPT AB INDICATED.] BANKS — continued. compensation of notaries, 36. disqualification of notary, interest in transaction, 21. eligibility of notaries, statutory provisions, 37-90. national bank notes, protest, 440. national banks, power to administer oaths, 98. oaths, administration, disqualification of notary, 99. BLLIiS AND NOTES see Negotiable Instruments. BONDS actions, notary's liability, 33. bond for deed, forms, p. 378, No. 118. de facto notaries, 16. necessity of notary's bond, 12. notary's bond, form, p. 409, No. 188. notary's liabilities, 33. protest, 419. statutory provisions, 37-90. BBOKEBS agents' contracts concerning real estate, 319. C CAPTION certificate to deposition, 343. definition. 111. CAVEAT EMPTOR definition, purpose of maxim, 334. CEETIFICATBS OF AUTHORITY see Commission. statutory provisions, 37-90. CEBTIFICATES OF NOTARIES acknowledgments, amendment and correction, 2S1. clerical errors, 259. commissioner of deeds, 506. compliance with statute, 355. definition, 245. essentials, 346. false acknowledgments, person net present, 352. impeachment of certificates, 267. necessity of officer's signature, designation of character, 260. place for certificate, 256. additional authentication, proof of official character, 27. affidavits, certificate of authority to administer oaths, 114. definition, 23. depositions, clerical errors, 344. 4S6 INDEX. [BETERENCES ABB TO SECTIONS EXCEPT AS INUIOATEB.] OBBTIPIOATES OF NOTAKIES— continued. essentials, caption and form, signaturs, leal, 343. statutory provisions, 350-402. effect as evidence, 28. notice of dishonor, 450. protest, 438. expiration of commission, noting, 24. false certificate to abstract, statutory provisions, 272-326. forms, pp. 347-366, Nos. 1-79; p. 368, No. 86; p. 379, No. 120; p. 394, No. 156; p. 406, No. 180; p. 410, No. 191. general requirements, 23. impeachment, 28. necessity of notary 's seal, 26. presumptions as to acts of notaries, 29. protest, , authority to protest, 437. essentials of certificate, 438. signature, designation of notary's charactar, 24. statutory provisions, 37-90. CHANGES see Alterations. CHATTEL MOETGAGES acknowledgments, 265. impeachment, 267. definition, conditional sales, 172. notary's liabilities in general, 32. release, forms, p. 406, No. 176. statutory provisions, 272-326. CrVII, LAW heirs, relationship, affinity and consanguinity, 194. CLAIMS United States government claims, power to administer oaths, 95. CLERICAL EBBOBS acknowledgments, 259. depositions, 344. correction of errors, 345. notice to take depositions, 338. OLEBE OF COUBT proof of notary's official character, additional authentication, 27. CLEBES delegation of notary's duties, power, 18. nOMMISSIONEBS OF DEEDS acknowledgments, 506. affidavits and oaths, administration, 507. certificates, forjns, p. 363, No. 70. definition, nature and purpose, 505. INDEX. 4ui1 [rbtbbences are to sections except as indicated.] OOMMISSIOKEKS OF DEEDS— eontinuad. oath, forms, p. 372, No. 99. statutory requirements, 508-559. COMMISSIONS OF KOTABIES affidavits and oaths, who may take and administer, statutes, 116-169. depositions, power to take, 333. who may take, issuance of commissions, 333. expiration of commission, notary's liability, 32. noting expiration, 24. statutory provisions, 37-90. taking acknowledgment, effect, 257. fee, statutory requirements, 37-90. issuance of commission, duty to issue, 7. COMMISSIONS TO TAKE TESTIMONY see Depositions. COMMON LAW acknowledgments, duty of officers, 248. bills and notes, notary's duties, 418. days of grace, existence and purpose, 410. depositions, right to take, 328. heirs, relationship, affinity and consanguinity, 194. husband and wife, contracts between, 221. married women, conveyances by, 222. notary's power to administer oaths, 93. women as notaries, 9. COMMUNITY PBOPEBTY. liability, notary's negligence, 32. statutory provisions, 272-326. COMPENSATION OF NOTARIES, AND OTHER OFFICERS administration of oaths by United States government officers, 105. commissioners of deeds, 505. statutes, 508-559. depositions, fees of officers, 347. statutes, 350-402. notary's fees and compensation, 36. notary's liabilities in general, 32. statutory provisions, 37-90. CONDEMNATION PROCEEDINGS see Eminent Domain. CONDITIONAIi SAUBS see Sales. CONFUCT OF LAWS days of grace, existence, 410. holidays, bills and notes, 411. presentment and payment, bills and notei, what law governs, 489. 428 INDEX. [BEFEBENCE8 AEE TO SECTIONS EXCEPT AS INDICATSaD.] CONFLICT OF LAW&— continued. protest, manner, what law governs, 438. title to real estate, what law governs, 190. CONSKRVATOBS OF THXi PEACS notaries as conservators, 19. CONSTITUTIONAL LAW women as notaries, 9. CONSULAE OFFICEKS acknowledgments, who may take, statutory provisions, 272-326. affidavits and oaths, who may take and administer, statutes, 116-169. depositions,, power to take, 333. statutes, 350-402. marine protest, 441. CONTEMPT depositions, compelling attendance of witnesses, 339. CONTINUANCE depositions, failure to note continuance, 344. CONTRACTS capacity of parties, deeds, 208. construction of deeds, 204. definition, 171. elements, 171. forms, pp. 379-380, Nos. 121-123. husband and wife, contracts between, 221. leases, 237. powers and duties of notaries, statutory provisions, 37-90. real estate, see Vendob and Puechaseb. requisites, writing, 171. validity of deeds, fraud, undue influence, intoxication, 215. CONVEYANCES ch. ni, 170-371. acknowledgments, see AaKNOWMSJOMBNTS. agent 'p contracts, 319. consideration, voluntary conveyances, 177. deeds, alterations and erasures, effect, 214. blank deeds, acknowledgment, 250. consideration, necessity, 210. construction, 204. description of property conveyed, 209. covenants for title, 212. date, 211. definition, 204. delivery, 211. description of property, boundaries, 209. disqualification of officer taking acknowledgment, 21, 269. rNDEX. 439 [beferences are to sections except as indicated.] COBTVETAU'CES — continued. escrow agreements, 211. forgery, notary's bond, liabilities, 33. form, formal parts, 206. forms, pp. 381-392, Nos. 124-152. husband and wife, conveyances between, 221. kinds of deeds, 205. parties, 208. probate of deeds, 263. proof of execution, statutory provisions, 272-326. quitclaim deeds, 205, 236. recording, 216. essentials, proof of deeds, 217. releases, quitclaim deeds, 236. requisites, 207. seal, necessity, 213. statutory provisions, 272-326. tax deeds, 205. trust deeds, 205. validity, effect of fraud and undue influence, 215. witnesses, 213. defeasance, 198. definition, 175. forms, pp. 381-392, Nos. 124-152. fraudulent conveyances, 176. husband and wife, conveyances between, S21. manner of conveyancing, 175. married women, conveyances by, 222. partners, conveyances by, 220. powers of attorney, 219. surveys, 201. titles by purchase, 195. voluntary conveyances, 177. COEPOEATIONS acknowledgments, forms, p. 347, No. 3; pp. 349-350, Nos. 8-10; p. 354, No. 26; p. 355, No. 30; p. 357, Nos. 38-40; p. 361, No. 63; p. 362, No. 67; p. 363, No. 72; p. 364, No. 74. disqualification of notary, interest in transaction, 21. officers taking acknowledgments, 271. stockholders taking acknowledgment, 270. eligibility of notaries, statutory provisions, 37-90. oaths of, 106. proxy to vote, forms, p. 413, No. 196. COUNTIES eligibility of notaries, incompatible offices, 10. jurisdiction of notaries, 17. 430 INDEX. [BEFEEENCKB ABE TO SECTIONS EXCEPT AS INDICATED.] COXJBTS depositions, manner of taking, 330. United States courts, 331. officers who may administer oaths, 116-169. order to take deposition, commission, 333. COVENTANIS conveyances, covenants for title, 212. CBEDITOBS deeds, necessity of consideration, 210. disqualification of notary, interest in transaction, 21. fraudulent conveyances, 176. liens on realty, enforcement, 230. CBIIVIES acknowledgments, false certificates, 251. notary's liabilities in general, 32. penal liabilities of notaries, 34. perjury, 115. statutory provisions, 37-90. CXJETESY definition, 182. statutory provisions, 273-326. CUSTOM delegation of notary's duties, clerks and deputies, 18. D DAMAGES notary's bond, liabilities, 33. statutory provisions, 37-90. protest, statutes, 451-504. DATES acknowledgments, clerical errors, 259. deeds, date of, 211. jurat, necessity of correct date, 113. DAYS OF GRACE existence and purpose, 410. statutes, 451-504. DEATH term of office of notary, 13. statutory provisions, 37-90. DEEDS see Conveyances. DE FACTO NOTARIES acknowledgments, who may take, 257. acts in general, 16. term of office, 13. women as notaries, 9. DEFEASANCE definition, 198. INDEX. 431 [OKFEBSNCKe ABE TO SECTIOMB EXCEPT Al IXDICATBD.] DEFINITIONS abetractB of title, 199. acceptance, 421. acknowledgments, 245. administrators, 243. adverse possession, 196. affidavit, 91. afanity, 194. aflSrmation, 91. assignments, 236. bills of exchange, 407. bills of sale, 172. boundaries, 209. caption, 111. caveat emptor, 234. certificate, 23. certificates of deposit, 406. chattel mortgages, 172. checks, 408. codicil, 240. commissioners, 505. commissioners of deeds, 505, conditional sales, 172. consanguinity, 194. contracts, 171. conveyances, 175. coverture, 221. curtesy, 182. deeds, 204. defeasance, 198. deposition, 327. determinable estates, 180. dower, 162. drafts, 409. easements, 187. emblements, 188. eminent domain, 197. escrow agreements, 211. estates in realty, 179. executions, 228. executors, 243. false swearing, 115. fee simple estates, 180. fee tail estates, 180. feme sole, 221. fraudulent conveyances, 176. homesteads, 186. 432 INDEX. tBETEBENCES ABE TO SECTIOHS EXCEPT AS INDICATED.] DEFINITIONS — eontiniied. joint tenants, 185. judgments, 228. judicial notice, 30. judicial sales, 226. jurat, 23, 113. leases, 237. letters rogatory, 327. liens, 230. life estates, 181. limitations, 196. lis pendens, 233, marine protest, 441. mechanics' liens, 231. merger of estates, 184. mortgages, 223. negotiable paper, 404. notary public, 1. notice of dishonor, 442. noting or initial protest, 442. oath, 91. perjury, 115. prescription, 198. promissory notes, 405. protest, 435. quitclaim deeds, 205. releases, 236. seal, 25. subornation of perjury, 115. subpoenas, 327. swear, 115. tax, 232. tax deed, 205. tenants in common, 185. title by descent, 193. titles, 190. Torrens system, registration of titles, 218. transmit, 346. trust deed, 205, 223. trust estates, 183. waiver, 235. wills, 239. witnesses, 217, 327. DELEaATION OF DUTIES power to delegate, deputies and clerks, 18. INDEX. 433 [BEFEBEUCES AIUE to aKCTIONS EXCEPT AS INDICATED.] DEPOSITIONS eh. IV, 327-349. affidavit distinguished, 91. affidavit to take, 337. authority of officer to take, 334. caption, clerical error, 344. certificate, caption and form, signature of officer, seal, 343. certificate of authority to administer oaths, 114. clerical errors, 344. correction, 345. commissioners of deeds in general, 505. duties, statutes, 508-559. commissions to take testimony, issuance, 333. statutory provisions, 350-402. definition, 327. disqualification preventing notary from acting, 336. fees of officers, 347. forms, pp. 392-394, Nos. 153-156. interpreters, 341. interrogatories, 332. jurat, definition and essentials, affidavits, 113. lost depositions, 346. manner of taking, 330. compliance with statutes, necessity, 338. oath, administration of, 340. questions permitted by officer, 334. reading of testimony, signing, 342, reading to witness, 342. signing by witness, 342. waiver of signature, 346. United States courts, 331. writing, 342. nature of right to take, 328. notice to take, 338. objections, 348. objections to taking, 348. officers, authority to take, 334. statutory provisions, 350-402. powers and duties of notaries generally, 19. statutory provisions, 37-90. presumptions as to acts of notaries, 29. return of depositions after taking, 330, 346. statutory provisions, 350-402. seal of notary, necessity, 26. statements on information and belief, 110. 28 434 INDEX. [KErEEENCEB ABE TO SKCTIONB EXCEPT Ji» IITOICUTBD.] DEPOSITIONS — continued. statutory provisionB, 350-403. stenographers, 342. taking outside of state, power of oflSegr taking, 335. time of taking, 335. statutes, 350-402. waiver of objections to taking, 349. who can take, 333. statutory provisions, 350-402. witness, compelling attendance, 339. statutes, 350-402. who may be examined, 329. DEPUTIES delegation of notary's duties, power, 18. DESCENT title by descent, 193. DISQUAUFICATION see Qualifications. DOWEE AND CURTESY definition, 182. statutory provisions, 272-326. DURESS bills and notes, effect of duress, 418. deeds, validity, 215. DUTIES see Powers ahd Duties. E EASEMENT definition, 187. ELECTIONS contests, depositions, notice, statutes of Illinois, 363. ELIGIBIUTT commissioners of deeds, statutory provisions, 508-559. disqualification of notaries, see Qualifications. general qualifications of notaries, 8. incompatible offices, 10. statutory provisions, 37-90. women as notaries, 9. EMBEZZLEMENT agency of notaries, 6. EMBLEMENTS definition, 188. EMINENT DOMAIN definition, 197. ENGLAND appointment of notaries, manner, 6. origin and history of notaries, 2. INDEX. 435 [BKIEBENCE8 ABB TO SECTIONB EXCEPT AS INDICATED.] EEASUBE deeds, effect of alterationi, 214. ESCBOW definition, 211. ESTATES definition, 179. determinable fees, 180. dower, see Dowbe and Cuetbst. fee simple estates, 180. fee tail estates, 180. joint tenants, see Joint Tenants. life estates, 181. redemption by life tenant, 225. merger of estates, 184. realty, estates in, 179. remainders, 180. statutory provisions, 272-326. tenancy in common, see Tenants in Common, titles to real estate, see Titles. trust estates, 183. ESTATES OF DECEDENTS see ExEODTOBs and Administratobs. EVIDENCE additional authentication, proof of official character of notary, 27. affidavits, sufficiency, statements on information and belief, 110. certificate of notary as evidence, 28, 450. acknowledgment, 262. statutory provisions, 37-90. deeds, how proved, 217. property conveyed, evidence, 209. impeachment of notary's certificate, 28. judicial notice, see Judicial Notice. jurat, recital of official character of officer, effect, 113. presumption of affixing seal, 113. objections, taking of depositions, 348. presumptions, as to acts of notaries, 29. bills of exchange, presumption of acceptance, retention of bill, 425. competency of witnesses, 217. in favor of jurat to affidavit, 113. notary's certificate of protest, 438. record of protest as prima facie evidence, 439. privileged communications, impeachment of notary's certificate, 28. record of notary's acts, evidence, 22. EXECtTTIONS definition, purpose, 238. statutory provisions, 272-326. 436 INDEX. [BETEBERCKS ABE TO SECTIONS EXCEPT AS IM>ICATEa>.] EZECUTOES AND ADMHOSTBATOSS definition and purpose, probate of willa, ZiS. EXEMFIIOKS homesteads, see Homesidbad^ F FA1.S1: swKABnra definition, 115. FEES see CoMPBNSATioir. FENCES certificate, form, 560. FOBECLOSXTBE OF MOBTOAaEB see MOETGAQES. FOBEION NOTABIES affidavits, certificate of authority to administer oaths, 114. proof of official character, additional authentication, 27. FOBFEITXTBE removal or suspension of notaries, power, 14. FOBOEBY liabilities of notaries, statutorj provisions, 37-00. notary's bond, liabilities, 33. FOBMS abstracts of title, 560. acknowledgments, 560. affidavits, 560. affirmations, 560. agreement for deed, 560. assignments, 560. bonds, 560. certificate of acknowledgment, plac* on instrument, 260. certificate to deposition, 343. contracts, 560. deeds, 560. formal parts, 306. depositions, 560. statutory provisions, 350-402. employment certificate, 560. leases, 560. marine protest, 560. mortgages, 560. oaths, 560. statutory requirements, 110-109. pensions, 560. protest, 560. proxies to vote, 560. registration of title, 560. INDEX. 43? [BEFEBEITCEB ASE to sections except as IimiCATED.] FOB.MS — continued. release, 560. sales, 560. subpoenas, 560. wills, 560. FRANCE origin and history of notaTies, B, FRAUD AND UNDUE INFLUENCE acknowledgments, disqualification of of&cers taking, 270, 271. impeachment of certificates, 267. person acknowledging not present, 253. deeds, validity, 215. impeachment of notary's certificate, 28. voluntary conveyances, 177. FRAUDS, STATUTE OF contracts, requisites of writing, 171. real estate, agent 's contracts, 219. FRAUDULENT CONVEYANCES definition, fraud in general, 176. FREE PASS notary's liabilities in general, 32. a GERMANY origin and history of notaries, 2. GOVERNOR appointment of notaries, statutory provlsiens, 37-90. GRACE days of grace, see Days of Grace. H HEIRS estates, see Estates. legatees, definition, 239. relationship, affinity and consanguinity, 194. title by descent, 193. wills, execution and form, 24.2. HISTORY notaries, origin and history, 2. HOLIDAYS depositions, time of taking, 335. statutory requirements, 451-504. HOLOGRAPHIO WILL definition, 239. HOMESTEADS conveyances by married women, definition, extent of right, 186. 438 INDEX. [bifebences abb to sections except as indicated.] HOlMESTIiADS— continued, mortgages, 223. statutory proyisions, 272-326. HUSBAKD AND WIFE acknowledgments, clerical errors, effect, 259. forms, 560. private examination of married woman, 254, taking by telephone, 253. community property, notary's liability in general, 32. conjugal partnership, statutes of Porto Eieo, 313. contracts and conveyances between, 221. conveyances of married women, 232. statutory provisions, 272-326. dower and curtesy, 182. I IMFOBTANCE notary's office, importance of, 20. INFANTS conveyances, age to convey, statutory provisions, 272-326. eligibility as notary, 8. INHEBITANCE see Heibs. INSOLVENCY protest of bills and notes, necessity, 438. INTEREST statutes, 451-504. INTEBPBETEES depositions, 341. INTEEBOGATORIES depositions, 332. manner of taking, 330. statutory provisions, 350-402. INTOXICATIPN ' validity of deeds, 215. INVENTORIES duties of notaries, statutory provisions, 37-90. ITALY origin and history of notaries, 2. J JOINT TENANCY definition, 185. JXTDGES acknowledgments, who may take, statutes, 272-326. aflidavits and oaths, who may take and administer, statutes, 116-169. INDEX. 430 [befeski^cib abb to ssctionb except ai irdicateid.] XODOMENTS definition, natnre, 228. liens of, statutory provisions, 272-326. JTTDICJIAIi NOTICE authority to administer oaths, 114. definition, 30. JUDICIAL SALES caveat emptor, definition and purpose, 334. definition, nature, 226, JURAT see Affidavits. J definition, 23, 113. essentials, 113. seal of notary, necessity, 26. signature of notary, necessity, manner gf affixing, 34. sufficiency of affidavits, 109. JXTMSDICTION acknowledgments, necessity of designating officer's character and jurisdiction, 280. place of taking, 258. affidavits, venue or caption, 111. notaries; place of performing duties, 17. presumptions as to acts of notaries, 39. statutory provisions, 37-90. JUSTICE OF THE PEACE affidavits and oaths, who may administer, statutes, 116-169. justices as ex officio notaries, 15. notaries as ex officio justices, 19. statutory provisions, 37-90. L LEASES assignments, forms, p. 377, No. 116. definition, essentials, 237. forms, pp. 395-398, Nos. 158-160. LEGISLATURE affidavits and oaths, who may take and administer, statutes, 116-169. LETTERS see POSTOFFICE. LETTERS EOGATORT definition, 337. power to issue, 328. LIABILITIES acknowledgments, clerical errors, 2S9. essentials, duty of officers, 249. false certificates, 351. 440 IITOEX. [EEFEEENCES ABE TO SECTIONS EXCEPT AS INDICATED.] LIABIUTIES— continued. knowledge of identity of person appearing, introductions, 250. negligence of officers, 248. personal appearance of person, necessity, 352. bills and notes, liability of notaries, 419. commissioners of deeds, statutory provisions, 508-559. notary's liabilities in general, 32. official bonds, liability of notaries, 33, penal liabilities of notaries, 84. perjury, 115. statutory provisions, 37-90. LICENSES taxation of notaries, 35. UENS definition, nature and purpose, 230. taxes, tax sales, 232. UMITATION OF ACTIONS bills and notes, actions on, statutes, 451-504. statutory provisions of various states, 272-326. titles to real estate, limitations, prescriptions, 196. LIS PENDENS definition, 233. LOST INSTRUMENTS depositions, 346. MANDAMUS issuance of notary's commission, enforcement, 7. MARINE PROTEST definition, nature and essentials, 441. duties of notaries, statutory provisions, 37-90. forms, pp. 399-401, Nos. 162-163. MARRIED WOMEN see Husband and Wife. MASTER AND SERVANT contract with employee, forms, p. 380, No. 122. MECHANICS' LIENS affidavits, sufficiency, 109. definition, nature and purpose, 231. statutory provisions, 272-326. MERGER estates, merger of, 184. MINERAL LANDS power to administer oaths, adverse claimants to land, 96. INDEX. 441 [BETEBENCBS ABE TO SECTIONS EXCEPT AS INDICATED.] MOBTGAaES affidavits, form, p. 370, No. 91. assignments, forms, p. 377, No. 117; p. 403, No. 178. deeds, definition, 204. definition, nature and essentials, 223. disqualification of notary, interest in transaction, 21. relationship to party, 21. foreclosure, practice, 225. forms, p. 390, No. 152; pp. 401-405, Nos. 165-175. homestead, mortgage of, 223. manner of execution, trust deeds, 223. notary's bond, liabilities, 33. oaths, statutory requirements, 116-169. penal liabilities of notaries, 34. redemption, 225. redemption by life tenant, 225. statutory provisions, 272-326. satisfaction, 224. trust deed defined, 205. MXTNICIPAL CORPORATIONS oaths, administration, disqualification of notary, 99. officers, acknowledgments, who may take, statutes, 272-326. affidavits and oaths, who may take and administer, stal^ites, 116-169. compensation of notaries, extra pay, 36. N NAME signature of notary, 24. NATIONAL BANKS see Banks. NEGUGENCE acknowledgments, clerical errors, 259. duty of officers, 248. false certificates, 251. knowledge of person's identity, effect of introductions, 250. person acknowledging not present, 252. notary's liabilities in general, 32. penal liabilities of notaries, 34. notice of dishonor, time of giving, 449. NEGOTIABLE INSTRUMENTS eh. V, 403-450. acceptance, definition, 421. affidavits, form, p. 367, No. 83. 442 INDEX. [BEFEBENCES ABE TO SECTIONS EXCEPT AS INDICATED.] N£aOTIABI.£ INSTETJMENTS— continued, agency of notaries, 5. banks, liability from employment of notary, •120. bills of exchange, acceptance, definition, 421. manner, 424. presumption from retention of bill, 425. acceptor, contract and liability, 415. definition and nature, 407. drawee of bill or check, contract and liability, 414. presentment for acceptance, suflfieiency, 423. drawer of bill, contract and liability, 413. liability for damages, 417. indorsers, 407. liability for damages, 417. inland and foreign bills, 407. damages, 417. necessity of protest, 436. notice of dishonor, excuses for not giving notice, 443. necessity, 442. to whom given, 446. presentment for acceptance, necessity, 423. place, 431. sufficiency, 423. protest, record as prima facie evidence, 439. time, place and manner, 438. uniform negotiable instruments act, 450. certificates of deposit, definition and nature, 408. checks, contract of drawee, 414. definition and nature, 408. presentment for payment, 446. damages, liability of parties to bill, 417. protest, statutory requirements, 451-504. days of grace, existence and purpose, 410. statutes, 451-504. drafts, definition and nature, 409 duress, effect, 412. holidays, 411. indorsers, contract and liability, 416. contract as maker, 412. notice of dishonor, form, essentials, 445. excuses for not giving, 443. manner of giving notice of dishonor, 448. necessity, 442. INDEX. 443 [BKFBKKNCES ABE TO SECTIOKS KXCEPT AS INDICATED.] MXOOTIABLE INSTRUMENTS— continued. to whom notice of dishonor is given, 446. waiver of notice of dishonor, 444. who may give notice of dishonor, 447. presentment for payment, necessity, 426. suflaciency, 427-433. protest, object, 435. marine protest, 441. national bank notes, protest, 440. negotiable paper in general, definitions, 404. notary's bond, liabilities, 33. notary's certificate as evidence, 450. notary's duties, 418. notary's liabilities in general, 32, 419. notice of dishonor, certificate of notary as evidence, 450. excuses for not giving notice, 443. form of notice, sufSciency, 445. manner of giving, ,448. necessity, 442. time of notice, 449. to whom given, 446. waiver of notice, 444. who may give notice, 447. noting or initial protest, 442. powers and duties of ilotaries generally, 19. statutory provisions, 37-90. presentment for payment or acceptance, necessity, 422. statutory requirements, 451-504. promissory notes, definition and nature, 405. maker of note, contract and liability, 412. notice of dishonor, necessity, 442. to whom given, 446. presentment for payment, bank's duty to apply funds, 434. by whom made, 428. excuses for delay, 430. manner, 433. necessity, 426. place, 431. time, 429. to whom presented, 432. protest, necessity, 436. Uniform Negotiable Instruments Act, 450. 4M INDEX. [SKFEEENCES ABE TO SECTIONS EXCEPT AS INDICATED.] UEaOTIABLE INSTEUMENTS— continued, protest, authority to make, 437. bank's liability, employment of notary, 420. definition, nature and object, 435. evidence of nonpayment, 429. forms, pp. 406-408, Nos. 180-183. liability of notary, 419. manner, time and place, 438. national bank notes, 440. necessity, 436. notary's duties, 418. presumptions as to acts of notaries, 29. record as prima facie evidence, 439. seal of notary, necessity, 26. statutory requirements, 451-504. -waiver of notice of dishonor, 444. record of notary's acts, 22. statutory requirements, 451-504. uniform negotiable instruments act, 450. NOTICE affidavits, statutory requirements, 116-169. publication, sufficiency of affidavits, 109. depositions, notice to take, 338. manner of taking, statutory provisions, 350-402. objections to notice, 348. notice of dishonor, see Negotiable Instruments. NTJNCJXJPATIVE WILL definition, 239. O OATHS administration by government officers, fees, 105. administration, taking of deposition, 340. statutes, 350-402. certificate of authority to administer oaths, 114. commissioners of deeds, administration of oaths, 507. duties, 505. statutory requirements, 508-559. corporations, 106. de facto notaries, 16. definition, 91. disqualification preventing notary from acting, 99. interest in transaction, 21. forms, pp. 370-374, Nos. 92-110; p. 410, No. 189. state and other officers, 103. statutory provisions, 37-90. INDEX. 445 [BEPKBENCES ABE TO SECTIONS EXCEPT Ag INDICATED.] OATHS — continued. United States government officers, 102. manner of administration, sufficiency, 100. telephoned oaths, 101. notary's oath, forms, p. 37i, No. 94; p. 410, No. 18(). necessity in general, 11. statutory provisions, 37-90. notary's power to administer, 19, 92, 93. statutory provisions, 37-90. power to administer, 93. adverse claimants to mineral lands, 96. applicants for pensions, 97. national bank officers, 98. United States government claims, 95. United States laws, 94. statutory requirements, 116-169. witnesses, oaths of, 104. OBJECTIONS depositions, objections to taking, evidence and witnesses, 348. statutory provisions, 350-402. waiver of objections to taking, 349. OCCUPATIONS taxation of notaries, 35. OFFICEES acknowledgments, disqualification of officer taking, 269. officers of corporations, 271. stockholders, 270. necessity of signature and designation of character, 260. place of taking, jurisdiction of officer, 258. statutory provisions, 272-326. who may take, 257. statutes, 272-326. affidavits, what officers may take, statutory provisions, 116-169. commissioner of deeds, 505-507. depositions, authority of officers to take, 333, 334. disqualification of notaries, 336. taking outside of state, power of officer, 335. who may take, statutes, 350-402. witnesses, compelling attendance, 339. ex officio notaries, 15. fees, taking depositions, 347. incompatible offices, notaries ineligible, 10. judicial notice of acts, 30. notaries as ex officio justices, 19. notaries as public officers, 4. 446 INDEX. [BEFBBEjrCES ABK TO SECTIOXS KXCBPT AS INDICATED.] OFFICEBS — continued, oaths, administration by government officers, fees, 105. forms, pp. 370-372, Nos. 92-100; p. 410, No. 189. state and other officers, 103. United States government officers, 102. who may administer oaths, 93. statutory provisions, 116-169. oaths of notaries, 11. office of notary, eh. 1, 1-36. women as notaries, 9. OLOaRAPHIC WILL definition, 239. ORIGIN notaries, origin of, 3. P FASTTES actions on notary's bonds, 33. objections to depositions, 348. PAETNEESHIP conveyance by partners, 230. disqualification of notary, interest in transaction, 21, notice of dishonor, to whom given, 446. PATENTS inception of titles, 202. PENALTIES acknowledgments, false certificates, 251. false attestation, affidavits and oaths, statutes, 116-169. penal liabilities of notaries, 34. statutory provisions, 37-90. PENSIONS forms, p. 411, No. 194. power to administer oaths, applicants for pensions, 97. PEEJTTBY affidavits, sufficiency, 109. statements on information and belief, 110. definition, 115. false affidavits, statutory requirements, 116-169. false swearing, definition, 115. oaths, manner of administration, 100. use of telephone, 101. subornation of perjury, definition, 115. PERPETUATION OF TESTIMONY see Depositions. INDEX. 44'? [KETBBKNCKS ABE TO SECTIONS EXCEPT AS INDICATED.] POSTOFFICE bills of exchange, manner of acceptance, 424. notice of dishonor, manner of giving, 448. time of giving, 449. return of depositions after taking, 346. POWERS AND DUTIES authority to protest bills and notes, 437. commissioners of deeds, statutes, 508-559. delegation in general, deputies and clerks, 18. disqualification because of interest, 21. general powers of notaries, 19. importance of notary's office, 20. oaths, administration, 92, 93. United States, Laws, 94. origin of notaries, 2. relationship preventing notary from acting, 21. statutory provisions as to notary's powers and, duties, 37-90. POWERS OF ATTORNEY agent's contracts concerning realty, 219. deeds, form, 206. statutory provisions, 272-326. PRESUMPTIONS see Evidence. PRINCIPAL AND AGENT see Agency. PRIVATE SEALS see Seals. PUBUO OFPICERS see Offtceeb. Q QUALIFICATIONS de facto notaries, 16. disqualification because of interest in transaetion, >1. acknowledgments, 268-271. depositions, 336. oaths, administration, 99. eligibility of notaries in general, 8. relationship to parties, disqualification, 81. QUITCLAIM DEEDS see Conveyances. QUO WARRANTO de facto notaries, 16. 448 INDEX. [BEFEBEirCXB ABE TO SECTIONS EXCEPT AS INDICATED.] B SEAI. ESTATE agent's contracts concerning realty, 219. conveyances, see Conveyances. liens, 200, 230. sales, see Vendor and Puechasek. SECOBDS acknowledgment of deeds, necessity, 247. ^ affidavits required in examination of abstracts of title, 108. compensation of notaries, effect of failure to keep register, 30. deeds, recording, 216. statutory provisions, 272-326. duty when notary is removed, or term expires, 14. evidence, notary's record as, 22. judicial notice of appointment, 30. notary's record of acts, 22. statutory provisions, 37-90. satisfaction of mortgagei, 224. RECOVERY, ACTION FOR nature of right, 226, 227. REDEMPTION see MOETGASKS. REFORMATION OF INSTRUMENTS wills, 242. REGISTRATION OF TITLE forms, p. 418, No. 305. RELATIONSHIP acknowledgments, disqualification of officer taking, 269. disqualification of notary, 21. oaths, administration, disqualification of notary, 99. RELEASE definition, 236. forms, p. 385, No. 128; p. 406, No. 176. REMOVAL FROM OFFICE acknowledgments, false certificates, 251. deposit of records, 22. statutory provisions, 37-90. notary's liabilities in general, 32. power to remove, hearing and notice, 14. seals, duty with respect to, 25. statutory provisions, 37-90, ROME origin of notaries, 2. INDEX. 449 [BErBBENCBS ABE TO SECTIONS BIXCEPT AS INDICATED.] S SAXES biUs of sale, form, p. 374, No. 111. definition, bills of sale, conditional sales, chattel mortgages, 172. real estate, see Vendor and Pubohaseb. SATISFACTION mortgages, see Mobtqaobb. SCHOOLS affidavits, forms, p. 368, No. 8fl. SCOTLAJSD origin and history of notaries, 2. SEAI. acknowledgments, necessity, 260. affidavits, statutory requirements, 116-169. bills of sale, definition, 172. certificate of acknowlodgnient, 246. commissioner of deeds, 506. certificate of authority to administer oaths, 114. certificate to deposition, 343. commissioners of deeds, 505. statutes, 508-559. deeds, necessity, 213. definition, 25. depositions, return after taking, 348. judicial notice, 30. jurat, effect of letters "N. P." when seal nttacbeil, 113. necessity of official seal, 113. necessity, 26. notice of dishonor," esseuti.ils, 445. presumptions as to acts of notaries, 29. private seals, statutory provisions, 272-326. protest, manner add essentials, 438. record as prima facie evidence, 439. requisites of notary 's seals, 25. statutory requirements, 37-90. statutory provisions, private seals, 272-326. SECEETAEY OF STATE commission of notary, duty to issue, 7. proof of notary's official character, additional authentication, 27. SECTIONS government surveys, 201. SIGNATUBE acknowledgments, necessity of officer's signature, 260. affidavits, caption or venue, 111. signature of affiant, 112. certificate, manner of signing by notary, 34. 29 450 INDEX. [BEFEEENCBS are to SECnONS EXCEPT AS INDICATED.] SiaNATXJEE— continued. certificate of acknowledgment, 246. certificate to deposition, 343. depositions, statutory provisions, 350-402. witnesses, signing deposition, 342. filing with bond, necessity, 34. filing with stated officer, necessity, 260. jurat, necessity of signature of officer, 113. notary'? signature, statutory provisions, 37-90. notice of dishonor, essentials, 445. protest, manner, 438. wills, execution and form, 242. STATES jurisdiction of notaries, 17. oaths of officers, form, 103. STATUTE OF FRAUDS see Fbatjds, Statute op. STATUTE OF LIMITATIONS see Limitation or Actions. STATUTES acknowledgments, disqualification of officer taking, 270. necessity of complying with statutes, 255. statutory provisions, 272-326. affidavits, statutory requirements, 116-169. bills and notes, statutory requirements, 451-504. uniform negotiable instruments act, 450. commissioners of deeds, statutory requirements, 508-559. construction, conveyances by married women, 222 depositions, notice to take depositions, 338. right to take, 328. statutory provisions, 350-402. notary's office, requirements, statutory provisions, 37-90. STENOGRAPHERS depositions, fees of officers, 347. writing of depositions, 342. SUBORNATION OF PEEJUEY definition, 115. SUBPCENA definitions, 327. SUCCESSION inventory, compensation of notaries, 36. INDEX. 451 [EEFEEENCES ABE TO SECTIONS EXCEPT AS INDICATtB.] SUNDAY bills and notes, computation of time, 411. maturity on Sunday, statutes, 451-S04. SURVEYS United States system, 201. SUSPENSION notary's failure to renew bond, IS. power to suspend, 14. removal, see Removai, fbom Office. SWEAB definition, 115. TAXES deeds, tax deed defined, 305. delinquent tax list, caption of affidavit, 111. liens on real estate, 2.32. redemption, statutory provisions, S72-326. statutory provisions, 37-90. taxation of notaries, 35. TELEPHONE acknowledgments, taking by telephone, 253. oatlis, manner of administration, use of telephone, 101. TENANTS IN COMMON conveyances by partners, 220. definition, 185. TERM OF OFFICE commissioners of deeds, statutes, 508-559. notary's term of office generally, 13. de facto notaries, 16. removal from office, 14. statutory provisions, 37-90. TIME bills of exchange, manner of acceptance, 424. presentment for acceptance, sufficiency, 423. presumption of acceptance, retention of bill, 495. computation, days of grace, holidays, 410, 411. depositions, time of taking, statutes, 350-402. notice of dishonor, form, essentials, 445. time of giving, 449. to whom given, 446. presentment for payment, time, 423. excuses for delay, 430. protest of bills and notes, 438. 453 INDEX. [EEFEEENCES ABE TO SECTIONS EXCEPT AS INDICATED.] TITLES adverse possession, 196. bad titles, 191. covenants for title, 212. definition, 190. descent, 193. examination, 300. good and marketable titles, 181. inception of title, 202. mode of acquisition, 19. patents, 202. prescription and limitations, 196. purchase, title by, 195. registration, Torrens system, 218. what law governs, conflict of law, 190. TOEEENS TITLE system of registration of titles, 218. TOWN PLATS acknowledgments, 266. TOWNSHIPS surveys, 201. TRUSTS definition, trust estates, 183. trust deeds, 205. statutory provisions, 272-326. U UNDUE INFLUENCE see PIeaud and Undue Intluence. UNITED STATES manner of appointment of notaries, 9. nature of ofi&ce of notary, 3. oaths, administration by government officers, fees, 105. form of oath of government officers, 102. power to administer, 94-98. surveys, 201. V VENDOE AND PUBCHASEB see Abstkacts of Title. contracts, forms, pp. 375-376, Nos. 113-114; p. 378, No. 118; p. 380, No. 123. requisites, writing, 171. deeds, see Convestances. how real estate is sold, 173. titles to real estate, see Titles. VEEIFICATION authority of commissioner of deeds, 507. INDEX. 453 [EEFEEENCES ABE TO SECTIONS B3CEPT AS INDICATED.] VESSELS marine protest, 441. W WAIVER bills and notes, -waiver of notice of dishonor, 444. definition, 235. depositions, waiver of objections to, 349. WILLS certificate of notary, eSect, 28. codicil, definition, 240. definitions, 239. duties of notaries, statutory provisions, 37-90. execution, form, 242. forms, pp. 414-416, Nos. 200-203. persons who can devise, 241. probate, executors, 243. property that can be devised, 241. WITNESSES acknowledgment of deeds, necessity, 247. compelling attendance, statutes, 350-402. deeds, how proved, 217. necessity of witnesses, 213. statutes, 272-326. definition, 327. depositions, 327-349. compelling attendance of witnesses, 339. objections to taking, 348. who may be examined by deposition, 339. dis.qualification, impeachment of notary's certificate, 38. oaths of witnesses, 104. manner of administration, sufficiency, 100. taking of deposition, 340. objections, taking of depositions, 348. powers of notaries, statutory provisions, 37-90. probate of deeds, 263. protest, manner and essentials, 438. subpoenas, definitions, 327. form, p. 414, Nos. 198-199. wills, execution and form, 243. statutory provisions, 272-329. WOMEN de facto notaries, 16. eligibility as notaries, 9. statutory provisions, 37-90. presumptions as to acts of notaries, 29.