Notary

NOTARY PUBLIC

An officer appointed by the executive or other appointing power, under the laws of different states. Notaries are of ancient origin; they existed in Rome during the republic, and were called tabcllioncs forenses, or personal publics. Their employment consisted in the drawing up of legal documents. They exist in all the countries of Europe, and as early as A. D. 803 were appointed by the Frankish bury.

25 Hen. VIII. c. 21, $ 4.

They are officers of the civil and canon law; Brooke, Office & Pr. of a Notary 9. In most of the states, notarios are appointed by the governor alone, in others by the governor by and with the advice of liis council, in others by and with the advice and consent of the senate; in the District of Columbia they are appointed by the President of the United States. A notary is a state officer; Com. v. Shindle, 19 Pa. Co. Ct. R. 258. As a general rule, throughout the United States, the official acts of a notary public must be authenticated by seal as well as signature; Tunis v. Withrow, 10 la.

305, 77 Am. Dec. 117; Donegan v. Wood, 49 Ala. 242, 20 Am. Rep. 275; Stout v. Slattery, 12 111. 1G2.

Their duties differ somewhat in the different states, and are prescribed by statute. They are generally as follows: to protest bills of exchange and draw up acts of honor; to authenticate and certify copies of documents; to receive the affidavits of mariners and draw up protest relating to the same; to attest and take acknowledgments of deeds and other instruments; and to administer oaths. Ordinarily notaries have no jurisdiction outside the county or district for which they are appointed; but in several states they may act throughout the state. By act. of congress, Sept. 10, 1850, notaries are authorized to administer oaths and take acknowledgments in all cases where under the laws of the United States justices of the peace were formerly authorized to act.

By act of Aug. 15, 187G, c.

304, notaries are authorized to Lake depositions and do all other acts in relation to taking testimony to be used in the courts of the United States, and to take acknowledgments and affidavits with the same effect as commissioners of the United States circuit courts may do.

R. S. § 1778.

They may protest national bank circulating notes; R. S. § 522G; take acknowledgment of assignment of claims upon the United States; id. § 3477; and administer oaths of allegiance to persons prosecuting such claims; id. § 3479.

By act of June 22, 1874, c.

390, notaries may take proof of debts against the estate of a bankrupt.

By act of Feb. 26, 1881, c.

82, reports of national banks may be sworn to before notaries, but such notary must not be an officer of the bank; It. S. § 5211.

By act of Aug. 18, 185G, c.

127, every secretary of legation and consular officer may, within the limits of his legation, perform any notarial act; R. S. § 1750. By act of April 5, 190G, every consular officer is required, within his consulate, to perform notarial acts. A statute which authorizes a notary public to commit for contempt a witness who has been duly subpoenaed to testify before him 58 Kan. 152, 48 Pac. 574, 36 L. R. A. 822, 62 Am. St. Rep. 614. The acts of notaries are respected by the custom of merchants and the law of nations. Their protest of a bill is received as evidence iu the courts of all civilized countries. Except in cases of protest of bills, the signature of a notary to an instrument going to a foreign country ought to be authenticated by the consul or representative of that country. The notaries of England have always considered themselves authorized to administer oaths; and the act of 5 & 6 Will. IY. has placed it beyond dispute. In this country they do not exercise the power unless authorized by statute, except in cases where the oath is to be used out of the state or in the courts of the United States. Upon general principle they cannot act in cases in which they are interested; 95 Am. Dec. 378, note; Ogden B. & L. Ass’n v. Monseli, 196 111. 554, 63 N. E. 1049, 89 Am. St. Rep. 330; Hayes v. Loan Ass’n, 124 Ala. o63, 26 South. 527, 82 Am. St. Rep. 216; Sample v. Irwin, 45 Tex. 567 (an attorney for either party). The acknowledgment of a deed to a corporation cannot be taken by a notary who is a stockholder and director in the corporation; Fu gm an v. Loan Ass’n, 209 111.

176, 70 N. E. 614.

One incorporator, who is a notary, cannot take the acknowledgment of another incorporator to the articles of incorporation; People v. Board, 105 App. Div. 273, 93 N. Y. Supp. 584. A mortgage should not be acknowledged before a notary wdio is a stockholder and oflicer of the mortgagee; Kothe v. Krag-Reynolds Co., 20 lud. App. 293, 50 N. E. 594; a notary who is a stockholder of a corporation cannot take a valid acknowledgment of his company; Bexar B. & L. Ass’n v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1079, 57 S. W. 583; nor one who is director, stockholder and assistant cashier of a bank; Wilson v. Griess, 64 Neb. 792, 90 N. W. 866. A protest by a notary who is a stockholder in the bank is invalid; Monongahela Bank v. Porter, 2 Watts (Pa.) 141; but where a notary public was intermediary between a borrower and lender on mortgage and took the acknowledgment of the mortgage, his act was held valid, there being nothing on the face of the papers to indicate to third parties that there was any incapacity to act; Jarvis- Conklin Mtg. Trust Co. v. Willhoit, 84 Fed. 515; and some cases hold that the mere fact that he is an olticer of a corporation does not make its acknowledgment before him invalid; Horbach v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 489, 37 L. R. A. 434; Read v. Loan Co., 68 Ohio St. 280, 67 N. E. 729, 62