the precise language of the statute, but is to be liberally construed, and is enough if it shows a substantial compliance with the statute. (Cited, with approval, in Smith v. Boyd, 101 N. Y. 472.)

In Holland v. Hotchkiss, 162 Cal. 366, 123 Pac. (1912) 258, it was held that an officer's certificate that a grantor "acknowledged to me" the execution of the deed is not bad on account of the words "to me," though they were not contained in the statutory form then in force; the effect being the same, and such variation immaterial. (1914.)

NOTE. For extensive annotation entitled "sufficiency of certificate of acknowledgment" see 29 A.L.R. 9191028.

3425a. Bank's liability for notary's false acknowledgment. Our Assistant Cashier acts as Notary Public and is paid a salary for his services as Assistant Cashier and the Notary fees come to the bank out of the proIceeds of the different escrows which he handles. It might be that in some instances he takes the fees for acknowledgments made to parties who have acknowledg ment work done other than those who have an escrow.

He is called upon to acknowledge deeds and mortgages in the sale of property many times for people who have moved here from the East and who are brought in by the Real Estate Agents.

I am desirous of having your opinion relative to the bank's financial responsibility in the acknowledgment of deeds or mortgages. The Notary is under a bond and a representative of the state in acting in that capacity, still he is in the employ of the bank.

Kindly give me your opinion as to the liability of the bank on any of these acknowledgments taken, should it turn out that the man buying or selling is not the party he represents himself to be.

Opinion: The situation described, as I understand, is this: Deeds and mortgages are executed between third parties and deposited in escrow with the bank to be delivered upon performance of some condition. The acknowledgments of such instruments are taken before the bank's notary, whose fees go to the bank. In case the notary mistakenly certifies as to the indentity of a party making an acknowledgment and damage results, the question is asked whether the bank can be held responsible.

So far as the notary himself is concerned, it has been held that if a notary certifies an acknowledgment without knowledge as to identity of the party and without careful investigation, he is negligent and he and his sureties are liable for all resulting damage. Barnard v. Schuler, 100 Minn. 289, 110 N. W. 966. But it has been held in California that where a person executing a mortgage has been introduced to the notary by the mortgagee's agent and the notary sees the person so introduced execute the mortgage by signing it with the name given him by the mortgagee's agent, who witnesses the signature, the mortgagee cannot on discovering that the mortgage was not executed by the owner of the land, maintain an action against the notary's sureties for his alleged negligence. The mortgage is estopped by the act of his own agent. Overacre v. Blake, 82 Cal. 77, 22 Pac. 979.

There being a liability of a notary where he is negligent in taking and certifying a false acknowledgment, would the fact that the notary is an employee of the bank and the bank receives his fees, charge it with liability in any such case?

Where a notary is negligent in connection with the collection of commercial paper and charging the parties thereon, the courts have rendered conflicting decisions as to the liability of the bank for the acts of its notary. Some courts hold that, being a public officer, he is alone liable and the bank is not chargeable. Britton v. Nicolls, 104 U. S. 757, 26 L. ed. 918; Baldwin v. Bank, 1 La. Ann. 13: Citizens Bank v. Howell, 8 Md. 530; Warren Bank v. Suffolk Bank, 64 Mass, 1082; First Nat. Bank v. Butler, 41 Ohio St. 519. And

it has been held to make no difference that the Notary is also an employee of the bank. May v. Jones, 88 Ga. 308, 14 S. E. 552, 15 L.R.A. 637 and note; First Nat. Bank v. German Bank, 107 Iowa, 543, 78 N. W. 195, 44 L.R.A. 133. On the other hand, the courts of other states hold that the bank which receives paper for collection and intrusts it to a notary, assumes the duty of a collecting agent and is liable for the notary's defaults. Davey v. Jones, 42 N. J. Law 28; Ayrault v. Pacific Bank, 47 N. Y. 570; Thompson v. Bank, 3 Hill (S. C.) 77. And where a notary was employed by a bank to do all its notarial business and gave bond to the bank for the faithful discharge of his duties, the bank was held liable for his negligence in causing the discharge of an indorser, as in this instance he was not acting in the character of an independent officer in the discharge of a duty devolved upon him by law, but as agent of the bank. Gerhardt v. Boatman's Sav. Institution, 38 Mo. 60.

The above citations are not exhaustive of the authorities on both sides of the proposition.

However, in the present case, the bank is not performing a duty as agent in the collection of commercial paper, part of which duty requires it to select a notary to protest the paper, but its function is to receive on deposit in escrow deeds and mortgages for future delivery. Apparently it is no part of the bank's duty as agent of the parties to provide for the preparation of such papers or select a notary to take the acknowl edgments. But as matter of convenience, the parties execute and acknowledge such papers at the bank and the bank's notary, being conveniently at hand, is employed by them to take the acknowledgment. In such situation, it seems to me, there is no agency or contractual relation on the part of the bank which would make it responsible on this ground for the neglect of the notary. It is not the bank through its employee which is performing the service of taking the acknowl edgment. It is the notary in his official capacity charged by law with this duty, who is performing the service.

The bank, then, is not responsible for the negligence of the notary unless the taking of the fees by the bank would make it a co-principal with the notary and as such responsible. I do not think it would be so held, for it is beyond the power or function of a bank, acting through a public official, to take an acknowledgment. Furthermore, the bank legally has no right to the fees. In a well-considered decision by the Court of Appeals of the District of Columbia (Hopkins v. Ohio National Bank, 8 App. Cas. D. C. 146) a notary sued the bank for notary fees earned by him and paid to the bank during a period of over two years under an agreement whereby, in consideration of his employment by the bank, he would pay over one-half of his legal fees to the bank. The court held the bank must refund the fees and that there was no sufficient consideration for the notary's agreement. It said the notary is a publie officer, his fees are prescribed by statute, the notary himself has no right to ask more or less than the fees prescribed, nor has any person for whom the notary performs service, the right to require such services for less than prescribed fees. There was, therefore, no valid consideration for the notary's agreement, nor could mere favoritism in selecting the notary in preference to others to perform the work be regarded as constituting a valid consideration. Furthermore, the cour held that even if the agreement could be regarded as founded upon consideration, it would be in contravention of sound public policy and void.

Even though a bank receives under an illegal agree ment fees paid a notary for taking acknowledgments. this is a matter between bank and notary and the act of taking such acknowledgments is that of the notary alone in his official capacity and for negligence in performing such official service, he alone would be liable. The precise point has never come before a court for decision. but in my opinion the bank would not be

Entering protest

No charge for any service not listed, which list contains other items than those printed above but none relating specifically to protest.

The following statement by the Supreme Court is interesting:

Statute fixing notaries' fees "is antiquated and defective in many respects." "We are informed by the record that the statute in question has been uniformly disregarded by notaries public of the parish of Orleans." Succession of Morgan, 124 La. (1909) 755.

Maine-Rev. Stat. (1916), c. 40, § 32

Protest, notifying and recording

Maryland-Anno. Code (1924), Art. 36, § 24

$1.50 .20 .20

Registering protest

no protest is made.

Acknowledgments

Oaths, affidavits, etc.

1.00

NOTE. "Noting" evidently has reference to case where

For each mile traveled in serving notice

Nevada-Rev. Laws (1912), §§ 2004, 2018

Drawing and copying protest of note, bill, draft

Notice of non-payment or non-acceptance Drawing affidavit, deposition or other paper for which provision not made, per folio Acknowledgment or proof of deed or other instrument, including seal and certificate, for first signature

3429a. Excessive notary's fees in California-Desirability of uniform schedule.-I have before me a check deposited in our bank by one of our customers, drawn on S, California, which has been protested for insufficient funds and which brings to my mind something I have thought about a great many times during the past twenty years when we have had occasion to receive California checks which had been protested. This item carries with it a protest charge amounting to $5, about four times what it would have cost in New York City, and more than three and one half times what it would have cost in Ohio, and about three times what it would have cost in the state of Illinois. A "protest" in the state of California costs $2, a notary is allowed $1 fee for "recording" and $1 each for all "notices" so that the average protest in California costs the ordinary country bank or its customer, east of the Mississippi River, anywhere from $5 to $8, depending on the indorsers of the check. It seems to me there is no good reason why a notary public in the state of California should be allowed to make a living by protesting one check per day, penalizing the unfortu nate checkwriter with a notarial charge, which is little short of petty larceny, when notaries public in the largest business cities of the United States are entitled to only a nominal fee for the clerical work. Our good Government has been exceedingly careful in removing, through the Federal reserve system, all possibilities of a bank making even postage money in exchange charges and just why the state of California is allowed to maintain such excessive charges for protest is something I am not able to understand. Would it be pessible through the good offices of the American Bankers Association to bring about some kind of propoganda by which California laws regarding protests could be changed so that they would more nearly conform to the laws of other states in this particular matter?

Opinion: Upon looking over the statutory fees allowed notaries for protesting commercial paper it ap pears that California [Polit. Code, § 798] holds the record for size of fees. But there are other states not so far behind. Arizona for example, allows $2 for protest and registry and 50c for each notice. Hawaii $2 for protest and $2 for notice. Idaho $3 for protest. covering all services. Nevada $2 for protest and copy and $1 for each notice. New Jersey $2 for protest and registration but each notice is only 10c and postage. New Mexico $2 for protest but only 25e for each notice. Texas $2.50 for protest but only 50c for each

notice.

The above fees are of course much higher than pre vail in Ohio where the entire expense is $1; in New York where the protest is 75c, copy 25c and each notice 10c; and even in Montana where each protest is only $1 and each notice 25c. The fees vary in the different states and there is no uniformity.

The procedure by which our Association works with regard to promoting legislation or amendments in any particular state is first to agree upon a law or amendment and then recommend it for enactment through the state organization. Our Committee on State Legislation, of which I act as Secretary, takes up matters of this kind. Whether it would be desirable to urge upon the California Bankers Association that they seel; to have their law amended; or to go further and aim for a general adjustment of notarial fees in the different states on a uniform and reasonable scale, might properly be a subject for discussion at the meeting of our committee on State Legislation. The matter will b taken up with that committee for such action as seems best. (1925.)