CHAPTER XXXI.

NOTARY.

STATUTORY PROVISIONS.

By the statute of California, the governor is authorized to appoint a certain number of notaries for each of the respective counties, to hold office for two years, and until their successors are appointed and qualified.'

Each notary public, before entering upon the duties of his office, shall take the oath of office, which shall be endorsed on his commission, and shall enter into bond to the state in the sum of five thousand dollars, with sureties to be approved by the county judge of the county for which said notary may be appointed.

The bond, together with a certificate of the oath, shall be filed and recorded in the office of the county clerk of such county. See chapter on OFFICIAL BOND AND OATH.

He is also required to provide a notarial seal, with a device of the coat of arms of the state, and the name of his county,' with which to authenticate all his official acts. The statute provides, however, that all officers authorized to administer oaths and affirmations, may certify the same under their hands, without affixing their seals."

Notaries public shall have authority to demand acceptance and payment of foreign bills of exchange, and to protest the same for non-acceptance and non-payment, and to exercise such other powers and duties, as by the law of nations and according to commercial usages, or by the law of any other state, government, or country, may be performed by notaries public."

They may also demand acceptance of inland bills of exchange and payment thereof, and of promissory notes, and may protest

the same for non-acceptance or non-payment, as the case may require.'

Each notary public shall have power to take and to certify the acknowledgment or proof of powers of attorney, mortgages, deeds, and other instruments of writing, the acknowledgment of conveyance, or other instrument of writing executed by any married woman, to take depositions, and to administer oaths and affirmations in all matters, incident or belonging to duties of his office, and to take affidavits to be used before any court, judge, or officer of this state.'

He is required to keep a fair record of his official acts, except those mentioned in the preceding section, and to give, when required, a certified copy of any record or paper in his office, whether his own or those of any predecessor, to any person, upon payment of the fees thereof."

Upon expiration of his office, he must deliver his record and public papers to his successor. If he die, resign, be disqualified, or remove from the county, they must be delivered within thirty days to the recorder of the county, who must deliver them to the successor of such notary, when qualified.'

His seal, registers and official documents are exempt from execution; and, in case of his death or removal, his register and official documents must be lodged in the office of the county recorder for the use of his successor."

For any misconduct or neglect of duty in any of the cases in which any notary public appointed under the authority of this state, is authorized to act, either by the law of this state, or of any other state, government, or country, or by the law of nations, or by commercial usage, he shall be liable on his official bond to the parties injured thereby, for all damages sustained. For any wilful violation or neglect of duty, any notary public shall be subject to criminal prosecution, and may be punished by fine not exceeding two hundred dollars and removal from office.'

Any certificate or instrument, either printed or written, purporting to be the official act of a notary public of this state, and purporting to be under the seal and signature of such notary

public, shall be received as prima facie evidence of the official character of such instrument, and of the truth of the facts therein set forth.'

The original protest of a notary public, under his hand and official seal, of any bill of exchange or promissory note for nonacceptance or non-payment, stating the presentment by him of such bill of exchange or note for acceptance or payment, and the non-acceptance or non-payment thereof, and the service of notice on any or all of the parties to such bill of exchange or promissory note, and specifying the mode of giving such notice, and the reputed place of residence of the party to such bill of exchange or promissory note, and specifying the mode of giving such notice, and the reputed place of residence of the party to whom the same was given, and the post-office nearest thereto, shall be prima facie evidence of the facts contained therein. The certif icate of a notary public drawn from his record, stating the protest and the facts therein contained, shall be evidence of the facts in like manner as the original protest.'

FEES OF NOTARY PUBLIC.'

For drawing and copying every protest for the non-payment of a promissory note, or for the non-payment or non-acceptance of a bill of exchange, draft or check, two dollars. For drawing and serving every notice of non-payment of a promissory note, or of the non-payment or non-acceptance of a bill of exchange, order, draft or check, one dollar. For recording every protest, one dollar. For drawing an affidavit, deposition or other paper, for which provision is not herein made, for each folio, thirty cents. For taking an acknowledgment or proof of a deed or other instrument, to include the seal and the writing of the certificate, for each signature one dollar. For administering an oath or affirmation, twenty-five cents. For every certificate, to include writing the same, and the seal, one dollar.

In the counties of Sonoma, Santa Clara, San Mateo, Napa, San Joaquin, Los Angeles, Contra Costa, Sacramento, Alameda, Humboldt, Colusi, Santa Cruz, Santa Barbara, San Luis Obispo and Monterey, the following are fees of a notary public:"

For drawing and copying every protest for the non-payment

1 Wood's Dig. art. 2847, 2849.

2 id. 2396, 2442.

of a promissory note, or for the non-payment or non-acceptance of a bill of exchange, draft or check, one dollar and fifty cents. For drawing and serving every notice of non-payment of a promissory note, or of the non-payment or non-acceptance of a bill of exchange, order, draft or check, one dollar. For recording every protest, one dollar. For drawing an affidavit, deposition, or other paper, for which provision is not herein named, for each folio, twenty cents. For taking an acknowledgment, or proof of a deed or other instrument, to include the seal and the writing of the certificate, for the first signature, one dollar, and for each additional signature, twenty-five cents. For administering an oath or affirmation, twenty-five cents. For every certificate, to include writing the same, and the seal, one dollar.

By act of Congress, Sept. 16th, 1850, it is enacted, that in all cases in which, under the laws of the United States, oaths or affirmations, or acknowledgments may now be taken or made before any justice or justices of the peace of any state or territory, such oaths, affirmations, or acknowledgments may be hereafter also taken or made by or before any notary public duly appointed in any state or territory, and, when certified under the hand and official seal of such notary, shall have the same force and effect as if taken or made by or before such justice or justices of the peace. And all laws and parts of laws for punishing perjury, or subornation of perjury, committed in any such oaths or affirmations, when taken or made before any such justice of the peace, shall apply to any such offence committed in any oaths or affirmations which may be taken under this act before a notary public, or commissioner, as hereinafter named; provided always, that on any trial for either of these offences, the seal and the signature of the notary shall not be deemed sufficient in themselves to establish the official character of such notary, but the same shall be shown by other and proper evidence.

JUDICIAL DECISIONS.

When the condition of the bond of a notary public is, that he will "well and truly perform and discharge the duties of a notary public, according to law," held, that the clause embraces every act which he is authorized by law to do in virtue of his office.'

110 Cal. 239.

Where a notary public, in taking and certifying an acknowledgment to a mortgage, neglected to state in his certificate that the party acknowledging the same was known to him, or was identified by the testimony of a witness examined by him for that purpose, held, that such notary was guilty of gross and culpable negligence, and is responsible to the party injured for the damages resulting from such negligence.'

The purpose of a certificate of acknowledgment is, to entitle the deed to be recorded, and to be admitted in evidence, without further proof. Such certificate is utterly worthless for either purpose.1

Such neglect on the part of the notary is not excused by the fact that the certificate (which was a printed one with blanks) had been partially filled by the attorney of the grantee.1

If the notary read the certificate before signing it, the omission must have been known to him; if he did not read it, he is equally guilty of negligence.'

A notary holds himself out to the world as a person competent to perform the business connected with the office. By accepting the office and entering upon the discharge of the duties, he contracts with those who employ him, that he will perform such duty with integrity, diligence and skill.'

A party employing a notary is not obliged to determine upon the validity or legality of his acts.'

When a mortgaged debt has been lost by such negligence of the notary, the measure of damages is the amount of the debt and interest to be secured by the mortgage.'

The governor of this state cannot remove from office a notary duly appointed, before his full term of office has expired.'

Where the law requires a joint and several bond, and the officer filed a bond which was in form joint, and not joint and several, held, that he and his sureties cannot complain that their obligation is less burdensome than the law required. The absence of the statutory requirements does not invalidate the bond.'

DEMAND, PROTEST AND NOTICE OF DISHONOR OF COMMERCIAL PAPER.

The presentment and demand of commercial paper having days of grace, must be made within reasonable hours on the last